Law Report: No damages for detention when deportation notice withdrawn: Ullah v The Home Office and another - Court of Appeal (Lord Justice Kennnedy and Lord Justice Millett), 23 June 1994.

A person, who is liable to deportation and who, having been given notice of the Home Office's decision to make a deportation order against him, is detained pending the making of the deportation order cannot claim damages for wrongful imprisonment if the notice is subsequently withdrawn or set aside since the period of detention is not retrospectively rendered unlawful.

The Court of Appeal ordered that the statement of claim be struck out.

The plaintiff, Mohammed Ullah, arrived in the United Kingdom from Bangladesh in May 1987 and was granted leave to enter for six months.

When the leave expired in November 1987 he became liable to be deported as an over-stayer under section 3(5) of the Immigration Act 1971. Between June 1988 and January 1992, he made five applications to be permitted to remain in the UK.

On 29 September 1992 Mr Ullah was served a notice of the Home Secretary's decision to make a deportation order. The notice referred to Mr Ullah's application for leave to remain in January 1992, but made no reference to any earlier application. He was taken into custody under paragraph 2(2) of Schedule 3.

On 7 October 1992 Mr Ullah served notice of appeal to an adjudicator, referring to the various applications for leave to remain.

On 16 October 1992 the Home Office withdrew the deportation notice and Mr Ullah was released from detention. Mr Ullah claimed damages for false imprisonment for the period between 29 September 1992 and 16 October 1992 against the Home Office and the immigration officer who took Mr Ullah into custody. Master Hutt struck the Home Office's defence and ordered judgment for the plaintiff. Mr Justice Gatehouse allowed the Home Office's appeal.

It was submitted for Mr Ullah that once the notice was withdrawn it could no longer be relied on by the Home Secretary as satisfying the requirements in paragraph 2(2) in relation to the period when Mr Ullah was detained.

The Home Office submitted that the conditions precedent to the legality of the detention period were satisfied, namely Mr Ullah was a person liable to deportation and notice had been given to him of a decision to make a deportation order against him, and there was nothing to suggest that where a notice was withdrawn, the period would be retrospectively rendered unlawful.

Leolin Price QC and Marc Living (WH Matthews & Co) for Mr Ullah; Robert Jay (Treasury Solicitor) for the Home Office.

LORD JUSTICE KENNEDY said that there never was anything which could amount to authorisation by the Home Secretary of Mr Ullah's continuing presence in the UK. It was discourteous of the Home Secretary not to have replied to the earlier applications for leave to remain made by Mr Ullah, but such discourtesy could not be construed as authorisation, nor could it give rise to any form of estoppel.

The fallacy in the argument that the Home Secretary, having acknowledged that the decision to deport was not valid, could not rely on the deportation notice for any purpose was that all that was required by paragraph 2(2) in order to make detention legitimate was the giving of a notice of intention to make a deportation order. That condition precedent would not be fulfilled if no such intention had been formed, or if the intention had been formed in bad faith, but otherwise once notice was given in accordance with the regulations to a person liable to be deported that person might be detained and his detention would be lawful even if the notice was later withdrawn or set aside.

Nothing would be achieved by the matter going for trial. The writ and statement of claim would be struck out.

LORD JUSTICE MILLETT, concurring, said that paragraph 2(2) did not require that the decision to make a deportation order, should be the right decision, or without flaw, or otherwise impervious to successful challenge by way of judicial review. A decision made by the Home Secretary in good faith against a person liable to be deported was a decision within the contemplation of the paragraph even if it later appeared it was a decision which he should not have made or which he should not have made without further consideration. If, for whatever reason, such a decision was withdrawn or set aside, the person in question must be immediately released.

Until the decision was withdrawn or set aside, it was sufficent to support the notice and authorise the detention.