One of the more pernicious aspects of the so-called automatic deportation provisions in the UK Borders Act 2007 is the provision in s.36 for detention while the Secretary of State considers whether an exception to that Act applies. That is to say you can be detained not only while deportation proceedings actually take place, but also while the Secretary of State decides whether or not to deport you at all.

Reminding us all of the liberty of the subject and that “each day of detention is therefore to be considered anxiously”, the Court of Appeal has held detention to be unlawful where the Secretary of State fails to exercise due diligence.

Many lawyers will have noticed how the Secretary of State never seems to be in an enormous rush to make these decisions, secure in the knowledge that the proposed deportee will remain in detention in the interim. The alacrity that enables her to dismiss detailed and complex human rights submissions and evidence in a matter of hours where removal directions are in place seems to desert her entirely in these cases.

The proposed deportee is then left in a very difficult position. When a deportation decision has been made you can at least appeal the decision, and you either win or get deported. That is very different from a position where, if the Tribunal declines to grant bail, all you can do is sit in detention waiting to hear if the Home Secretary has gotten around to making up her mind. There is nothing to appeal.

The recent case of JS (Sudan) v SSHD [2013] EWCA Civ 1378, apart from being a rare detention win for claimants in the Court of Appeal, is notable in several respects. The appellant was a Sudanese national from the Zaghawa tribe in Darfur and therefore very unlikely to be successfully removed if those facts were accepted. He had committed a serious sexual offence and was recommended for deportation.

The Secretary of State, despite having had a human rights claim from the appellant to consider before he even got arrested, moved at glacial speed and took over 15 months to make a decision to deport him. He appealed, and the appeal was allowed with the Tribunal holding that there was “overwhelming evidence” as to his ethnicity. Even then he was detained until a week after the Upper Tribunal had refused the Secretary of State permission to appeal.

The Court of Appeal held, overturning the decision of the High Court, that 8 months of the appellant’s detention was unlawful. In doing so the Court endorsed the gloss put on the Hardial Singh principles by Nicol J in R(Rashid Hussein) v SSHD [2009] EWHC 2492 (Admin) to the effect that where detention is pending consideration of whether an exception to automatic deportation applies it can only be used for that purpose.

Regrettably, the Court also endorsed the unreasoned and anomalous dicta in Krasniqi v SSHD [2011] EWCA Civ 1649 to the effect that “not every” breach of the Hardial Singh principles will found a claim for false imprisonment. If that is right it’s hard to see what the point of the Hardial Singh principles is –  they are intended to be the legal boundaries circumscribing the Secretary of State’s power to detain. On the findings of the Court of Appeal, there is a four month period of detention which was not lawful by reference to Hardial Singh but was not unlawful either – a kind of quasi-lawfulness that doesn’t sit well with the usual principles of false imprisonment. A period of detention that was lawful-ish.

The Court also considered that it may be unhelpful to think of a burden of proof where the Court is itself deciding whether or not detention was reasonable. That is potentially an alarming inroad into the old principle that it should always be for the jailer to justify taking an individual’s liberty (see e.g. Khawaja v SSHD [1983] 2 WLR 321).

More helpfully, the Court also held that it may be reasonable in some cases to expect that the Secretary of State should begin examining the question of whether a person is to be deported while they are in prison and before they enter detention.

Perhaps the real significance of this case is that the appeal ultimately succeeded because the Secretary of State had not been diligent enough in making her decision. Although the Hardial Singh principles clearly require that the Secretary of State pursue removal (or making a decision) diligently, as indeed does Article 5 ECHR – see Massoud v Malta [2010] ECHR 1197, the Secretary of State is very fond of arguing that the absence of diligence alone has never been held to be sufficient to found a breach of those principles. That is emphatically what happened here.

This demonstrates the importance in detention cases of requiring the Secretary of State to comply with her duty of candour and obtaining disclosure of the actual steps taken towards removal or a decision as the case may be.  It is always worth making a Subject Access Bureau request in these kinds of cases. The Court was unimpressed by the Defendant’s failure to adduce witness evidence to explain the prolonged periods where not much appeared to be happening.

Congratulations to Mark Symes and Stephen Knafler QC of this parish who extracted a really good result in the face of what appears to have been considerable judicial reluctance.