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

The statutory power to provide bail accommodation is coupled with a duty to operate the relevant policy fairly, rationally and in accordance with its terms. A failure to meet administrative targets is not, by itself, unlawful. Cumulative delay may nevertheless become unlawful where the process is no longer conducted fairly or rationally, particularly where the applicant’s liberty is affected. The question is fact-specific and cannot be resolved by fixed time limits or rules of thumb. Courts may review the lawfulness of a system affecting detention, but should not design a replacement system or impose operational targets. Where it is apparent that removal cannot occur within a reasonable period, continued detention is unlawful under the Hardial Singh principles.

The claimant sought judicial review of delay by the Secretary of State in providing accommodation under section 4(1)(c) of the Immigration and Asylum Act 1999, following the grant of immigration bail in principle. He had been detained after serving a sentence for serious domestic-violence offences and required level 3 accommodation because of the assessed risk he presented in shared accommodation.

Accommodation was eventually identified and the claimant was released on 7 December 2017. The issues were whether the delay breached the duty governing administration of the section 4 scheme, whether the detention was unlawful under the Hardial Singh principles, and whether the refusal by Senegalese authorities to issue an emergency travel document made removal within a reasonable period impossible.

1. Claim allowed. The claimant’s detention was unlawful from 10 November to 7 December 2017.

2. The power in section 4(1)(c) of the Immigration and Asylum Act 1999 was a power coupled with a duty. The Secretary of State had to administer the applicable policy fairly and rationally and in accordance with the policy. That duty extended to the whole process for which the Secretary of State was responsible, including making reasonable efforts to secure suitable accommodation: [2018] EWHC 1934 (Admin), paras 10–12.

3. The failure to meet policy or contractual timescales did not automatically establish illegality. The court would not allocate unlawfulness to particular administrative decisions or periods where the breach arose cumulatively. Here, the prolonged failure to take effective steps to expedite the application, followed by limited action after bail was granted, meant that the process was no longer fair or rational. The cumulative delay therefore exceeded maladministration and breached the legal duty: [2018] EWHC 1934 (Admin), paras 14–15, 24.

4. The lawfulness of a system relevant to the length of administrative detention was justiciable. The court should, however, declare unlawfulness and leave the executive and Parliament to remedy the system, without designing a replacement system or imposing targets: [2018] EWHC 1934 (Admin), paras 14–15.

5. The point at which delay becomes unlawful is fact-specific. There are no rules of thumb. Applying the Hardial Singh principles, the refusal by the Senegalese embassy to issue an emergency travel document meant that, unless its position changed, there was no realistic prospect of removal within a reasonable period. Timeous arrangements for bail accommodation should therefore have been made: [2018] EWHC 1934 (Admin), paras 16, 25.

First-instance judicial review. No earlier appellate decision is stated in the judgment.