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

In a detention challenge, the Secretary of State bears the burden of justifying continued detention with evidence addressing the prospect of removal within a reasonable period. A public authority must respond fully and accurately to issues raised in judicial review proceedings and must provide evidence on matters central to its case. Where a defendant fails to do so, maintains inaccurate assertions and changes position only at the hearing, the court may order release and may award costs on the indemnity basis. Indemnity costs are principally concerned with the losing party’s conduct and are appropriate where that conduct warrants the court’s disapproval.

The claimant, a Guinean national, challenged his detention pending removal after approximately 30 months in administrative detention. He contended that the Secretary of State had not demonstrated a sufficient prospect of removal within a reasonable time and that the risks relied on to justify detention were insufficient.

At the hearing, the Secretary of State could not provide evidence concerning negotiations with the Guinean authorities, the availability of emergency travel documents or the prospects and timetable for enforced removal. The court also identified inaccurate assertions in detention reviews and grounds of resistance. The Secretary of State ultimately did not oppose release, but disputed the claimant’s application for indemnity costs.

1. Release from detention. The Secretary of State bore the burden of justifying continued detention. The evidence did not establish any prospect of the claimant’s removal within a reasonable period. The material relied on by the Secretary of State was incomplete, unsupported and in several respects inaccurate. The claimant was therefore ordered to be released, subject to conditions.
2. Evidence and public-authority conduct. The Secretary of State had been given ample opportunity, beginning with the pre-action correspondence, to provide evidence addressing the essential questions concerning detention and removal. The absence of a deliberate decision to withhold information did not answer the failure to produce the evidence required to sustain the case. A public authority engaged in judicial review proceedings is expected to maintain accurate records, respond substantively to issues raised and provide evidence on matters central to its position.
3. Costs. The court considered the principles governing indemnity costs, including the authorities referred to by the claimant. The Secretary of State’s conduct included late and partial disclosure, failure to answer repeated correspondence, failure to provide evidence on a crucial issue, reliance on confused and inaccurate assertions, procedural non-compliance and opposition to the claim until the hearing. Taken cumulatively, that conduct fell far below the standard expected of a public authority and justified the order sought for costs on the indemnity basis.
4. The remaining issue concerning the legality of detention and the date on which detention was lawful was stayed pending the outcome of related appellate proceedings, subject to further directions.

Not an appeal. The judgment records that a related policy issue was subject to Court of Appeal proceedings and possible further appeal, but does not identify a prior decision in this claim.