I & Ors, R (on the application of) v Secretary of State for the Home Department

Detention pending removal remains lawful only while the Hardial Singh requirements are met. The commencement of judicial review does not automatically invalidate removal directions or require release. There is no fixed period after proceedings begin. The Secretary of State must assess the likely timetable with all appropriate dispatch, acting with particular dispatch where children are detained. Continued detention is fact-sensitive and must be justified on the evidence.

Compliance with the Detention Centre Rules 2001 and Enforcement Instructions and Guidance is not a condition precedent to lawful detention, although those materials may illuminate the Hardial Singh inquiry. A public authority must also give candid and accurate disclosure once permission for judicial review has been granted; unexplained gaps may justify adverse inferences.

The appellants were an overstaying family whose asylum and human rights claims had been refused and who were detained pending removal. On 2 October 2008, after judicial review proceedings were issued and the removal directions for Mr I were deferred, the appellants challenged the continuing detention of Mr I and the children.

Plender J dismissed the claim in its entirety in [2009] EWHC 333 (Admin). The appeal concerned whether detention became unlawful immediately when judicial review was commenced and removal was deferred, or whether the Secretary of State could retain detention for a reasonable period while assessing the likely timetable for the proceedings. The involvement of young children and the adequacy of the evidence were central considerations.

1. Appeal allowed. The Court of Appeal re-determined the legality of detention and did not rely on the reasoning of Plender J.
2. The legality of detention depended on the Hardial Singh principles, derived from R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704 and summarised in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888. The Secretary of State had to intend removal, use detention only for that purpose, detain for no longer than a reasonable period, release the detainee once it became apparent that removal could not be effected within that period, and act with reasonable diligence and expedition. The latter two requirements were conceptually distinct.
3. Compliance with the Detention Centre Rules 2001 and the Enforcement Instructions and Guidance was not a condition precedent to lawful detention, although those materials could illuminate compliance with Hardial Singh: SK (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 1204.
4. There was no bright-line rule governing detention after judicial review commenced. The Secretary of State had to proceed with all appropriate dispatch, with particular dispatch where children were detained. Judicial review did not itself invalidate removal directions or require release. In an appropriate case, removal could continue unless prohibited by an order of the Administrative Court.
5. The detention was lawful until 2 October 2008. The Secretary of State was entitled to some time to assess whether the judicial review could be expedited, but the evidence showed that no steps were taken to accelerate the proceedings. Having regard to the weekend, release could and should have been implemented on Monday 6 October 2008. Detention thereafter was unlawful: for four days in the case of Mr I and three children, and for seven days in the case of the remaining child. They were entitled in principle to damages.
6. As a significant further observation, once permission for judicial review had been granted the Secretary of State owed a duty of proper, candid and accurate disclosure. There was no general duty of disclosure, but unexplained gaps and late disclosure could justify adverse inferences, particularly where liberty was at stake. The court referred to R v Lancashire County Council ex p Huddlestone [1986] 2 All ER 941, Belize Alliance of Conservation Non-Governmental Organizations v The Department of the Environment [2004] UKPC 6 and R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409.

• Court of Appeal (Civil Division): [2010] EWCA Civ 727. Appeal allowed. Detention after 6 October 2008 was unlawful and damages were recoverable in principle.
• High Court of Justice, Queen’s Bench Division (Administrative Court): [2009] EWHC 333 (Admin). Plender J dismissed the claim in its entirety and refused permission to appeal.