AO v The Home Office

Immigration detention is lawful only while removal remains the purpose of detention, the period remains reasonable, and removal has a sufficient prospect within a reasonable time. The assessment must weigh all relevant circumstances, including detention length, removal obstacles, diligence, the detainee’s health, family impact, and risks of absconding and reoffending.

A breach of published policy makes detention unlawful where it bears upon, and is capable of affecting, the decision to detain. A section 4 accommodation application must be determined fairly, rationally and within a reasonable time. A decision-maker must consider a Case Progression Panel recommendation for release and justify departure from it.

The claimant, an Afghan national with bipolar disorder, challenged immigration detention from 7 February 2017 to 25 January 2018 pending deportation. He alleged breaches of the Hardial Singh principles, published Home Office policies, public law duties, and Articles 3, 5 and 8 ECHR.

The Secretary of State accepted that parts of the detention were unlawful because of policy breaches, but disputed substantial liability and maintained that detention otherwise remained justified. The principal issues were whether detention became unlawful under the Hardial Singh principles, whether failures concerning children, section 4 accommodation and the Case Progression Panel vitiated detention, and whether substantial damages followed.

1. Hardial Singh principles. Applying R v Secretary of State for the Home Department, ex parte Hardial Singh and R (Lumba) v Secretary of State for the Home Department, the claimant presented a reasonably high absconding risk, but no more than a medium risk of harm from reoffending. His appeal was a material removal obstacle. By 12 December 2017, after more than ten months’ detention and with at least three further months before the appeal, continued detention was no longer reasonable and it was apparent that removal could not occur within a reasonable time. After a 14-day grace period, detention was unlawful from 26 December 2017.
2. The Secretary of State had acted insufficiently diligently in progressing medical and family enquiries, but that did not make detention unlawful earlier under Hardial Singh 4 because an earlier deportation decision would not have materially shortened the lawful period.
3. Policy breaches. Detention between 4 April and 24 August 2017 and between 4 and 25 January 2018 was unlawfully maintained in breach of policy. The Secretary of State also failed to give the mandatory special consideration required by EIG Chapter 55 for the claimant’s children. That breach bore upon the detention decision and made detention unlawful from the outset until at least 5 July 2017, but only nominal damages followed because detention would probably have continued.
4. The Adult at Risk policy did not require classification above level 2 on the evidence available at the time. The Tameside duty of inquiry was not breached.
5. Section 4 accommodation and CPP. Under Immigration and Asylum Act 1999, section 4(1)(c), the Secretary of State had a duty to determine the accommodation application fairly, rationally and within a reasonable time. Repeated administrative failures caused unreasonable delay. The breach was capable of affecting the 14 November 2017 detention decision, which was therefore unlawful. The Secretary of State also failed properly to consider and justify departure from the Case Progression Panel’s recommendation for release. Those breaches entitled the claimant to substantial damages from 14 November 2017 to release.
6. The Article 5 claim succeeded to the same extent as the Hardial Singh claim. The Article 3 and Article 8 claims failed. The claimant was entitled to substantial damages for detention from 14 November 2017 to 25 January 2018 and nominal damages for the other established policy breaches.