Sino, R (on the application of) v Secretary of State for the Home Department (Rev 2)

Immigration detention must remain connected to a realistic prospect of removal and must last no longer than a reasonable period. Earlier detention cannot be disregarded merely because it was interrupted by periods of liberty, although the periods should not automatically be added together arithmetically. The court must assess the whole context, including earlier detention, changed circumstances, removal prospects, diligence, risk of absconding, offending and the effect on health. Administrative detention cannot be justified solely by non-cooperation or offending. Where a deportation order is revoked and replaced only to correct an alias, the underlying decision to deport may survive; revocation does not invariably require a fresh deportation decision.

The claimant challenged periods of immigration detention, sought release and damages for false imprisonment, and disputed the validity of a replacement deportation order. He also alleged that the Secretary of State had unlawfully failed to determine an application for accommodation under section 4 of the Immigration and Asylum Act 1999. The claim concerned detention after an earlier judgment had found almost five years of detention unlawful, followed by further detention from 2013. The issues were whether the section 4 application had been refused, whether detention complied with the Hardial Singh principles, and whether replacing a deportation order made in an alias was lawful.

1. Section 4 accommodation. The Secretary of State had not refused to entertain the application. The decision-making process was effectively adjourned pending information needed to determine whether the claimant was destitute and to identify a suitable release address. This ground failed.
2. False imprisonment and detention. The claimant established unlawful detention between 13 July and 10 December 2013. Although a further period after imprisonment was permissible to reassess whether removal prospects had improved, that period could not exceed eight weeks on these facts. The earlier unlawful detention remained highly relevant; the intervening liberty did not revive the detention power as if the earlier history had never occurred.
3. The periods of detention should not be combined by rigid arithmetic. Earlier detention is nevertheless an important contextual factor. A material change of circumstances may justify a further, limited period of detention. The claimant’s approach to the Algerian authorities on 10 December 2013 materially changed the removal prospects, after which detention was justified.
4. The Secretary of State’s administrative detention power could not be used generally to punish non-cooperation, offending or perceived bad character. The relevant question remained whether there was a realistic prospect of removal within a reasonable period, assessed prospectively and with anxious scrutiny.
5. Because the unlawful period was not shown to have been followed by detention which would lawfully have occurred in any event, the claimant was entitled in principle to compensatory rather than merely nominal damages. The relevance of his conduct to quantum was left to assessment.
6. Deportation order. The decision to make a deportation order and the making of the order were distinct stages. Revoking an order did not automatically extinguish the underlying decision. The replacement order, made in the claimant’s correct name, was administrative and facilitative, and the challenge based on R (Pryor) v Secretary of State for the Home Department was rejected to that limited extent.
7. The claim otherwise failed. The claimant’s detention was unlawful only for the period 13 July to 10 December 2013.