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

Immigration detention must remain connected to the purpose of deportation and comply with the Hardial Singh principles. The assessment is fact-sensitive and must be made without hindsight. Where removal no longer has a realistic prospect within a reasonable period, a short period of detention may nevertheless be justified to arrange rigorous bail conditions and suitable accommodation. The Secretary of State must act with reasonable diligence and expedition, and must fairly and rationally pursue accommodation once a decision has been made to provide it. A potential trafficking victim must be referred for a reasonable-grounds decision where the person’s account amounts to a trafficking claim. An unjustified failure to refer is unlawful, although it will not affect detention or an asylum decision unless materially connected with them.

The claimant, an Algerian national and convicted sex offender, had been detained under immigration powers after completing his custodial sentence. He challenged the legality of his detention, delay in providing accommodation required for immigration bail, delay in determining his asylum claim, and failure to refer him to the National Referral Mechanism as a potential trafficking victim.

He had been granted bail in principle, but remained detained because suitable accommodation had not been secured. His asylum claim was eventually refused, and the First-tier Tribunal dismissed his appeal. The central issues were whether detention remained lawful, whether accommodation had been pursued lawfully, whether the asylum decision had been unlawfully delayed, and whether the failure to make an NRM referral was unlawful and material.

1. Detention. The claimant presented significant risks of absconding and reoffending. Those risks were highly relevant to the justification and duration of immigration detention. The fact-sensitive Hardial Singh principles required a realistic prospect of removal within a reasonable period and reasonable diligence and expedition by the Secretary of State.
2. Detention remained lawful through the earlier periods. The claimant’s dishonesty about his identity and nationality had materially contributed to delay. However, the Secretary of State should have pursued travel documentation in parallel with the asylum process. By the end of August 2018, the failure to do so meant that removal was becoming less likely within the period previously regarded as reasonable, and alternatives to detention required reassessment.
3. By January 2019 there was no real prospect of removal within a reasonable period. Nevertheless, the flexible nature of the Hardial Singh principles permitted a short further period of detention solely to arrange suitable accommodation for release on bail. Any further detention was likely to become unlawful at the end of February 2019, whether or not suitable accommodation had been secured. Article 5(1)(f) ECHR added nothing because detention remained authorised by law and directed towards deportation.
4. Accommodation. The Secretary of State had initially taken reasonable steps to secure suitable accommodation and had not acted unfairly or irrationally. After the system failed over a lengthy period, however, it was no longer lawful simply to continue asking contractors and the probation service to resolve the problem. The claimant would soon have to be released even if the most suitable accommodation could not be found. This ground nevertheless failed at the date of judgment.
5. Asylum claim. The delay was very lengthy, but the Secretary of State had acted rationally and lawfully in investigating identity, arranging interviews and addressing inconsistencies. Any delay did not materially prolong detention, because removal still depended on obtaining a travel document.
6. Trafficking referral. After the June 2018 interview, the claimant’s account plainly amounted to a claim that he had been trafficked. The threshold for referral was very low, and the failure to refer him was an unjustified departure from policy and unlawful. It did not, however, affect the asylum decision or detention.

The judgment was a first-instance judicial review. The claimant’s asylum appeal had previously been dismissed by the First-tier Tribunal, and no in-time further appeal was brought. The judicial review claim was dismissed except for the finding that the failure to refer the claimant to the National Referral Mechanism was unlawful.