9-E_SIAC Guidance Note 4: Detention and Bail Pending Deportation
The Secretary of State has a power to detain a person who is the subject of deportationaction (para 2 of Schedule 3 to the Immigration Act 1971 (the 1971 Act). A person can bearrested without warrant when the notice of intention to deport has been made and isready to be served (see para 2(4)).
Limitations to power of detention (domestic law)
Detention must be for the purpose of securing a person pending deportation.(ii)
Detention must be for a period of time reasonably necessary for that purpose.(iii)
If it becomes clear that won‟t be able to deport within
a reasonable period then theSecretary of State should not detain (even if reasonable period in (ii) has not yetexpired). It is for the court to determine whether a deportation has reasonableprospects (ie not Wednesbury reasonableness) but the court should be slow to
second guess the Executive‟s assessment of diplomatic negotiations.
The Secretary of State must exercise all reasonable expedition to ensureremoval/deportation within a reasonable period of time.3.
Faced with a challenge to the legality of detention, a court will ask itself whether thestrategy or proposals being considered by HMG offer a realistic chance of achieving,within a reasonable period of time,
a case for the person‟s removal that stood a reasonable
prospect of surviving the scrutiny of a UK court.4.
These principles are derived from:
R v Governor of Durham Prison ex parte Hardial Singh  1 WLR 704
R(I) v SSHD  EWCA Civ 888, paras 46-47
Youssef v Home Office  EWHC 1884 (QB)5.
In determining whether deportation is going to be possible within a reasonable time theappellant cannot rely on delays caused solely by his own appeal: see (R(I) v SSHD EWCA (Civ) 888, which was relied upon by SIAC in its bail decision in Y, BB, U, Z and VVof 20 March 2009.6.
Regular detention reviews must be carried out in accordance with the Detention CentreRules 2001 (made under the Immigration Act 1971)
The Court of Appeal has acceptedthat the absence of those reviews does not itself render the detention unlawful (beingappealed to the House of Lords). That is because paragraph 2 of Schedule 3 to theImmigration Act 1971 does not specify that compliance with those rules/guidance is anecessary condition of lawful detention. However, a breach of the rules or failure tofollow the procedures in the guidance could attract other remedies in public law, such as adeclaration of non-compliance by the SSHD (SK (Zimbabwe) v SSHD  EWCA Civ1204).
Tort of false imprisonment
Where a claim is brought alleging the tort of false imprisonment the claimant must proveimprisonment and then the Secretary of State must prove justification: Youssef v HomeOffice  EWHC 1884 (QB).
Legal basis of detention (ECHR)