Detention Greg Ceallaigh and Louise Hooper Garden Court Chambers - PowerPoint PPT Presentation

An Introduction to Immigration Detention Greg Ó Ceallaigh and Louise Hooper Garden Court Chambers 2 July 2020 @gardencourtlaw

Introduction to the law of Immigration detention - Issues • Sources of the power to detain Limitations on the power to detain: (1) Hardial Singh • • Limitations on the power to detain: (2) Breach of a public law rule ( Lumba ) • Limitations on the power to detain: (3) Human Rights Act 1998 • Limitations on the power to detain: (4) EU law – Hemmati • Limitations on the power to detain: (5) Other statutory constraints Consequences of unlawful detention: Relief and quantum • @gardencourtlaw

Power to Detain 4

Sources of the power to detain • Immigration Act 1971, Schedule 2, paragraph 16(2) Immigration Act 1971, Schedule 3, paragraph 2(2) and 2(3) • • UK Borders Act 2007, section 36 @gardencourtlaw

Sources of the power (1) – illegal entrants and overstayers • Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 provides as follows: (2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of [paragraphs 8 to 10A or 12 to 14], that person may be detained under the authority of an immigration officer pending — (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions. This is essentially the main power to detain illegal entrants, also applied to those subject to • removal as overstayers by section 62 of the Nationality, Immigration and Asylum Act 2002. @gardencourtlaw

Sources of the power (2) – deportation cases • Paragraph 2 of Schedule 3 to the Immigration Act 1971 provides as follows: (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court , he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on immigration bail under Schedule 10 to the Immigration Act 2016. • This is the primary means by which those subject to deportation action are detained @gardencourtlaw

Sources of the power (3) – consideration of deportation • The UK Borders Act 2007 provides as follows at paragraph 36: “( 1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State – (a) while the Secretary of State considers whether section 32(5) [on automatic deportation] applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order. ” • This is the provision that the Secretary of State uses to detain while considering whether to make a deportation order (s36(4) cross-applies provisions in the 1971 Act to this power). @gardencourtlaw

Limits on the power to detain 9

Limitations on the power to detain (1) – Hardial Singh The main limitations on the power to detain are those read in by Woolf J in R v Governor of • Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704. In that case Woolf J said (§7): “Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorize detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. ” @gardencourtlaw

Limitations on the power to detain (1) – Hardial Singh • What are known as the “ Hardial Singh principles” were first distilled from that decision by Lord Dyson in R (I) v SSHD [2002] EWCA Civ 888, [2003] INLR 196 at §46 (approved by the Supreme Court in Lumba ) as follows: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal. @gardencourtlaw

Hardial Singh – key points The High Court’s jurisdiction to consider the lawfulness of detention is not restricted to a • consideration of Wednesbury unreasonableness, but rather it must consider whether detention was and is “ lawfully exercised ” ( R (A) v SSHD [2007] EWCA Civ 804). This depends on all the facts of the case – which the Court must find for itself. The fact that a person was refused bail does not mean that their detention was lawful for the • purposes of Hardial Singh or anything else ( Lumba at §118). • The Hardial Singh analysis is calibrated in cases where detention is for the purposes of consideration of whether to deport – e.g. for a reasonable period to consider if the exceptions apply ( R(Saleh) v SSHD [2013] EWCA Civ 1378). • The burden of proof in a detention case is generally on the Defendant ( R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C-D per Lord Bridge of Harwich), but in evaluating reasonableness the concept of a burden may be “inapt” ( R(Saleh) v SSHD [2013] EWCA Civ 1378). @gardencourtlaw

Hardial Singh (i) • Principle 1: The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. Detention cannot be used therefore for an alternative purpose such as e.g because of • public concern, or to force compliance. • “For the purposes of removal” however is interpreted quite widely, and can include e.g. detention for the purposes of an interview ( R(Lucas) v SSHD [2018] EWCA Civ 2541) or for speedy consideration of an asylum claim ( Saadi v SSHD [2002] 1 WLR 3131). • When it becomes clear that a person cannot be removed at all then detention is not for the purposes of removal and there is no power to detain. @gardencourtlaw

Hardial Singh (ii) Principle 2: • The deportee may only be detained for a period that is reasonable in all the circumstances. • What is a “reasonable period”? At §§104-105 of R(Lumba) v SSHD [2011] 2 WLR 671 Lord Dyson (at §104) approved his earlier account in R ( I) v SSHD [2003] INLR 196 of the factors potentially bearing upon the reasonableness of detention: “It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view, they include at least: the length of the period of detention ; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family ; the risk that if he is released from detention he will abscond ; and the danger that, if released, he will commit criminal offences ” @gardencourtlaw

Hardial Singh (ii) – cont. • Likelihood of offending will usually be important, but that will depend on the kind of offending held in R(A) v SSHD [2007] EWCA Civ 804 (at §55): “A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. ” • Equally a risk of absconding is of critical importance, see e.g. Fardous v SSHD [2015] EWCA Civ 931 at §44 “It is self-evident that the risk of absconding is of critical and paramount importance in the assessment of the lawfulness of the detention. That is because if a person absconds it will defeat the primary purpose for which Parliament conferred the power to detain and for which the detention order was made in the particular case. ” • However neither is a “ trump card ” per Dyson LJ in Lumba at §128; Fardous at §46. @gardencourtlaw