CHK (R, on the application of) v Secretary of State for the Home Department

Habeas corpus protects against detention without lawful authority, but it is not available for every restriction on liberty. A claimant must show actual detention or, assuming the concept can extend to bail, conditions amounting to a significant curtailment of freedom. Authorities concerning control over an existing detention do not create a separate test. Earlier cases permitting a person released on bail to challenge the underlying detention decision are no longer good law to that extent. Freedom to come and go, combined with periodic reporting, falls well short of the required threshold.

CHK, a Brazilian national subject to a deportation order, was released from immigration detention in 2018 and remained on immigration bail. His conditions included residence, reporting and work restrictions. He applied to the Administrative Court for habeas corpus. The deputy High Court judge refused the application on the papers, holding that the conditions did not sufficiently curtail his liberty. CHK appealed, arguing that the court should apply a broader concept of de facto control and raising further challenges concerning the deportation order and the procedure followed. The central issue was whether his bail conditions amounted to detention or an equivalent restraint sufficient to found habeas corpus.

Appeal dismissed. Zacaroli LJ gave the leading judgment, with Lewis LJ and Peter Jackson LJ agreeing.

1. Threshold for habeas corpus. The writ protects liberty where a person is detained without authority or where the purported authority exceeds the decision-maker’s powers. The court rejected the submission that de facto control supplied an independent test. The authorities relied on concerned responsibility for an applicant already physically detained by a third party, not whether restrictions themselves amounted to detention.
2. Earlier bail authorities. The line of older cases concerning persons who had been detained and then released on bail did not establish a general rule that habeas corpus could be used to challenge the underlying detention decision. To the extent that they did establish that rule, they were no longer good law in light of The Father v Worcestershire County Council [2025] 2 WLR 155 and the modern judicial review procedure.
3. Application to CHK. Even assuming that sufficiently restrictive bail conditions could amount to detention, CHK’s conditions fell far short. He was free to leave his residence and come and go at all times. A fortnightly reporting obligation was not a meaningful restriction comparable with the overnight curfew considered by analogy in R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4; [2021] AC 262. The absence of detention was sufficient to dispose of the appeal.
4. Other grounds. The court did not determine the grounds concerning the continuing validity of the deportation order because they were unnecessary. The procedural complaints also failed. CHK could have requested reconsideration under rule 87.4(2) of the Civil Procedure Rules 1998 but did not do so. Complaints about documents, certification and the extension of time could not affect an application fatally defective for want of detention. The extension decision disclosed no legal error and was in any event a case-management decision.

Jackson LJ added that habeas corpus is of the highest constitutional importance, but its privileged procedure should be met firmly where the remedy is abused. He noted the paper-dismissal procedure and oral-hearing safeguard under rule 87, together with the unrestricted appeal route under section 15 of the Administration of Justice Act 1960, rule 52.3 of the Civil Procedure Rules 1998 and PD 3.70. Those observations were less readily justified where there was plainly no detention.

• Court of Appeal (Civil Division) — unanimously dismissed CHK’s appeal on 3 March 2026: [2026] EWCA Civ 207.
• High Court of Justice, King’s Bench Division, Administrative Court — the deputy judge refused CHK’s habeas corpus application on the papers on 17 October 2025.