Anam v Secretary of State for the Home Department  EWCA Civ 1140 – Read judgment
This appeal raises interesting questions about the approach the courts should take when considering whether detention pending deportation is legal in a case involving an ex-convict with serious psychiatric illness. A failure to implement a Home Office policy on the subject did not automatically make the decision to detain unlawful. However, the Court of Appeal was not unanimous on what the correct test for legality was.
This was an appeal against a deportation decision by the Secretary of State for the Home Department. The Appellant had a long criminal record and in 2007 was sentenced to 4 years in prison for robbery. Later that year, the deportation decision was made. However, the Appellant also had a history of serious psychiatric illness.
The Secretary of State had made the decision to detain the Appellant pending deportation after release from prison using to his powers under paragraph 2(3) of Schedule 3 of the Immigration Act 1971. The Secretary of State also had a written policy for making the decision to detain people pending deportation. The policy stated that mentally ill persons would not be detained unless there were “very exceptional circumstances” justifying the detention.
A judge had found that the Secretary of State had failed to apply his own policy, because, although there had been reviews of the Appellant’s detention, these reviews had barely touched upon his mental health problems. The Appellant sought various remedies, including temporary admission back into the UK, damages for breach of his Article 5 ECHR right to liberty and a declaration that his detention was unlawful. The focus of the appeal was on the judge’s refusal to grant a declaration that the detention was unlawful and grant a mandatory order for release.
Essentially the Appellant argued that, by failing to take into account his own policy regarding the mentally ill, the Secretary of State’s decision was necessarily unlawful. If the detention would have been inevitable had the policy been applied properly, only then would the decision be lawful.
The Secretary of State argued that the failure to apply the policy was a relevant consideration but not determinative of lawfulness. He argued that the well known principles from the case of Re Hardial Singh  1 WLR 704 were to be applied and the judge was to take his own view as to whether the detention as lawful. That case concerned the same power being considered in this case, namely paragraph 2 of the 1971 Act which provides for detention pending deportation. Woolf J outlined the following principles:
“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.” (Page 706)
One test or two?
Black LJ considered that it was essential to show that a failure to apply rules or a policy had to be causative of the detention for the decision to be unlawful. Case law did not support a finding that the detention would be unlawful if it was not inevitable that detention would have been decided upon anyway, in the case of a failure to apply a policy (paragraph 77).
Longmore LJ however considered that case-law indicated that causation was not a necessary element of the question of lawfulness of detention, which was to be assessed according to the Hardial Singh principles (paragraph 84-88).
Maurice Kay LJ considered that the case-law showed two distinct approaches: the application of the Hardial Singh principles and the causation/materiality test. He preferred the causation test, but considered that the outcome would be the same in either case (paragraph 91).
Black LJ stressed the importance of the court adopting the role of primary decision maker in these cases, given that they involve the liberty of the subject (paragraph 77). This is unlike the usual public law approach, where the courts will not normally step into the shoes of the person responsible for the initial decision now under consideration and make the decision afresh.
Despite the differences in their approach to the case-law, all three judges concluded that the Appellant’s appeal should be dismissed. On the facts of the case the decision to detain had been lawful despite the failure to apply the policy correctly.
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