Abdi & Ors v Secretary of State for the Home Department

A detention policy for foreign national prisoners must comply with the individualised requirements of paragraph 2 of Schedule 3 to the Immigration Act 1971. That provision does not permit an executive presumption in favour of detention. A policy must also be adequately published, accessible and precise, particularly where it departs from an earlier published policy. Individual consideration remains essential, including consideration of whether detention is reasonably necessary for removal under the Hardial Singh principles. An unlawful policy does not automatically establish an entitlement to damages: causation remains material.

Five foreign national prisoners challenged their detention pending deportation. They argued that, from April 2006, the Secretary of State operated an undisclosed policy involving either a blanket detention rule or a presumption in favour of detention, contrary to paragraph 2 of Schedule 3 to the Immigration Act 1971 and the published detention policy.

The Secretary of State maintained that the policy was a rebuttable presumption subject to individual consideration and legal limits. The claimants sought declarations and damages for unlawful detention. The central issues were the policy’s content and legality, its accessibility, and whether it caused unlawful detention in each individual case.

1. Policy unlawful. The policy operated from April 2006 was not a mandatory blanket policy, because individual consideration and some exceptions were shown. It was nevertheless unlawful. Under R (Sedrati) v Secretary of State for the Home Department [2001] EWHC Admin 410, paragraph 2 of Schedule 3 does not create a presumption in favour of detention. The executive could not create that presumption by policy. The same conclusion applied to the policy published on 9 September 2008.
2. Accessibility. The policy was also unlawful before 9 September 2008 because it was neither sufficiently published nor sufficiently precise. It departed from the accessible policy, which retained a presumption in favour of release.
3. Legal limits. Detention remained subject to the Hardial Singh principles: there must be an intention to deport, detention must be for a period reasonably necessary for that purpose, the Secretary of State must act with reasonable expedition, and detention must cease when removal cannot be achieved within a reasonable period. Risk of absconding and risk of reoffending may be relevant, but neither is an automatic trump card.
4. Damages and causation. Every detention under an unlawful policy did not automatically sound in damages. The court had to assess whether the policy materially caused unlawful detention. The burden fell on the Secretary of State to prove, on the balance of probabilities, that lawful detention would nevertheless have occurred.
5. Individual claims. That burden was discharged for Ashori, Madani, Mighty and Lumba. Their detention was justified by individual assessments, including risks of absconding or serious reoffending, non-co-operation and a realistic prospect of removal within a reasonable period. Their damages claims failed. The issues specific to Abdi were adjourned. Declaratory relief was appropriate; exemplary damages were refused.