Idira, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1)

Article 5(1) does not generally prohibit immigration detention of a time-served foreign national offender in a prison rather than an immigration removal centre. The Convention looks to substance, not the institution’s formal designation.

The court must assess whether the place and conditions of detention are appropriate in all the circumstances. Relevant considerations include the detainee’s vulnerability, the actual regime and practical constraints relied upon by the state. Detention becomes arbitrary only where the conditions are seriously inappropriate or unduly harsh. On the facts, detention of an able-bodied detainee without particular vulnerability was lawful.

The appellant, an Algerian national subject to a deportation order, completed a custodial sentence and was then detained under the Immigration Act 1971. He remained in Wandsworth and Wormwood Scrubs prisons between July 2013 and March 2014, rather than being transferred to an immigration removal centre.

He challenged the detention on domestic public-law grounds and under Article 5(1)(f) of the Convention. Jay J, in the Administrative Court, found the policy unlawful on ordinary public-law grounds but granted no relief. He held that the detention would have breached Article 5(1) absent R (Krasniqi), but dismissed the claim because the conditions were not unduly harsh. The appeal concerned the proper Article 5(1) test and its application.

Appeal dismissed. The Master of the Rolls gave the principal judgment. The President of the Queen’s Bench Division agreed, and McCombe LJ agreed entirely with the reasons and result.

1. The text of Article 5(1) is silent about the institution in which permitted detention must occur. No general rule follows from the formal description of an establishment as a prison. The Strasbourg authorities require a substantive assessment of arbitrariness.
2. The third Saadi criterion requires the national court to evaluate whether the place and conditions of detention are appropriate or suitable. This is distinct from the requirement that detention be connected with a permitted Article 5(1) purpose. The assessment is broad and includes vulnerability, the actual conditions and practical difficulties relied upon by the state.
3. The threshold is high. The place or conditions must be seriously inappropriate or unduly harsh before detention becomes arbitrary. They need not be the most appropriate available. The phrase “unduly harsh” was treated as a useful gloss on the third Saadi criterion. It is not equivalent to ill-treatment contrary to Article 3, although Article 3 violations in some authorities illustrated the required level of seriousness.
4. R (Krasniqi) was applied. An irregularity in selecting the place of detention, including departure from domestic policy, does not by itself establish an Article 5 violation. The appellant was an adult in good health without particular vulnerability, and his prison conditions were not seriously inappropriate or unduly harsh.
5. The judge’s public-law findings were not revisited because there was no cross-appeal and no relief had been granted. The extension of time for the respondent’s notice was properly granted under the three-stage approach in Denton. Since the notice raised issues at the heart of the appeal and caused no disruption or real prejudice, refusal would have been inappropriate. The substantial and unjustified delay nevertheless justified the existing indemnity costs order.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the costs decision. [2015] EWCA Civ 1187
• Administrative Court, Queen’s Bench Division: Jay J dismissed the claim, having found the policy unlawful on ordinary public-law grounds but granted no relief. He rejected the Article 5(1) claim because the prison conditions were not unduly harsh. [2014] EWHC 4299 (Admin)