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

Once any of the second, third or fourth Hardial Singh principles is breached, further immigration detention is prima facie unlawful. A short period of grace may nevertheless be reasonable for arranging suitable conditions of release.

The permissible period depends on all the circumstances, including the detainee’s history, risks to the public and previous efforts to arrange release. Public protection is highly important, but cannot justify indefinite or preventive immigration detention. Repeated administrative failures may therefore shorten the permissible period. The Secretary of State should provide evidence explaining the time required and must initiate release without waiting for a court order.

The appellant challenged the dismissal of his judicial review claim by the Administrative Court in [2019] EWHC 188 (Admin). He had remained in immigration detention after the First-tier Tribunal repeatedly granted bail subject to the provision of accommodation under Schedule 10 to the Immigration Act 2016.

The deputy judge found that the third Hardial Singh principle had been breached because removal could not be achieved within a reasonable period. He nevertheless held that detention remained lawful for a further period while suitable accommodation and release conditions were arranged.

Permission to appeal was confined to whether the judge had allowed an excessively generous period of grace after the detention power ceased to comply with the Hardial Singh principles.

1. Appeal allowed unanimously. The deputy judge erred by linking the end of the period of grace to the prospective breach of further Hardial Singh principles. Once any of the second, third or fourth principles is breached, the question immediately arises whether continued detention remains lawful. Further detention can then be lawful only for a reasonable period in which to arrange appropriate conditions of release.

2. The duration of a period of grace is fact-sensitive. It exists for practical purposes, such as taking stock of changed circumstances and arranging accommodation, monitoring or other release conditions. No universal long-stop applies, although the reported periods have usually been measured in days and only occasionally approached one month.

3. The detainee’s history and risks to the public are relevant and may justify rigorous release conditions. They cannot justify indefinite detention. Preventive detention for public protection falls outside the statutory immigration power. Repeated failures to arrange release, despite long-standing knowledge that appropriate arrangements were required, reduce the period that can reasonably be allowed.

4. In this case the Secretary of State had known for many months that release under strict conditions was required, but had repeatedly failed to secure accommodation. No workable release arrangements had been produced after approximately 14 months of detention. Against that history, about two weeks from the date of the Administrative Court’s judgment on 6 February 2019 was ample. Detention beyond that period was unlawful.

5. The duty to release when detention becomes unlawful rests on the Secretary of State and her officials. They cannot defer the decision until a court compels release. In future cases the Secretary of State should provide evidence and considered submissions explaining what period of grace is required and why.

1. Court of Appeal (Civil Division): In [2020] EWCA Civ 36, the court unanimously allowed the appeal. It held that only about two weeks from the Administrative Court’s judgment was a reasonable period of grace and that detention thereafter was unlawful.
2. Administrative Court: In [2019] EWHC 188 (Admin), a Deputy High Court Judge dismissed the detention claim. Although the third Hardial Singh principle had been breached, he held that continued detention for a very short further period to obtain suitable accommodation was justified.