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Garden Court Chambers - Immigration Law Bulletin - Issue 200

<> Published Tuesday 5th October 2010

Case [ Unlawful detention ]

MXL, R (on the application of) & Ors v SSHD [2010] EWHC 2397 (Admin)
Blake J found that a Jamaican woman who had been detained pending deportation had been unlawfully detained.

Of particular interest are Blake J's comments at paragraphs 71-74 concerning the common place assertion by the UKBA in detention cases, that a person who is subject to deportation proceedings, will as a matter of course, have little reason to comply with bail conditions. Note also paragraphs 92-94

71. I am also troubled by the reasoning that because the claimant's deportation is being sought there was no incentive to comply with the terms of bail. The claimant had no adverse immigration history of going to ground. To apply such reasoning generally would suggest that nobody should be granted bail in a deportation appeal. That is not the law or the policy even in a case in which there is no strong family interest to be considered. This, however, was a case where there were two children, one of whom had started attending school.

72. In my judgment, the reasons relied on for denial of bail were weak, inconsistent and in breach of UKBA's own policy. The reasons for granting it were compelling and were not addressed adequately or at all. The cumulative effect of these flaws, set in the context of the lengthy period of immigration detention and the legitimate criticism that could be made of the decision- making process in the previous period, strongly suggest that this was not a decision that was open to a reasonable decision maker to maintain. I conclude that the decision to object to bail on stringent terms was irrational and caused the claimant's subsequent detention.

73. I appreciate that the defendant can point to the fact that the IJ refused bail in December. As a matter of law, this is not a complete answer to the contention that the decision to detain was unlawful. It is not the IJ's function to decide on the legality of the detention or the rationality of the exercise of the power to detain. He or she must assume that the detention is lawful but may be mitigated in the exercise of discretion by admission to bail.

74.Further, making every allowance as to how the case was presented to him, I very much doubt that IJ Parkes was entitled to reach the conclusion that he did. In particular the failure to consider the impact of continued detention on the welfare of the children is a serious flaw. I shall consider this aspect further in the claimant's final ground of challenge.

92 In my judgment the Strasbourg principles make clear that:-

i) There need to be criteria for the exercise of a broad power to detain foreign nationals afforded under the primary legislation. This is particularly the case where substantial periods of detention may result from assessment of claims or enforcing removals. Criteria for immigration detention and review of it should be published and accessible if the exercise of the power is not to be characterised as arbitrary.

ii) The duration of detention is a very important factor in control of arbitrariness but not the only one, certainly where detention impacts on the interests of the child.

iii) A failure to apply published criteria to an individual case means that the individual has not been detained in accordance with the procedural rules promulgated by the national authority to regulate detention.

iv) National law, in any event, includes the doctrine of legitimate expectation whereby a failure to have regard to applicable policy will render the decision unlawful.

v) The notion of law in Article 5 and Article 8 extends beyond domestic statutory requirement to all indicia applied nationally and internationally that are required to prevent detention becoming disconnected from its purpose, disproportionate, and arbitrary.

vi) In both domestic and ECHR law the principles of good government and the prevention of arbitrariness walk hand in hand: 'say what you mean and mean what you say'.

93. Judged by these criteria, the defendant's decision to continue to detain the claimant after the order for reconsideration was communicated and considered by him/her took no account of the applicable policy of UKBA and was not in accordance with the law for this reason as well. It was therefore a violation of both Article 5 and Article 8 without the need to go on to consider justification.

94. Even, if the stage of justification is reached in the Article 8 analysis, I conclude that continued detention was disproportionate and not necessary in a democratic society. Both the risk of absconding and the risk of committing further offences of theft on release from the first experience of custody were not unusually high ones and did not require mother to be detained to the prejudice of the family links with the children that it was intended should be restored and maintained.

Conclusions
95 For all these reasons I conclude that the claimant was unlawfully detained from 23rd November (the date of the first detention review after communication of Burnett J's order of 23 October) until 21st December. I will make a declaration to that effect. This conclusion also entitles the claimant to an appropriate award of damages, but the parties accept that the award should be referred elsewhere for assessment if not agreed.

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Last updated 10 November, 2011