ON APPEAL FROM THE HIGH COURT OF JUSTICE
His Honour Judge McKenna
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CHRISTOPHER CLARKE
SIR STEPHEN SEDLEY
| THE QUEEN
(on the application of DAVID FRANCIS)
|- and -
|SECRETARY of STATE for the HOME DEPARTMENT
BAIL for IMMIGRATION DETAINEES
Mr. Tim Buley (written submissions) (instructed by Bhatt Murphy) for the intervener
Mr. Robin Tam Q.C. and Mr. Robert Kellar (instructed by the Treasury Solicitor) for the respondent
Hearing dates : 19th & 20th March 2014
Crown Copyright ©
Lord Justice Moore-Bick :
The proceedings below
The statutory warrant
(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court. . . he shall . . . be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case . . .
(2) Where notice has been given to a person . . . 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 . . . the Secretary of State directs otherwise)."
(i) General principles
"88. . . . Sub-paragraph (1) is itself legislative authority for the detention of a FNP [foreign national prisoner] who has been sentenced to imprisonment and who has been the subject of a recommendation for deportation. If an unlawful decision is made by the Secretary of State not to direct his release, the court may quash the decision and require it to be retaken, but the legislative authority for his detention is unaffected. It follows that the FNP will have no claim for damages for false imprisonment in such circumstances.
89. The position is different when the decision to detain is made under sub-paragraph (2) or (3). In these cases there is no lawful authority to detain unless a lawful decision is made by the Secretary of State. . . ."
(ii) The first period
(iii) The second period
(iv) The third period
"(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."
"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 authorise 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.
In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time."
"Although these restrictions are to be implied where a statute confers simply a power to detain "pending removal" without more, it is plainly possible for the legislature by express provision in the statute to exclude such implied restrictions. Subject to any constitutional challenge (which does not arise in this case) the legislature can vary or possibly exclude the Hardial Singh principles. But in their Lordships' view the courts should construe strictly any statutory provision purporting to allow the deprivation of individual liberty by administrative detention and should be slow to hold that statutory provisions authorise administrative detention for unreasonable periods or in unreasonable circumstances."
Lord Justice Christopher Clarke :
Sir Stephen Sedley :