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

Immigration detention pending deportation is lawful only while there is a realistic prospect of removal within a reasonable period. A detainee’s refusal to co-operate, or deliberate supply of false information, may extend the reasonable period, but cannot justify indefinite detention. The Hardial Singh principles require a fact-specific assessment of the period already served, removal prospects, risk of absconding and re-offending, and the Secretary of State’s diligence. A statutory requirement to continue detention does not validate detention that was unlawful when the deportation order was made. Where detention is unlawful because of a defective decision-making process, damages remain subject to ordinary compensatory principles.

The claimant, an Algerian national subject to a deportation order, had been detained from July 2006 after serving a sentence of imprisonment. The Secretary of State had repeatedly sought an emergency travel document from the Algerian authorities, but the applications remained unsuccessful or unresolved. The claimant sought declarations that his detention had been unlawful, that further detention would be unlawful, and damages for false imprisonment and breach of article 5 of the European Convention on Human Rights.

The Secretary of State accepted that detention between July 2006 and September 2008 had been affected by an unlawful blanket policy and that some reviews had been missed. The central issues were whether there had ever been, or later remained, a realistic prospect of removal within a reasonable period; whether the Secretary of State had acted with reasonable diligence; and whether the claimant could recover more than nominal damages.

1. Power to detain. The Secretary of State never had power to detain the claimant because she had not shown a realistic prospect of obtaining an emergency travel document and removing him within a reasonable period. The existing application had been outstanding for more than three years and was virtually certain to fail. There was no realistic prospect that the claimant would co-operate or that alternative investigations would produce sufficient evidence within a reasonable period.
2. Hardial Singh principles. The principles are fact-specific and must not be applied mechanically. A detainee’s failure to co-operate, including supplying false or misleading information, may make a reasonable period longer, but is not a justification for indefinite detention. By 5 September 2008, at the latest, there was no realistic prospect of removal within a reasonable period, even assuming that detention had initially been lawful.
3. The Secretary of State had also failed to act with reasonable diligence and expedition. That failure did not necessarily invalidate detention in every case unless it affected its length, but it was relevant to whether the detention had become unreasonable.
4. Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 applies only where the individual is lawfully detained when the deportation order is made. It cannot convert unlawful detention into lawful detention.
5. The claimant’s detention was independently unlawful because decisions were materially influenced by an unlawful blanket policy and because required periodic reviews were missed. Had the published policies been applied reasonably, he would have been released by 5 September 2008 at the latest.
6. Damages for false imprisonment are assessed on ordinary compensatory principles. The claimant had to prove, on the balance of probabilities, that he would not have been detained had the unlawful decision or failure to review not occurred. He was prima facie entitled to more than nominal damages, subject to unresolved issues concerning mitigation and periods when he might otherwise have been imprisoned.
7. Further detention was unlawful, and a declaration was granted. The claimant was released. Damages remained to be assessed.

First-instance judicial review in the Administrative Court. The judgment records earlier permission decisions but no prior merits determination.