In the recent case of Ibori v Secretary of State for the Home Department (“SSHD”), the High Court ruled that the SSHD had abused her immigration powers to detain a foreign criminal in the UK to face confiscation proceedings.

The SSHD’s policy within the Enforcement and Instructions Guidance (“EIG”) explicitly states that immigration detention must only be used for one of the statutory purposes, namely for preventing a person’s unauthorised entry or with a view for a person’s removal (although not necessarily deportation). In addition it states that any detention must comply with domestic and ECHR case law and should only be used for a reasonable period in all the circumstances.

Mr Ibori, a Nigerian national, was serving a 13-year prison sentence in the UK for embezzling public funds as the ex-governor of Delta State, Nigeria. He had been issued a notice to initiate proceedings to confiscate his assets pursuant to s71(1)(a) Criminal Justice Act 1988.

The SSHD informed Mr Ibori that he was liable for automatic deportation as a foreign criminal pursuant to s32 Borders Act 2007 and subsequently on 8 May 2015 issued a deportation order. Mr Ibori was due to be released on licence on 20 December 2016 but the SSHD wrote on 8 December stating, ‘we cannot deport Mr Ibori until the confiscation matter had been resolved,’ and thereafter issued an order for his immigration detention the following day.

Mr Ibori’s solicitors filed for a judicial review of the both the decision not to deport him and the decision to detain him. In doing so the CPS were asked whether they objected to Mr Ibori’s removal to Nigeria upon his conditional release from prison. The CPS responded that ‘any decision regarding the deportation is a matter for the Secretary of State for the Home Department.

Upon urgent consideration of Mr Ibori’s judicial review claim, the judge ordered Mr Ibori’s immediate release from immigration detention on the condition that he remained with the jurisdiction. On 13 January the SSHD finally allowed Mr Ibori to depart the UK voluntarily, thus he managed to avoid the stigma of being depoted.

In this case it was clear that the SSHD had disregarded the limits on her to detain Mr Ibori. Accordingly, his detention for a period of one day, 18 hours and 10 minutes was declared unlawful.