Anam, R (on the application of) v Secretary of State for the Home Department (No. 2)

Immigration detention under paragraph 2 of Schedule 3 to the Immigration Act 1971 remains subject to the Hardial Singh principles. The court itself determines whether detention has exceeded a reasonable period or whether removal cannot be effected within a reasonable period. Relevant factors include the detainee’s psychiatric condition, the risks of absconding and reoffending, the effect of legal proceedings, and the progress of removal.

A public-law failure to follow published policy may make detention unlawful even where lawful detention could have been imposed. However, damages remain nominal where the Secretary of State could and would have lawfully detained the claimant. Substantial damages arise once continued detention itself breaches the Hardial Singh principles.

The claimant, a Bangladeshi national with a serious criminal history and longstanding mental-health problems, had been detained under immigration powers after completing his custodial sentence. His deportation and related immigration proceedings remained unresolved for more than four years.

The Court of Appeal had declared detention unlawful up to 14 August 2009 because published policy concerning mentally ill detainees had not been considered. It remitted the issues of damages, the lawfulness of later detention and bail to the Administrative Court. The central questions were when detention became unlawful under the Hardial Singh principles, whether later public-law errors affected its legality, and whether damages should be nominal or substantial.

1. Unlawful detention and damages. The detention was unlawful before 14 August 2009 because published policy had not been considered. It remained unlawful after that date because the decision-makers failed to consider Professor Katona’s report of 22 July 2009. Nevertheless, until close of business on 11 February 2010, the Secretary of State could and would have taken a lawful decision to detain. Damages for those periods were therefore nominal.
2. Hardial Singh principles. The court, rather than the Secretary of State, determines whether the principles have been complied with. Relevant considerations include the length of detention, the prospect and timing of removal, the obstacles to removal, diligence, the effect of detention on the detainee and family, psychiatric condition, and the risks of absconding and reoffending. Legal proceedings are fact-sensitive: meritorious proceedings should not automatically count adversely against the detainee, while the risks of absconding and reoffending remain important.
3. Public-law review. The court applies a supervisory, Wednesbury-based approach when reviewing whether a decision-maker applied published policy lawfully, although it makes its own determination on the Hardial Singh questions. Mental health may be relevant both to ordinary public-law review and, more stringently, to the court’s assessment of whether continued detention remains reasonable.
4. When detention became unlawful. By 11 February 2010 the claimant had been detained for almost two years under immigration powers and for more than three and a half years overall. His risk of absconding and reoffending had to be reassessed in light of evidence of improvement, the detention’s psychiatric impact, and the continuing appellate process. Taken together, the factors required release on appropriate conditions. Alternatively, it had become apparent that removal could not occur within a reasonable period.
5. From close of business on 11 February 2010 continued detention breached the second and, alternatively, the third Hardial Singh principles. The claimant was entitled to substantial damages for false imprisonment from that time onwards and, subject to any new impediment, to his liberty. Directions for damages assessment and any necessary arrangements for release were reserved.

1. Court of Appeal: The initial appeal was dismissed: [2010] EWCA Civ 1140. Following Lumba and Kambadzi, the appeal was reopened, the earlier order was set aside, and detention was declared unlawful from its inception to 14 August 2009. Damages and later detention issues were remitted to the Administrative Court.
2. High Court (Administrative Court): The court determined the remitted damages and lawfulness issues. Detention after close of business on 11 February 2010 was unlawful under the Hardial Singh principles.