Ademiluyi, R (On the Application Of) v Secretary of State for the Home Department

Hardial Singh principle 3 requires a prospective assessment from the outset of immigration detention. The question is whether it is clear that removal will not be achieved within the reasonable period justified by the circumstances. The reasonable period has not yet expired does not answer that question.

The assessment is objective and considers the facts as they appeared to the Secretary of State at the relevant time, without hindsight. Factors include the obstacles to removal, the likely effect and merits of legal challenges, family impact, diligence, absconding risk and reoffending risk. Those risks are relevant but are not a trump card. Detention was unlawful where the Secretary of State failed to confront the prospective question and the available information made the absence of a realistic prospect of timely removal clear.

The claimant sought judicial review of immigration detention beginning on 26 October 2015 under section 36(1) of the United Kingdom Borders Act 2007. He had been convicted of offences involving immigration control and faced proposed deportation. He relied on an existing family life, five children, Article 8 rights and an outstanding EEA appeal.

The Secretary of State failed to file the acknowledgment of service and detailed grounds within the applicable time limits. The court nevertheless permitted her to assist on the factual and legal merits because judicial review engages the public interest and should not be determined by default.

The central issue was whether detention was unlawful from its outset, or at the latest by 23 November 2015, because Hardial Singh principle 3 made it clear that removal could not occur within a reasonable period.

1. Participation in the judicial review. Under CPR Part 54, failure to file the acknowledgment of service and detailed grounds removed the Secretary of State’s entitlement to participate, but did not make participation impossible. The court had power to grant permission. In the public interest, and consistently with the overriding objective, the Secretary of State was permitted to assist on the documents, authorities and merits. Her defaults were relevant to costs.
2. Hardial Singh principle 3. The principle operates prospectively from the start of detention. The question is whether there is a realistic prospect of removal before the reasonable period will expire, or whether it is already clear that there is no such prospect. It is distinct from the question under principle 2 of whether the reasonable period has already expired.
3. The reviewing court applies the test objectively, by reference to the facts as they presented themselves to the Secretary of State at the relevant time and without hindsight. The Secretary of State should herself ask the question and take reasonable steps to obtain the information needed to answer it. A reasoned and informed assessment may attract appropriate respect, but failure to ask the question does not alone establish unlawful detention; the court must still determine the objective legality of detention.
4. Relevant considerations included the length of detention, obstacles to removal, the diligence and effectiveness of steps taken, detention conditions, the effects on the detainee and family, absconding risk and reoffending danger. The likely character of legal challenges is also relevant. An appeal or human-rights challenge that is meritorious must be given substantial weight. Absconding and reoffending risks cannot operate as a trump card.
5. The fact that detention had only just begun did not answer principle 3. A cautious approach may be appropriate where the position is unclear and requires investigation. Here, however, the claimant’s family circumstances, the five children, the Article 8 representations, the EEA appeal and the inevitable legal challenges made the position clear. There was no realistic prospect of removal within the reasonable period. Detention was therefore unlawful from 26 October 2015, alternatively by 23 November 2015.
6. The claim succeeded. The distinct arguments concerning the EEA appeal and failure to consider alternatives were rejected. Quantum of damages was transferred to the Central London County Court unless the Secretary of State objected within seven days. The claimant received costs on the indemnity basis.