Simukonda v The Home Office

The Hardial Singh principles govern detention pending removal. Detention must serve the purpose of removal and last no longer than reasonably necessary. The Secretary of State must pursue removal with all reasonable expedition and must release the detainee when removal no longer has a realistic prospect within a reasonable period.

Non-cooperation may justify a longer reasonable period and may require the Secretary of State to exhaust more removal options. It is not, however, a justification for indefinite detention. The court assesses reasonableness for itself, on the information available when each decision was made, while giving appropriate weight to the Secretary of State’s contemporaneous assessments and avoiding hindsight.

The claimant sought damages for unlawful detention. He had been detained under Schedule 3 to the Immigration Act 1971 from February 2012 until his release on bail in December 2014, pending removal following a deportation order.

His nationality and personal history were disputed, and he had provided conflicting accounts and failed to co-operate with attempts to obtain travel documentation. He argued that the Secretary of State had not pursued removal with sufficient expedition and that detention should have ended by August 2013. The central issue was whether the detention remained lawful under the Hardial Singh principles.

1. The claim for damages for unlawful detention was dismissed. The claimant’s detention until his release on bail did not breach the Hardial Singh principles.

2. The statutory power of detention could be used only for the purpose of removal and only for a period reasonably necessary for that purpose. The Secretary of State had to exercise all reasonable expedition. The court applied the principles in R v Durham Prison Governor ex parte Hardial Singh [1984] WLR 704, as restated in R(WL (Congo)) v Home Secretary [2012] 1 AC 245.

3. Non-cooperation was neither a trump card for the detainee nor for the Secretary of State. It could make a reasonable period of detention longer and could justify allowing the Secretary of State time to exhaust available options. It could not justify indefinite detention. The same approach applied where the detainee deliberately frustrated removal, as explained in R(Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin) and R(NAB) v Secretary of State for the Home Department [2010] EWHC 3137 (Admin).

4. The court assessed reasonableness and the continuing prospect of removal for itself. It had to consider the circumstances known at the relevant time, avoid hindsight, and give due weight to contemporaneous assessments and choices made by the Secretary of State. The burden of proving lawful detention rested on the Secretary of State.

5. The claimant’s conflicting accounts, lack of documentary evidence and failure to co-operate made the case complex. The Secretary of State was entitled to proceed on the working premise that he was Malawian and to pursue inquiries involving Malawi, Zimbabwe, UK agencies, relatives and associates. Although there were administrative errors and periods of delay, the overall steps taken were reasonable and pursued with reasonable expedition. A realistic prospect of removal remained in December 2014.

6. Failed bail applications did not determine the legality of detention. Nor did the maximum penalties under section 35 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 provide a yardstick for applying the Hardial Singh principles.