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

A blanket policy requiring time-served foreign national offenders to remain in prison pending availability of immigration-removal-centre places is unlawful where it disregards individual circumstances and risk. A former criminal sentence does not, by itself, justify imprisonment under immigration powers. A public-law error alone does not establish a breach of Article 5. The relevant question is whether there is a sufficient relationship between the ground of permitted detention and its place and conditions. Binding authority nevertheless required evidence approaching Article 3-level harshness before a claim based solely on prison conditions could succeed.

The claimant, an Algerian national subject to a deportation order, remained in prison under immigration powers after completing the custodial part of a sentence. He challenged the policy applied from 3 July 2013, under which time-served foreign national offenders generally remained in prison until prison places were needed for other detainees or they reached the head of a transfer queue.

The first limb of the claim, concerning the lawfulness of detention where removal was not reasonably foreseeable, had been dismissed by Holman J. The remaining issues were whether the place of detention was unlawful in public law and whether imprisonment rather than detention in an immigration removal centre breached Article 5 of the ECHR. The claim included a damages claim under section 8 of the HRA 1998.

1. Public-law error. The policy operated in practice as a blanket policy permitting no meaningful exceptions based on individual circumstances. That was unlawful under the principle in R(Lumba) v SSHD [2012] 1 AC 245. The Defendant’s failure to provide evidence of genuine exceptional consideration reinforced that conclusion.
2. Place of detention. The claimant’s criminal record and deportation status justified detention pending removal, but did not logically justify imprisonment after the custodial term had expired. A criminal record might bear on the risk of absconding, but, without more, did not establish that prison was the appropriate place of detention. The Court declined to decide what a lawful prison-detention policy might contain.
3. Article 5. A domestic public-law error, without more, does not establish a breach of Article 5. The decision in R(Luis Rozo-Hermida) v SSHD [2011] EWHC 695 (Admin) was too broadly expressed in treating flawed decision-making as sufficient.
4. The Strasbourg authorities, including Aerts v Belgium [2000] 29 EHRR 50, Mayeka v Belgium [2008] 46 EHRR 23 and Saadi v UK [2008] 47 EHRR 17, required consideration of the relationship between the permitted ground of detention and its place and conditions. If free from authority, the Court would have found that relationship insufficient here.
5. However, Krasniqi v SSHD [2011] EWCA Civ 1549 was binding. It established that a public-law error was insufficient and that a claim directed to the place and conditions of detention required evidence of conditions approaching undue harshness tantamount to a breach of Article 3. The claimant’s evidence showed significant differences between prisons and immigration-removal centres, but did not meet that threshold.
6. The application for judicial review was dismissed. Permission to appeal was granted so that the Court of Appeal could determine the proper bounds of Krasniqi.

High Court (Administrative Court): Holman J had dismissed the first limb of the claim on 13 May 2014. The remaining issue concerning the place of detention was determined by Jay J, who dismissed the claim and granted permission to appeal.