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

Failure to serve an immigration decision may prevent it acquiring legal effect, but the decision-maker may still consider the factual steps taken in reaching that decision. An error of law or fact is material only if it could have affected the exercise of discretion. For unlawful detention, a material public-law error makes the detention unlawful even if lawful detention was otherwise available. Damages then depend on what would probably have happened without the error. Where the claimant would have been detained lawfully for the same period, only nominal damages are recoverable.

The claimant, an Indian religious worker, challenged the failure to serve a 2010 refusal of an application to extend his leave, a 2015 refusal of further leave and certification under section 94 of the Nationality, Immigration and Asylum Act 2002, and his detention from 5 November 2015 to 19 February 2016.

The Court of Appeal had allowed an appeal from the refusal of permission and remitted the claim for substantive determination. The defendant accepted that the 2010 decision had not been validly served. The issues were the effect of that failure, the materiality of an admitted error concerning the burden of proving service, and whether the detention was unlawful and caused recoverable loss.

1. Ground 1 succeeded. Construed in context, the agreed Statement of Reasons contained an unequivocal concession that the 2010 refusal had not been validly notified or served. The decision therefore lacked legal effect before 5 November 2015. The concession concerned the common-law requirement of communication for a non-appealable decision.

2. The failure of service did not require the defendant to ignore the reasoning reached in January 2010. Under section 4(1) of the Immigration Act 1971, service was necessary for the exercise of the power to take legal effect, but the signed refusal and its reasons remained part of the factual matrix. The claimant had no continuing right to remain merely because the application had not been effectively notified.

3. Ground 2 failed. The defendant had wrongly stated that the claimant bore the burden of proving non-service. That error was material in the legal sense because it concerned a factor capable of affecting the decision. Nevertheless, on the evidence the defendant would not and could not rationally have reached a different conclusion on the human-rights application. The same applied to certification under section 94 of the Nationality, Immigration and Asylum Act 2002; the claim was lawfully treated as clearly unfounded.

4. Ground 3 succeeded in part. The claimant’s alleged failure to comply with the 2010 refusal was a material factor in the detention decision. Because that premise was erroneous, the detention was unlawful. The court separately assessed what would probably have happened without the error. On the balance of probabilities, the claimant would still have been detained to secure removal, for substantially the same period, because he was a long-term overstayer without close ties or a settled address and there was no reasonable alternative to detention.

5. The claimant therefore suffered no recoverable loss from the unlawful detention and was entitled only to nominal damages. Relief concerning the unserved decision was refused as unnecessary and academic.

• Court of Appeal: On 17 October 2017, Longmore LJ allowed the appeal from the refusal of permission and remitted the claim to the Administrative Court for a substantive hearing. No citation is stated in the judgment.
• High Court (Administrative Court): The claim was determined substantively. Ground 1 succeeded, ground 2 failed, and ground 3 succeeded only to the extent that detention was unlawful. The claimant received nominal damages.