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

Immigration detention pending deportation remains lawful only while the Hardial Singh principles are satisfied. The Secretary of State must intend removal, detain for that purpose, keep detention within a reasonable period, and act with reasonable diligence and expedition. The assessment must take account of the obstacles to removal, the detainee’s absconding and reoffending risks, the effect of detention and the progress of the case.

Under the Adults at Risk guidance, professional evidence that detention is harmful should normally be accepted. Any further inquiry must be undertaken promptly, and detention must then be reviewed within the guidance. A failure to act with reasonable expedition in obtaining travel documentation, and a failure to review detention within the required period after medical evidence, made detention unlawful for two days.

The claimant, an Algerian national and persistent offender, sought judicial review of his immigration detention from 4 January to 4 September 2018 and damages for false imprisonment. He had been detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending deportation.

The claimant challenged the detention on several grounds, including the absence of an imminent or reasonably achievable removal, failures concerning an emergency travel document, alleged non-compliance with the Adults at Risk guidance and rule 35 reports, the operation of case progression panels, and an alleged systemic failure to identify vulnerable detainees. The central questions were when detention ceased and whether detention became unlawful, and if so when.

1. Period of detention. The claimant ceased to be detained under paragraph 2 of Schedule 3 to the Immigration Act 1971 on 16 August 2018, when the Secretary of State decided to release him and he was no longer legally compelled to remain in the detention centre. His continued physical presence pending accommodation arrangements did not extend the detention.
2. Hardial Singh principles. The detention was initially for the statutory purpose of deportation and was consistent with the applicable policy. The Secretary of State was entitled to regard the claimant as presenting a very high absconding risk and a high reoffending risk. The asylum claim and travel-document process were genuine barriers, but it was not initially apparent that removal could not be effected within a reasonable period. The second and third principles were therefore satisfied.
3. Rule 35(3) report. The February report concerned an alleged victim of torture and was not defective merely because it did not assess the harmful effect of detention. That assessment belonged to reports under rule 35(1), not rule 35(3). The claimant was properly treated as an adult at risk at level 2, and continued detention was consistent with the guidance.
4. Case progression panels. The panels were an additional internal safeguard, not an unpublished policy governing the exercise of the statutory detention power. The April recommendation for release was considered and departure from it was justified. The June recommendation was not communicated to the reviewing officers at the relevant time. Neither matter affected the lawfulness of detention.
5. Clinical psychologist’s evidence. The Adults at Risk guidance permitted reasonable further inquiries into the clinical psychologist’s assessment, but required them to be made promptly. The inquiry made within three working days was lawful, and the review on 19 July could await the medical report. Once the rule 35(1) report was received on 10 August, the guidance required a response within two working days. The failure to decide by 14 August rendered detention unlawful from that date.
6. Reasonable diligence and expedition. The Secretary of State acted reasonably before August 2018, despite the absence and subsequent leave of the Migration Liaison Officer. But no steps were taken to contact her after her return in early August. By 14 August the Secretary of State had failed to establish compliance with the fourth Hardial Singh principle. Detention was therefore separately unlawful from that date.
7. Systemic duty. The statutory rules, section 59 of the Immigration Act 2016 and the Adults at Risk guidance established a system for identifying vulnerable persons and reviewing detention. The evidence did not establish systemic failure.
8. The claimant was lawfully detained up to and including 13 August 2018, and unlawfully detained from late afternoon on 14 August until the afternoon of 16 August 2018. The court was to hear submissions on assessing damages for the two days.

This was a first-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision in the same proceedings.