FREE CHAPTER from ‘A Practical Guide to Claims for Unlawful Detention and False Imprisonment in Immigration and Asylum Cases’ by Samina Iqbal

CHAPTER TWO – LIMITS ON DETENTION

GENERAL PRINCIPLES – LIMITS ON DETENTION

It has often been noted that the UK is the only country in the EU with no time limit on detention1. However, Woolf J (as he was then and later the Lord Chief Justice)in the case of R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704, explored the power to detain for immigration purposes and gave guidance, emphasising the importance for limitations on detention. These principles developed under common law are now known as the ‘Hardial Singh’ principles. Whilst, these principles are based on public law errors they can be distinguished as discrete principles in law, developed through case law, with which detention must comply.

The ‘Hardial Singh’ principles have been endorsed time and again with the European Courts of Human Rights concluding that the Hardial Singh principles ensured checks were in place, the UK detention system which, did not breach Article 5 of the ECHR2. However this does not mean that individuals would never be able to demonstrate a violation of their Article 5 rights.

More recently, in the case of J.N. v. the United Kingdom, Application no. 37289/12, 19 May 20163 the European Courts of Human Rights again rejected the proposition that the system of immigration detention in the United Kingdom fell short of the requirements of Article 5(1)(f). The courts had previously considered and rejected the complaint in the context of the UK’s lack of time-limits, in the cases of Abdi v. the United Kingdom, no. 27770/08, 9 April 2013 and Saadi v. the United Kingdom, no. 13229/03. In any case, it was held that simply because a country did have time-limits prescribed under domestic law, did not mean an automatic conformity would be assumed with the protections of Article 5(1)(f).4

On the facts of J.N. however, a breach of Article 5(1)(f) was established as the Courts concurred with the Administrative Court’s findings that the Secretary of State had shown, “woeful lack of energy and impetus” as the Applicant’s deportation had not been pursued with “due diligence”. The Applicant was an Iranian National who refused to cooperate with documentation procedures for removal, the Secretary of State contemplated prosecution under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, but took no further action. His repeated refusal to cooperate could not be considered a “trump card” to justify lengthy periods of detention which were no longer for the purpose of deportation. However, in assessing the factual background of the case the European Courts of Human Rights were more generous than the Administrative Court finding (under Hardial Singh – principle 4), that the period of unlawful detention was greater than what had been accepted and therefore confirmed that there was a breach of Article 5 (1)(f)5.

This case gives clear guidance from the European Courts of Human Rights that the common law principles developed in the UK are sufficient in protecting individuals in detention cases and that even with the protection a time-limit, detention may still be unlawful.

  1. Hardial Singh’ Principles

The ‘Hardial Singh’ principles themselves can be summarised as outlined by Dyson LJ in I (Afghanistan) [2002] EWCA Civ 8886 as follows:

  1. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

  2. The deportee may only be detained for a period that is reasonable in all the circumstances;

  3. If, before the expiry of the reasonable period, 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.

The Supreme Court in R (Lumba & Mighty) v Secretary of State for the Home Department [2011] UKSC 12 and in the case heard immediately after that of SK (Zimbabwe) v Secretary of State for the Home Department [2011] UKSC 23 further endorsed and refined the formulation of the ‘Hardial Singh’ Principles. Whilst, both cases concluded that a failure to apply a relevant policy in reviewing detention, would render detention unlawful, it was found that this in itself this could only lead to nominal damages as the detainees would have been detained any way. However, if they were able to demonstrate that detention would not have be justified on ‘Hardial Singh’ principles, then this could lead potentially to a greater award in damages.


Hardial Singh Principles 1 – Power to Detain

A breach of this principle is very rare and not commonly seen in practice as the Home Office/Secretary of State, will inevitably use their statutory powers identified to lawfully justify detention, the focus will therefore be on the other ‘Hardial Singh’ principles, where the courts have found most unlawful detention cases to fall.


Hardial Singh Principles 2 and 3 – Reasonable Period

Both these principles two and three are interlinked and when examining if detention was for a reasonable period in the second principle, it inevitably leads to consideration of the third principle in relation whether at the end of that reasonable period, removal would be effective.

In order to assess what would be considered a “reasonable period” it is important to consider the guidance of Lord Dyson in Lumba,  who listed a number of factors (previously considered in his judgment of I (Afghanistan) [2002] EWCA Civ 8887. He highlighted the following matters as relevant:

  • the length/condition of the period of detention;

  • the nature of the obstacles preventing deportation/removal;

  • the steps taken by the Home Office to overcome such obstacles;

  • the condition the detainee is kept in;

  • the risk of absconding;

  • the risk of offending

  • the effect of detention on the detainee and his family;

These factors are a non-exhaustive checklist and cannot be considered a ‘trump card’ in justifying detention as the courts have been at pains to highlight time and again.8 There must be a process where all these factors are considered cumulatively and when it starts to look unlikely that deportation/removal will take place that then the detainee must be released. If the detainee is not released then he is in a strong position in which to claim his detention as unlawful.

The Court of Appeal in Fardous v SSHD [2015] EWCA Civ 9319 highlighted the need for ‘proper scrutiny’ involving a fact specific assessment with reference to ‘Hardial Singh’ principles, in particular, with reference to the reasonableness of any length of detention.

Two further decisions which consider the third principle include the cases of Ademiluyi v SSHD [2017] EWHC 935 (Admin) and BS v Secretary of State for the Home Department [2018] EWHC 454 (Admin). In Ademiluyi, Michael Fordham QC, sitting as a Deputy High Court Judge, having considered the guidance of the Supreme Court in Lumba highlighted the questions that ought to be asked with reference to an assessment of the third principle as follows:

Viewed objectively and on the facts as they presented themselves to the Secretary of State at the relevant time, was there or was there not a realistic prospect of deportation during a time which in all the circumstances of this case would be a reasonable time? Was it sufficiently clear that no realistic prospect of that kind arose such that the Secretary of State should have released rather than detained?10

This case concerned detention of an individual subject to deportation, who had completed his custodial sentence having been convicted for immigration- offences. His challenge to deportation included the fact that he had a significant family and private life under Article 8 of the ECHR, having resided here for over fifteen years, with a wife and five children born in the UK, which were factors before the Secretary of State at the outset of his detention . The Judge found that had these factors been considered then the objectively reasonable conclusion, would have been that removal would not be possible within a reasonable period11. Although it may not always be the case, given the question under the third principle is ‘forward-looking’12 when viewing all the factors of this case ‘objectively’13 it was clear that detention was unlawful from the outset and the risks of re-offending and absconding were not ‘trump cards’.

In the case of BS, dealing with the third principle, the Court held detention “was not justified under the AAR policies nor was it consistent with the third Hardial Singh principle”.14 The applicant was held in detention on the 15th October 2016, after being detected in the UK en-route to Canada. He claimed asylum but his claim was refused and certified on the 23rd November 2016, a request was also made to the Indian High commission for an emergency travel document (ETD). He was then assessed and by virtue of a Rule 35 report it was found that he may have been a victim of torture, but there was no assessment of likely harm and a review on the 24th November 2016, concluded that his continued detention was deemed suitable under Chapter 55 of the EIG. The Courts as a result in considering this period found detention at that stage was lawful as the detention had been reviewed appropriately. By the date of the next review, the court held it ought to have been clear from the High Commission correspondence that there would be a delay in processing travel documents at their end, together with the fact that BS had lodged judicial review against the certification of the decision made by the Home Office, that removal would not therefore be effective within a ‘reasonable period’ and there was failure to act with ‘reasonable diligence’.

Both these cases highlights the very fact specific exercise that the Courts seek to undertake weighing in a number of competing factors before finding detention is unlawful.


Hardial Singh Principles 4 – Reasonable Diligence and Expedition

This fourth principle considers the actions of the Home Office in relation to a failure to act with due diligence, in other words has there been an unjustifiable delay in the actions of the Home Office in relation to detention procedures such that it renders the detention unlawful. This would be by reference to the court’s own assessment of the facts rather than the normal review of an executive decision that would be conducted on Wednesbury grounds15. Furthermore, simply by demonstrating that a certain process was unduly delayed would not be sufficient, an individual would have to demonstrate that the “dividing line between mere administrative failing and unreasonableness amounting to illegality” had been crossed and as a result of the failure they were held longer than they ought to have been16.

In the case of Saleh [2013] EWCA Civ 1378 the challenge was with reference to the second principle of whether the detention was for a period which was reasonable in all circumstances and further the fourth principle whether there was a requirement for the Secretary of State to act with “reasonable diligence and expedition” to effect removal.17 Whilst, the court found that the Secretary of State had failed to file evidence to provide any justification for administrative delay for over a 12-month period, applying the principles of Krasniqi v SSHD [2011] EWCA Civ 1549 they took a restrictive approach finding there to be only an 8-month period as unlawful.18

The same restrictive approach was adopted in the more recent case of R (SB (Ghana)) v Secretary of State for the Home Department & Anor [2020] EWHC 668 (Admin) where the Court held that delay in dealing with the applicant’s claim were simply ‘administrative failing side of the line rather than on the illegality side of the line as described in Krasniqi19

  1. Grace Periods

There is one further aspect that must be considered once a breach of one of the ‘Hardial Singh principles has been established. This is the ‘grace period’ given to the Secretary of State to facilitate the release of the detainee, during which time detention remains lawful. The Court of Appeal in R (on the application of AC (Algeria) v Secretary of State for the Home Department  [2020] EWCA Civ 36 revisited guidance on the issue, of ‘grace periods’, given to the Secretary of State, once detention had ceased to comply with the ‘Hardial Singh’ principle. In particular, Irwin LJ giving judgment in the Court of Appeal was concerned with whether or not the other limits on the Secretary of State’s powers, embodied in the second and fourth principles, had been breached20 during this time.

Having reviewed the authorities available on periods of grace Irwin LJ concluded that:

[1] that the “grace periods” are granted for practical purposes, reflecting the facts of each case and applying a test of reasonableness; [2] that this court has declined to set any overall or absolute limit to such a period as a “long-stop” for all purposes; [3] that the periods have more usually been short, often a few days, but running up to a month, and [4] that there has been some tendency for the periods to increase.21

What this actually means is that once any of the relevant principles (second, third or fourth principle) are breached, then rightly the question that would arise is whether or not any further detention was lawful. The only basis on which the court concluded such detention would be lawful was for “a reasonable period” to put in place appropriate conditions for release. Each case would be fact specific, taking into account the risk to public as an important factor, but not the only factor to justify indefinite immigration detention.22 More importantly the Court highlighted that if a question of a period of grace arose in any case, then it would be the Respondent to advance their case as to relevant period, and the reasons why such a period was appropriate.23

This judgement certainly mirrors the approach taken by the First-tier Tribunal, hearing bail applications during the lockdown due to COVID-19. The Home Office sought to criticise the Tribunal for granting a ‘surprising’ number of bail applications, releasing a large number of detainees during the start of the emergency period, one of the complaints raised by the Home Office was:

that the current situation may make it difficult for us to source suitable accommodation if stipulated as part of a grant of Bail in Principle. There are particular challenges at the moment in finding properties which meet the Probation Service requirements where a person is subject to licence conditions24

The First-tier Tribunal of the Immigration and Asylum Chamber President25, was unimpressed and highlighted,

sourcing suitable accommodation when a person is subject to licensed conditions, this is a matter for UKVI, the criminal authorities and the probation service. I do not consider a refusal of bail application to be in accordance with the law, due to an inability of government departments, or those answerable to meet criminal license conditions.”26

He made clear that it was a matter for the Home Office to ensure their house was in order and failure to ensure suitable accommodation was not a good reason to refuse bail. Whilst the Tribunal does not make findings on whether detention was lawful, in the context of bail decisions, they do have a duty to consider whether continued detention would be necessary.

Therefore, where the Home Office reasons were based on suitability or availability of accommodation on release, this could impact on a decision of whether detention was lawful and whether the Home Office had exhausted the “reasonable period” to put such conditions in place thus rendering any detention beyond that period as unlawful.


OTHER LIMITATIONS TO DETENTION

This guide is concerned mainly with the ‘Hardial Singh’ principle, which affords the greatest protection against those claiming to be unlawfully detained. It is often accompanied by a claim that there has been breach of public law principles based on breach of Home office policy and rules (refer to Chapter3 for more detail). However, it would be remiss not to mention other potential routes through which detention can be challenged. These include but are not limited to:

  1. A potential breach under the Human Rights Act 1998, the most common being under Article 5 of the ECHR, which has been covered above briefly. In addition, the courts have also considered a breach of Article 3 of the ECHR, where the detention of a mentally ill person amounted to inhuman and degrading treatment and false imprisonment27, and was irrational. Article 8 of the ECHR is also often pleaded where detention involves a failure to consider the impact of detention on children of a detainee as was the case in R(Abdollahi) v SSHD [2013] EWCA Civ 36628

  2. A potential breach under the laws that govern the European Union (EU) although with exit from the EU, such breaches may only be relevant to historical detention cases, depending on transitional arrangements and any other deals that may be made between the EU and the UK. In the recent cases of Hemmati v Secretary of State for the Home Department [2019] UKSC 56 the Supreme court found detention of asylum seekers pending their removal to an EU state by virtue of the Dublin III Regulations29, was unlawful given they failed to provide protection to those being transferred under a new Dublin regulation. It was held that Chapter 55 in relation to the Home Office policies did not satisfy the requirements imposed by Dublin III, that permitted detention where there was “significant risk of absconding as defined by Dublin III”. The UK had failed to implement any new specific protections within Chapter 55 to protect those being transferred between member states under a new Dublin III Regulation. The court held that in these circumstances “the decision to detain…lay outside the boundaries of any permissible exercise of the power to detain conferred by paragraph 16(2) of Schedule 2 to the 1971 Act”30. The impact of this decision will only affect a small proportion of individuals who were detained for the purposes of Dublin III removal between the coming into force of the Dublin III Regulation in January 2014 through to 15 March 2017, when further regulations had been introduced by the Secretary of State31.

  3. The Equality Act 2010, more particularly section 149, also plays an important part in detention cases with reference to individuals who may have ‘protected characteristics’. In the case of R (on the application of HA (Nigeria)) [2012] EWHC 979 (Admin) decided prior to the introduction of the Equality Act 2010, the court found there was a breach of policy, which was in place from 2010 (found in Chapter 55.10 of the Enforcement Immigration Guidance) for certain categories of person considered unsuitable for detention. The court held that this policy in relation to detention of people with mental illness was unlawful and in breach of the Defendant’s duties under section 71 of the Race Relations Act 1976 and section 49A of the Disability Discrimination Act 2005. These provisions now repealed by the Equality Act 2010, but section 149 of the Act provides similar protections . In the case of R(ASK) v SSHD [2019] EWCA Civ 1239 the Court found there was a breach of the public sector equality duty by failing to make any reasonable adjustments based on the detainee’s mental capacity. This case, provides an excellent understanding on the application of these provisions and ought to be considered detail if such a claim is to be pursued with reference to a claim for unlawful detention32

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1The UK has opted out of the Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (“the Returns Directive”), which does set out at Article 15 of Chapter IV, a maximum time limit of 18 months for detention pending deportation.

2Article 5 (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

(5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

3J.N. v. the United Kingdom, Application no. 37289/12, 19 May 2016 – https://hudoc.echr.coe.int/eng#{“itemid”:[“001-162855”]}

4§83 ibid

5§107 ibid

6§48 of I (Afghanistan) [2002] EWCA Civ 888)

7§46 of I (Afghanistan) [2002] EWCA Civ 888)

8R(AS) Somalia v SSHD [2019] EWHC 1831 (Admin) citing R (MH) v SSHD [2010] EWCA Civ 1112) and R(Shafiq-ur-Rehman) v SSHD [2013] EWHC 1280 (Admin)

9§37-41 – Fardous v SSHD [2015] EWCA Civ 931 https://www.bailii.org/ew/cases/EWCA/Civ/2015/931.html

10§62 – Ademiluyi v SSHD [2017] EWHC 935 (Admin)

11§76 ibid

12§86 ibid

13§89 ibid

14§66 – BS v Secretary of State for the Home Department [2018] EWHC 454 (Admin)

15See §48 of R(Muqutaar) v Home Secretary [2013] 1 WLR 649

16See §12 of R (Krasniqi) v SSHD [2011] EWCA Civ 1549

17§21 and §33 of Saleh [2013] EWCA Civ 1378

18§66 Ibid

19§88 of R (SB (Ghana)) v Secretary of State for the Home Department & Anor [2020] EWHC 668 (Admin)

20§29 of R (on the application of AC (Algeria) v Secrteary of State for the Home Department [2020] EWCA Civ 36

21§33 Ibid

22§38 & §39, ibid.

23§44 ibid.

24Correspondence between the Home Office and the President of the FtT(IAC) in relation to bail grants. Document dated 29th April 2020 – https://ilpa.org.uk/wp-content/uploads/2020/05/Letter-to-MC-29.04.20-1.pdf

25Mr Michael Clements

26Correspondence between the Home Office and the President of the FtT(IAC) in relation to bail grants. Document dated 1st May 2020https://ilpa.org.uk/correspondence-between-the-home-office-and-the-president-of-the-fttiac/

27§173 – 181 R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin)

28See § 36 – 45 and the failure to take into account the best interests of the children under section 55 of the Borders citizenship and Immigration Act 2009.

29See Article 28 – Regulation (EU) No 604/2013 Of The European Parliament And Of The Council of 26 June 2013https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:180:0031:0059:EN:PDF

30§89 of Hemmati v Secretary of State for the Home Department [2019] UKSC 56

31 Following the CJEU judgement in Al Chodor C-528/15 the Secretary of State issued the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 to be considered when identifying a significant risk of absconding.

32R(ASK) v SSHD [2019] EWCA Civ 1239 see in particular §76-§79, §130-136, §240-§245