AXD v The Home Office

Immigration detention must be assessed both holistically and by close examination of the steps taken to maintain it. The Hardial Singh principles require detention to remain reasonable, a sufficient prospect of removal within a reasonable time, and reasonable diligence and expedition by the detaining authority. Absconding and reoffending risks are important, but neither is automatically decisive. Reoffending risk carries less weight because immigration detention is not imposed to serve criminal-law purposes. Administrative delay becomes unlawful where it materially prolongs detention, and causation must then be assessed by asking what would probably have happened if the authority had acted lawfully. On the facts, the second period of detention became unlawful, while the first did not.

The claimant, a Somali refugee and foreign national offender, claimed damages for two periods of immigration detention. The common-law claim alleged false imprisonment contrary to the Hardial Singh principles. A claim under section 8 of the Human Rights Act 1998 alleged breaches of Articles 3 and 8 of the Convention, including through inadequate psychiatric care and the circumstances of release.

The first detention ran from 27 August 2009 to 17 May 2011. The second ran from 27 November 2011 to 5 December 2014. The central issues were whether detention became unreasonable, whether removal remained realistically possible within a reasonable time, whether the Defendant acted with reasonable diligence and expedition, and whether any breach caused loss.

1. Section 8 claim. The claim under section 8 of the Human Rights Act 1998 failed. Applying the Convention standard of proof beyond reasonable doubt, the court could not be satisfied that the claimant had paranoid schizophrenia. The competing evidence left a reasonable possibility of malingering, symptom exaggeration or substance-induced psychosis. The Article 8 claim was wholly contingent on the Article 3 claim and therefore also failed.
2. Hardial Singh framework. The principles require detention to remain reasonable in all the circumstances; detention not to continue once it becomes apparent that removal cannot be effected within a reasonable time; and reasonable diligence and expedition in pursuing removal. The court is the primary decision-maker rather than conducting a Wednesbury review. It may consider facts known to the Defendant at the time, but not hindsight.
3. Absconding and reoffending risks must be weighed with the other circumstances. Absconding risk may be decisive where removal remains realistically possible, but it is not a trump card. Reoffending risk is relevant but carries less weight because immigration detention does not exist to advance criminal-law policies.
4. The first period of detention was not unlawful. Although the Defendant failed to process further representations with reasonable expedition between October 2010 and May 2011, the claimant failed to prove causation. A timely decision would probably have been adverse and reasonably defensible, and the claimant would probably have remained detained pending any appeal.
5. The second period was unlawful. The Defendant took too long to prepare a decision after the relevant Somali Country Guidance, failed to progress the claimant’s sexual-orientation and religious-conversion claims promptly, and delayed obtaining an independent psychiatric report after receiving credible medical evidence. The Defendant was in breach of the diligence and expedition principle from 1 April 2013, alternatively 1 November 2013 or 1 January 2014.
6. Standing back, detention had become unreasonable by the end of July 2013. The claimant had been detained for a very long period, removal to Somalia was speculative, the Defendant’s case had weakened, the absconding risk was medium to high rather than at the highest level, and less restrictive measures were available.
7. Disposition. The claimant was not unlawfully detained between 27 August 2009 and 17 May 2011. He was unlawfully detained from 1 April 2013 to 5 December 2014, alternatively from 1 November 2013 or 1 January 2014. Damages and consequential matters were adjourned if not agreed.

First-instance trial judgment. No appellate history was stated in the judgment.