West Law Report

Minister’s unsupervised detention power limited

Posted in Times Law Report by mrkooenglish on November 21, 2008

From The Times
November 21, 2008
Minister’s unsupervised detention power limited

Court of Appeal

Published November 21, 2008

Regina (Zimbabwe) v Secretary of State for the Home Department

Before Lord Justice Laws, Lord Justice Keene and Lord Justice Longmore

Judgment November 6, 2008

Ministerial power to detain an overstaying immigrant was limited only to the process of deportation; any detention under the immigration provisions would be subject to the control of the courts, principally by way of judicial review.

The Court of Appeal so stated allowing an appeal by the Secretary of State of the Home Department and dismissing the cross-appeal of the claimant, SK, from Mr Justice Munby ([2008] EWHC 98 (Admin)) who he had (i) granted a declaration that the claimant, an overstayed immigrant, had been unlawfully detained by the Home Secretary for various past periods amounting to 19 months, but (ii) declined to make an order for the claimant’s release on the ground that his then current detention was lawful.

Mr Robin Tam, QC and Mr Martin Chamberlain for the Home Secretary; Mr Andrew Nicol, QC and Mr Alex Goodman for SK.

LORD JUSTICE LAWS summarised the reach of the power conferred by paragraph 2(2) of Schedule 3 to the Immigration Act 1971 as follows:

1 Compliance with the Detention Centre Rules (SI 2001 No 238) and the Home Office Operations Enforcement Manual was not a condition precedent to lawful detention pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971.

The statute did not make it so; contrast section 34(1) of the Police and Criminal Evidence Act 1984 and Roberts v Chief Constable of Cheshire Constabulary ( The Times January 27, 1999; [1999] 1 WLR 662); neither did the common law, nor the law of the European Convention on Human Rights.

2 Avoidance of the vice of arbitrary detention by use of the power conferred by paragraph 2(2) required that in every case the principles of R v Governor of Durham Prison, Ex parte Hardial Singh ([1984] 1 WLR 704) should be complied with. That limited the detention to such period of time as was reasonably necessary to carry out the process of deportation.

3 It was elementary that exercise of the power of detention, being an act of the executive, was subject to the control of the courts, principally by way of judicial review. That was also required by article 5.4 of the Human Rights Convention. The focus of judicial supervision in any particular context would be upon the Hardial Singh principles.

4 In the event of a legal challenge in any particular case, the Home Secretary should be in a position to demonstrate by evidence that those principles had been and were being fulfilled. However, the law did not prescribe the form of such evidence. Compliance with the 2001 Rules and the Manual would be an effective and practical means of doing so.

It was anyway the Home Secretary’s duty so to comply and it was firmly to be expected that hereafter that would be conscientiously done.

Lord Justice Keene and Lord Justice Longmore agreed. Solicitors: Treasury Solicitor; Lawrence Lupin.

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