Louis v The Home Office

Immigration detention is lawful only while the Hardial Singh principles are satisfied. There is no automatic maximum period, but every day requires active and careful justification. The Secretary of State must act with reasonable diligence, maintain a realistic prospect of removal, and release the detainee when continued detention is no longer reasonable. Risks of absconding or reoffending are important but cannot operate as a trump card. A material failure to apply relevant detention policy, including the presumption in favour of release and consideration of reasonable alternatives, may also make detention unlawful. Administrative inefficiency becomes unlawful where it reflects a failure to investigate, progress removal, or review detention critically.

The claimant, a national of the Democratic Republic of Congo, claimed damages for false imprisonment and personal injury arising from two periods of immigration detention after completion of a criminal sentence. The first period lasted from 18 May 2011 to 21 May 2015. The second lasted from 5 October 2015 to 20 January 2016. Liability was tried separately from quantum.

The central issues were whether either period breached the common-law limits on immigration detention, whether material public-law errors affected the detention decisions, whether the defendant could nevertheless prove that detention would have occurred, and whether detention caused psychiatric injury.

1. First detention. The first period was unlawful from 29 February 2012. The defendant failed to act with reasonable diligence and expedition. It did not follow obvious investigative leads, including the claimant’s Newham Social Services records, existing immigration application, family information and Belgian records. It also failed to make timely decisions on deportation and travel documentation. These failures breached Hardial Singh principles (ii), (iii) and (iv).
2. There is no fixed maximum period of detention. The court must scrutinise the whole period and weigh the length of detention, obstacles to removal, diligence, the prospect of removal, the detainee’s conduct, risks of absconding and reoffending, and the effect of detention. Non-cooperation may extend a reasonable period, but cannot justify indefinite detention or excuse earlier failures. The risks of absconding and reoffending are important but are not a trump card.
3. The defendant also breached its own policy, Chapter 55 Enforcement Instructions and Guidance. It failed properly to apply the presumption in favour of release, the requirement that detention be used sparingly and for the shortest necessary period, and the requirement to consider reasonable alternatives. The failure to consider the claimant’s outstanding representations to revoke the deportation order was a material public-law error.
4. Second detention. It was unlawful from the outset. The defendant relied on an inaccurate account of aliases, deception and absconding risk, failed to consider the outstanding representations, and had no sufficient basis for concluding that detention remained reasonable. The bail decision was also reached on an materially inaccurate factual picture because relevant information had not been placed before the Immigration Judge.
5. Detention caused personal injury. The court preferred the diagnosis of a depressive disorder with psychotic symptoms to the more limited diagnosis of adjustment disorder. The principal cause was prolonged detention without a clear prospect of release, rather than immigration uncertainty alone.
6. The claim succeeded on liability. The parties were directed to agree directions for determining quantum.