AE (Libya), R (on the application of) v Secretary of State for the Home Department (Rev 1)

Administrative detention pending deportation remains lawful only while the Hardial Singh principles are satisfied. The court must assess all relevant circumstances, including the prospects of removal, risks of absconding and re-offending, the detainee’s conduct, and, where appropriate, the place and conditions of detention. There is no fixed maximum period. The longer detention continues, the more anxiously its justification must be examined.

A published policy requiring serious sexual offenders to remain in prison rather than an immigration removal centre may be lawful if it permits individual risk assessment and consideration of exceptional circumstances. Procedural failures in applying a detention or transfer policy do not themselves establish unlawful detention or liability for damages. Causation remains necessary.

The claimant, a Libyan national convicted of serious sexual offences and breaches of a sexual offences prevention order, was detained in prison after completing the custodial part of his sentence. A deportation order had been made under the automatic deportation provisions, but removal awaited an emergency travel document.

He challenged the continued detention under the Hardial Singh principles and challenged the refusal to transfer him to an immigration removal centre. He alleged delay, reliance on an unlawful unpublished blanket policy, failure to conduct individual risk assessments and reviews, irrationality, and entitlement to damages.

1. Continued detention. Permission was granted and the substantive claim was dismissed. The Secretary of State bore the burden of satisfying the court on the balance of probabilities that detention remained lawful. The court had to decide the issue for itself, rather than conduct only a conventional public law review.
2. The prospects of removal within a reasonable time were fundamental, but removal need not be imminent and no fixed period automatically rendered detention unlawful. The Secretary of State had to act with reasonable diligence, including in the conduct of related appeal proceedings, although minor delays should not be examined with excessive minuteness.
3. The risk of absconding and the risk of re-offending were relevant considerations. Neither operated as an automatic justification for detention. The weight given to each depended on the individual facts. The claimant presented a real, though not very high, risk of absconding and a high and imminent risk of serious harm to young females if released. The period of detention, exceeding 14 months, was not unreasonable in the circumstances.
4. The court could have regard to the place and conditions of detention when applying the Hardial Singh principles and Article 5. The refusal to transfer the claimant to an immigration removal centre was separately reviewable only on established public law grounds; the court could not substitute its own decision.
5. The Enforcement Instructions and Guidance required individual risk assessment and consideration of exceptional circumstances. The court found no sufficient evidence that the claimant had been detained under the unlawful blanket policy reflected in Prison Service Order 4630 or the temporary notices. In any event, his assessed risk, including the risk of grooming through visitors or communications, justified detention in prison. The published policy was not irrational because it allowed individual consideration and exceptional cases.
6. Failure to conduct monthly assessments in accordance with the applicable guidance did not materially prejudice the claimant and did not itself make detention unlawful. Following WL (Congo), [2010] EWCA Civ 111, MXL, [2010] EWHC 2397 (Admin), and Rashford, [2010] EWHC 2200 (QB), no damages were recoverable without causation. The claimant could not show that any procedural or other unlawfulness had caused detention which could not otherwise lawfully have been imposed.

The claim for judicial review, including the damages claims, was dismissed.

This was a first-instance judicial review. Permission had initially been refused on 31 August 2010, but the renewed application was heard substantively and permission was granted in this judgment. The claim was dismissed.