Detention and Bail

The use of the power to detain those liable to deportation or removal has risen sharply since the 1970s but remains constrained by public law principles most notably set out in the case of Hardial Singh and most recently refined by the Supreme Court in Lumba (Congo) and Mighty (Jamaica) v SSHD [2011] UKSC 12. These principles have been classified into 4 categories:

(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 with 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.

Compensatory damages may be awarded and, in the most egregious cases, exemplary damages where compensation is inadequate to punish the outrageous behaviour, to mark the court’s disapproval of the conduct and deter its repetition. Depending on the circumstances a claim may be brought in the county court or the Administrative (High) Court.

Release from detention is often more quickly secured through an application for bail from the First-tier Tribunal (Immigration and Asylum Chamber). When an immigration judge considers bail they are not determining the lawfulness of the detention as would be the county court or the Administrative Court. Bail Guidance for Immigration Judges from 11 July 2011 explains that an immigration judge will focus on (a) the reason(s) why the person has been detained, (b) the length of detention and its likely future duration, and (c) the likelihood of the person complying with conditions of bail.

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