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

Immigration detention must remain justified under the Hardial Singh principles and must also comply with legally required review safeguards. Regular, properly authorised reviews at the required intervals and levels of seniority are a necessary prerequisite to continuing lawful detention. A breach is not merely procedural and does not require proof that a compliant review would have resulted in release. The Secretary of State bears the burden of proving lawfulness. Detention may nevertheless continue where removal remains the genuine purpose, there is some prospect of removal within a reasonable period, and the Secretary of State has acted with reasonable diligence. Past detention was unlawful, but the claimant was lawfully detained when judgment was given following a valid review.

SK, a Zimbabwean national and convicted sex offender, was detained under paragraph 2 of Schedule 3 to the Immigration Act 1971 pending deportation. His asylum claim and appeals were eventually rejected, but enforced returns of failed Zimbabwean asylum seekers were deferred under government policy.

He sought judicial review, release from detention, a declaration of unlawfulness and damages. He alleged that the Secretary of State had failed to conduct the required regular reviews and that detention had ceased to be lawful under the Hardial Singh principles. The central issues were whether the review failures invalidated detention, whether removal remained realistically possible within a reasonable period, and whether detention was presently lawful.

1. Past detention unlawful. The Secretary of State bore the burden of justifying detention. Rule 9(1) of the Detention Centre Rules 2001 and paragraph 38.8 of the Operations Enforcement Manual required regular, formally documented reviews at specified intervals and by officials of increasing seniority. Those reviews were fundamental safeguards and a necessary prerequisite to continuing lawful detention. The Secretary of State’s failure to conduct them meant that detention was unlawful during the relevant periods.
2. The court rejected the submission that the breaches were matters of form or that SK had to prove that a proper review would have resulted in release. The reasoning in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 applied. The burden remained on the Secretary of State, and the absence of a required review rendered detention unlawful until a lawful event restored its validity.
3. The quality of some reviews was unimpressive, but the substantive decision-making was not independently unlawful. The Secretary of State could not retrospectively rely on reasons for detention which had not been communicated to the detainee.
4. The Hardial Singh challenge to present detention failed. The Secretary of State remained intent on deportation and there remained some prospect of removal. The reasonable period had not yet expired, nor had it become apparent that removal within a reasonable period was impossible. The risk of absconding and refusal of voluntary return were important factors, but neither was an unlimited power to detain indefinitely.
5. The Secretary of State had acted with reasonable diligence in the circumstances. The temporary policy against enforced returns to Zimbabwe did not itself extinguish the power to detain, although it was relevant to the assessment of reasonableness.
6. The domestic unlawfulness also constituted a breach of Article 5 through section 6 of the Human Rights Act 1998. Article 5 added no practical remedy beyond the domestic law claim.
7. A valid review on 21 January 2008 restored the lawfulness of detention. The application for release was dismissed. The issue of damages for the past unlawful detention was to be determined by inquiry.