Rapheael Olufemi Oluponle v The Home Office

Detention pending deportation must remain connected to a realistic prospect of removal within a reasonable period. The Hardial Singh principles require an assessment of all relevant circumstances, including the risk of absconding, the effect of detention, family circumstances, obstacles to removal and the Secretary of State’s diligence. A strong absconding risk is important but is not a trump card and cannot justify detention indefinitely.

A public-law error makes detention unlawful only where it materially bears on the decision to detain. An unlawful certification of a protection claim did not retrospectively invalidate detention. The material error was the failure, once certification was evidently unavailable, to recognise that an in-country appeal would substantially delay removal and to review detention accordingly.

The claimant, a Nigerian national, sought damages for false imprisonment and unlawful detention during 182 days of immigration detention between 4 May and 2 November 2016. He was detained under a deportation order after earlier offending, use of a false identity and absconding from immigration reporting conditions.

Removal was deferred after he made a late asylum claim alleging bisexuality and past torture. The claim was initially certified under section 96(1) of the Nationality, Immigration and Asylum Act 2002, but the certification was withdrawn when the defendant accepted that the interview did not contain sufficient detail. The central issues were whether detention was unlawful at common law, whether public-law errors materially affected the detention decisions, and the appropriate damages.

1. Initial detention. The detention from 4 May 2016 was lawful. The claimant’s previous absconding near the date of removal, use of a false passport and false identity, and failure to correct that identity created substantial risks directly connected with immigration control. Those risks outweighed his family circumstances and previous compliant reporting while removal was imminent. Alternatives such as a financial bond were not reasonably sufficient to address the identified risks.
2. Hardial Singh assessment. The court applied the principles flexibly and prospectively. The late asylum claim required investigation, but the defendant initially acted with reasonable diligence and could reasonably expect removal within one to three months. The risk of absconding remained important, but it did not override the developing delay, the claimant’s family circumstances or the effects of detention.
3. Failure to review. By early August the defendant knew that the asylum interview was inadequate for certification and that further detention might depend on an in-country appeal. The review of 23 August 2016 was merely performative and failed to engage with the changed evidence. The defendant should have decided the protection claim promptly, considered whether any appeal could be expedited, and reviewed detention on that basis.
4. Public-law error. The later certification was unlawful, but that error did not make detention unlawful from the outset. The material error was the failure to appreciate by 23 August that certification was unlikely, that an in-country appeal would extend the removal timetable, and that detention would no longer be reasonable. Detention should have ended after a short period for release arrangements. Detention after 3 September 2016 was unlawful.
5. Damages. The claimant was unlawfully detained for 60 days. The court awarded £20,000 compensatory damages, taking account of the conditions, racial abuse, manhandling, separation from his family and the serious effect of the extended detention. Aggravated damages were refused because the conduct was careless and unlawful but not high-handed, oppressive, insulting or malicious. Judgment was entered for the claimant in the sum of £20,000.

First-instance decision. No prior appellate decision in the same proceedings is stated.