R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin) concerns a successful claim for damages by an individual unlawfully detained under immigration powers. It is notable for its restatement of the importance of the third Hardial Singh principle, and as a further example of the Secretary of State’s ‘enduring casualness’ [23] when dealing with cases involving immigration detention.

Facts

On 26 October 2015, Mr. Ademiluyi’s custodial sentence came to an end. He had served time for immigration-related offences, and in particular possession of a false passport, entering a sham marriage and bigamy. The Secretary of State for the Home Department (“SSHD”) had some months previously notified Mr. Ademiluyi that she intended to deport him, and he responded by providing in late June 2015 information concerning his personal circumstances.

The most important information conveyed in that response was that Mr. Ademiluyi had been present in the UK for 15 years, was married and living with his wife, and had 5 children between the ages of 2 and 10 years of age, all of whom had been born in the UK. Some, but not all, of his children were known by the SSHD to be British nationals. Notwithstanding these representations, detention under immigration powers was ordered on 26 October 2015.

Mr. Ademiluyi was to be held for almost 5 months, until 18 March 2016. He had applied for bail to an immigration judge but the application was refused by Mr Woodcraft.

Proceedings

The Claimant issued proceedings on 2 December 2015 against the SSHD, arguing that he was being unlawfully detained.

Over a year later when the matter eventually came for hearing before Michael Fordham QC, sitting as a Deputy High Court Judge, the Secretary of State had done so little to defend the claim that the judge gave serious consideration as to whether or not she should be allowed to participate. Her omissions included failure to file an Acknowledgment of Service on time, followed by four applications to extend time to provide detailed grounds defending the claim, the final one of which was refused. This led to a situation that, by the time of the hearing in January 2017, the SSHD relied upon a summary grounds of defence only.

In the end, the judge reluctantly gave permission for the SSHD to participate in the hearing, ominously referring to costs consequences as he did so.

Law

At the centre of this case, the principles set out in Hardial Singh, still the leading authority on the lawfulness of immigration detention three decades after judgment was handed down. That case, as seen through the prism of the other leading cases in this area (R (I) v SSHD [2002] EWCA Civ 888 and Lumba v SSHD [2011] UKSC 12), provides the legal guidance on reasonableness of detention to which a detaining authority must adhere:

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

2) The deportee may only be detained for a period that is reasonable in all the circumstances.

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

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

The focus of this case was the third principle, or as the judge referred to it, ‘Hardial Singh 3’, which provides ‘an important protection in the context of the liberty of the individual’.

Prospect of removal in a reasonable period

Could Mr. Ademiluyi have been deported from the UK prior to the expiry of a reasonable period of time? The judge found no evidence that the SSHD had considered this limb of Hardial Singh. He went on to formulate the question for the court itself to answer [62]:

Was there or was there not a realistic prospect of deportation during a time which in all the circumstances of this case would be a reasonable time? Was it sufficiently clear that no realistic prospect of that kind arose such that the Secretary of State should have released rather than detained?

In response, the judge found [71] that ‘there could not be a removal within a period of time that was reasonable in all the circumstances such as to justify ongoing immigration detention’.

This finding was made by reference to the circumstances of the case, and in particular because it was known some time prior to the decision to detain that the claimant had been present in the UK for 15 years, was married, was living with his wife, and had 5 children, all of whom were born in the UK and a number of whom were known to be British [74]:

It was inevitable that there would be consequential challenges and, in my judgment, those could not properly have been characterised as unmeritorious. Quite the contrary.

It was ‘crystal’ clear that deportation would be resisted on Article 8 grounds [73]. The judge took into particular consideration the absence of a certification decision by the SSHD which would have prevented an in-country right of appeal. She could not be permitted to rely on the possibility that this would speed up proceedings if the decision to certify had not in fact been made [60-61].

‘Just the beginning’

The judge rejected arguments made by the SSHD that, because this was this was ‘just the beginning’ of the period of detention, it could not have been unlawful.

Whilst it was accepted that the position may be unclear at the beginning of such a period, and the answer to the question posed by Hardial Singh 3 might only crystallise after investigations had taken place, this was not the case in this instance: Mr. Ademiluyi had explained his circumstances some months prior to the date that the decision to detain was taken. The judge reiterated the essentially forward-looking nature of the principle, requiring conjugation in the future conditional [85]:

…submissions on ‘just the beginning’ provide no answer to the application of Hardial Singh 3, when one is considering a position at the start of detention. The question in such a case is not whether the reasonable period has now expired. That question is the application of Hardial Singh 2. The question under Hardial Singh 3 is whether it is already clear that by a future date, in which a reasonable period will have expired, the Secretary of State will not have been able to effect removal. Hardial Singh 3 projects forward to a period which will expire at some at a stage in the future.

While the risks of re-offending and absconding were relevant considerations, this judgment confirms the recent case of Babbage v SSHD [2016] EWHC 148 (Admin) that they are not ‘trump cards’, and that the key issue is when and whether deportation can be effected.

Babbage was, incidentally, another case where the SSHD did not cover herself in glory, the court expressing astonishment [23] at the way in which she had litigated the case. See also R (Das) v SSHD [2014] EWCA Civ 45.

Outcome

Mr. Ademiluyi’s detention was found to have been unlawful from the outset until the day he was eventually released almost 5 months later, and he was entitled to damages from the SSHD as a result.

Frustratingly, the issue of quantum (how much is paid out) is rarely, if ever, decided by the same court that considers the lawfulness of detention, so it is unknown how much was awarded in this case.

However, we know from an answer to a parliamentary question in December 2016 that total damages awarded or paid out for unlawful detention claims amounted to £5 million in 2012/2013, £4.8 million in 2013/2014, and £4 million in 2014/2015. It should be mentioned that these figures do not appear to include the costs of the lawyers who represented those detainees (573 successful claimants over the three financial years mentioned in the parliamentary answer).

By the way the SSHD conducts litigation in these cases, it appears to be a cost the government is willing to bear for the operation of the immigration detention system in its current form.