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

Immigration detention must be justified by the state. Under the fourth Hardial Singh principle, the Secretary of State must pursue removal with reasonable diligence and expedition. The duty is not a counsel of perfection: mere administrative failings do not suffice, but a serious and unreasonable failure may make detention unlawful.

Where an error of law affected a detention decision, the court may refuse substantive relief only if it is highly likely that the decision-maker would rationally have reached the same result without the error. The court must also consider any exceptional public interest in granting relief. A declaration may therefore be appropriate even where the error did not prolong detention.

The claimant challenged his immigration detention pending removal to Iraq. The claim evolved as disclosure revealed that removal steps had been taken, but that detention reviews contained material factual errors and that documents had not been transmitted promptly after an apparent fax failure.

The issues were whether the Secretary of State had failed to comply with her published detention policy, whether she had breached the fourth Hardial Singh principle, and whether relief should be refused because the claimant would probably have remained detained in any event. The court also considered the effect of sections 31(3C)–(3E) of the Senior Courts Act 1981.

1. Hardial Singh. The state must justify detention. The fourth principle requires reasonably expeditious steps towards removal, but does not demand perfect administration. The question is whether the failures reach the high threshold of unreasonableness amounting to illegality. The court followed the binding guidance in Krasniqi v Secretary of State for the Home Department [2011] EWCA 1549.
2. Consulting the UNHCR before progressing the voluntary returns process was reasonable. Article 38 of the Procedures Directive required consultation at the relevant time, and the Immigration Rules also required it. The Secretary of State was not required to take all removal steps simultaneously. It was reasonable on these facts to await confirmation that return to the Kurdish Autonomous Zone was safe before seeking verification of the claimant’s identity.
3. There was nevertheless a four-week failure of due diligence after 7 July 2015. Once it was known that faxes had not reached the claimant, alternative means of transmission should have been considered. That failure made the detention unlawful, although it probably did not extend its duration. The claimant was therefore entitled to a declaration and nominal damages only.
4. The Secretary of State’s officials had wrongly recorded that the claimant posed a high risk of harm, partly through an erroneous reading of the OASys material. This was an error of law. However, applying paragraph 55.3.2.5 of the EIG, the claimant’s sustained evasion of immigration control and convictions for dishonesty meant that he would almost certainly have been detained in any event. No substantive relief was granted on this ground.
5. In applying sections 31(3C)–(3E) of the Senior Courts Act 1981, the court stressed that it must not simply speculate about what the decision-maker might have done. Refusal of relief requires a conclusion that the same decision could rationally have been made and that it is highly likely it would have been made. Exceptional public interest justified disapplying the statutory restriction on refusal of permission, because careless risk assessments and serious disclosure failures in an administrative detention case required public condemnation.
6. The court granted declarations on both errors, refused substantive relief, awarded no damages beyond the nominal £1 already offered, and made no order for costs.

First-instance judicial review in the Administrative Court. The judgment does not state a prior appellate decision in the same litigation.