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

The existence of outstanding representations does not, by itself, make immigration detention unlawful or prevent removal from being imminent. The legality of detention is fact-sensitive and depends on whether the Secretary of State acted reasonably under the Hardial Singh principles. Administrative time may be allowed to consider outstanding matters, but detention must remain no longer than reasonably necessary. Where detention is continued to decide whether judicial review proceedings should be expedited, the period allowed must be proportionate to that task. On the facts, three days of detention were unlawful because no more than four days were reasonably required to consider expedition.

The claimant, a Nigerian national, sought judicial review of his detention pending removal. Outstanding representations and a non-statutory recommendation by an Immigration Judge had not been addressed when he was detained on 29 April 2008. Removal directions were later cancelled after judicial review proceedings were issued, but detention continued until 9 May 2008.

The central issue was whether detention was reasonable under paragraph 16(2) of Schedule 2 to the Immigration Act 1971, first while the outstanding matters were considered and then while the defendant considered whether to seek expedition of the judicial review.

1. Power and governing principles. There was power to detain under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. The applicable Hardial Singh principles required an intention to remove, detention for a reasonable period, release when removal could not be achieved within that period, and reasonable diligence and expedition.
2. Outstanding representations. The legality of detention in the presence of outstanding representations is fact-sensitive. Their existence does not automatically prevent detention or mean that removal is not imminent. The non-statutory Immigration Judge’s recommendation was not a direction, although the defendant could not remove the claimant until the outstanding representations had been considered. Some administrative time was therefore permissible.
3. Initial detention. The failure to take the outstanding representations and recommendation into account at the initial decision was unfortunate, but did not itself invalidate the detention. Allowance had to be made for considering those matters and deciding whether they could be dealt with within a reasonable time. Detention up to 2 May 2008 was not unreasonable.
4. Continuation after commencement of judicial review. The defendant continued detention to consider expedition of the judicial review proceedings. That issue could be relevant to whether removal remained imminent, but it should not have taken seven days to decide. No more than four days was reasonable. The claimant should have been released by 6 May 2008, making detention from 6 to 9 May unlawful.
5. Order. The claim succeeded to that limited extent. Assessment of damages for three days’ unlawful detention was adjourned to a separate hearing. Written submissions were directed on costs and permission to appeal.

This was a first-instance judicial review in the Administrative Court. No prior appellate decision in the same proceedings was stated.