On false imprisonment, because the policy on which the government was basing its decisions was secret, the claimants could not question the decision-making process.  This breached public law principle Christie v Leachinsky [1947] AC 573).  Further, a decision-maker cannot pre-suppose the outcome of a decision.  S/he has to ensure that s/he is always in a position to genuinely make a decision either way (Padfied v Minister of Agriculture, Fisheries and Food [1968 AC 997]). 

Because the government was operating a secret policy which meant that the outcome of any decision would almost always be to detain FNPs, it was held the claimants had been falsely imprisoned. 

False imprisonment is defined by the law such that a claimant need only prove s/he was intentionally and directly imprisoned (R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58).  The burden of proof is then on the decision-maker to demonstrate that imprisonment was lawful.

The SSHD argued that because the claimants could have been detained under its published policy, it was irrelevant that a secret policy was used.  The court rejected this attempt to re-define false imprisonment.  A ‘causation test’, showing that a decision-outcome would have been the same whether it was made fairly or unfairly, was not allowed.

The Hardial Singh principles (R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704; R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888) state how the 1971 Immigration Act is to be interpreted when determining whether it is lawful to continue to imprison an FNP.  The SSHD can imprison an FNP awaiting deportation for a reasonable period; so long as it is clear deportation is in fact possible; and so long as s/he intends to deport the FNP and is using detention for that sole purpose.

There was concern that the lower courts had misapplied the Hardial Singh principles.  The court tasked the High Court with re-considering whether the principles had been breached by imprisoning Mr Lumba for 56 months.

The claimants were awarded £1 nominal damages.  Whilst they had been falsely imprisoned, the government could have imprisoned them lawfully such that, strictly speaking, they had not suffered loss.

Lord Walker, Lady Hale and Lord Hope disagreed with the award of nominal damages and thought that ‘vindicatory’ damages should have been awarded to the claimants.  This would have been in recognition of the fact that individuals have a constitutional right not to be arbitrarily detained by the state, but only according to transparent, fair and rational policies.  Even without an award of vindicatory damages, it is this principle for which Lumba stands.

The Court of Appeal has heard conjoined appeals from Somali nationals facing deportation on the question of whether time spent on legal proceedings is to be counted in judging whether the foreign national has been detained for longer than is reasonable.

The statutory provisions contain no limit on the length of detention pending deportation. The courts in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 established that detention could not last for longer than is reasonable in order to process the deportation.

The Hardial Singh principles state that “the deportee may only be detained for a period that is reasonable in all the circumstances”, which reminds courts to take into account relevant factors, but does not give authority on whether the length of legal proceedings is a factor to take into account, and, if so, how much weight it should be given.

In the first case, Mr Abdi had been a repeat offender and was liable for deportation by the end of his custodial sentence in 2006. He was transferred to an immigration removal centre in 2007 and the majority of his time in detention since then has been taken up with statutory appeals and related proceedings. In this case the appellant is the Home Secretary who appeals against the decision of the previous judge to include the time spent on legal proceedings and conclude that the length of detention was unreasonable.

The Home Secretary argues that time spent on proceedings should be left out of considerations, except for delays caused by the Home Office or if removal has been impossible for other reasons than the detainee’s appeals. He argues that the detainee has a choice of whether or not to appeal the decision and that the Hardial Singh principles would be open to abuse by detainees intentionally prolonging appeals. 

In the second case, Mr Khalaf had been granted indefinite leave to remain in the UK in 2002. In 2007 he was convicted of a serious crime-  two counts of conspiracy to supply cocaine and heroin- and sentenced to 5½ years' imprisonment. On completion of his custodial sentence in 2009 he was issued with a deportation order which he has appealed against.

The appellant in this case is Mr Khalaf who argues that the previous judge erred in law in claiming that time spent in detention whilst pursuing appeals was merely a factor to be taken into account. He argues that everything which has a rational bearing on the case should come into account when the court is considering what is reasonable “in all the circumstances”.

The Court of Appeal considered previous cases in which the length of time spent in detention whilst pursuing legal proceedings was taken into account by the court, such as in Chahal v UK (1997) 23 EHRR 413, although these cases do not set a precedent of including this period of time.

The problem was considered by the Court to be that: eiter a detainee will be indefinitly penalised for exercising his legal rights or his detention can be brought to the point of mandatory relase simply by persistent litigation.

Therefore, the court concluded that there was a third way- to neither formally count nor discount the time spent on legal proceedings, but to recognise that it may have relevance. In this way, the answer would always be case and fact specific.  

The High Court of Justice has refused an application for judicial review from a Zimbabwe national in relation to what he contends was unlawful detention by the Secretary of State for the Home Department. The claimant entered the UK in 2005 and was given 6 months leave to remain as a visitor. After four months he committed a serious offence of rape against a 13 year old girl and was sentenced to 7 ½ years imprisonment, the custodial element of his sentence to end in 2009. He made no applications to extend his leave to remain but did make applications for asylum which were unsuccessful. A deportation order was made against him in March 2009.

The claimant continued to be detained in prison under paragraph 2(3) of Schedule 3 to the Immigration Act 1971. He was not moved to an IRC despite written requests from his solicitor to the defendant on his behalf. The defendant claims that the claimant was risk assessed in October 2009 and it was decided that he should remain in prison due to risks of absconding and re-offending. The defendant claims to have informed the prison of this decision in October 2009.

The defendant was advised that the claimant was willing to voluntarily repatriate to Zimbabwe and the claimant was deported in April 2010.

The claimant’s primary case is that his continued detention in prison was unlawful by application of the Hardial Singh principles:

(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal

 He argues that the place and conditions of his detention are relevant to the reasonableness of continuing detention. Secondly, he argues that being detained in prison rather than an IRC led to considerable delays in his removal.

The claimant’s alternative argument was that if his detention itself was not unlawful, the fact of being detained in prison rather than an IRC was unlawful.

The defendant does not accept that the detention was unlawful, arguing that whilst place and conditions of detention are relevant factors, they have only limited relevance.The defendant argues that the fact of the claimant being held in prison rather than an IRC did not increase delays as there is the same point of contact system and no differences in the progress of the application.

The defendant argues that it was not appropriate for the claimant to be moved to an IRC due to the seriousness of his offence. It is policy not to move serious sexual offenders to IRCs as there could be contact with female and child visitors and there is access to the internet and mobile phones which could be used for ‘grooming’. The claimant unsuccessfully challenged this policy, the High Court considering it to be reasonable as individual risk assessments are carried out and requests for transfers can be made.

In conclusion, the Judge considered that the initial detention of the claimant and his continued detention in prison were lawful under the Hardial Singh principles. There is no requirement that the removal must be imminent in order for detention to be reasonable- the process inevitably takes time. There is no set time limit beyond which detention is unreasonable as this depends on the individual facts of the case. The risks of absconding and re-offending were relevant factors to consider in this case, and the risks were assessed as high. The decision not to move the claimant to an IRC was a reasonable one and cannot be challenged. As there was no unlawful detention, the claimant is not entitled to damages in tort for false imprisonment and/or under Article 5 ECHR.

Despite having served his sentence for breaches of the Sexual Offences Prevention Order on 9 October 2009, the claimant remains in prison, awaiting deportation, because the SSHD has yet to procure travel documents for his removal to Libya.

There were two issues.  First, was it unlawful that the claimant had been detained past the end of his sentence, awaiting deportation?  Secondly, was his custody in prison, rather than in an Immigration Removal Centre (IRC), unlawful?

On the first issue, the test for release was the Hardial Singh Principles (R (Hardial Singh) v Govenor of Durham Prison [1984] 1 WLR 704, affirmed in R (MH) v SSHD [2010] EWCA Civ 1112)).  The Principles state that (1) the SSHD must only detain if s/he intends to deport, (2) detention must be reasonable in all the circumstances, (3) if it becomes apparent the SSHD will not to be able to deport the claimant in reasonable time, detention should end, and (4) the SSHD should act with speed and diligence to effect deportation. 

The test for detention included the following factors. 

The risk of the detainee absconding if released was an important consideration (R (A) v SSHD [2007] EWCA Civ 804), but cannot automatically outweigh considerations in favour of release (I (Afghanistan) v SSHD [2002] EWCA Civ 888)).

The risk of re-offending and the type of offence likely to be committed were relevant factors.  However, reasons for past refusals of bail should not be determinative.  Bail is fundamentally a different enquiry to judicial review of unlawful detention (R (Ibrahim & another) v SSHD [2010] EWHC 764 (Admin)). 

While failure on the part of a claimant to cooperate with deportation cannot justify indefinite detention (R (WL (Congo) & others) v SSHD [2010] EWCA Civ 111), ‘obviously unmeritorious’ appeals against removal are open for consideration.

The impact of indefinite detention on detainees, and conditions of detention, were also relevant considerations.  As per the EctHR case Massoud v Malta [2010], the right to liberty (Article 5 ECHR) made imprisonment unlawful where the SSHD was failing to pursue deportation with ‘due diligence’.

Thus, applying the considerations to the claimant, there was a risk of him absconding.  His release would expose young girls to the threat of sexual offences.  Whilst his asylum claims had not been ‘unmeritorious’, he had in effect prolonged his detention by resisting deportation.  14 months was not unreasonably long detention.

On the second issue, the decision not to transfer the claimant to an IRC was found to be in accordance with the UKBA’s Enforcements Instructions Guidance, Section 55.  It was true that some sections of the guidance had remained unpublished.  However, the requirement for relevant law to be ‘accessible and precise’ was satisfied by the Immigration Act 1971 and the Hardial Singh guidelines (WL (Congo)).

The claimant would not have been transferred under the policy, even under the unpublished parts.   There was no blanket ban on transferring child sex offenders to IRCs; a decision had been made in the individual claimant’s case, as internet access in the IRC would allow for potential internet grooming of children.  It was lawful to take such circumstances into account (WL (Congo)).

Zoë Sutherland

Suppiah & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011)

This case concerned two claimants, a Malaysian national and her dependent children and a Nigerian national and her dependent child. Both the claimants’ were failed asylum seekers and were detained by UK Border Agency officers in dawn raids on their homes. They were taken to Yarl’s Wood detention centre for women and children. The children involved in the case were aged between 1 and 11. One of the children became sick whilst in detention.

The Malaysian claimant had submitted further submissions and lodged judicial review proceedings which prevented her removal and she and her children were granted temporary admission. The Nigerian claimant’s removal was prevented when she obtained an injunction restraining removal.

Despite the cancellation of removal directions, the claimants’ were not immediately released from detention.  As a result, the claimants issued these proceedings stating that the detention had been unlawful from its inception or when removal directions had been cancelled.  The grounds alleged that article 3, 5 and 8 of the ECHR (European Convention for the protection of Human Rights and Fundamental Freedoms) had been breached.  The claimants argued that the Government’s policy of detaining minors was unlawful. It was argued that the policy is unlawful and that it cannot be operated lawfully in practice.

The court considered the defendants policy of detaining family with young children having regard to the Enforcement Instructions and section 55 of the Borders, Citizenship and Immigration Act 2009 as well as the decision in the case of RS v SSHD [2007]. The policy makes it clear that the intention is to promote the welfare of children and that detention should be the last resort.  Alternatives to detention should be considered in all cases. Where detention is required, this should be for the shortest period possible. 

The conclusion

The immigration judge in this case determined that the UKBA policy itself was not in fact unlawful. Illegal entrants are still subject to the policy even where they have children however, the immigration judge did state that the immigration staff dealing with the claimants had clearly not adhered to the policy guidelines. The judge commented that:

“It is clear from time to time the employees of UKBA fail to apply the defendant’s policy when making decisions relating to the detention of families with children.”

The judge continued to state that once the true significance of the policy was understood by UKBA employees and correctly applied, it can operate lawfully in practice. The judge was critical of the UKBA approach and pointed out that detention of families with children should only be in ‘exceptional circumstances’.

In the claimants’ case, the judge held that they had been unlawfully detained from the time they had been taken into custody until the time that they were released and that article 5 and 8 of the ECHR had been infringed. He held that article 3 rights had not been breached. He concluded that employees of UKBA failed to apply the policy with the rigour it deserved.