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

Under the third Hardial Singh principle, immigration detention becomes unlawful before the expiry of an otherwise reasonable period when it becomes apparent that removal cannot be effected within a reasonable period. The assessment is fact-sensitive. A detainee’s obstruction, dishonesty and history of absconding may materially lengthen the reasonable period, but cannot justify indefinite detention. The court must consider the detention record as a whole, including continuing efforts to establish identity and a realistic prospect of removal. A detention-review entry stating that removal is not realistic must be read with its qualifications and surrounding recommendations.

The appellant challenged his detention under immigration powers between 10 November 2011 and 22 March 2012. He claimed to be a citizen of Burundi, but had a history of absconding, false documents and non-cooperation. The Administrative Court dismissed his claim for a declaration of unlawful detention on 27 February 2014. The appeal concerned whether the third Hardial Singh principle was engaged by the liaison officer’s conclusion on identity or by a detention review recording no realistic prospect of removal, despite proposed action under section 35 of the 2004 Act. The central issue was whether it had become apparent that deportation could not be effected within a reasonable period.

Lord Justice McFarlane gave the judgment, with Lord Justice Flaux agreeing.

1. Appeal dismissed. The Administrative Court judge was entitled to conclude that the appellant’s detention remained lawful until his release on bail on 22 March 2012.
2. The statutory detention power under Schedule 3 paragraph 2(1) and (3) of the Immigration Act 1971 was subject to the common-law limits first described in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and formulated in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888. The second and third principles are conceptually distinct. Under the third, detention becomes unlawful before the reasonable period has expired once it becomes apparent that deportation cannot be effected within a reasonable period. The principles were also considered in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12.
3. Non-cooperation, dishonesty and absconding are relevant to the length and reasonableness of detention. They may make the reasonable period longer, potentially substantially longer, where the Secretary of State continues genuine and effective removal efforts and some or sufficient prospect of removal remains. They cannot justify indefinite detention. The judge’s comment about detention lasting years was passing commentary on the outer limit of detention, not a legal basis for the decision. The facts, including a total detention period of two years and one month, did not engage the warning in R (Sino) v SSHD [2011] EWHC 2249 (Admin) against indefinite incarceration. The approach was consistent with R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112.
4. The Deputy Director’s review of 15 February 2012 had to be read as a whole. Although it recorded no realistic prospect of removal within a reasonable timescale, it also recommended vigorous pursuit of the section 35 process under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. That qualification formed part of the continuing efforts to resolve the removal impasse and did not itself make detention unlawful.
5. McFarlane LJ was unpersuaded that the third principle requires a separate subjective state of mind on the part of the Secretary of State, distinct from the court’s later objective evaluation. That observation was expressly unnecessary to the determination of the appeal.

• Court of Appeal (Civil Division) — [2017] EWCA Civ 240: appeal dismissed.
• Administrative Court — On 27 February 2014, His Honour Judge Blackett, sitting as a Deputy Judge, dismissed the claim for a declaration of unlawful detention in CO/3493/2012.