Ganesharajah v Secretary of State for the Home Department

Immigration detention remains lawful only while the statutory purpose of removal persists and the Hardial Singh principles are satisfied. The Secretary of State must intend to remove the detainee, detain only for a reasonable period, stop detention when removal within that period is no longer realistically achievable, and act with reasonable diligence and expedition. The assessment is fact-sensitive and must be made by reference to the information reasonably available at each decision, without hindsight. Risk of absconding and reoffending is relevant, but neither is a trump card. Deliberate misinformation and obstruction may support an inference of increased absconding risk and may justify a longer period of detention. An exceptionally long detention period does not become unlawful automatically. A failure to follow public-law requirements must be material before it invalidates detention.

The claimant sought damages in tort for false imprisonment arising from immigration detention after completion of a criminal sentence. He was detained from 10 July 2008 until removal to Sri Lanka on 28 February 2013.

The Secretary of State conceded that detention was unlawful for the first two months because an unlawful blanket policy had been applied, and that notice of detention had not been served for the first five days. The claimant contended that the detention remained unlawful thereafter because it was excessive, lacked a realistic prospect of removal, involved insufficient diligence, was tainted by the initial unlawful policy, and was continued following material public-law errors. The central issues were the application of the Hardial Singh principles and the proper interpretation of the relevant detention policy.

1. Outcome. The claim was dismissed except for the conceded unlawful period. The claimant received £500 substantial damages for the first five days, during which no notice of detention was served, and £100 nominal damages for the remainder of the first two months.
2. The detention power under Schedule 3 to the Immigration Act 1971 was subject to the four Hardial Singh principles: the Secretary of State must intend to deport; detention must last only for a reasonable period; detention must cease when removal within that period is no longer achievable; and reasonable diligence and expedition must be used.
3. The reasonableness of detention depended on the individual circumstances, including the length of detention, obstacles to removal, the Secretary of State’s diligence, the effects and conditions of detention, the risk of absconding, and the danger of further offending. There was no fixed maximum period after which detention automatically became unlawful.
4. The court assessed each decision without hindsight. Despite the exceptional length of detention, the Secretary of State reasonably believed throughout that removal could occur within a reasonable period and acted with reasonable diligence. The claimant’s shifting nationality claims, refusal to attend interviews, refusal to sign travel-document forms, and other obstruction were relevant to the assessment of removal prospects and absconding risk.
5. The unlawful blanket policy ended when the revised policy was published on 9 September 2008. The later detention reviews appropriately considered the claimant’s individual circumstances. The phrase concerning exemption from release under rigorous contact management did not demonstrate continuation of the unlawful policy.
6. The policy requirement for senior approval applied to decisions to release a time-served foreign national prisoner, not to every monthly detention review. In any event, any failure to obtain a review by an officer of sufficient seniority would not have been sufficiently material to invalidate detention.
7. The protections afforded by proper adherence to the Hardial Singh principles sufficiently reflected the requirements of article 5 of the Convention in the circumstances of the claim. Unless written submissions on costs were received within 28 days, there would be no order for costs.