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

A public-law error concerning certification of a human-rights claim does not automatically make immigration detention unlawful. The error must bear on, and be relevant to, the decision to detain. That requires a qualification on the statutory power of detention, found in legislation, the common law or the Secretary of State’s policy. A defective certificate may nevertheless be relevant when assessing whether removal could occur within a reasonable period, and the Secretary of State cannot rely on her own error to strengthen that assessment. The Hardial Singh principles require a prospective evaluation of the current stage and likely duration of legal proceedings. The Secretary of State need not assume that every possible appeal or review will succeed or continue indefinitely.

The claimant, a Gambian national subject to a deportation order, challenged his continued immigration detention and sought substantial damages for false imprisonment. He had been detained while removal directions were repeatedly cancelled and while certification of his human-rights claim affected whether he could appeal from within the United Kingdom.

The Secretary of State conceded that detention between 24 January and 21 February 2018 was unlawful because of delay in arranging release to a suitable bail address. The issues for determination were whether detention became unlawful earlier, including because of an improperly issued certificate under section 94B of the Nationality, Immigration and Asylum Act 2002, and whether the Secretary of State had failed to comply with the Hardial Singh principles.

1. The claim succeeded only to the extent conceded. Detention between 24 January and 21 February 2018 was unlawful. The claim was transferred to the County Court for assessment of damages for that period.

2. Applying R (Kiarie) v Secretary of State for the Home Department [2017] UKSC 42, the section 94B certificate should not have been issued between 19 August and 9 November 2016. The Secretary of State had not considered how removal before an appeal might affect the claimant’s ability to pursue an effective Article 8 appeal. After 9 November 2016, however, the claim had been certified under section 94(3) as clearly unfounded, so the restrictions identified in Kiarie were no longer engaged.

3. The defective section 94B certificate did not itself make detention unlawful. Under R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, the relevant public-law error must bear on and be relevant to detention. The authorities identify this where legislation, the common law or policy qualifies the power to detain. No such qualification was established in relation to section 94B certification.

4. The error remained relevant to the third Hardial Singh principle. The Secretary of State could not rely on the erroneous certificate to support the proposition that removal could be effected within a reasonable period. Nevertheless, viewed prospectively and without hindsight, detention remained justified before 24 January 2018. The likely first-instance disposal of pending proceedings was the usual horizon, and the Secretary of State could assess their apparent merits without assuming success or indefinite continuation.

5. The second Hardial Singh principle was not breached. The periods of detention were not simply aggregated, and delay attributable to the claimant’s unsuccessful legal steps did not have to be given the same weight as other delay. The Secretary of State had not abandoned removal and there remained a reasonable prospect of removal within a reasonable time.

6. The challenges based on risk of absconding, risk of reoffending, detention reviews and the proposed bail addresses failed. It was rational to regard the claimant as presenting risks to his wife and possibly his children and as anxious to avoid deportation. The conceded delay in acting on the suitable bail address constituted the only earlier unlawfulness established.

This was a first-instance judicial review in the Administrative Court. The judgment records earlier proceedings before the First-tier Tribunal, Upper Tribunal, Court of Appeal and High Court, but no appeal from this judgment.