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

Detention pending deportation is lawful only for a period which is reasonable in all the circumstances. The Secretary of State must act with reasonable diligence and release the detainee if removal cannot be effected within that period.

Administrative delay does not itself establish wrongful detention. A claimant must show that the delay crossed the line into illegality and identify a period during which, but for the failure, detention would have ended.

A breach of policy concerning the place of detention does not invalidate the decision to detain. Nor does it alone establish arbitrary detention under article 5 of the European Convention on Human Rights, absent evidence that the place or conditions were inappropriate or unduly harsh.

The appellant was a recognised refugee with a history of criminal offending. After completing his custodial sentence, he was detained pending consideration of automatic deportation under the UK Borders Act 2007. The Secretary of State delayed commencing the process for cancelling his refugee status and kept him in prison for about nine months, although published policy required his transfer to an immigration removal centre.

The Administrative Court dismissed his claims. It found that the cessation procedure should have begun sooner, but that the duration of detention remained reasonable in light of the risks of absconding and reoffending and the prospect of removal. It also held that breach of the policy governing the place of detention did not invalidate the detention.

The appeal asked whether an earlier period of detention was unlawful at common law and whether detention in prison, contrary to policy, was arbitrary under article 5.

1. The appeal was dismissed on both grounds. The Administrative Court was entitled to find that the appellant's continued detention was justified both at the hearing date and at every earlier material time.

2. The Hardial Singh principles are applications of two elementary propositions: compulsory detention must be properly justified, and statutory powers must be used for their authorised purposes. They are not equivalent to statutory rules whose breach automatically gives rise to damages. Administrative delay becomes actionable only when it crosses the line into illegality. A claimant must also establish a specific period during which detention would have ended but for the failure.

3. The Secretary of State had delayed unreasonably in beginning the process for cancelling refugee status. That delay did not make detention unlawful. An application in September 2009 would not realistically have secured release because immigration detention had only just begun. By March 2010 active steps towards cancellation had started, there was every prospect of their succeeding, and release presented a serious risk to the public. The appellant therefore failed to identify any period when detention lacked justification.

4. Failure to comply with policy concerning the place or conditions of detention does not affect the antecedent decision whether to detain. The admitted failure to transfer the appellant promptly from prison to an immigration removal centre therefore created no common-law claim.

5. Article 5 of the European Convention on Human Rights concerns deprivation of liberty and does not generally prescribe its place or conditions. Detention may be arbitrary where it is in bad faith, is unrelated to the permitted statutory purpose, or lacks an appropriate relationship between its ground and its place or conditions. Mere irregularity in selecting a place of detention does not suffice. In the absence of evidence that the prison conditions were unduly harsh or otherwise inappropriate, no article 5 violation was established.

1. Court of Appeal (Civil Division): The appeal was dismissed on both grounds by [2011] EWCA Civ 1549.

2. Administrative Court: His Honour Judge Waksman QC, sitting as a judge of the High Court, dismissed the claims for damages arising from the duration and place of detention. No neutral citation for that decision is stated.