The Court of Appeal has given judgment in R (AC (Algeria)) v SSHD [2020] EWCA Civ 36. The case is about “grace periods” in unlawful detention claims. 

A grace period, as described by Lord Justice Irwin in his judgment, is

that period of time allowed to the Secretary of State, once detention has ceased to comply with the Hardial Singh principles, to make suitable arrangements for release.

(See paragraph 46 here if you need a recap of the four Hardial Singh principles.)

The purpose of a grace period is to allow the Home Office to take stock of the change in circumstances which has contributed to the Hardial Singh breach (e.g. new evidence affecting timescales of removal) and to take final steps before release to prevent the detainee’s coming to or causing harm (e.g. by ensuring release to accommodation suited to their assessed vulnerability or risk levels).

The approach to determining the length of grace periods has developed in an ad hoc way. This judgment seeks to review previous cases and provide guidance on this issue.

The High Court judgment

In dismissing AC’s judicial review claim, on 6 February 2019, the High Court had found that “the claimant’s detention has not, at any stage, been unlawful”. This was despite earlier concluding that there was “no real prospect that [AC] will be removed within a reasonable period of time” and that AC’s “continued detention [was] therefore not compatible with [Hardial Singh]”.

The judge reconciled these findings by reference to previous cases stating that the Hardial Singh principles are not “hard edged” or “statutory rules which ineluctably give rise to illegality at the moment of breach”. Thus they should not be applied “rigidly or mechanically”. Given the soft-edged, flexible nature of the Hardial Singh principles, and the risk AC was deemed to present if released immediately, his detention would not become unlawful until after a grace period while the Home Office finalised arrangements for his release on immigration bail.

On the judgment date the Home Office had already had three weeks since the assessed Hardial Singh breach to make such arrangements. How much further should this twilight zone between lawfulness and unlawfulness extend before the Home Office became liable in damages?

The High Court stipulated that “any further period of detention must be short” and that detention after the end of February 2019 was “highly likely to be unlawful”. That gave officials about six weeks from the date of breach to arrange release.

AC appealed, arguing that this grace period was too long. He pointed out that the Home Office had already had months to make arrangements for release, as the First-tier Tribunal had first granted conditional bail in August 2018.

Four findings on grace periods

In his short and concise judgment Irwin LJ reviewed the various authorities on grace periods and reached the following four conclusions (at paragraph 33):

…[1] that the “grace periods” are granted for practical purposes, reflecting the facts of each case and applying a test of reasonableness; [2] that this court has declined to set any overall or absolute limit to such a period as a “long-stop” for all purposes; [3] that the periods have more usually been short, often a few days, but running up to a month, and [4] that there has been some tendency for the periods to increase.

He went on to give the following guidance on how the length of such periods should (and should not) be determined:

38. …It cannot be lawful to detain until two or more of the Hardial Singh principles are breached, or to fix a “period of grace” with such further breaches in mind. Once any of the second, third or fourth principles are breached, then the question arises whether any further detention is lawful. Such further detention can be lawful, in my judgment, only for a reasonable period to put in place appropriate conditions for release.

39. The duration of such a “period of grace” must be judged on the facts of the case. The relevant facts include the history, as well as the risks to the public. I fully accept that the risk to the public is a highly important factor, but it cannot justify indefinite further immigration detention.  No risk can justify preventive detention: that is clearly out-with the statutory power of the Respondent.

Applying this to AC’s case, Irwin LJ determined that, despite AC’s assessed high risk levels, insufficient consideration had been given to the time the Home Office had already had available to make arrangements for release:

40. In this case the history was highly relevant. For many months the Respondent had known the Appellant should have been released albeit under strict conditions. For whatever reason, those arrangements had fallen away and the necessary steps had not been taken. It is clear from the judgment that a proper understanding of these difficulties had brought the judge to the conclusion that detention up to the date of the hearing was lawful. But the repeated failure to arrange release into secure conditions are relevant to what further period can properly be regarded as lawful. In this case it is also relevant that, at the time of the trial, the Respondent still had produced no evidence as to how the Appellant might safely be released. There were still no arrangements available after some 14 months of detention.

Notwithstanding these forceful words, Irwin LJ concluded that the High Court’s grace period had been too long by only one week: the Home Office should have been allowed five weeks from the date of Hardial Singh breach in January 2019 instead of six, or two weeks from the date of judgment instead of three. 

Acknowledged by the judge to be “ample”, five weeks is a week longer than the previous upper limit for grace periods (a month). It is not clear why a shorter period was not deemed appropriate in light of the criticisms made.

Comment

It is encouraging that the Court of Appeal has made strong criticisms of the Home Office — and by implication, previous court decisions — for an “over-liberal approach” to grace periods. The judgment highlights the department’s failure to put forward sufficient justifications for the periods given/taken, and to demonstrate the “energy and rigour” required when detaining somebody on “borrowed time”.

It is disappointing that, in this particular case, the Court of Appeal’s stricter approach only amounted to allowing the Home Office five weeks to arrange release instead of six. The Home Office had already wasted five months before this without seeming to properly consider the practicalities of release. It also failed to utilise even the excessive grace period given by the High Court: AC’s release was eventually ordered by Mostyn J on 12 March 2019 as part of a further judicial review.

Hopefully, in future detention cases, the Home Office (and the courts) will take on board the Court of Appeal’s guidance and criticisms such that grace period are reduced to days, not weeks or months.