Blog post by Alex Schymyck of the Garden Court Immigration Team.
The Illegal Migration Act 2023 contains a significant expansion of immigration detention powers. This blog discusses the changes and ways in which the new legislation can be challenged.
The SSHD already had extremely broad immigration detention powers. Unlike detention by the police or detention due to mental illness or a lack of mental capacity, immigration detention powers have no procedural safeguards or time limits. Instead, protection against arbitrary detention has been developed through the courts, first in the form of the Hardial Singh principles and later by the Lumba requirement to adhere to published policy. The new Act attempts to roll back these protections. The key question is whether the government has achieved its aim.
The three main changes are:
- The removal of the Court’s role as primary decision-maker when applying the Hardial Singh principles.
- The codification of the ‘grace period’ of lawful detention to make arrangements for release.
- The introduction of new powers to detain which are not subject to judicial oversight for the first 28 days.
(1) Hardial Singh principles and the primary decision-maker
The Hardial Singh principles are:
- (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.
For a refresher on how they operate, take a look at this post on Free Movement.
A core feature of the Hardial Singh principles is that the Court makes its own decision on what is reasonable, rather than simply reviewing the decision of Secretary of State for the Home Department (R(A(Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 804). That approach is extremely unusual in public law; in other areas the Court reviews the decision using Wednesbury reasonableness with a greater or lesser level of intensity depending on the context (or proportionality where ECHR rights are involved).
For anyone interested in the doctrinal issues raised by the way the Hardial Singh principles are applied, I would recommend reading Lady Justice Laing’s extra-judicial discussion of this issue in "Two Cheers for Judicial Activism" at the ALBA Summer Conference 2016. In 2021, I published an analysis of Laing LJ’s ideas in Public Law: “The Hardial Singh principles and the principle of legality” (NB this link is behind the Westlaw paywall).
Section 12 of the Illegal Migration Act 2023 attempts to reverse the decision in A(Somalia) and instead requires the Court to review the decision of the Secretary of State for the Home Department. For example, for detention pending deportation, it amends the Immigration Act 1971 to state:
A person liable to be detained under sub-paragraph (1), (2) or (3) may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the deportation order to be made, or the removal to be carried out. (emphasis added)
On the face of it, this amounts to the most significant attempt to erode the power of the Courts and increase the scope of immigration detention since Belmarsh (and arguably ever).
However, there are reasons to think that in practice, the Courts will interpret Section 12 in a way which protects their role as primary decision-maker.
First, the Court’s role as primary decision-maker is necessary to ensure compliance with Article 5 ECHR. In Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 at §43, the Court of Appeal noted that: “It is this objective approach of the court which reviews the evidence available at the time that removes any question that the period of detention can be viewed as arbitrary in terms of Article 5 of the European Convention on Human Rights.”. Similarly, when the European Court of Human Rights determined that the lack of time limits for UK immigration detention did not breach Article 5 ECHR, it relied heavily on the robust application of the Hardial Singh principles by the domestic courts (JN v United Kingdom (37289/12).
Immigration detention practitioners have been able to largely ignore Article 5 ECHR in recent times because of the apparent equivalence between the Hardial Singh principles and the ECHR. However, it may be that the Illegal Migration Act 2023 has caused a divergence such that it is now necessary to argue that detention is in breach of Article 5 ECHR even if it does not breach domestic law.
Section 1(5) of the Act attempts to protect the Act from this kind of attack by excluding the operation of interpretative duty in Section 3 of the Human Rights Act 1998. Fortunately, it is not yet in force (as at time of publication) and therefore arguments of this nature can proceed. Even if it is brought into force, it may still be possible to argue that Section 3 of the Human Rights Act 1998, as a constitutional statute, can be used to read-down Section 1(5) of the Illegal Migration Act 2023.
Second, the Courts may choose to interpret Section 12 in such a way that they preserve their role as primary decision-maker. One way of understanding the Hardial Singh principles, is that they are effectively implied statutory conditions for lawful detention similar to the explicit statutory conditions contained in the Police and Criminal Evidence Act 1984. The basis for them being implied into legislation is the principle of legality; unless Parliament has explicitly legislated to authorise ‘unreasonable’ administrative detention then the Court will assume that it has not done so. On this view, judicial acknowledgment of the Hardial Singh principles is simply identification of implicit limits on the power to detain.
If the Hardial Singh principles are implied statutory conditions for lawful detention, then the Court must objectively determine whether they are fulfilled in the same way as they do for police detention. For example, for police detention, the Court will determine for itself whether a police officer had an objectively reasonable belief that the suspect is guilty of an offence (see the adapted Castorina questions in Parker v Chief Constable of Essex Police [2017] EWHC 2140 (QB) approved by the Court of Appeal in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788; [2019] 1 WLR 2238 at §59). In the immigration detention context, it is for the Court of determine whether the Secretary of State for the Home Department’s opinion about the prospect of removal within a reasonable time is objectively reasonable. In doing so, it will effectively be following the A(Somalia) approach.
Finally, it may be that the exact legal approach taken by the Court makes less difference in practice that first appears. When applying the Hardial Singh principles, the Court already defers to the view of the Secretary of State for the Home Department where appropriate, for example on the progress of negotiations with a foreign state to issue an emergency travel document. It does so in much the same way it defers to the executive where appropriate when applying Wednesbury unreasonableness with a sliding scale of intensity. It may be that in practice, even if the Courts do not interpret the legislation in the manner proposed above, that they apply it in a way which blunts the intended impact of Section 12.
(2) Codification of the ‘grace period’
The second significant change is the codification of the ‘grace period’ of lawful detention following the point at which detention is in breach of the Hardial Singh principles (identified in FM v Secretary of State for the Home Department [2011] EWCA Civ 807 at §60 and discussed in detail in R(AC(Algeria)) v Secretary of State for the Home Department [2020] EWCA Civ 36; [2020] 1 WLR 2893.
The concept of a ‘grace period’ of lawful detention to make arrangements for release has always been conceptually weak. It is difficult to understand why the existence of the Secretary of State for the Home Department’s powers to provide accommodation (in the Immigration and Asylum Act 1999 and Schedule 10 to the Immigration Act 2016) should increase the period during which she can lawfully detain someone. It is unfortunate that the government has now used legislation to protect itself from liability for unnecessary periods of detention.
For each different form of immigration detention, Section 12 now adds that:
The person may be detained under that sub-paragraph for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate. (emphasis added)
As with the Hardial Singh principles, the legislation also tries to insulate the Secretary of State for the Home Department from liability by appearing to require the Courts to review her opinion of how long is reasonably necessary to make arrangements for release. This development is particularly problematic because the Secretary of State holds all the information about how long it will take her to arrange accommodation, which makes it difficult to challenge her opinion.
Similar arguments to those discussed above can be made regarding this aspect of Section 12. Hopefully, the Courts can be persuaded to take a robust approach to the length of ‘grace periods’ in order to ensure that Article 5 ECHR is complied with.
Moreover, help may be at hand from the European Court of Human Rights. In ASK v United Kingdom (App No. 43556/20), the Court will decide whether the ‘grace period’ of detention created by our domestic courts is in compliance with Article 5 ECHR (Stephanie Harrison KC acts for ASK, Greg Ó Ceallaigh and myself act for BID, Amanda Weston KC and Emma Fitzsimmons act for Medical Justice). Hopefully the Court will give helpful guidance which can be relied upon to undermine the government’s attempt to extend the use of ‘grace periods’.
(3) No judicial oversight for 28 days of new detention powers
Anyone subject to the new duty remove in Section 2 of the Illegal Migration Act 2023 is subject to detention under new powers contained in Section 11 of the Act. Outrageously, Section 13 of the Act attempts to exclude any judicial consideration of bail or the legality of detention for the first 28 days of detention under these new powers. At the time of publication, these new powers are not yet in force.
The exclusion of judicial oversight is extreme. The apparent effect of Section 13 is that:
- There cannot be a grant of bail by the FTT until after the end of 28 days of detention.
- There cannot be any judicial review of the SSHD’s decision to detain or refuse bail unless the SSHD acted in “bad faith” or a “procedurally defective way” that amounts to a “fundamental breach of the principles of justice”.
If that were to be the case, then the Secretary of State for the Home Department could detain someone in breach of the Hardial Singh principles or in breach of the Adults at Risk policy, without them being able to take any action against her.
As with the changes discussed above, it can be hoped that the Courts will ensure that they can protect the right to liberty for people detained under the new powers.
First, it may be that immigration detention practitioners are forced to revert to making use of the writ of habeas corpus (Section 12(4) explicitly protects the availability of habeas corpus even in the first 28 days of detention). The use of habeas corpus came to an end in the immigration detention context after the Court of Appeal told practitioners to use judicial review instead in two judgments in the early 1990s (R v Secretary of State for the Home Department ex parte Cheblak [1991] 1 WLR 890, R v Secretary of State for the Home Department ex parte Muboyayi [1992] QB 244). However, many of the early immigration detention cases were brought using habeas corpus, including R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 itself.
In an extra-judicial discussion of the decline of habeas corpus in 1999, Lord Brown commented that: “In short, I can think of no circumstances today in which relief obtainable by habeas corpus would not also be available by judicial review.”
Well unfortunately, if Section 13 is enacted in due course, then there will be circumstances in which relief obtainable by habeas corpus is not obtainable by judicial review.
Second, as with other attempts to oust the jurisdiction of the High Court, it may well be possible for the Court’s to read down the provisions in order to preserve their jurisdiction. In straightforward terms, the Courts might decide that a breach of the Hardial Singh principles is a procedural error which amounts to a “fundamental breach of the principles of justice”.
Third, it will obviously be possible to challenge the operation of this aspect of the Act as incompatible with Article 5 ECHR, either by seeking to have these provisions read-down under Section 3 of the Human Rights Act 1998 or a declaration of incompatibility under Section 4.
Conclusion
It is shocking that Section 12 of the Illegal Migration Act 2023 came into force on 28 September 2023, barely a week after the Brook House Inquiry Report was published calling for a 28-day time limit on immigration detention. There will be plenty of litigation about the government’s attempts to expand immigration detention. Hopefully, the Courts will preserve their essential role in limiting the abuse of immigration detention powers.
