Ararso v The Secretary of State for the Home Department

In immigration detention cases, the detaining authority must justify detention throughout the relevant period. Threatened judicial review does not, by itself, make removal non-imminent or require release, particularly where the removal timetable continues to run and an expedited hearing is reasonably anticipated. The court must assess the substance and materiality of any failure to consider a relevant matter. An undertaking to take account of earlier stays does not make those stays material merely because the undertaking appears in a consent order. If the decision-maker would have reached the same conclusion on proper consideration, the omission is immaterial.

Gadisa Ararso was detained pending proposed removal to Malta under the Dublin II Regulation. The High Court held that detention was lawful from 28 August to 15 September 2014 but unlawful from 16 September to 7 November 2014, principally because the Secretary of State had failed to take account of an undertaking in a consent order concerning earlier stays of removal. Damages were to be assessed: [2015] EWHC 2511 (Admin).

The Secretary of State appealed. Mr Ararso cross-appealed, arguing that detention had been unlawful from the outset. A separate costs application concerned the later withdrawal of certification and reconsideration of his claim after the six-month removal period had elapsed. The central issues were the effect of the undertaking, the significance of threatened or issued judicial review proceedings, and whether detention remained lawful.

1. Appeal allowed; cross-appeal dismissed. The declaration that detention between 16 September and 7 November 2014 was unlawful was set aside, and the claim for damages for wrongful detention was dismissed.
2. The general principles in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 applied. The person detaining must ordinarily justify detention as lawful. The court determines the scope of the detention power and whether it was lawfully exercised. An appellate court is slow to interfere with a first-instance evaluation of the lawful period of detention: R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270.
3. A threatened judicial review does not create a general rule that removal ceases to be imminent. Before proceedings were issued, detention could continue while the removal period under the Dublin II Regulation ran. After proceedings were issued, continued detention remained reasonable while an expedited determination was a realistic prospect.
4. The consent-order undertaking required the Secretary of State to take account of the earlier stays, but its wording did not establish that those stays were materially relevant to the detention decision. Patten LJ’s stay preserved the right to an oral permission hearing and did not assess the merits. Aikens LJ considered that the issues required fuller argument but did not grant permission to appeal. The stays therefore added little of substance to the detailed and lawful basis for removal.
5. Although the Court was referred to R (on the application of OM) v Secretary of State for the Home Department [2011] EWCA Civ 909, it found it unnecessary to determine the wider materiality issue because Mr Ararso accepted assessment on the balance of probabilities. On that footing, the Secretary of State would properly have reached the same decision, so the omission was immaterial.
6. The later withdrawal of certification resulted solely from expiry of the Dublin II six-month period, not success in the litigation. Applying the approach in R (Tesfay) v Secretary of State for the Home Department [2016] EWCA Civ 415, and distinguishing M v Croydon Borough Council [2012] EWCA Civ 2607, no costs were awarded. The Court also noted, without deciding, the relevance of s. 31(2A) of the Senior Courts Act 1981 and the observations in R (Faulkner) v Director of Legal Aid Casework [2016] EWHC 717 (Admin).

• Court of Appeal (Civil Division): [2018] EWCA Civ 845. The Secretary of State’s appeal was allowed, the cross-appeal was dismissed, the declaration of unlawful detention was set aside, and the wrongful-detention damages claim was dismissed.
• High Court, Administrative Court: [2015] EWHC 2511 (Admin). Kerr J held that detention was lawful until 15 September 2014 and unlawful from 16 September to 7 November 2014, with damages to be assessed.