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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AC (Algeria), R (On the Application Of) v The Secretary of State for the Home Department  EWCA Civ 36 (28 January 2020)
Cite as:  WLR 2893,  EWCA Civ 36,  1 WLR 2893,  WLR(D) 53
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ON APPEAL FROM THE QUEEN'S BENCH DIVISION
Jeremy Johnson QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE IRWIN
LORD JUSTICE BAKER
| The Queen
(on the application of AC (Algeria))
|- and -
|The Secretary of State for the Home Department
Alex Ustych (instructed by The Government Legal Department) for the Respondent
Hearing dates: 5 December 2019
Crown Copyright ©
Lord Justice Irwin:
"106. January 2019: The only barrier to removal remains that of a travel document. I was told at the hearing that an interview with the Claimant had taken place on 3 January 2019. It remains the case that a request to the Algerian embassy has still (as at the date of the hearing) not been made. It seems to me that there is now no real prospect that the Claimant will be removed within a reasonable period of time (which I take to be by the end of February 2019, for the reasons I have given). Continued detention is therefore not compatible with HS3. It will also soon (at the end of February 2019) be incompatible with HS2 and HS4.
107. On a strict and literal application of HS3 it might be said that maintaining detention is now unlawful. The Hardial Singh principles reflect the common law's jealous protection of liberty and its abhorrence of arbitrary detention, matters of fundamental constitutional importance. They fall to be applied with the high constitutional importance of the right to liberty well in mind. They must be interpreted in a manner that is consistent with their underlying purpose and rationale. The principles are not, however, hard edged. They are not statutory rules which ineluctably give rise to illegality at the moment of breach – see R (Krasniqi) v Secretary of State for the Home Department  EWCA Civ 1549 at :
"The Hardial Singh principles, though approved as such by the Supreme Court, are not the equivalent of statutory rules, a breach of which is enough to found a claim in damages. As I understand them, they are no more than applications of two elementary propositions of English law: first, that compulsory detention must be properly justified, and, secondly, that statutory powers must be used for the purposes for which they are given. To found a claim in damages for wrongful detention, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. There is a dividing-line between mere administrative failing and unreasonableness amounting to illegality. Even if that line has been crossed, it is necessary for the claimant to show a specific period during which, but for the failure, he would no longer have been detained."
108. They are thus not to be applied rigidly or mechanically (see Lumba at ) and it is necessary to take account of the way in which the Home Office functions – see HXA v The Home Office  EWHC 1177 QB at .
109. If the Defendant had intended to continue to detain the Claimant until he could be deported then that would, in all the circumstances of this case, be unlawful. However, the Hardial Singh principles are sufficiently flexible in their application to permit continued detention for the purpose of arranging appropriate bail conditions, once continued detention is no longer compatible with HS3. In other words, if it becomes apparent that it will not be possible to remove a person within a reasonable period of time, continued detention for a short period whilst arrangements are made for release on bail may be justified.
110. That is so here. The period for which the Claimant has thus far been detained has not yet exceeded a reasonable period of time having regard to the circumstances of this particular case, though it will shortly do so. The Claimant continues to pose a significant risk of absconding and re-offending which can only be satisfactorily addressed by rigorous bail conditions. Detention pending release on bail is, in principle, lawful, even though it is now clear that removal will not take place within a reasonable period of time. That is because the Secretary of State no longer intends to detain pending removal, but only until appropriate accommodation can be secured.
139. The Claimant's detention has not, at any stage, been unlawful. Since August 2018 the prospects of removal within a reasonable period of time have receded but detention pending the arrangement of appropriate accommodation for release on bail has been justified. The point has now been reached where there is no real prospect of removal within a reasonable period of time, and where the period of detention will shortly become unreasonable. Continued detention for a very short further period of time to secure appropriate accommodation is justified. However, the point is fast approaching (and is likely to be reached at the end of February 2019) where continued detention will be unlawful and the Claimant must be released even if the most suitable accommodation has not been secured.
140. There was no unlawful delay in the determination of the Claimant's asylum claim and, in any event, the period of time taken to resolve his claim was not material to his continued detention.
141. The Claimant has established an unlawful failure to refer his case for a "reasonable grounds" decision, but this failure has not had any material impact either on his asylum claim or on his detention."
The Grounds of Appeal and Permission
"1.3 Although the HS principles are not intended to be applied rigidly/mechanically and the grace period for avoiding a finding of a breach is fact sensitive, the time given to the SSHD in this case was simply too long and has the effect of undermining the protection given to a person subject to detention under HS3 (and as distinct from /outside of the protection provided by HS2).
1.4. This ground raises an important point of principle regarding the application of the HS principles; the grace period permitted to the SSHD in detention cases, and which prevents a finding of illegality. This issue has received limited consideration by the Senior Appellate Courts pre and post the SC judgment in Lumba. Further, this case appears to be the first to consider it in the context of delay with provision of accommodation under Schedule 10 IA 2016.
3.1 The Court below erred in law in not finding that a breach of HS 2 had been established either by 15 August 2018 (by which time the FTT had granted bail and by which time the SSHD had accepted that the reason for continuing to detain was the lack of available accommodation), or from 16 January 2019 (the date of the hearing) or from 6 February 2019 (the date of judgment).
3.2. This error resulted from a failure to take into account the cumulative impact of all relevant factors to detention under HS 2 including the length of the Appellant's detention (7 months and ongoing), the nature of the obstacles preventing detention (the asylum claim and the need for travel documentation), the basis for detention (not being removal but to await provision of accommodation since 3 August 2018), the lack of diligence and speed in pursuing the travel documentation process by the SSHD."
The Hardial Singh Principles
"Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.
In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time." (p.706 D/F)
"22. It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department  INLR 196, para 46 correctly encapsulates the principles as follows: (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 a 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."
The Period of Grace
"60. I have already expressed my opinion that the test for the lawfulness of a period of detention is one of reasonableness. The obligation of the Secretary of State is to cease detention when it becomes clear that detention is no longer required to effect removal but, in my view, common sense demands that a short period of grace is required for the decision-making process to take place which may include a decision as to the management of the detainee on release. First, there is, I think, a distinction between cases in which it is clear that removal directions will not be re-set (e.g. upon grant of ILR) and those in which the decision whether to re-set removal directions depends upon the outcome of proceedings (as in the present case). The Secretary of State will in the latter cases be concerned to ensure that she is kept aware of the whereabouts of the released detainee. That may require administrative arrangements for appropriate accommodation to be made available. I do not think that the Secretary of State is bound to release without regard to a residual risk of absconding (see, for example, R (Wang) v SSHD  EWHC 1578 (Admin)). Secondly, I do not consider, as Mr Husain argues, that the Secretary of State's assumption of responsibility for the welfare of these two children in detention can lightly be segregated from a responsibility to take reasonable steps to ensure that they are properly accommodated on release. There is no policy of the Secretary of State which requires case workers to turn detainees out of a detention centre without first ensuring that they can survive. On the contrary, it is the policy of the Secretary of State (EIG 55.6.3) that detention may be necessary "whilst alternative arrangements are made" for the detainee's care (provided, of course, that the purpose of detention was to effect removal). It is not difficult to envisage circumstances in which the Secretary of State could be said to be acting in dereliction of the duty undertaken by the act of detention if she took no action but to release the detained person immediately removal within a reasonable period became, as a matter of fact, not possible.
61. I note that in R (Ahmed) v SSHD  EWHC 1533 (Admin), the claimant, while having been entitled to release from detention, remained in detention for a period of four days while arrangements were made to obtain accommodation for the claimant and her family. No claim was made in respect of that period of four days because it was accepted that the original detention was lawful and at the stage when the claimant was entitled to release those same enquiries would have been required."
"8.11… detention will not necessarily be unlawful from the instant it ceases to comply with the Hardial Singh principles. The concept of reasonableness applies to the termination of detention as much as to the decision to detain. As a result, if it becomes clear that a detainee cannot be removed within a reasonable period of time, the Secretary of State is not obliged to release them instantaneously. The Secretary of State is allowed a "period of grace":
(1) to take stock of the change in circumstances; and
(2) to make suitable arrangements for release. If the detainee poses a risk of offending or absconding these arrangements may include tagging, notification of other agencies and the provision of accommodation that will minimize the risk of absconding. Even when there are no such risks, the Secretary of State may be allowed some time to identify suitable accommodation for them to be released to.
8.12 The courts have been unwilling to specify how long such a grace period may be. In R (Muqtaar) v Secretary of State for the Home Department, the majority of the Court of Appeal held that it was acceptable for the Secretary of State to take two weeks to respond to a judgment of the European Court of Human Rights ('ECtHR') by releasing the claimant, in part because there would have been many other detainees affected by the same judgment. Richards LJ said there was 'some force' in the Secretary of State's submission that she should not be obliged to react to changes in circumstances until the next monthly review under her policy. Elias LJ, dissenting, said that the delay of two weeks displayed "too cavalier an approach to the right to liberty". Lloyd LJ said he saw force in Elias LJ's point but found on the facts that two weeks was acceptable.
8.13 The other authorities do not reveal any clear limits on the grace period:
(1) In R (Wang) v Secretary of State for the Home Department, Mitting J found that continued detention would be unlawful but allowed the Secretary of State 48 hours to fit a tag to the claimant before he was released.
(2) In R (I & Ors) v Secretary of State for the Home Department, a case involving the detention of a father with his four children, the Court of Appeal held that, following the institution of judicial review proceedings and the cancellation of removal directions on a Thursday, the decision to release Mr I and his children could 'and therefore should' have been taken and implemented by the following Monday.
(3) In R (Rabbi) v Secretary of State for the Home Department, the Secretary of State took four days to release a claimant after receiving a Rule 39 indication from the European Court of Human Rights. Beatson J held that there had been no unlawfulness because it took four days for the Secretary of State to find an address to accommodate the claimant.
(4) In Abdi & Khalaf, the Court of Appeal held that the Secretary of State should have appreciated the effect of a change of circumstances (a concession made by the Secretary of State in the course of an appeal in the light of a recent 'Country Guidance' decision) within a week and detention thereafter was unlawful.
(5) In R (Bizimana) v Secretary of State for the Home Department, the Court of Appeal held that 'a couple of weeks' was a reasonable period of time to 'take stock and review matters'.
(6) In R (LK Somalia)) v Secretary of State for the Home Department, (which came between the first instance and Court of Appeal decisions in Muqtaar, and concerned the same ECtHR judgment) the Deputy High Court Judge allowed 24 days for the Secretary of State to take stock of the ECtHR's judgment, realise that the claimant would need to be released, and put in place the necessary monitoring arrangements. However, this aspect of the decision in LK should be approached with caution. Elias LJ granted permission to appeal to the Court of Appeal on the ground that it was arguable that the judge ought to have concluded that the Secretary of State should have dealt with MK's situation more speedily and released him more quickly. The appeal was subsequently withdrawn by agreement between the parties.
(7) In R (Belkasim) v Secretary of State for the Home Department, Haddon-Cave J held that it was reasonable for the Secretary of State to take 26 days after a United Nations decision to impose a no-fly zone over Libya to release the Libyan claimant. However, Haddon-Cave J expressly accepted that the imposition of the no-fly zone was not the only catalyst for the decision to release so this cannot be read as a simple endorsement of a grace period of 26 days.
Like everything else in this field, the permissible grace period will depend on the facts of the case. The facts of the cases at paragraph 8.13 demonstrate how flexible the concept may be. We do not agree with the submission which Richards LJ appeared to favour in Muqtaar – i.e. that the Secretary of State should have until the date of the next detention review under the policy to take stock of a change in circumstances. It is not clear that Richards LJ was aware of the fact that the policy expressly requires ad hoc review if circumstances change. Besides, the period before the next detention review may be as long as one month and the cases at paragraph 8.13 demonstrate that the courts have often expected the Secretary of State to appreciate a change of circumstances in significantly less than one month."
Analysis and Conclusions
Lord Justice Baker:
Lady Justice King DBE: