CHK (R, on the application of) v Secretary of State for the Home Department

Lord Justice Zacaroli:

1. The right to claim habeas corpus , one of the oldest of the prerogative writs, is an extremely important protection of the most fundamental of freedoms – the liberty of the citizen under the law. A writ issues where a person is detained without any authority or where the purported authority is beyond the powers of the person authorising it. It requires the person responsible for the detention to produce the detained person in court and make a return stating the grounds of detention. Its importance is recognised in the fact that an application for a writ of habeas corpus was traditionally given priority over all other court business: see, for example, Lord Donaldson MR in R (Cheblak) v Secretary of State for the Home Department [1991] 1 WLR 890 at p.894A-B.

2. It is also important, however, that this ancient right is not misused, taking up valuable court time on a priority basis, at the expense of other litigants, where there is in reality no deprivation of liberty on which the right is based.

3. The appellant in this case (referred to as “ CHK ”, following an order for anonymity made by Lang J on 12 September 2025 and continued in this court) is not detained at all, but is (and has at all times since 2018) been on immigration bail subject only to limited bail conditions. His application for habeas corpus was rightly rejected by the deputy judge below, on the basis that such minimal curtailment of his liberty as existed by virtue of the conditions attaching to his bail was not sufficient to justify the issue of a writ. That was plainly correct, and CHK’s appeal against that decision is hopeless for that simple reason. Background

4. CHK is a Brazilian national who was convicted of serious criminal offences and sentenced to 10 years’ imprisonment in 2012. He is therefore a “foreign criminal” within the meaning of s.32(1) of the UK Borders Act 2007 .

5. On 12 May 2017 the respondent (the “ SSHD ”) refused a claim for asylum and an associated human rights claim made by CHK, and certified the claims under s.94 and s.95 B of the Nationality, Immigration and Asylum Act 2002 (the “ May 2017 Decision ”). The consequence of certification was that he could only exercise a right of appeal against the SSHD’s decision after having been deported from the UK.

6. On the same date, the SSHD made a deportation order (the “ Deportation Order ”). This recorded that, pursuant to s.5(1) of the Immigration Act 1971 , once any right of appeal that may be exercised from within the UK under s.82(1) of 2002 Act was exhausted or, if CHK did not have a right of appeal that may be exercised from within the UK, the SSHD – by the Deportation Order – required CHK to leave and prohibited him from entering the UK for so long as the order was in force.

7. Shortly afterwards, following the decision of the Supreme Court in R (Kiarie & Byndloss) v SSHD [2017] UKSC 42 ; [2017] 1 WLR 2380 , the SSHD withdrew the May 2017 Decision, but remade it in substantially the same terms on 17 July 2017, save that it was not this time certified (the “ July 2017 Decision ”).

8. Having completed the custodial part of his sentence, CHK was initially placed in immigration detention but was released on bail in about May 2018 and remains on bail, subject to conditions. The conditions have varied over time.

9. From 3 July 2023 (and applicable at the time of the hearing before the deputy judge) the bail conditions were as follows: (1) CHK was allowed to work; (2) CHK was required to reside at a new address (the previous conditions having referred to another address); and (3) CHK was required to report to a police officer/immigration officer on a monthly basis.

10. On 26 January 2026 the bail conditions were varied and are now as follows: (1) CHK is not allowed to work; (2) CHK must report to a police officer at a police station in the town where he lives every fortnight; and (3) CHK must report digitally by complying with Immigration Bail Digital Reporting.

11. CHK appealed against the July 2017 Decision. On 2 March 2018 that appeal was dismissed by the first-tier tribunal (“ FTT ”). On 15 May 2019 the Upper Tribunal (“ UT ”) set aside the FTT’s order and remitted the appeal to the FTT. On 10 May 2021 the FTT again dismissed CHK’s appeal against the July 2017 Decision. That order of the FTT was set aside by the UT on 18 January 2023, and the matter was remitted again to the FTT.

12. In June 2021 CHK applied under the EU Settlement Scheme. That application was refused by the SSHD on 17 October 2025. CHK has appealed that decision to the FTT. The EUSS appeal and the appeal against the July 2017 Decision remain pending. Directions were given in relation to both on 24 October 2025 by FTT Judge Chinweze.

13. On 1 September 2025, CHK applied to the Administrative Court for a writ of habeas corpus . Benjamin Douglas-Jones KC, sitting as a deputy High Court Judge, refused that application on the papers on 17 October 2025.

14. In his reasons for refusing permission, the deputy judge first noted the decision of the Court of Appeal in R (Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875 ; [2022] QB 695 , at §122, in which it was recognised that a writ of habeas corpus might be available, in appropriate circumstances, notwithstanding that a person was not in fact in detention but on bail. He concluded, however (at §14), in the following terms: “A writ of habeas corpus is an extraordinary remedy intended to secure a person’s release from physical detention. The Applicant in this case is not detained. He was released on bail and lives in the community. The SSHD properly concedes that bail conditions might in an appropriate case constitute a “significant curtailment” of liberty that would justify the use of habeas corpus. In this case the curtailment of liberty through bail conditions is not sufficient in my judgment to justify the use of habeas corpus.”

15. The deputy judge went on to hold, even if that was wrong, that the Deportation Order was itself never withdrawn, revoked or quashed by a court. It constituted, therefore, an active and lawful instrument, which provided a clear legal basis for the imposition of bail conditions. Such conditions are mandatory pursuant to §2(1) of Schedule 10 to the Immigration Act 2016 . The restrictions on CHK’s liberty are therefore direct, necessary and legally required consequences of a valid deportation order.

16. CHK asserts 12 grounds of appeal, as enumerated in his skeleton argument, running to 17 pages, and detailed further written submissions, running to 56 pages. He has also at various times filed a number of other lengthy documents addressing particular matters said to be relevant to the appeal. At the hearing of the appeal, CHK handed up a 32-page “written case” which constituted the submissions he wished to make orally. The Court took time to read that written case and CHK then made short submissions on certain key aspects of it. We announced our decision to dismiss the appeal at the hearing. These are my reasons for joining in that decision.

17. In addition to what CHK said orally at the hearing, I have taken account of all the written submissions he has filed in support of his appeal.

18. A number of ancillary applications were made. CHK applied for summary judgment on his appeal. As the substance of the appeal was addressed at the hearing, we dismissed that application as serving no purpose. The SSHD made an application for an extension of time to file a respondent’s notice (without prejudice to the contention that none was needed). This related to points arising in relation to the second ground of appeal, which it is unnecessary to deal with, so we need not address it. CHK also made an application to admit fresh evidence. I would admit that evidence insofar as it has described events since the hearing before the deputy judge. Otherwise, it is not relevant to the determination of the appeal on the basis explained in this judgment, and I would not admit it. CHK made an application to be permitted to rely on a bundle of authorities, but there was no objection to that from the SSHD and he was permitted to rely on it. The first ground of appeal

19. The first ground of appeal is that the deputy judge applied the wrong test for habeas corpus , in that he said it requires “physical detention”. CHK contends that the degree to which he is deprived of liberty by the existence of the Deportation Order and the conditions attaching to his bail is sufficient to entitle him to claim habeas corpus .

20. As foreshadowed at the start of this judgment, the first ground of appeal is hopeless. In short, CHK is neither detained nor deprived of his liberty in any sense that comes close to entitling him to a writ of habeas corpus .

21. CHK contends that the “physical detention” test is outdated, and the judge should have applied a test of “ de facto control”. CHK argues that he is under the de facto control of the SSHD by virtue of the following severe restraints on his liberty: (1) compulsory residence restrictions (he must reside in a particular town); (2) mandatory reporting requirements (to a police station every 2-4 weeks, for 8 years); (3) prohibition from international travel; (4) prohibition on work; and (5) the threat of detention if the conditions are breached. He contends that he is subject to comprehensive restraints imposed by the Deportation Order itself, under the Immigration Act 1971 , namely: (1) the power of arrest without warrant; (2) the power of removal without further process; (3) criminal liability for breach; (4) prohibition on lawful employment; (5) exclusion from public services; (6) inability to leave and return; and (7) the indefinite duration of these restraints.

22. CHK cited the Habeas Corpus Act 1816 , s.1 of which applies where a person is “confined or restrained of his or her liberty”. He contends that being “restrained of liberty” is a broader concept than detention and includes being under the “ de facto control” of another. That test, he submitted, derives from R (O’Brien) v Secretary of State for Home Affairs [1923] 2 KB 361 , and was re-affirmed recently in R (Rahmatullah) v Secretary of State for Defence [2012] UKSC 48 .

23. O’Brien concerned an order made by the Home Secretary for the internment of the applicant, then residing in England, in such place in the Irish Free State as the Irish Free State Government should determine. The applicant had been arrested in London and conveyed to Dublin, where he was interned. The applicant applied for a writ of habeas corpus addressed to the Home Secretary. In the passage relied on by CHK, at p.398, Atkin LJ (in a judgment concurring with Bankes LJ and Scrutton LJ) was addressing the question of whether the writ was properly addressed to the Home Secretary. That turned, he said, on whether there was evidence that the Home Secretary had “custody or control” of the applicant, or had surrendered control to the Irish Free State. In that context, “actual physical custody” by the Home Secretary was not essential. Atkin LJ considered that there was de facto control where the order itself was that the applicant be interned in the Irish Free State “until further orders” which was conceded to mean further orders by the Home Secretary.

24. In Rahmatullah the applicant who sought habeas corpus was undoubtedly detained, by American forces in Afghanistan, and the only question was whether a writ of habeas corpus was properly issued against the Secretary of State for Defence in the UK, which turned on whether that minister was in a position to exert control over the applicant to effect his release notwithstanding he was in the custody of the American forces.

25. Neither case provides any support for CHK’s argument. In neither of them was there any doubt that the applicant was actually detained. The only issue was whether the person to whom the writ was addressed exercised sufficient control over that detention, in circumstances where the person was under the direct physical detention of a third party. There is nothing in them which suggests that the kinds of restraints on CHK’s liberty on which he relies would suffice to found an application for habeas corpus .

26. CHK next relied on a line of cases in which it was said (or in some cases appears to have been assumed) that a person who had been subject to actual detention, but had since been released on bail, was nevertheless entitled to apply for habeas corpus : see R v Spilsbury [1898] 2 QB 615 ; R v Secretary of State for India in Council, ex p Ezekiel [1941] 2 KB 169 ; Re Amand [1941] 2 KB 239 (upheld on appeal at [1943] AC 147 ); and Re Caborn-Waterfield [1960] 2 All ER 178 .

27. I need refer in any detail to only one of these cases (there being nothing in the remainder which takes the point any further). In Re Amand , the applicant had lived in the UK for a number of years before his arrest in 1941 and detention in custody for the purpose of being handed over to the Netherlands military authorities as a deserter from the Netherlands army. Viscount Caldecote CJ noted, at the beginning of his judgment at p.249 of the report, that “He is now on bail, but that makes no difference and we have to deal with the application as if he were still detained in custody”.

28. This line of cases says nothing about the nature of detention, or whether it is satisfied by any particular degree of de facto control. In reality, it is an example of where an applicant was permitted, via an application for habeas corpus , to challenge the decision on which their detention was based (an issue raised by CHK’s second ground of appeal). In my judgment, to the extent that the cases established that proposition, they are no longer good law, for the reasons explained by the Supreme Court in The Father v Worcestershire County Council [2025] 2 WLR 155 (“ Worcestershire ”).

29. Worcestershire concerned an application by a father for a writ of habeas corpus in relation to his children, on the basis that the children were in unlawful detention as a result of a care order made by a local authority. The Supreme Court concluded that the children, who had been placed in foster care, were not detained for the purposes of the writ of habeas corpus . It also considered the question of whether habeas corpus is available when there are alternative remedies, concluding that – save in certain narrowly defined circumstances – an individual could not bring a claim for habeas corpus in order to challenge the validity of the order or decision on which their detention was based: see §65, and the approval of the earlier Court of Appeal decisions in Cheblak (above) and R (Muboyayi) v Secretary of State for the Home Department [1992] QB 244 , at §67 to §68.

30. In the course of doing so, Lord Sales and Lord Stephens observed, at §62, that historically it had been common for an application for habeas corpus to be made in conjunction with an application for certiorari , an old form of procedure for quashing the decision on which the detention was based. The old forms of procedure gave rise to debate as to whether habeas corpus might be used to achieve that end without being accompanied by an application for certiorari . Lord Sales and Lord Stephens said, however, that the development of the modern procedure for judicial review meant that a more principled approach needed to be taken.

31. They returned to this at §66, noting that some older authorities indicated there might be a wider scope to use an application for habeas corpus to challenge the lawfulness of an order authorising detention without the need to apply for certiorari to quash the order, but concluding that these cases preceded the important procedural reform in 1977 introducing the new judicial review procedure, involving a requirement of permission, and they did not address the proper procedural approach that must now be adopted.

32. Accordingly, I reject the argument that this line of authority removes the need to show that a person is actually detained in order to be entitled to claim habeas corpus .

33. CHK also relied on further authorities which appear to broaden the scope of “detention” beyond actual incarceration, to circumstances where there was a “significant curtailment of the freedom to do those things which in this country free men are entitled to do”: see Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC 2942 (Fam) ; [2006] 1 FLR 867 , at §51 where Munby J cited with approval a passage from the judgment of Eastham J to that effect in Re C (Mental Patient: Contact) [1993] 1 FLR 940 , 944.

34. A further example – at least by way of analogy (because it did not concern an application for habeas corpus ) – is R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4 ; [2021] AC 262 , where “false imprisonment” at common law included a case where a person was subject to an overnight curfew.

35. Finally, under this head, CHK relied on R (Kaitey) v Secretary of State for the Home Department [2021] EWCA Civ 1875 ; [2022] QB 695 , where Singh LJ referred, at §122, to a large number of authorities on the availability of a writ of habeas corpus in extradition cases where a person is not in fact in detention but is on bail. He found those authorities of no assistance, but said that he had no doubt that a writ of habeas corpus will still be available “in the present circumstances” (those including that the applicant was on bail), in an appropriate case on the facts.

36. Assuming that these cases extend the concept of detention beyond actual incarceration, so that it includes a case where bail conditions sufficiently restrict a person’s liberty to warrant an application for habeas corpus , on any view the bail conditions in this case fall far short of that.

37. CHK submitted that his position is analogous to that of the curfew in Jalloh , noting Lady Hale’s language in that case about a curfew enforced by electronic tagging and “clocking in and clocking out”. He said that he is required to “clock-in” at an immigration reporting centre at a specific time, now on a fortnightly basis. There is an obvious and fundamental difference between such a reporting requirement and the kind of curfew in place in Jalloh , where someone is confined to a specific address for eight hours a day.

38. He likened his position to that of a dog on a leash, referring to the Deportation Order and the bail conditions as the leash. Vivid as the analogy is, it does not help here. CHK is free to come and go as he pleases from his main residence. He is free to do so at all times. The obligation to report to an immigration reporting centre once a fortnight cannot on any view be regarded as a meaningful restriction on his liberty.

39. Accordingly, the deputy judge was correct to find that CHK is neither detained nor subject to restrictions (less than detention) on his liberty sufficient to warrant applying for habeas corpus . This is sufficient to dispose of this appeal.

40. It is therefore unnecessary to deal with the other principal ground on which CHK appeals, namely that the deputy judge was wrong to conclude that the Deportation Order was an active and lawful instrument, unless and until it was successfully revoked (a matter which is currently still pending before the FTT), and that it is impermissible to challenge the validity of the Deportation Order via an application for habeas corpus . I do not, therefore, address Grounds 2, 9 or 10 to 12 which relate to this issue (or ground 6 to the extent that it also relates to this issue).

41. For completeness, I briefly address the further grounds of appeal which relate to the detention point and two separate procedural points. Ground 3

42. CHK contends that he was denied an effective right to be heard. There is nothing in this point, if only because he had the right to request a reconsideration of the deputy judge’s order, pursuant to CPR 87.4(2) which he did not take up. Even if there were otherwise anything in this point, it is immaterial because it does not address the critical fact that the habeas corpus application is flawed for the reasons set out above.

43. CHK contends that the deputy judge purported to rely on non-existent documents – namely an acknowledgment of service and a defence. This is based, however, on a different order of the deputy judge: no such reference is made in the deputy judge’s order in the habeas corpus application where, in any event, a defence was served by the SSHD. Ground 4

44. CHK contends that there is a logical inconsistency in the SSHD’s position (and the deputy judge’s reasoning), in that it simultaneously depends on CHK not being “detained” while asserting he is subject to mandatory bail under Schedule 10, Immigration Act 2016 . The inconsistency is said to lie in the fact that Schedule 10, para 1(1)-(2) only applies to persons “liable to be detained” and “treated as if detained”. The argument is plainly wrong. The fact that bail may be granted to someone who is “liable to be detained” is not inconsistent with them not being detained once they are granted bail. Those paragraphs do not use the phrase “treated as if detained”.

45. CHK further contends that the deputy judge’s reasoning makes habeas corpus unavailable to persons on bail. That is also plainly wrong. As I have noted above, the judge proceeded on the basis that sufficiently restrictive bail conditions might in an appropriate case constitute detention for the purposes of habeas corpus . Ground 5

46. CHK contends that the judge was irrational in not certifying his application for habeas corpus as totally without merit, when he did certify a separate judicial review application made by CHK as such. The point needs only to be stated to demonstrate its absurdity. It has no relevance to the only appeal before this court, being that against the judge’s dismissal of the habeas corpus application. Ground 6

47. CHK contends that the judge’s reasons were inadequate, because (insofar as this relates to the first ground of appeal) he did not address Rahmatullah and the de facto control test; he did not explain why Kaitey was not followed; and he did not explain why 8+ years of restraint was not sufficient for habeas corpus .

48. The deputy judge referred to the acknowledgment made by the SSHD, that in an appropriate case conditions of bail might curtail freedom sufficient to amount to detention so as to enable a person to apply for habeas corpus (and cited Kaitey in that context), but found that the conditions in this case did not meet that threshold. That succinctly encapsulates the simple reason why the application was dismissed. He was not required to address every argument contained in the papers before him. The deputy judge did not expressly address Rahmatullah or the argument based on the de facto control test, but the rejection of that argument is implicit in the reason he gave for dismissing the application. In any event, that is not in this case a reason for allowing an appeal against his decision, given that he was undoubtedly correct to dismiss the application for the reasons set out above. Ground 7

49. CHK contends that the deputy judge was wrong to grant the SSHD an extension for filing her response without applying the Denton test. Even if this decision was legally flawed it would have no impact on my conclusion that the appeal should be dismissed for the reasons set out above. It was in any event a case management decision of the judge, against which an appeal will only lie if it was perverse or otherwise based on an error of law or principle. The judge considered it would be helpful to have the SSHD’s submissions in response to the application for the reasons explained in paragraph 1 of his judgment. That discloses no error of law. Ground 8

50. CHK contends that there is an internal contradiction between (1) acknowledging that habeas corpus may be available for persons on bail, where appropriate on the facts, and (2) applying a test that required “physical detention”. There is no contradiction for the reasons I have already explained: see for example §‎44 above. Conclusion

51. For the above reasons, the appeal is dismissed. Lord Justice Lewis

52. I agree. Lord Justice Peter Jackson

53. I also agree. This was an absurd application that was rightly dismissed on paper by the Deputy Judge for the reasons he gave, and the appeal fails for the reasons that have been so well expressed by Zacaroli LJ.

54. In the Worcestershire case, the writ of habeas corpus is described as being of the highest constitutional importance. The court will not hesitate to use it to protect individual liberty, but it should respond firmly when faced with an attempt to abuse the remedy, as happened in this case.

55. The procedure for seeking the writ is privileged, because there is no requirement for the applicant to show a good arguable case, as when seeking judicial review, and because the application is treated as priority business. However, CPR 87 provides that a single judge may dismiss the application on the papers. An applicant may within 7 days request an oral hearing, at which the court has the full range of powers.

56. There is a right of appeal, without any requirement for permission, from the making or refusal of an order for release upon an application for habeas corpus : Administration of Justice Act 1960 , section 15 . In the Court of Appeal, this is reflected in CPR 52.3, while in the Supreme Court, it appears in PD 3.70. This reflects legislative policy that a minimum of procedural requirements should be placed in the way of someone who seeks to argue that there is no justification for their detention: see Worcestershire at [77]. It is less easy to justify in the present case, where there is plainly no detention at all and where, if permission to appeal to this court had been required, it would have been refused and the application would have been certified to be totally without merit.