SB (Ghana), R (On the Application Of) v Secretary of State for the Home Department & Anor

Detention pending deportation is lawful only for the statutory purpose and for a period reasonably necessary to achieve removal. The court must form its own judgment on whether the Hardial Singh principles have been breached, while avoiding hindsight and applying the principles flexibly to the facts.

The risks of absconding and reoffending are important, but neither is a trump card. The balance may shift as detention lengthens, and an apparently realistic prospect of removal must remain. For an adult at risk, the policy presumption in favour of release requires a case-specific balancing of immigration factors and vulnerability. Once continued detention is unjustified, only a reasonable, fact-sensitive grace period may be allowed to arrange suitable release conditions.

The claimant, a Ghanaian national serving an eight-year sentence for rape, was detained under Schedule 3 to the Immigration Act 1971 after the custodial part of his sentence ended. He challenged the lawfulness of detention under the Hardial Singh principles and alleged breach of the Secretary of State’s Adults at Risk policy.

He was recognised as a Level 2 Adult at Risk. During detention, his asylum appeal and modern slavery claim remained unresolved. The claim required the court to determine whether detention was unlawful during three periods, whether the policy had been followed, and whether any grace period was permissible after the prospect of removal within a reasonable time had disappeared.

1. Claim partly succeeded. The detention was lawful until 30 April 2019 and unlawful from 1 May 2019 until release on 17 June 2019. The claimant was entitled in principle to substantial damages.
2. The court applied the four Hardial Singh principles: detention must be for the purpose of deportation; it must last no longer than reasonably necessary; detention must cease when removal within a reasonable time is no longer realistically possible; and the Secretary of State must act with reasonable diligence and expedition.
3. The court must form its own judgment rather than review the Secretary of State’s decision on ordinary Wednesbury grounds. The principles are not statutory rules and must not be applied mechanically. The assessment is fact-sensitive and prospective, based on what was known at the relevant time.
4. During the first two periods, the seriousness of the offence, medium risks of absconding and reoffending, high risk of serious harm, repeated bail refusals and the progress of the outstanding claims justified continued detention. The accepted Level 2 status, mental health, asylum claim and trafficking referral were significant countervailing factors, but did not yet shift the balance.
5. On 16 April 2019, when the claimant lodged an in-country appeal, it ought to have been apparent that resolution would take at least a further six months. In light of the detention already served, removal within a reasonable time was no longer realistically possible. Continued detention therefore breached HS1, HS2 and HS3. The Secretary of State also failed to apply the Adults at Risk policy by assessing the likely appeal timescale and the risk to the claimant during that period.
6. The reversal on 27 May 2019 of the earlier trafficking decision made the position untenable in any event. A reasonable grace period was permissible under R (AC) Algeria v SSHD [2020] EWCA Civ 36. In the circumstances, two weeks was the maximum reasonable period, expiring on 30 April 2019.
7. The claim was declared successful in part. The First Defendant was ordered to pay costs, and damages were to be assessed in the County Court if not agreed.