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

A policy governing immigration examination and detention is unlawful only if it positively authorises unlawful conduct or misdirects officials about the law. A policy may lawfully require short detention to obtain information needed to decide whether a returning resident may enter, even where existing leave is ultimately confirmed.

Failure to operate a lawful policy can nevertheless make an individual detention unlawful. Short airport detention of this kind did not engage Articles 5 or 8 of the ECHR. The Secretary of State remained in breach of the public sector equality duty.

The claimant, a Ghanaian national with current limited leave to remain, was stopped and detained at Heathrow after a later application for leave under the EU Settlement Scheme had been refused. That refusal generated a negative immigration marker, although it did not invalidate her existing leave. A previous airport stop should have resulted in removal of the marker, but it was not removed.

The claimant challenged the policy and her detention under domestic public law, the Immigration Act 1971, Articles 5 and 8 of the ECHR, and the Equality Act 2010. The central issues were whether the policy was unlawful, whether the detention was unlawful because the marker had not been deleted, whether Convention rights were engaged, and whether the public sector equality duty had been breached.

1. Ground 1A failed. Under Immigration Act 1971 Schedule 2, an immigration officer may detain a passenger pending examination and a decision about entry, including whether existing leave should be curtailed or cancelled. The power may be used to obtain information unavailable at the primary control point, even where the investigation confirms that existing leave remains valid.
2. Applying [2021] UKSC 37, the policy did not positively authorise unlawful conduct. An adverse immigration decision was a potentially relevant trigger for further examination. The court was not required to assess the policy statistically or dictate more efficient administrative arrangements.
3. Ground 1B failed. The policy was distinguishable from the unpublished policy in R (Lumba) v Secretary of State for the Home Department. The statutory power to examine and detain was publicly stated in Schedule 2, while publication of detailed operational guidance would be impractical and raise national-security and public-interest concerns.
4. Ground 2A succeeded. The Secretary of State’s practice required deletion of the negative marker after the March 2023 stop established that the claimant possessed current leave. The failure to delete it was human error and breached the policy. That breach materially caused the August detention and was not out of time.
5. Ground 3 failed. Applying Gillan v United Kingdom, Gharamanov v Azerbaijan and ZA v Russia, a short detention to clarify a passenger’s status did not amount to deprivation of liberty under Article 5. The detention did not engage Article 8.
6. Ground 4 succeeded. The Secretary of State accepted that the public sector equality duty under section 149 of the Equality Act 2010 had not been discharged. Declaratory relief was granted.
7. The claimant succeeded on Grounds 2A and 4, and failed on Grounds 1A, 1B, 2 and 3.