Recommendation 11

HM Government Rejected

Section 12 of the Illegal Migration Act 2023 (IMA 2023) is already in force and provides a clear legislative framework for operational detention decisions to be made. Section 12 of the IMA 2023 placed two of the common law Hardial Singh principles on a statutory footing. It established that it is for the Home Secretary, rather than the courts, to determine what is a reasonable period to detain an individual for the specific statutory purpose (for example, to effect removal from the UK). However, this does not prevent thecourt from finding that the Home Secretary’s decision was unlawful, and does not prevent ny legal challenge being made. It therefore continues to be the case that a person’s detention is subject to judicial oversight. Article 5(1)(f) of the ECHR does not prevent courts giving discretion to state authorities to decide whether there is a sufficient prospect of removal to justify detention. Giving discretion to the Secretary of State (as to whether there is a sufficient prospect of removal within a reasonable timescale to justify detention) is compliant with Article 5 ECHR. It is appropriate for it to be a matter for the Home Secretary rather than the courts, as it is the Home Office which is in full possession of all the relevant facts and best placed to decide whether continued detention is reasonable in all the circumstances.