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

In assessing immigration detention, the court must determine for itself whether the statutory and Hardial Singh limits are satisfied. The Secretary of State bears the burden of showing a real prospect of removal within a reasonable period and must act with reasonable diligence.

The duty of candour requires specific enquiry within or outside the department where material in the Secretary of State’s possession prompts that need. Disclosure after an initial adverse asylum decision may cause conspicuous unfairness where the Devaseelan principle prevents the later tribunal from reconsidering the first credibility findings. A public law error in the underlying immigration process may render continued detention unlawful where it bears on and is relevant to detention.

The claimant, a Somali national, challenged more than two years of detention pending consideration of automatic deportation and removal. He relied on alleged failures to consider and disclose Home Office records concerning refugee relatives, delay in processing his asylum and human rights claims, the prospects of removal to Somalia, and the welfare of his son.

The claim also raised the four Hardial Singh principles and the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The court considered whether the detention became unlawful, and if so, from what date.

1. Duty of candour and fairness. The Secretary of State was required, from 6 August 2012, to make specific enquiries concerning relevant Home Office records about the claimant’s family. The court rejected deliberate concealment, but found a breach of the duty of candour and conspicuous unfairness.
2. The unfairness arose because the Secretary of State treated the claimant’s mother and aunt as credible witnesses whose asylum claims had succeeded, while allowing their evidence to be challenged before the first tribunal as lacking credibility. Later disclosure could not cure the disadvantage because, under the Devaseelan principle, the second tribunal had to treat the first determination as unquestioned.
3. Hardial Singh principles. The court applied the requirement that detention must be for the purpose of removal, that removal must remain realistically achievable within a reasonable period, and that the Secretary of State bears the burden of justification. The evidence showed that removals to Somalia were tiny compared with the number of persons liable to removal. The Secretary of State therefore failed to establish a real prospect of removing this claimant and failed to show that removal could be effected within a reasonable period. August 2012 was the determinable point at which this became apparent.
4. The court rejected the argument that the Administrative Court could not determine the disclosure and fairness issues in judicial review proceedings by analogy with AO (Iraq). It found no need for further factual findings or resort to the Court of Appeal.
5. The fourth Hardial Singh principle was not breached. In the circumstances, the Secretary of State had acted with reasonable diligence and expedition to effect removal.
6. Section 55 of the Borders, Citizenship and Immigration Act 2009 was not breached. The Secretary of State was entitled to rely on the earlier tribunal findings concerning the claimant’s relationship with his son and later placed the new reports before a fresh tribunal.
7. The detention from 6 August 2012 until release on bail on 26 February 2013 was unlawful. The case was transferred to the Queen’s Bench Division for assessment of damages.

The judgment records that permission to bring judicial review was eventually granted by the Court of Appeal on 5 November 2012 and the case was remitted to the Administrative Court. The present court determined the substantive claim.