AS, R (on the Application of) v Secretary of State for the Home Department

The Hardial Singh principles distinguish the duration of detention from the underlying lawfulness of exercising the detention power. The second principle concerns whether detention has continued for an unreasonable period. The third concerns whether removal can realistically be effected within a reasonable period. A court order permitting an age challenge does not, without more, create a distinct category of putative children or make continued detention unlawful. However, detention may be unlawful where the Secretary of State fails, without good reason, to comply with a published detention-review policy and the failure is material to continued detention.

The claimant, an Afghan national whose age was disputed, challenged his detention under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. A deputy High Court judge had permitted a fact-finding challenge to the local authority’s age assessment but refused immediate release. The claimant was released before the age hearing took place.

He argued that continued detention after the order breached the second or third Hardial Singh principle. He also raised, at a late stage, a separate challenge based on the failure to conduct a scheduled detention review. The issues were whether the detention was unlawful on either basis and whether permission should be granted to rely on the late ground.

1. Hardial Singh principles. The second principle concerns the implied limitation on the duration of otherwise lawful detention. It asks whether detention has continued for an unreasonably long period. The claimant’s argument that he could not lawfully be detained at all once permission had been granted to challenge his age did not engage that principle.
2. The third principle asks whether there was a realistic prospect of removal within a reasonable period. The order permitting the age challenge fixed a prompt fact-finding hearing and did not alter the claimant’s status, the evidence, or the applicable policy. It was therefore realistic, at the relevant time, that removal could occur within a reasonable period. The challenge under the Hardial Singh principles failed.
3. The court also rejected the suggestion that detention of a person later shown to be a child was automatically unlawful. R(AA (Afghanistan)) v Secretary of State for the Home Department [2013] UKSC 49 confirmed that the Secretary of State’s age-assessment policy complied with section 55 of the Borders, Citizenship and Immigration Act 2009, while recognising the continuing obligation to consider fresh evidence.
4. A public authority exercising a discretionary power must comply with its published policy unless there is good reason not to do so. A failure to conduct a required periodic detention review was material to the decision to continue detention. The detention from 2 to 7 December 2010 was consequently unlawful.
5. Permission was granted to rely on the late policy ground. The court declined to adjourn for further evidence on causation, because the issue was speculative, would cause late prejudice, and would serve only to pursue substantial rather than nominal damages. The claimant received a declaration and nominal damages; the remainder of the claim was dismissed.

First-instance judicial review proceedings. The claim was brought following the claimant’s detention and the refusal by a deputy High Court judge to order immediate release. The present court granted limited relief and dismissed the remainder of the claim.