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

Immigration detention pending a decision on an exception to automatic deportation must last no longer than is reasonable in all the circumstances. The Secretary of State must act with reasonable diligence and expedition.

There is no universal duty to begin evaluating an exception before the custodial sentence ends, and no fixed temporal yardstick governs lawfulness. Earlier action may nevertheless be required on the particular facts. Where a significant proportion of detention is marked by apparent administrative inactivity, and the Secretary of State supplies no explanation, the court may find that an identifiable part of the detention crossed the line from administrative failure into illegality. Past offending alone cannot justify extending immigration detention after the criminal sentence has been served.

The appellant, a Sudanese national convicted of serious sexual offences, completed his custodial sentence in May 2009 but remained detained under immigration powers for just over two years. The Secretary of State sought his automatic deportation under the UK Borders Act 2007. The appellant maintained that removal to Sudan would expose him, as a non-Arab Darfuri, to treatment contrary to article 3 of the European Convention on Human Rights.

The First-tier Tribunal accepted that claim in February 2011. The Upper Tribunal refused the Secretary of State permission to appeal in May 2011, and the appellant was released seven days later. In judicial review proceedings, a deputy High Court judge dismissed his claim that his detention had become unlawful.

The principal questions on appeal were whether the Secretary of State had taken an unreasonable period to decide the case, whether she had acted with reasonable diligence, and whether the final seven days of detention were lawful.

1. Appeal allowed. McFarlane LJ, with whom Sharp LJ and the Master of the Rolls agreed, held that eight months of the appellant’s immigration detention were unlawful. The deputy judge’s order was set aside, a declaration of unlawful detention was granted, and assessment of damages was remitted to the High Court.

2. The modified Hardial Singh principles applied to detention under section 36(1)(a) of the UK Borders Act 2007. The Secretary of State must conditionally intend to deport unless a section 33 exception applies. Detention may continue only for a period reasonable in all the circumstances, and the Secretary of State must act with reasonable diligence and expedition when determining whether an exception applies.

3. There is no blanket positive obligation to begin evaluating an exception during every prisoner’s custodial sentence. Whether failure to start earlier is unreasonable is fact-sensitive and forms part of the overall assessment. Nor should a fixed period, such as six months, be adopted as a yardstick. A fixed period could cause excessive detention to be treated as normal when a shorter period would be unreasonable on the facts.

4. The seriousness of the decision whether to exempt a foreign criminal from automatic deportation justified proper and careful evaluation. It did not justify disproportionate delay. The individual had already served the criminal sentence, so past offending could not itself justify implementing or extending immigration detention.

5. The appellant had to establish the fact of detention, after which the Secretary of State had to establish lawful authority to detain. The duration issue was principally an evaluative question of reasonableness, for which strict concepts of evidential burden and standard of proof were neither apt nor useful.

6. About 12 of the 15 months before the deportation decision consisted of three periods of little or no apparent administrative activity. The Secretary of State supplied no adequate evidence explaining them. She was not required to account for every day or week, but substantial unexplained inactivity permitted the court to conclude that part of the detention was unreasonable. Applying the distinction in R (Krasniqi) between administrative failure and illegality, eight months fell on the unlawful side of the line.

7. The separate challenge to the final seven days failed. That short period was reasonable because multi-agency public protection arrangements had to be established before release.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1378, unanimously allowed the appeal, declared that eight months of detention were unlawful, and remitted assessment of damages to the High Court.
2. Administrative Court, Queen’s Bench Division: Mr Philip Mott QC, sitting as a deputy High Court judge, dismissed the judicial review claim on 25 January 2013. No citation is stated.
3. Upper Tribunal: Refused the Secretary of State permission to appeal from the First-tier Tribunal on 17 May 2011.
4. First-tier Tribunal (Immigration and Asylum Chamber): Allowed the appellant’s appeal against automatic deportation on article 3 human-rights grounds on 23 February 2011 and refused the Secretary of State permission to appeal.