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Jasseh v The Home Office
Factual and Procedural Background
The Plaintiff brought two claims alleging false imprisonment and/or unlawful detention by the Defendant in breach of the Hardial Singh principles and Article 5 of the European Convention on Human Rights (ECHR). The claims concern two periods of immigration detention: first, from 15 September 2019 to 3 August 2020 (324 days), and second, from 28 June 2021 to 15 September 2021 (80 days).
The Plaintiff was born in The Gambia in 1983 and entered the United Kingdom on a visit visa in 2004, which expired later that year, resulting in overstaying. The Plaintiff claimed asylum in 2009 but was refused, eventually exhausting appeal rights. He was convicted in 2016 of a serious sexual offence and sentenced to six years' imprisonment, subsequently placed on the sex offenders register indefinitely.
Following conviction, the Defendant issued deportation directions and orders against the Plaintiff, who was detained under immigration powers pending deportation. The Plaintiff's removal to The Gambia was complicated by a moratorium on enforced removals and a suspended Emergency Travel Document (ETD) process by Gambian authorities, which persisted throughout the periods of detention.
During the first detention period, multiple internal reviews and case progression panels considered the Plaintiff's detention, with some caseworkers recommending release due to the lack of prospect of removal within a reasonable timeframe. However, the Strategic Director repeatedly refused release, citing public safety concerns and ongoing efforts to resolve ETD issues. The Plaintiff was released on licence on 3 August 2020 but was recalled in October 2020 for breach of licence conditions.
During the second detention period, the Plaintiff was detained primarily for release arrangements while suitable accommodation was sought. The Defendant delayed sourcing accommodation under statutory provisions, and the Plaintiff's detention was extended despite the absence of a realistic prospect of removal. The Plaintiff was released on 15 September 2021 following court orders requiring the Defendant to provide accommodation.
Legal Issues Presented
- Whether the Plaintiff's detention from 15 September 2019 to 3 August 2020 was lawful under the Hardial Singh principles and Article 5 ECHR.
- Whether the Plaintiff's detention from 28 June 2021 to 15 September 2021 was lawful under the Hardial Singh principles and Article 5 ECHR.
- Whether the Defendant breached its own policies, including the "Chapter 55 Enforcement Instructions and Guidance" and "Detention Case Progression Panels" policies, in relation to the Plaintiff's detention.
- The appropriate measure of damages for any unlawful detention found.
Arguments of the Parties
Plaintiff's Arguments
- The Plaintiff contended that his detention was unlawful as there was no realistic prospect of removal to The Gambia within a reasonable period due to the moratorium on enforced removals and the absence of an ETD process.
- The Plaintiff argued that the Defendant failed to take reasonable steps to effect his removal and improperly prolonged detention beyond what was lawful under the Hardial Singh principles.
- The Plaintiff submitted that the Defendant breached its own policies by failing to consider release referrals and Case Progression Panel recommendations.
- The Plaintiff sought substantial compensatory damages for unlawful detention and aggravated damages for the Defendant's high-handed and obstructive conduct, particularly during the second period of detention when accommodation sourcing was delayed.
Defendant's Arguments
- The Defendant asserted that the Plaintiff's detention was lawful under Schedule 3 of the Immigration Act 1971 and consistent with Hardial Singh principles, emphasizing the seriousness of the Plaintiff's criminal offence and the public safety risk.
- The Defendant relied on the Strategic Director's assessment and ongoing efforts to resolve issues with Gambian authorities regarding ETDs and enforced removals.
- The Defendant contended that any breach of the Hardial Singh principles was mitigated by a reasonable grace period for release arrangements.
- The Defendant disputed the extent of the Plaintiff's risk of absconding and re-offending, and argued that detention was appropriate until removal or lawful release.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Secretary of State for the Home Department, ex parte Hardial Singh [1984] 1 WLR 704 | Established four principles governing detention pending deportation, including the requirement of intent to deport, reasonableness of detention period, cessation of detention if removal is not possible within reasonable time, and diligence in effecting removal. | Formed the foundational framework for assessing the lawfulness of the Plaintiff's detention periods. |
| R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 | Restated Hardial Singh principles and emphasized the court's role as primary decision-maker on reasonableness of detention; established that detention must follow published policy unless good reasons exist. | Applied to assess compliance with Hardial Singh principles and Defendant's policy adherence; guided findings on unlawful detention and damages. |
| R(I) v SSHD [2003] INLR 196 | Outlined factors relevant to reasonableness of detention including length, obstacles to removal, diligence in overcoming obstacles, conditions of detention, and risks posed by detainee. | Used to evaluate the Defendant's handling of removal obstacles and diligence, particularly regarding moratorium and ETD issues. |
| R (A and others) v Secretary of State for the Home Department [2008] EWHC 142 (Admin) | Stated that continued detention requires a clear basis and expectation for near-future deportation; absence of such basis renders detention unlawful. | Supported conclusion that detention became unlawful when no realistic prospect of removal existed. |
| R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 | Clarified that a finite removal time is not strictly required but the prospect of removal must be sufficient to justify detention; longer detention demands greater certainty. | Considered in balancing the Defendant's hope of removal against the lack of concrete progress and extended detention duration. |
| Mahboubian, R (On the Application Of) v Secretary of State for the Home Department [2020] EWHC 3289 (Admin) | Confirmed that reasonableness of detention period is fact-specific and may be negated where countries refuse to accept return of nationals. | Applied to assess the impact of The Gambia's moratorium on the lawfulness of detention. |
| R (on the application of AC (Algeria)) v SSHD [2020] EWCA Civ 36 | Discussed the concept of a "period of grace" following the end of a reasonable detention period; emphasized need for evidence and reasoned submissions on grace periods. | Guided assessment of Defendant's entitlement to a grace period and the appropriate duration thereof. |
| Fardous v SSHD [2015] EWCA Civ 931 | Highlighted the critical importance of assessing risk of absconding in detention lawfulness, noting it cannot justify indefinite detention but may justify long detention depending on circumstances. | Informed evaluation of the Plaintiff's risk of absconding and its weight in justifying detention. |
| R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 | Confirmed courts as primary decision-makers on reasonableness of detention; detention lawful only for reasonable periods. | Supported the court's independent assessment of detention lawfulness beyond administrative decision-making. |
| Thompson v Commissioner of the Police for the Metropolis [1998] QB 498 | Outlined factors for awarding aggravated damages, including high-handed, oppressive or malicious conduct by authorities. | Applied in awarding aggravated damages for Defendant's conduct in delaying accommodation and release arrangements. |
| AO v Home Office [2021] EWHC 1043 (QB) | Discussed adverse inferences against public authorities failing to call relevant witnesses or provide evidence explaining detention decisions. | Supported drawing adverse inferences from Defendant's failure to call key decision-makers, weakening its case on removal prospects. |
| R (VC) v SSHD [2018] EWCA Civ 1 | Reinforced the obligation of public authorities to provide candid disclosure and evidence in judicial review of detention; failure risks adverse inferences. | Used to justify adverse inferences against the Defendant for lack of evidence and transparency. |
Court's Reasoning and Analysis
The court undertook a detailed factual and legal analysis of the Plaintiff's detention under the Hardial Singh principles and Article 5 ECHR.
Regarding the first detention period (15 September 2019 to 3 August 2020), the court found that the Plaintiff was lawfully detained initially pursuant to Schedule 3 of the Immigration Act 1971, satisfying Hardial Singh principle (i). However, the Defendant failed to demonstrate a sufficient prospect of removal within a reasonable time after 16 January 2020, when caseworkers recommended release due to the ongoing moratorium on enforced returns to The Gambia and the absence of an ETD process.
The Defendant's Strategic Director repeatedly refused release on public safety grounds but provided only vague assurances about resolving ETD issues without concrete evidence or timeframes. The court found this insufficient and drew adverse inferences from the Defendant's failure to call key witnesses to explain removal prospects.
The court concluded that from 30 January 2020, the Plaintiff's detention was unlawful, breaching Hardial Singh principles (ii) and (iii), as well as Article 5 ECHR. The Defendant also breached its own policies by failing to consider release referrals and Case Progression Panel recommendations adequately.
Regarding the second detention period (28 June 2021 to 15 September 2021), the court found that the Plaintiff was detained unlawfully for the purpose of sourcing accommodation for release, breaching Hardial Singh principle (i). The Defendant failed to provide evidence of any realistic prospect of removal during this period and delayed accommodation arrangements despite court orders, demonstrating high-handed and obstructive conduct.
The court found that the Defendant's internal communications and witness evidence contradicted its assertions of lawful detention, and the Defendant's failure to call relevant decision-makers further undermined its position.
Overall, the court held that the Defendant unlawfully detained the Plaintiff during both periods, causing significant adverse effects on his mental health and liberty, warranting substantial compensatory and aggravated damages.
Holding and Implications
The court held that the Plaintiff was unlawfully detained from 30 January 2020 to 3 August 2020 and from 28 June 2021 to 15 September 2021, in breach of the Hardial Singh principles and Article 5 ECHR.
The Defendant breached its own detention-related policies by failing to consider release referrals and Case Progression Panel recommendations properly and by obstructing timely sourcing of accommodation necessary for the Plaintiff's release.
The Plaintiff is entitled to substantial compensatory damages for both periods of unlawful detention and aggravated damages for the second period due to the Defendant's high-handed and obstructive conduct.
No exemplary damages were pursued.
The decision directly affects the parties by recognizing the unlawfulness of the Plaintiff's detention and awarding damages accordingly. The court emphasized the importance of adherence to legal principles and policies in immigration detention and the necessity for public authorities to provide clear evidence and act diligently in removal processes. No new legal precedent was established beyond the application of existing principles to the facts.
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