Machnikowski v The Secretary of State for the Home Department

Immigration detention remains lawful only while the Hardial Singh principles are satisfied. The detainee’s refusal to return to a safe country of origin may bear on the reasonableness of continued detention, and not merely on the risk of absconding, but it is not decisive. As detention lengthens, the urgency of release increases and greater risks may have to be accepted. EU-law proportionality added nothing substantive on the facts. Accommodation under section 4 of the Immigration and Asylum Act 1999 was not required where the claimant could accommodate himself and had not shown that the power, if available, had to be exercised.

The claimant, a Polish national, sought judicial review of prolonged immigration detention following a criminal sentence and a deportation decision. Permission was limited to whether detention had become unlawful and whether the defendant unlawfully failed to provide accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999.

His appeals concerning deportation delayed removal. The Court of Appeal dismissed the final appeal on 10 December 2015. The claimant had meanwhile been released on conditions. The central issues were whether detention after 12 December 2014 breached the Hardial Singh principles and whether accommodation was necessary to avoid breach of his Convention or EU-law rights.

1. Claim dismissed. The claimant was not unlawfully detained, and the failure to provide accommodation under section 4 of the Immigration and Asylum Act 1999 was not unlawful.
2. The period before 12 December 2014 could not be revisited because that would be an abuse of process, but it remained part of the overall history relevant to whether detention later became unlawful.
3. The claimant’s EU-law and Convention arguments added nothing material to the ordinary Hardial Singh analysis. The requirement of proportionality did not require a separate result on these facts.
4. The claimant’s refusal to return to Poland was relevant to the reasonableness of continued detention, not only to absconding risk. It carried weight because he could return safely and pursue his legal claims from abroad, but it was not decisive.
5. The defendant’s reviews showed continuing consideration of removal, release, accommodation and risk. Although information about the appeal was sometimes inaccurate and one officer unfairly described it as without merit, the detention was not characterised by inertia or drift. As detention lengthened, the defendant appropriately accepted greater risk and ultimately released the claimant. The second and third Hardial Singh principles were satisfied.
6. There was no duty to provide an address. The evidence showed that the claimant could accommodate himself, had not said that return to Poland would leave him destitute, and had not shown that a reasonable Secretary of State could only lawfully exercise the section 4 power in his favour.

The judgment records that the Court of Appeal dismissed the claimant’s appeal concerning the deportation decision on 10 December 2015. The present judicial review claim was then dismissed by the High Court (Administrative Court).