Saleh v Secretary of State for the Home Department

Administrative detention pending deportation remains lawful only while the Hardial Singh principles are satisfied. The Secretary of State must intend to deport, detention must remain reasonable in all the circumstances, removal must have a sufficient realistic prospect within a reasonable period, and reasonable diligence and expedition must be used. The court assesses reasonableness objectively on the material available at the time, without hindsight. The strength of an asylum or human-rights claim is relevant to the balance, but does not itself require release where the Secretary of State reasonably contests the claim. Serious offending, risks of absconding and re-offending, and the automatic deportation regime may justify continued detention. A period of administrative delay becomes unlawful only where it amounts to unreasonableness and the claimant identifies a specific period during which detention would otherwise have ended.

The claimant challenged his detention from 8 May 2009 until 24 May 2011, following a four-year sentence for serious sexual offences against a minor and his detention under the automatic deportation provisions of the Borders Act 2007. His claim that removal to Sudan would breach article 3 of the European Convention on Human Rights was ultimately allowed by the First-tier Tribunal on 23 February 2011. Permission to appeal was refused by the First-tier Tribunal and Upper Tribunal, and he was released on 24 May 2011.

The judicial review claim alleged unreasonable delay, failure to engage with the merits of his protection claim, failure to grant bail, and defective notification of the statutory basis for detention. The central questions were whether detention had become unreasonable, whether the Secretary of State had acted with reasonable diligence and expedition, and whether the final seven days of detention were unlawful.

The claim for a declaration of wrongful detention was dismissed on all grounds.

1. Applicable principles. The court applied the four Hardial Singh principles: the Secretary of State must intend to deport; detention must last no longer than is reasonable in all the circumstances; detention must cease when it becomes apparent that removal cannot be effected within a reasonable period; and the Secretary of State must act with reasonable diligence and expedition.
2. The third principle required an apparent inability to remove within a reasonable period, not merely uncertainty. A precise removal date was unnecessary, provided there was a sufficient prospect of removal. The assessment was objective and based on material available at the time. The court, rather than merely reviewing on Wednesbury grounds, determined whether detention was reasonable.
3. The automatic deportation regime under sections 32, 33 and 36 of the Borders Act 2007 created a strong presumption in favour of deportation and detention, subject to the statutory exceptions. The Secretary of State’s policy that release would ordinarily be appropriate only in exceptional cases involving serious offending had been held lawful in [2011] UKSC 12.
4. The claimant’s protection claim became increasingly strong, but it was not irrational for the Secretary of State to reject it initially or to seek permission to appeal after the First-tier Tribunal allowed the claim. The risks of absconding and re-offending remained important. The claimant’s serious, targeted sexual offending, lack of accommodation and support, and limited effectiveness of licence, reporting and registration requirements justified continued detention while the appeal position was resolved.
5. The delay after the claimant became eligible for release from custody was not unlawful. The Secretary of State reasonably investigated nationality, ethnicity, risk, internal relocation and family circumstances, and the subsequent delay was substantially connected with the appeal process and the claimant’s amended case. The final seven-day period was also reasonable, because arrangements for release required multi-agency public-protection measures and immediate release was impracticable.

First-instance judicial review proceedings. The judgment records that permission was granted on the Hardial Singh grounds and refused on the article 5 grounds; the renewed article 5 application was refused by the present court.