Ebou Jasseh v The Home Office

Immigration detention pending deportation is lawful only while there is a sufficient prospect of removal within a reasonable period. Serious offending, risk of absconding and risk of reoffending remain important factors, but they cannot justify detention where removal is not realistically achievable. Those risks may be mitigated by stringent conditions of release.

Once the lawful detention period ends, any grace period for arranging release must be reasonable and supported by evidence. The court determines the issue for itself. Failure to follow detention policies may constitute a public law error and may justify substantial, rather than nominal, damages. High-handed and obstructive conduct in delaying release arrangements may also justify aggravated damages.

The claimant brought claims for false imprisonment and unlawful immigration detention during two periods: from 15 September 2019 to 3 August 2020, and from 28 June 2021 to 15 September 2021. He had been convicted of rape, sentenced to six years’ imprisonment and made liable to deportation to The Gambia.

The central issues were whether detention complied with the Hardial Singh principles, whether removal was realistically achievable within a reasonable period, whether the defendant was entitled to grace periods for release arrangements, and whether breaches of Article 5 ECHR and Home Office policies affected liability and damages.

1. First period of detention. Detention on 15 September 2019 was initially authorised under Schedule 3 to the Immigration Act 1971. There was a sufficient prospect that enforced returns to The Gambia might resume on 1 January 2020. From 16 January 2020, however, the defendant had no more than a hope of removal within a reasonable time. The burden of establishing lawful justification lay on the defendant.
2. The court assessed risk of absconding, risk of reoffending, the prospect of removal, the possibility of voluntary return and the effect of detention on the claimant’s health. The claimant presented medium risks of absconding and reoffending, but those risks could be controlled by stringent conditions. They did not outweigh the absence of a realistic prospect of removal.
3. The Hardial Singh endpoint was reached on 16 January 2020. In the absence of evidence supporting a longer period, a grace period of 14 days was reasonable. Detention from 30 January to 3 August 2020 was unlawful and breached Article 5 ECHR. The defendant also breached its published detention policy.
4. The court was the primary decision-maker on the lawfulness and reasonableness of detention. Case Progression Panel recommendations were not determinative, but the defendant breached its policy by failing to consider a recommendation for release at the next detention review.
5. Second period of detention. From 28 June 2021 the claimant was detained solely to arrange accommodation, not for the purpose of removal. That breached Hardial Singh principle (i). In any event, the defendant failed to show that removal to The Gambia was realistically achievable within a reasonable time, contrary to principle (iii). The defendant’s proposed 56-day grace period was excessive; even on the defendant’s case, it would have expired on 3 August 2021.
6. The claimant was entitled to substantial compensatory damages for both periods, because the defendant failed to show that he could and would have been lawfully detained in any event. He was also entitled to aggravated damages for the second period because the defendant acted in a high-handed and obstructive manner in delaying accommodation and release arrangements.