HXA v. Home Office: on the legality of detention of a terrorist suspect pending deportation

On 21 May the UK High Court issued the judgment in the case HXA v. Home Office, holding that detention of a suspect terrorist pending deportation motivated not only by the need to remove the subject from the  UK, but also to ensure his surrender into custody in the receiving countries, is unlawful.

The claimant in the case at hand was an Iraqi national who had been granted exceptional leave to remain in the United Kingdom. He had since been served with a notice of a decision to deport him and to detain him pursuant to Sch.3 para. 2(2) of the Immigration Act 1971, on basis that the claimant had been actively engaged in the provision of material support to the insurgency in Iraq, and inter alia that he was also known to be in contact with several individuals in this country assessed to be operating to an Al Qaeda agenda, assessed as representing a threat to national security.

The secretary of state’s preference was that upon his return to Iraq he should be detained, if legally possible, either by the Iraqi authorities or by multinational or United States forces, in order to avoid the resumption by the claimant of his anti-UK terrorist-related activities. The claimant was detained pending deportation between January and November 2005. By November it became clear that it would not be possible to transfer him into custody on his return to Iraq, and in those circumstances the deportation decision was withdrawn.

The Court found that detention of the claimant was unlawful for two main reasons.  Firstly, the pre-June 2005 detention was unlawful in that the secretary of state did not consider what might happen to the claimant on his return to Iraq, to any risks to his safety in Convention terms, or to what safeguards might be required if he were to be returned in a way that was compatible with his Convention rights.

Secondly, from June onwards the claimant was not being detained for the sole purpose of removing  him from the UK, but also for investigating whether acceptable arrangements could be made to return him into detention in Iraq. In this respect, the Court held that

The power of detention under the 1971 Act is patently not a power available to detain for preventative purposes in this country in order to protect the public from threat of terrorism (cf the express powers under the Anti-Terrorism Crime and Security Act 2001 struck down in ‘A’) and I decline to imply into it an analogous power to detain in order to make arrangements for such preventative detention overseas no matter how compelling the requirements of UK national security that this should be done.

Read a comment of the case on UK Human Rights Blog.

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