AS (Sudan) v Secretary of State for the Home Department

Continued immigration detention remains lawful only while it serves the purpose of deportation, lasts no longer than reasonable in all the circumstances, and is pursued with reasonable diligence and expedition. The court must assess reasonableness cumulatively and is itself the judge of that issue. Relevant circumstances may include the detainee’s character and immigration history, risks of absconding or reoffending, conduct in detention, successive or late applications, the likely future period of detention, and the Secretary of State’s diligence. Lawful procedures initiated by the detainee may be relevant to explaining the length of detention, although they do not remove the duty to act reasonably. On the facts, detention remained reasonable and the appeal was dismissed.

The appellant, a Sudanese national subject to a deportation order, had been detained under the Immigration Act 1971 since 19 August 2008 after removal directions were set. Removal was initially prevented by an injunction and judicial review, followed by further representations treated as a fresh asylum claim. His judicial review challenging continued detention, issued in August 2009, was dismissed by Mr Timothy Brennan QC on 5 October 2009. By the appeal, the fresh claim had been refused, with an in-country appeal available. The central issue was whether the length and cause of detention made it unlawful or unreasonable under the Hardial Singh principles, and whether the lower court had properly considered the relevant circumstances.

1. Disposition. Laws LJ dismissed the appeal. Etherton LJ and Waller LJ agreed.
2. Applicable principles. Detention under the administrative powers conferred by the Immigration Act 1971 must comply with the Hardial Singh principles. The Secretary of State must intend to deport and use detention only for that purpose; detention must last no longer than is reasonable in all the circumstances; it should not continue once it becomes apparent that deportation cannot be achieved within a reasonable period; and removal must be pursued with reasonable diligence and expedition. The principles were identified through Regina v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and the summary in I v SSHD [2002] EWCA Civ 888.
3. Assessment. The court is the judge of the reasonableness of continued detention: A v SSHD [2007] EWCA Civ 804. Where the matter has been dealt with on the papers, an appellate court may be in as good a position as the judge below and has a specific duty to assess the legal quality of the detention. The assessment is fact-sensitive and cumulative. Relevant matters included character and immigration history, risks of absconding and reoffending, determination to remain, late or successive applications, conduct in detention, the Secretary of State’s diligence, and the likely future period of detention.
4. Cause of delay. The appellant was entitled to pursue judicial review and further applications. Nevertheless, where continued detention resulted from those procedures rather than an external obstacle concerning the receiving state, that fact was relevant to reasonableness: R(Abdi) v SSHD [2009] EWHC (Admin) 1324. The court also considered the appellant’s conduct and the material supporting the Secretary of State’s assessment of absconding and reoffending risks. The error concerning the availability of asylum support did not determine the case. The court did not pre-empt the available asylum appeal, but the refusal decision and material then before it remained relevant.
5. Conclusion. On the specific facts, the continued detention could not be categorised as unreasonable so as to deprive it of the colour of law. The appeal was dismissed. Any appeal against refusal of the fresh asylum claim was to be dealt with as expeditiously as possible.

• Court of Appeal (Civil Division): The appeal against the dismissal of the judicial review claim was dismissed on 14 December 2009: [2009] EWCA Civ 1518.
• Administrative Court, Queen’s Bench Division: Mr Timothy Brennan QC, sitting as a deputy High Court judge, dismissed the judicial review application on 5 October 2009. No citation for that decision is stated in the judgment.