Asylum seeker - Detention - Claimant being detained prior to deportation

R (on the application of S) v Secretary of State for the Home Department: QBD (Admin) (David Elvin QC sitting as a deputy judge of the High Court): 5 August 2011

Paragraph 2(3) of schedule 3 to the Immigration Act 1971 provides, so far as is material: 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 UK (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 bail or] the secretary of state directs otherwise).

The claimant was an Indian national. In 1995, he entered the UK illegally under a false passport. In February 2009, he was convicted of unlawful wounding and assault occasioning actual bodily harm and sentenced to 16 months’ imprisonment. He claimed asylum and leave to remain pursuant to the European Convention on Human Rights (the convention).

At the conclusion of his sentence he was detained pending deportation pursuant to section 36(1) of the UK Borders Act 2007 (the 2007 act). In May, he again sought asylum and further representations were made on his behalf. In June, he was charged with escaping from lawful custody and remanded to await sentence.

On 28 January 2010, a deportation order was signed on behalf of the secretary of state pursuant to section 32 of the 2007 act. The reasons for the deportation decision rejected both the asylum and human rights claims. The making of the deportation order was an immigration decision within section 82(2)(j) of the Nationality, Immigration and Asylum Act 2002 (the 2002 act) which had to be notified to the individual under regulation 4 of the Immigration (Notices) Regulations 2003 SI 2003/658 and triggered the right of appeal under section 82(1) of the 2002 act. On 23 April, the claimant was sentenced to six months’ imprisonment in relation to his escape from custody.

However, the claimant had already served more than the total sentence while on remand and he was immediately taken back to immigration detention. His detention was authorised pursuant to powers contained in schedule 3 to the Immigration Act 1971 (the 1971 act). On 30 April, the claimant was served with the notice of deportation. He applied for judicial review of the secretary of state’s decision to detain him from April 2010 until his release on bail in September 2010.

The principal issue that fell to be determined was whether it was lawful for the claimant to be detained pursuant to paragraph 2(3) of schedule 3 to the 1971 act before he had been notified of, or served with, the deportation order and whether the circumstances amounted to the tort of unlawful imprisonment and/or a breach of article 5 of the convention.

The secretary of state submitted that paragraph 2(3) did not require the service of the order but merely that such an order had to have been properly made. He contrasted the absence of the requirement for notice in paragraph 2(3) with that in paragraph 2(2) of schedule 3 to the 1971 act. The application would be allowed.

It was a fundamental principle of law that notice of a decision was required before it could have the character of a determination with legal effect; the individual concerned had to be in a position to challenge the decision in the courts if he or she wished to do so. Fundamental rights could not be overridden by parliament by general or ambiguous words.

Where an act of parliament conferred upon an administrative body functions which involved making decisions which affected to their detriment the rights of other persons or curtailed their liberty, there was a presumption that parliament had intended that the administrative body should act fairly towards those persons who would be affected by its decision. Elementary fairness supported a principle that a decision took effect only upon communication.

Those principles had been found to apply in relation to the termination of income support pursuant to regulation 70(3A)(b)(i) of the Income Support (General) Regulations 1987, SI 1987/1967, even though that regulation made no reference to notification. Accordingly, a decision which gave rise to the power to deprive an individual of liberty had to a fortiori be subject to the principle of notification which applied to the deprivation of an individual entitlement to income benefits.

The language used in paragraph 2(3) was simply not clear enough to displace the presumption that notice should be given before it was ‘in force’. That right of appeal pursuant to section 82(1) of the 2002 act self-evidently could not be exercised until the individual affected had been notified that such an order had been made against him.

Paragraph 2(2) of the 1971 act was dealing with different circumstances where the secretary of state had yet to make an order and was seeking to communicate an intention to proceed. In any event, the language used was not consistent with paragraph 2(3) as it referred to the ‘making’ of the order rather than the order being ‘in force’ (see [149]-[151], [153]-[156] of the judgment).

In the instant case, the deportation order had not been ‘in force’ for the purposes of paragraph 2(3) and the failure to notify the claimant of the order from 23 April until 30 April had rendered his detention unlawful from the outset.

Accordingly, such detention had been in breach of article 5 of the convention (see [159]-[160] of the judgment).

R (on the application of Anufrijeva) v Secretary of State for the Home Department [2003] 3 All ER 827 applied.

Stephanie Harrison and Bryony Poynor (instructed by Bhatt Murphy) for the claimant; John-Paul Waite (instructed by the Treasury Solicitor) for the secretary of state; David Eccles (instructed by Berrymans Lace Mawer) for the first interested party; the other interested parties did not attend and were not represented.