Alsaadon v Secretary of State for the Home Department

Immigration detention must comply with the Hardial Singh principles and with applicable public-law policies. Each decision to detain or continue detention must be assessed on the facts reasonably available when it was made, without hindsight. The question is whether further detention at that time would breach the principles, not what total period would ultimately be reasonable. An unlawful detention policy or failure to conduct required reviews may establish false imprisonment, but damages remain nominal where detention would have occurred in any event. A deportation order may invalidate existing leave to remain, and its later revocation does not automatically reinstate that leave.

The claimant, an Iraqi national with a substantial criminal record, was detained under the Immigration Act 1971 after the custodial part of his sentence expired on 4 July 2007. He remained detained until 14 August 2009 while deportation decisions, asylum and human-rights appeals, and later representations were pursued.

The claimant challenged the legality of his detention. He relied on alleged indefinite leave to remain, missing immigration files, long residence, the prospects of removal to Iraq, the length and reasoning of detention reviews, and the absence of reviews during three months in 2008. The central issue was whether detention was unlawful under the Hardial Singh principles or general public-law principles.

1. Outcome. The claim failed substantively. The claimant was entitled only to nominal damages for detention during the operation of the unlawful foreign-prisoners policy identified in Lumba v SSHD [2011] UKSC 12, and for the three months when detention reviews were not undertaken. He was not entitled to substantial damages or a declaration that the remainder of his detention was unlawful.
2. The detention power under Schedules 2 and 3 to the Immigration Act 1971 was constrained by the four Hardial Singh principles stated in Lumba v SSHD [2011] UKSC 12 at [22]. Decisions to detain or maintain detention also had to comply with applicable published policies. Under Kambadzi v SSHD [2011] UKSC 23, departure from a policy requiring regular reviews could make detention unlawful.
3. Each detention decision had to be assessed on the information and circumstances reasonably available at the time. Later events, including the eventual success of an appeal or revocation of a deportation order, did not establish earlier unlawfulness unless the original assessment was unreasonable. It was unnecessary to decide in July 2007 what total period of detention would be reasonable; the question was whether further detention at each particular time would breach the principles.
4. The claimant had not shown that removal to Iraq had become impossible within a reasonable time. Pending appeals and representations legitimately delayed removal. The Secretary of State could reasonably take account of the existing deportation orders, the possibility of voluntary return, the claimant’s criminal record, the risk of absconding, and the absence of sufficiently clear evidence that removals would not resume. The line of authority concerning removals to Iraq, including R (Bashir) v SSHD, R (MMH) v SSHD, Ibrahim v SSHD, R (Murad) v SSHD, R (A) v SSHD and R (Mahmoud) v SSHD, supported that approach.
5. Under section 5(1) of the Immigration Act 1971, making a deportation order invalidated any existing leave to remain. Revocation of the order did not automatically reinstate leave. The claimant therefore could not establish that detention was unlawful merely because he later succeeded in showing that indefinite leave had originally been granted.
6. The detention reviews were not required to mention every potentially relevant matter. Their reasons were sufficient, and the claimant had not shown that the conclusions would have been different if the unlawful policy and missed reviews had not occurred.

Not an appeal. The judgment states that the claim was begun by judicial review in 2008 and subsequently confined to the legality of the claimant’s detention.