Gomes: unlawful detention victory
Date posted: 13 April 2016
The public law department has had success in a judgement handed down today in The Queen (on the application of Gomes) v SSHD  EWCA Civ 373.
The case concerned the lawfulness of our client’s detention in circumstances where the power to detain her had lapsed and yet she remained in immigration detention for a further 14 months.
Our client remained in detention whilst she pursued her appeal against the decision to deport her. She won her appeal in the First Tier Tribunal and the Secretary of State failed to lodge an application for permission to appeal in time. It was common ground that at that point there was no longer any power to detain her as the appeal had been finally determined in her favour. She was therefore entitled to be released.
The Secretary of State filed an application for permission to appeal five days out of time and was subsequently granted permission to appeal. No further authority to detain our client was produced or served by the SSHD prior to our client’s release on bail over a year later.
There were two questions for the Court of Appeal to consider in this case.
- The first was whether the original authority to detain our client “revived” following the Secretary of State’s grant of permission to appeal, such that her detention became lawful. The Court of Appeal found that the original authority to detain should not be construed as authorising more than one continuous period of detention as that would render the effect of the warrant uncertain. The Court of Appeal stressed that any infringement of the right to personal liberty must be clearly justified, both in terms of the existence of the power to detain and in terms of its exercise.
- The second question was whether a Detention Review, which took place 10 days after the Secretary of State was granted permission to appeal, constituted authority for our client’s detention. Again, the Court of Appeal found in our client’s favour, pointing out that a Detention Review is an internal procedure conducted by the Home Office. A report of its outcome (the Monthly Progress Report) is given to the detainee but not to anyone else. The governor of the detention facility where our client was detained therefore held no valid authority for our client’s continued detention.
Nina Rathbone Pullen is the solicitor responsible for the case.