Factual and Procedural Background
This is a claim for judicial review, granted permission on 18 March 2016, concerning the lawfulness of immigration detention occurring on and after 26 October 2015. The detention ended when bail was granted at the permission hearing. The statutory basis for detention is section 36(1) of the United Kingdom Borders Act 2007, which authorises detention in the context of automatic deportation of foreign criminals while deportation proceedings are ongoing.
The detention was governed by the Hardial Singh principles, established in the Supreme Court case of Lumba, which set out four key principles for lawful immigration detention. This case particularly focuses on the third principle ("Hardial Singh 3"), requiring that if it becomes apparent before the expiry of a reasonable period that deportation cannot be effected within a reasonable time, detention should not continue.
The claimant was convicted on 30 March 2015 of offences related to immigration control, including possession and use of a forged passport, sham marriage, and bigamy. The custodial sentence was due to end on 26 October 2015, and the Secretary of State prepared for deportation proceedings and possible detention from that date. The claimant and his legal representatives made detailed submissions opposing deportation on human rights grounds, particularly under Article 8 of the European Convention on Human Rights (ECHR), highlighting family ties including five children residing in the United Kingdom.
Detention commenced on 26 October 2015. Bail was refused on 13 November 2015 due to concerns of absconding risk and the claimant's criminal record. The Secretary of State opposed bail and refused release on temporary admission. Judicial review proceedings began on 2 December 2015, with the claimant alleging that detention was unlawful from the outset or alternatively that detention decisions in November 2015 were unlawful.
There were procedural difficulties as the Secretary of State failed to serve acknowledgment of service and detailed grounds of defence within court-ordered deadlines, resulting in default. The court considered whether to allow the Secretary of State to participate in the substantive hearing despite this default and ultimately granted permission to participate, with potential consequences for costs.
Legal Issues Presented
- Whether the immigration detention commencing on 26 October 2015 was lawful, specifically in light of the Hardial Singh principles, and particularly principle 3 concerning the prospective assessment of the ability to effect deportation within a reasonable time.
- Whether the Secretary of State properly applied the Hardial Singh 3 principle by considering if it was apparent that deportation could not be effected within a reasonable period.
- Whether the Secretary of State’s failure to serve acknowledgment of service and detailed grounds of defence in time should preclude her participation in the judicial review hearing.
- The appropriate remedy and consequences regarding costs following the Secretary of State’s default and the claimant’s success.
Arguments of the Parties
Appellant's Arguments
- The immigration detention was unlawful from the start, or alternatively unlawful by November 2015, due to breach of Hardial Singh 3.
- The Secretary of State failed to ask the relevant Hardial Singh 3 question of whether deportation could realistically be effected within a reasonable time.
- The claimant’s submissions on Article 8 and family circumstances made it clear that deportation would be resisted and that removal within a reasonable time was unlikely.
- The Secretary of State’s procedural defaults justified indemnity costs as a clear signal of disapproval.
Respondent's Arguments
- The detention was lawful as it was at an early stage, with an assessed reasonable period not yet expired and the Secretary of State acting with reasonable diligence.
- The Secretary of State could not be held to lose the case solely due to failure to consider Hardial Singh 3 herself; the court’s objective assessment is determinative.
- Risks of absconding and reoffending justified detention and informed the reasonableness of detention period.
- The Secretary of State opposed bail on grounds of absconding risk and criminal history.
- The Secretary of State acknowledged procedural defaults but contended that the claimant was not unduly prejudiced and that costs should follow the event on a standard basis, not indemnity.
- Suggested that quantum of damages could be dealt with by written submissions and that the case might be transferred to the County Court for quantum determination.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lumba [2011] UKSC 12 |
Established the Hardial Singh principles governing immigration detention, particularly principle 3 on prospective assessment of detention lawfulness. |
The court relied on Lord Dyson’s exposition of the Hardial Singh principles as the legal framework for assessing the lawfulness of detention. |
| Denton & Ors v TH White Ltd [2014] EWCA Civ 906 |
Guidance on relief from sanctions for procedural defaults. |
Referenced in relation to the Secretary of State’s failure to comply with court deadlines and the refusal of extension of time. |
| R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 |
Procedural rules concerning extensions of time and sanctions for non-compliance. |
Used to support the court’s approach to procedural default consequences. |
| Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 |
Requirement for objective assessment of detention facts as they appeared to the Secretary of State at the time, avoiding hindsight. |
The court emphasised the need for objective review by reference to facts as they appeared at the relevant time, rejecting hindsight bias. |
| R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin) |
Judicial review standard for assessing reasonable grounds for detention at any point in time. |
Supported the principle that the court is the judge of whether detention was reasonable at the relevant time based on the information available then. |
| R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 |
Factors relevant to determining what is a reasonable period for detention pending deportation. |
Cited for the non-exhaustive list of relevant factors including length of detention, obstacles to deportation, diligence of Secretary of State, and risk of absconding. |
| Tarakhil v The Home Office [2015] EWHC 2845 |
Policy guidance on factors influencing detention decisions. |
Referenced regarding Secretary of State’s guidance to consider likelihood and timescale of removal when deciding on detention. |
| R (ZA (Iraq)) v Secretary of State for the Home Department [2015] EWCA Civ 168 |
Consideration of detention length and risks in assessing reasonableness of detention period. |
Used to support the argument that absconding and reoffending risks carry more weight at the start of detention. |
| R (Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin) |
Limits on the weight of absconding and reoffending risks in detention decisions. |
Confirmed that such risks do not trump other considerations and inform alternatives to detention and conditions of release. |
Court's Reasoning and Analysis
The court analysed the lawfulness of the immigration detention through the lens of the Hardial Singh principles, focusing on principle 3 which requires a prospective assessment of whether deportation can be effected within a reasonable period. The court emphasised that the Secretary of State must ask herself if it is clear that deportation cannot be effected within that period, and if so, detention should not continue.
In this case, the court found that the Secretary of State did not ask or address the Hardial Singh 3 question in any document or decision during October or November 2015, despite ample information being available. The claimant’s family circumstances, including five UK-born children and ongoing appeals raising Article 8 ECHR claims, made it clear that removal within a reasonable time was unlikely.
The court rejected the Secretary of State’s reliance on absconding and reoffending risks as determinative, noting these factors are relevant but do not override the requirement to assess the realistic prospect of removal. The court held that the detention was unlawful from the outset on 26 October 2015 because it was clear that removal could not be effected within a reasonable period.
Procedurally, the Secretary of State’s failure to comply with court deadlines for acknowledgment of service and detailed grounds of defence was serious. However, the court exercised discretion to allow the Secretary of State to participate in the hearing to assist with the merits, considering the public interest in resolving legality of detention on full submissions rather than default judgment.
Regarding costs, the court concluded that indemnity costs were appropriate given the Secretary of State’s defaults and conduct, as permitted by CPR 54.9(2), which allows costs consequences for failure to comply with procedural rules.
The court also addressed the procedure for determining quantum of damages, directing that this issue be transferred to the County Court unless the Secretary of State objects within seven days, with further directions to be dealt with on the papers.
Holding and Implications
The court held that the claim for judicial review succeeds on the basis that the immigration detention from 26 October 2015 was unlawful due to breach of Hardial Singh principle 3. The detention was not justified because it was clear at the outset that deportation could not be effected within a reasonable period.
The Secretary of State was permitted to participate in the substantive hearing despite procedural defaults, but the court imposed indemnity costs against the Secretary of State as a consequence of those defaults and conduct.
The court directed that the issue of quantum of damages be transferred to the County Court for determination unless objection is raised, with further directions to follow.
No new legal precedent was established beyond reaffirming the application of existing Hardial Singh principles and procedural rules. The decision underscores the importance of the Secretary of State’s proactive and reasoned assessment of the prospects for deportation in immigration detention cases, particularly at the outset, and highlights the court’s willingness to enforce procedural compliance through costs sanctions while ensuring substantive justice.