HA & Anor v Secretary of State for the Home Department

Immigration detention is lawful only while the statutory and common-law limits on detention are satisfied. The Hardial Singh principles require a genuine intention to remove, detention for a reasonable period, release when removal cannot be achieved within that period, and reasonable diligence and expedition.

Breach of a published detention policy does not automatically invalidate detention, although proper application of policy may assist in showing that detention was lawful. Here, initial detention was lawful because removal of the family together was reasonably imminent. It became unlawful when the authorities recognised a separate asylum claim by the mother and child, unlawfully certified that claim under section 96 of the Nationality, Immigration and Asylum Act 2002, and failed to recognise that removal was no longer imminent.

The claimants, an Iranian mother and her young son, claimed damages for false imprisonment and breaches of section 7 of the Human Rights Act 1998 arising from their detention between 5 and 25 January 2006.

The defendant accepted the fact and period of detention but relied on statutory immigration detention powers and the imminent removal of the family. The claimants argued that the defendant had breached published policies concerning imminent removal, split family removals and pastoral visits, and had unlawfully dealt with their separate asylum and human-rights claims.

The central issues were whether the initial detention was lawful, when removal ceased to be imminent, and whether continued detention was justified under the Hardial Singh principles.

1. Initial detention. The power to detain pending removal under section 4 and paragraph 16(2) of Schedule 2 to the Immigration Act 1971 was subject to the four Hardial Singh limits: a genuine intention to remove; detention for a reasonable period; release when removal could not be achieved within that period; and reasonable diligence and expedition. The initial detention on 5 January 2006 satisfied those requirements because removal of the whole family was still reasonably imminent.
2. Published policies. A breach of published policy does not automatically make detention unlawful. Policy may assist in demonstrating compliance with the statutory and common-law limits, but neither compliance nor non-compliance is conclusive. The policy on incomplete family removals was not breached because the initial strategy continued to contemplate removal of the family together. A further pastoral visit was not mandatory, and its absence did not invalidate detention.
3. Separate claim and certification. By 12 January the defendant had recognised that the first claimant was advancing a separate asylum claim arising from the proposed removal of her and her son without the father. The claim could not lawfully be certified under section 96(2) of the Nationality, Immigration and Asylum Act 2002 because the relevant ground had not existed when the section 120 notice was given. The certification unlawfully deprived the claimants of an appeal right.
4. Continued detention. Once the separate claim had been recognised and the assault allegations required investigation, removal could no longer reasonably be regarded as imminent. The defendant’s departments could not rely on the flawed certification merely because the officers dealing directly with detention did not appreciate the right of appeal. The claimants should have been released on 12 January 2006.
5. Judgment was therefore entered for the claimants for damages to be assessed for false imprisonment from 12 to 25 January 2006. It was unnecessary to determine the separate issues under Articles 5 and 8 of the Convention.

First-instance judgment. The judgment does not state any prior appellate decision in this litigation.