Lemtelsi, R (On the Application Of) v Secretary of State for the Home Department

For a second appeal, an alleged error in applying settled legal principles does not ordinarily raise an important point of principle or practice. An effectively new point is required.

Immigration detention cases must be decided on their own facts. Delay in securing travel documents, cooperation by the detainee, and risks of absconding or reoffending may be relevant, but disagreement with the judge’s assessment of those matters will not, without more, provide a compelling reason for a second appeal. The settled Hardial Singh principles, as approved and restated in Lumba, remained unchallenged.

The claimant challenged by judicial review the Secretary of State’s decision that he could remain detained under immigration legislation after the custodial part of his prison sentence expired on 15 September 2012. He remained detained until being granted bail on 7 January 2014 and sought damages.

His Honour Judge Heaton QC gave judgment on the challenge on 15 July 2014. Vos LJ refused permission to appeal on the papers. The claimant renewed the application before the Court of Appeal. The central questions were whether the proposed appeal raised an important point of principle or practice, or whether there were other compelling reasons for a second appeal.

Renewed application for permission to appeal refused. Lord Justice Aikens held that the proposed appeal did not satisfy the threshold applicable to a second appeal.

1. The requirement of an important point of principle or practice is not met by an alleged error in applying well-established principles. An effectively new point is required. The principles governing administrative detention, including their limitations and controls, had been settled since R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and had been considered, approved and restated by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245.
2. The detention challenge was fact-sensitive and had to be decided on its own facts. The judge had the relevant circumstances in mind, including the delay in obtaining emergency travel documents, the claimant’s willingness to return and cooperation, and the accepted risks of absconding and reoffending.
3. The claimant’s arguments that the delay constituted illegality, and that the balance between cooperation and the risks of absconding or reoffending had been wrongly struck, were challenges to the application of settled principles and the evaluation of facts. Neither argument disclosed a compelling reason for the Court of Appeal to hear a second appeal.

Permission to appeal was therefore refused.

• Court of Appeal (Civil Division): Vos LJ refused permission to appeal on the papers. On renewed application, Aikens LJ refused permission: [2015] EWCA Civ 967.
• High Court, Queen’s Bench Division, Administrative Court: His Honour Judge Heaton QC gave judgment on the judicial review challenge on 15 July 2014. The citation is not stated in the judgment.