The Jealous Care of Our Law

It seems to me that the modified approach is likely to have a more muted practical impact than at first sight might appear.

Marcus Pilgerstorfer KC

Regular readers will know that I occasionally like to start a post with a nice legal conundrum. Here’s one for you: A Zimbabwean man anonymised as MXV, currently 44 years old, arrived in the UK in 2004. In 2009 he was granted refugee status and in 2014 was given Indefinite Leave to Remain. He was diagnosed with HIV in 2007 and paranoid schizophrenia in 2013, and has at least 11 convictions for 17 criminal offences (described in a court case I will come to in a moment as ‘repeat serious drug offences’) recorded since 2012.

On 19th February 2021 he was convicted of possession of Class A drugs with intent to supply and sentenced to 2 years in prison, which triggered automatic deportation as a ‘foreign criminal’ pursuant to s. 32 (1) of the UK Borders Act 2007. Throughout all of his time with the immigration authorities he was routinely assessed and characterised as being of ‘a high risk of reoffending, a high risk of causing harm and a high risk of absconding’.

Now, without scrolling down and cheating, see if you can guess to the nearest date the point in time at which MXV was actually deported, bearing in mind that he was convicted of the offence in question in February 2021 and (this being the UK) his 2-year custodial sentence came to an end in, er, November 2021.

That’s right – it’s a trick question. MXV is almost certainly still in the country, living in Home Office brokered accommodation and being treated for his ailments, all at taxpayers’ expense. I say ‘almost certainly’ as it may be the case that he has been deported at some point in the last week or so. But as of the 10th of February 2026 we can say with some confidence that he was still here. This is because he (I mean, of course, whichever charity was supporting his litigation – I have some suspicions which I will air in future posts) recently brought a successful judicial review against his pre-deportation detention, the length of which was found to be unlawful.

The case in question, R (MXV) v Secretary of State for the Home Department [2026] EWHC 251 (Admin), is a prime example of what I nowadays tend to classify in my own mind as belonging to the – if you excuse my language – ‘For F*ck’s Sake School of Jurisprudence’, or ‘FFS case law’ for short.

The reason I have come up with this label is that, as an academic in a law school I read a lot of cases, which I always print out (screens are useless for close reading) and annotate in red pen as I go. What I have noticed over the years is that, while once my annotations would have been polite and informed, and would have made reference to other cases or the work of particular scholars, I have increasingly resorted to just underlining or asterisking things and writing ‘FFS’ in the margin.

Anyone flicking through one of my printouts from recent years would just see page after page of text punctuated by red underlines and ‘FFS’, ‘FFS’, ‘FFS’, ‘FFS’ written intermittently down the sides. They might conclude from this that I am in the throes of an incipient mental health crisis or demonic possession along the lines of Jack Torrance in The Shining. The truth is just that I have read a few too many administrative law decisions that have made me want to slam my head repeatedly against a filing cabinet.

MXV would take a great deal of – frankly, ludicrously complicated – explaining if it is to be understood in detail. But the essence of the decision is simple. MXV should not be in the country. We have more than enough HIV-positive, paranoid schizophrenic drug dealers who are at ‘high risk of causing harm’ of our own to deal with; we do not need to take responsibility for Zimbabwe’s, too. And the law is clear: the man should have been deported years ago. Yet the UK judiciary just plainly and simply has become politicised with respect to matters of immigration and asylum, and will not see reason. Our judges will bend over backwards to find ways to allow people who ought to be deported to remain, and will connive with charities performing strategic litigation in order to allow this to happen. And their genuflections have become so convoluted that it is almost pointless to try to subject them to careful doctrinal analysis. We simply need to cut to the chase: the problem is not a legal, but a political or even sociological one. It is an issue concerning the makeup of the judiciary itself.

This, as I will explain in closing this post, somewhat alarmingly validates much of the realist, and ultimately Marxian, criticisms of liberal or bourgeois law that were pursued during the 20th century. But first, let me at least take a stab at explaining the main doctrinal issue lying at the heart of MXV so that you can see for yourselves what qualifies as ‘legal reasoning’ in the Administrative Court in 2026.

The law, as I said earlier, is clear – at least as it exists on paper. At one time the power to deport was discretionary. Pursuant to s. 3 (5) of the Immigration Act 1971 as enacted, the Home Secretary had the power to order the deportation of anybody if he or she deemed it would be ‘conducive to the public good’. And under paragraphs (2) and (3) of Schedule 3 of that Act, the Home Secretary was also granted the power to detain somebody subject to a deportation order – the reason being, of course, that it takes time to organise deportation and anybody served with such an order would likely abscond unless detained.

Thanks to s. 32 of the aforementioned UK Borders Act 2007, that power to deport is no longer entirely discretionary but must be exercised automatically in respect of ‘foreign criminals’ (meaning non-nationals sentenced to imprisonment for a period of 12 months or more) subject to some exceptions. But the power to detain remains, and the basic idea remains the same – a ‘foreign criminal’ is essentially to be understood as simply a species of person whose presence in the country is not ‘conducive to the public good’, and it will often be necessary to detain such a person until such time as he (usually a ‘he’) is removed.

The problem with this, insofar as there is a problem, is that the power of detention prior to deportation conflicts with the basic constitutional protection of liberty (something which, in the words of Lord Scarman long ago, is traditionally guarded by ‘our law’ with ‘jealous care’). The power to detain somebody is a serious one. And it is a power wielded by the executive – i.e., the Home Secretary. There has therefore been a longstanding squeamishness about the idea that this power should be unfettered. In the UK constitution the executive should not simply get to detain somebody indefinitely without constraint, or so judges have thought, and in the 1983 case of R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704 this was framed as being problematic with respect to the right of habeas corpus. The executive cannot simply detain people and not provide them with some sort of legal recourse – such decisions have to be subject at least in principle to court review.

This is the way judges have thought for a long time, overlooking – as they always do – the role of the legislature in protecting fundamental rights (the Home Secretary’s powers ultimately derive from Parliament and can always be altered that way). But in any case that was the position taken in Hardial Singh, and in taking it the court laid out some principles which crystallised in subsequent cases.

The facts of Hardial Singh are straightforward, and even somewhat quaint seen through the lens of MXV – the past truly is another country. Singh was an Indian national who was lawfully present in the UK but in 1982 was convicted of burglary. In those prelapsarian days, burglars faced consequences, so Singh was sent to prison with a release date of May 1983. But in the meantime the Home Secretary made a decision to have him deported on ‘public good’ grounds. He was therefore detained after his sentence ended (this turned out to have happened later in the summer of 1983, as he made an abortive escape attempt in the interim) with a view to deportation. But because he had lost his passport and the Indian High Commission did not issue replacement travel documents in a timely fashion, apparently due to negligent or laggardly conduct on the part of the Home Office, he could not be deported, and had to languish in immigration detention until late October 1983, when his case was heard. Singh seems by modern standards, by the way, to have been a nice chap – he was apparently reconciled to being deported and was merely (justifiably, really) a bit peeved that it was all taking so long.

The court, in any case, decided that it would not do for the Home Secretary to be able to detain people for deportation indefinitely, especially as conditions in immigration detention were harsh – much harsher than prison (Singh had to remain in his cell 23 hours a day and could not take part in any activities). It ordered that the Home Office had to, within three days, produce evidence that it was reasonable to either to continue to keep Singh in detention or that he was about to be deported. And it also decided that the power of detention before deportation had general limits. These are now generally trotted out as:

1. The Secretary of State (i.e., the Home Secretary) must intend to deport the person [in question] and may only use the power to detain for that purpose
2. The deportee may only be detained for a period that is reasonable in the circumstances
3. If, before the end of the reasonable period [in question] it becomes apparent that the Secretary of State will not be able to effect deportation within [that] reasonable period, he should not seek to exercise the power of detention
4. The Secretary of State should act with reasonable diligence and expedition to effect removal.

These principles, nowadays routinely referred to as the ‘Hardial Singh principles’, have taken on a quasi-statutory significance and are applied as though brought down from Mt Sinai by Moses. But you will I hope have immediately seen the problem with them, which is a problem identifiable in almost all administrative law decisions, and this is that almost everything hinges around the question of what is reasonable. And what is reasonable is in the eye of the beholder. Implicit, but ignored, in the Hardial Singh principles is a presumption about who is best placed to exercise a view on what a ‘reasonable period’ would be and what would be ‘reasonable’ by way of expedition of deportation. Is that the judge? Or the Home Secretary?

Judges have, ever since 1983, taken the view that they know best. Indeed, in subsequent cases they have expressed the opinion that ‘it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised’ and that it would be a ‘remarkable proposition’ to suggest otherwise (per Toulson and Keene LJJ in the case of R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804). That indeed would be purportedly be tantamount to a jailor saying that the detention of a prisoner was justified ‘in his view’ and then maintaining detention indefinitely (per Lord Browne-Wilkinson in Tan Te Lam v Superintendent of Tai A Chai Detention Centre [1997) AC 97).

The truth, however, is more complicated. First, we have to ask whether it is really plausible to imagine that judges are best placed to decide what is a ‘reasonable period’ to keep somebody in immigration detention, rather than the Home Secretary who has all of the facts available and an eye on the public mood (and, one might add, the public interest). And, second, we have to dismiss Lord Browne-Wilkinson’s spurious analogy of the jailor detaining a prisoner on a whim; in cases of deportation it is always already established that a lawful reason exists for deportation and detention, and the Home Secretary is not simply a jailor but an avatar of the executive who has been granted powers by statute to make the relevant decisions. It is, I think, right that the court in Hardial Singh determined that the power to detain should be not be entirely immune to judicial review. But it is rather another thing for the judiciary to arrogate itself the right to make determinations about what is reasonable in such matters.

Successive governments, keen to exercise the power to deport foreign criminals, have therefore chafed against the Hardial Singh principles. And Suella Braverman made a significant change, in introducing the Illegal Migration Act 2023, in order to try to rebalance things.

Most of the Illegal Migration Act 2023 was never commenced – after Labour came to power in 2024 the government took most of the important provisions designed to deter ‘small boat’ crossings over the channel off the table. But some of its contents were found useful, including s. 12 (2), which inserted certain provisions into Schedule 3 of the Immigration Act 1971, concerning the detention power. The relevant bits are as follows (with emphases added):

(3A) A person liable to be detained under sub-paragraph (1), (2) or (3) [of paragraph 2 of Schedule 3 of the Immigration Act 1971] may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the deportation order to be made, or the removal to be carried out.

…

(3D) Sub-paragraph (3E) applies if, while a person is detained under sub-paragraph (1), (2) or (3) [of paragraph 2 of Schedule 3 of the Immigration Act 1971], the Secretary of State no longer considers that the deportation order will be made or the removal will be carried out within a reasonable period of time.

(3E) The person may be detained under that sub-paragraph for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate.

The meaning of this is more straightforward than it looks – the material parts really are those which are in bold. What this provision did is simply to switch the locus of decision making with respect to the Hardial Singh principles. It is still the case that the period of detention before deportation should be reasonable. But now (thanks to sub-paragraph (3E)) the Home Secretary may extend the period in question if ‘reasonably necessary’, and – crucially – it is his or her opinion that counts in respect of reasonableness, not that of the court. What determines reasonableness in respect of Hardial Singh is the ‘opinion of the Secretary of State’ and not whoever happens to be sitting in the High Court on any given day. In other words, the ‘remarkable proposition’ that it is for the Home Secretary to make decisions about the length of immigration detention has been put into statute.

However, in MXV the courts have now had their first opportunity to really scrutinise and apply these new provisions of the Immigration Act, as inserted by the Illegal Migration Act. And this is where we have to get our red pens (or perhaps crayons) out and get ready to start scrawling ‘FFS’ all over the judgment.

MXV should in a sane world have been deported in May 2021, when he was served with notice of a decision to make a deportation order. What then happened is a long, stupid, and depressing catalogue of ‘broken Britain’-style events that it is not worth reproducing (the litany would simply get you down too much), but suffice to say he was eventually detained in February 2024 (!).

Shenanigans then ensued. Did MXV have enough of a supply of anti-viral drugs for the journey back to Zimbabwe? How many days’ worth did he need? What were his current viral load levels? He needed to see a GP for a health check. He also needed to have a blood test to see if he actually did have HIV. He needed to have his schizophrenia medication ‘monitored and stabilised’ as he had not been taking it previously. He needed to have a mental health assessment. Oh, but he was not willing to ‘engage’ with that. February ticked over into March, then April. Removal was ‘deemed likely within a reasonable timescale’. On April 25th he was considered by a psychiatrist to have a ‘stable mental state’. But he wanted to be ‘counselled’ before taking ‘HIV meds’. April gave way to May. All of a sudden an ‘out of time’ appeal (meaning one outside of the proper deadline) was lodged at the First Tier Tribunal (Immigration and Asylum Chamber) on MXV’s behalf by a firm of solicitors, Duncan Lewis. The appeal was admitted despite being out of time and a case management hearing was scheduled for 17th May. A substantive hearing was then listed for 2nd September. And so on and so on.

Meanwhile, in any case, MXV’s detention was reviewed on 3rd June 2024. Owing to the appeal and the need for revalidation of his travel documentation, it was now forecast that removal would not take place for another 3-6 months. It was then decided that since this would be too long, MXV should be detained for a further ‘short period’ and then released into Home Office-sourced (and funded) accommodation – perhaps, indeed, an asylum hotel, though we can’t be sure about that. In any event he was then released on 19th June 2024 and is presumably still in that accommodation, or another like it.

Fast forward to 10th February 2026, which you will have noticed is rather beyond September 2024, and finally we get to the bottom of things before the Administrative Court, where MXV’s case was determined. And here, it is important to pay attention to what, you will see, is an absurdly close argument.

MXV’s position in respect of Hardial Singh and the reasonableness of his detention was, in essence, that he should never have been detained in the first place – i.e., that Hardial Singh principle 3 applied. It ought to have been clear to the Home Secretary that MXV could not realistically have been deported in any ‘reasonable period’ envisaged at the start of his detention in February 2024, as was indeed evidenced by the fact that it was now February 2026 and he was still in the country. And therefore the detention power should not have been exercised, and had not been lawfully exercised.

Now, those of you who have been paying attention will have realised that, aha! – this is where the Illegal Migration Act 2023 comes in. And you will have remembered that what s. 12 of that Act does is to make the Home Secretary the judge of what is reasonable in respect of the Hardial Singh principles. Since that was the case, then the court would not have the power or authority to declare that MXV had been detained beyond what was reasonable, right? It would just be the Home Secretary’s opinion that would count, right? And MXV therefore did not have a leg to stand on – right?

Wrong. And this is where the FFS School of Jurisprudence really comes into its own. You see, in the eyes of Marcus Pilgerstorfer KC, the judge in the Administrative Court, the approach adopted by the Illegal Migration Act 2023 was ‘likely to have a more muted practical impact than at first sight might appear’. You may not have realised this, you see, because you are not learned in the law, but irrespective of the contents of that Act, the Home Secretary’s conclusions about reasonableness in respect of Hardial Singh would still have to be ‘assessed’ by the court with ‘sensitivity to the fact that the liberty of the individual [was] at stake’. The ‘nature and gravity’ of the matter would indeed ‘lead the court to conduct heightened…review so as to narrow the scope of rational decision-making’. It did not matter that it was the Home Secretary’s opinion on reasonableness that was mentioned in the statute. The court would still act to ‘narrow the scope of rational decision-making’ so as to give the Act a ‘muted practical impact’.

Moreover, and more importantly, there was still the Human Rights Act 1998 to consider. Article 5 of the European Convention on Human Rights (given effect in UK law by the Human Rights Act), you see, contains the right to liberty. And the Illegal Migration Act 2023 didn’t specifically mention human rights. Therefore, it follows, apparently inevitably, that the court could still apply Article 5. And since Article 5 ‘broadly reflects the exercise the Court was engaged in when assessing compliance with the Hardial Singh principles prior to the 2023 [Illegal Migration] Act’, the Court could simply achieve the outcome that would have happened prior to the enactment of the Illegal Migration Act 2023, as though that Act had never even been enacted. It could just apply Article 5 of the ECHR, which so happens to have an identical effect to Hardial Singh, instead.

And the outcome was that, applying the third Hardial Singh principle, the Home Secretary should have realised when MXV’s case was reviewed at the start of June that he would not be deported in a reasonable time frame, and should therefore have released him at that point or shortly thereafter. He had been released on June 19th anyway, but the date should have been sooner. And he had therefore been unlawfully detained for the period from 1st-19th of June.

Now, let us get one thing out of the way first, dear readers: this is entirely spurious – but you will have seen that it is spurious. ‘Statute X was designed to change the law, but it didn’t mention human rights, so I will deploy human rights law to effect the precise result that would have happened if Statute X had not been enacted’ is the reasoning of the playground, not the courtroom: ‘Yes, the Illegal Migration Act 2023 was enacted, but I had my fingers crossed behind my back.’

It is worse than spurious, though – it is a deliberate decision made to neuter the Illegal Migration Act 2023 entirely in respect of immigration detention. Now, you see, thanks to the decision in MXV, a precedent has been set that the immigration tribunals will all follow: Hardial Singh in effect still applies as originally decided, despite Parliament having legislated to change its application, with the argument for this being, essentially, ‘because human rights’. And it is pretty transparent that this was the whole point of the litigation and the judgment. MXV brought a raft of grounds for review. All of them were dismissed out of hand, because they were piffle – they were not serious. The only one which stuck, the only one which mattered, was the one which concerned his short period of detention after his case review at the beginning of June, and which was, in the grand scheme of things, a triviality – but which, crucially, opened the door for the court to ‘mute’ the practical impact of the Illegal Migration Act 2023 on Hardial Singh.

It is important to be absolutely clear on this point: MXV the case was not about MXV the person. He will be deported eventually, when finally everybody gets their act together, and will get a small amount of money to compensate him for unlawful detention for 18 days. The litigation was not about achieving justice for this man, whatever that might mean – it was about securing a decision on the Illegal Migration Act 2023’s ‘muted’ effect on Hardial Singh. That outcome has now been arranged and the work of strategic litigation has been done. Parliament may have legislated to give the Home Secretary the power to determine whether immigration detention is reasonable, and for how long it is reasonable for it to last, but the judiciary – in a nudge-nudge, wink-wink, plausibly deniable sort of way – has connived with the penumbra of open borders charities who ‘force through legal change‘ to determine otherwise.

All that us onlookers can really do for the time being is mutter ‘for f*ck’s sake’ beneath our breath at this, which is why – I hope you can now see – ‘FFS’ has become my comment of choice on administrative law decisions. But, in closing, I wanted to elaborate on my earlier comment about the realist, and ultimately Marxian, critique of liberal law.

I have written about this at length in other places (see here and here) but, in brief, beginning in the late 19th and early 20th centuries various influential schools of what became known as ‘legal realism’ sprang up in the USA, Scandinavia and Germany. These had different ideological bases and the individuals involved varied in their levels of erudition. But their core observation was the same: legal formalism (meaning the application of rules to resolve disputes) was a myth. Judges do not look at a dispute as neutrals, then go and consult ‘the law’, and then apply it to find a resolution. They look at a dispute through the lens of their own biases, decide who had better win, and then justify their decision in reference to the law. The American legal realists said ‘justice is what the judge had for breakfast’, Carl Schmitt said the ontology of law lies in the decision, but the meaning is the same. The law on paper does not matter. In litigation, the judge’s decision is everything.

It follows from this that predicting the outcome of litigation is not a matter of looking at the law on paper but at legal attitudes, beliefs, motives, and ideas. And it further follows from this, as the later (Marxian) critical legal scholars argued, that you ought to analyse legal attitudes, beliefs, motives and ideas through a materialist or class-based lens if you really want to get to the bottom of what legal decisions are all about. You can predict the outcome of litigation by looking not at the statute books, but at the class interests (or, later, the sex- or race-based interests) of the judiciary.

Looking at a case like MXV it is genuinely difficult to argue that the realists, and the later critical legal scholars, did not have a very good point. Which class interests are best served by open borders and, by extension, cheap labour? And what are the outcomes which, by and large, immigration cases seem designed to achieve? It is no coincidence at all that most judges are from the kind of background which has benefited most from the free movement of people in recent decades, and that it is the judiciary who time and again reveal themselves to be at the vanguard of attempts to further liberalise movement – or, at least, to stymy democratic efforts to place rational limits on immigration, even in the most incremental and minor ways. MXV does not change a great deal. But it changes something, by making the deterrent effect of immigration detention and deportation even less effective than it would otherwise have been.

And it is through changes like this, each of them small, but each pointing in the same direction, that enormous societal change is achieved. From there anybody can really join the dots themselves, can’t they? It is not the law on paper that matters, but what judges believe. FFS, indeed.

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