Suckrajh, R (on the application of) v The Asylum & Immigration Tribunal & Anor

Detention under a detained fast-track asylum procedure is lawful only where the statutory power is used for its proper purpose and the claim can be examined and decided quickly within a reasonable period. The power is constrained by the Hardial Singh principles and by published policy closely related to the statutory authority. A case may be allocated after the initial stage if fresh evidence makes it straightforward. An additional public-protection motive does not invalidate detention where officials also acted in good faith for the statutory purpose. On the facts, 11 days’ detention was reasonable.

The claimant, a Jamaican national, had previously been detained under a different fast-track procedure and received agreed damages for that detention. Following new information about Jamaican convictions and a Facebook entry, he was detained on 6 July 2009 under the detained fast-track procedure. His asylum claim was refused on 17 July, his appeal was dismissed, and he obtained bail on 21 August.

Permission to challenge the allocation to the fast-track procedure was refused by the Administrative Court and on further applications. The Court of Appeal granted permission and, under a consent order, determined the judicial review and damages claim. The central issue was whether the claimant had been lawfully allocated to and detained within the detained fast-track procedure.

Disposition and governing principles

1. Outcome. The appeal against refusal of permission was allowed, but the substantive judicial review claim was dismissed. The detention was lawful and there was no purpose in assessing damages.
2. The Secretary of State had to show lawful power to detain. Under paragraph 16 of Schedule 2 to the Immigration Act 1971, paragraph 16(1) could be used only for examination and a decision whether to grant or refuse leave to enter. The power had to be exercised reasonably and without arbitrariness. Detention could not continue beyond the period reasonably required for its purpose.
3. The court applied the Hardial Singh principles by analogy. The decision-maker had to reasonably anticipate that examination and decision could be completed within a reasonable time, judged by all the circumstances when detention began. The actual period also had to remain reasonable. Published policy qualified the statutory power where it was closely related to the authority to detain. The DFT policy required a case to be suitable for a quick decision and excluded cases requiring further enquiries. This approach was supported by Saadi [2002] UKHL 41, R (WL Congo) v Home Secretary [2011] UKSC 12, and R (SK Zimbabwe) v Home Secretary [2011] UKSC 23.
4. The new conviction information and Facebook evidence gave good grounds for considering that the claim had become straightforward and could be decided speedily. The officials were also motivated by public-protection and absconding concerns, which could not themselves justify DFT allocation. However, they acted in good faith for the proper statutory purpose. The anticipated and actual period of detention, 11 days, was reasonable.
5. The policy did not prevent DFT allocation at a later stage where fresh evidence made a claim straightforward. It was unnecessary to decide whether the procedure could be applied merely because routine enquiries had been completed.
6. After refusal of the asylum claim, paragraph 16(2) supplied a further power to detain because there were reasonable grounds for suspecting a risk of absconding. Failure to disclose the real reasons at the outset and inadequate recording of reasons warranted criticism, but did not invalidate the detention on the facts. The wider systemic concerns raised by the UNHCR were left for another occasion.

1. Court of Appeal (Civil Division): [2011] EWCA Civ 938 allowed the appeal against refusal of permission, granted permission, and dismissed the substantive judicial review claim.
2. Administrative Court: Ian Dove QC, sitting as a Deputy Judge, refused permission for the judicial review proceedings to proceed. Permission had also been refused by Lord Carlile QC.
3. Further permission applications: Pill LJ refused permission to appeal on 26 March 2010. Sir Scott Baker granted permission to appeal on 29 June 2010.