The Queen (on the application of AC (Algeria)) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lord Justice Baker,Lady Justice King DBE |
| Judgment Date | 28 January 2020 |
| Neutral Citation | [2020] EWCA Civ 36 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2019/1006 |
| Date | 28 January 2020 |
[2020] EWCA Civ 36
Lady Justice King DBE
Lord Justice Irwin
and
Lord Justice Baker
Case No: C4/2019/1006
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Jeremy Johnson QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Ranjiv Khubber (instructed by Turpin & Miller LLP) for the Appellant
Alex Ustych (instructed by The Government Legal Department) for the Respondent
Hearing dates: 5 December 2019
Approved Judgment
Introduction
This appeal concerns the application of the “ Hardial Singh” principles, first laid down in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, and developed and interpreted in a number of authorities since. The particular application with which we are concerned is as to the “grace periods”, 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.
In my judgment, this case exemplifies an over-liberal approach to this problem. An increased energy and rigour should be required of the Secretary of State in relation to such final periods of detention.
The Facts
In a careful, well-expressed and impressive judgment, Mr Jeremy Johnson QC sitting as a Deputy High Court Judge (as he then was) recorded the history of the Appellant. It is not necessary for me to recapitulate that other than in the barest form.
The Appellant is Algerian. He entered the United Kingdom illegally in 2013. On 11 March 2016 he pleaded guilty to two counts of sexual assault and was subsequently sentenced to four years imprisonment. He was due to be released on licence, on 25 December 2017. He had twice touched the bottom of a woman stranger.
On 21 June 2016, the Appellant was served with notice of a decision to make a deportation order. He responded by writing a letter to the Respondent claiming that he would be killed if deported to Syria. This was (properly) treated as an asylum claim.
The Appellant then tried to deceive the Respondent as to his nationality, claiming to be Syrian. By February 2017 he had been assessed to be Tunisian or Algerian. Nothing more was done about his asylum claim during most of 2017.
In December 2017, the Appellant was further interviewed. On 21 December 2017 he failed to engage with a language analysis interview. Four days later on 25 December 2017, when he would otherwise have been released on licence, he commenced immigration detention.
By February 2018, the Appellant through his (recently instructed) solicitors had admitted he was Algerian, but asked for his asylum claim to be progressed. He claimed he had been sexually abused from an early age and held as a captive sex slave for six years. On 2 October 2018 the Respondent rejected the asylum claim and made a deportation order. By then he had been in immigration detention for over nine months.
At the same time the Respondent certified the applicability of the presumption under s.72(2) of the Nationality, Immigration and Asylum Act 2002, namely that the Appellant had been convicted of a serious crime and constituted a danger to the community.
The Appellant's appeal against the dismissal of his asylum claim was itself dismissed by the First-tier Tribunal, on 26 November 2018. He did not bring a further appeal in time. At the time of the judgment below, he had sought to bring an out-of-time appeal, which had not been determined.
From December 2017 until the hearing below, the Appellant's detention was reviewed roughly every four weeks in written “Detention and Case Progression Reviews” [“DCPRs”]. These were fully analysed by the judge in paragraphs 18 to 30 and 33 to 41 of the judgment. The last DCPR took place on 4 January 2019, 12 days before the hearing below. The judge commented that, at more than one point, detention was in fact prolonged further than the period authorised in the latest extant DCPR.
The Appellant had been assessed as representing a high-risk of re-offending and “posing a serious risk of harm, if the opportunity should arise…”
By February 2018, as I have said, his nationality had been established, and the DCPR for that month recorded “a request for a travel document will be put in progress”.
Over the ensuing months, as the judge outlines, successive decisions were taken to authorise further detention, on the basis that removal could be effected in a reasonable timescale. The Appellant had made a failed application for bail in January. It seems that the Appellant first sought Schedule 10 accommodation (accommodation pursuant to paragraph 9 of Schedule 10 to the Immigration Act 2016, suitable for an individual with the Appellant's record and risk) on 5 April 2018, and again in May 2018 and in ensuing months. At that point, and beyond, the Appellant's asylum claim had not been resolved.
A further application for bail was refused in the First-tier Tribunal on 23 May 2018, although the Tribunal indicated the balance of factors would likely change if there was further delay with the asylum decision. In a further hearing on 3 July 2018, although bail was refused, First-tier Tribunal Judge Barber expressed concern at the delay in the case.
A DCPR took place on 7 July 2018. As the judge found, detention was not authorised until 3 August2018, and thus there was a further period of unauthorised detention. On 30 July 2018, a case progression panel concluded that “removal within a reasonable time … may not be possible” [judgment, paragraph 25]. Further detention was nevertheless authorised on 3 August 2018. However, on 15 August 2018 the First-tier Tribunal ordered that the Appellant should be released on bail subject to provision of Schedule 10 support. This was clearly a watershed in the case.
As I have indicated, detention was thereafter repeatedly authorised. The question of provision of accommodation was analysed by the judge, once more impeccably, in paragraphs 42 to 47 of the judgment below. He analysed what he described as “extensive delays” by the probation service [47], and by SERCO [46].
After consideration of the law, and the policy of the Respondent, as affecting detention and the provisions of accommodation, the judge reached his conclusions on the lawfulness of detention. He accepted the Respondent's submission that the risks of absconding and of re-offending were relevant [79 to 83]. He concluded that there was “unsatisfactory” evidence as to why the process of obtaining a travel document had not begun earlier [88] and [91], but concluded detention did not become unlawful during the period up to August 2018 [92 to 94].
The judge then concluded [96] that by August 2018 “it should have been apparent that the … asylum claim was likely to be determined within a matter of weeks … However, a travel document had not been obtained.” The facts did not indicate “the expedition and diligence required…” [96].
The judge found [101] that by the end of August 2018, “the Appellant, having been in immigration detention for eight months, with ‘receding’ prospects of removal in a reasonable time, it was necessary to reassess … alternatives to detention”. The anticipated time for removal had been February 2019.
On 15 August 2018, the First-tier Tribunal had granted bail subject to accommodation being provided by 29 August 2018. A similar grant of bail “in principle” was made on 4 October 2018, subject to the provision of accommodation by 25 October 2018. That, too, was not met. Again, the First-tier Tribunal granted bail on 2 November 2018, subject to the provision of accommodation by 16 November 2018. That was not met. The final DCPR before the hearing below on 4 January 2019 authorised “continued detention for a further 28 days pending further work on documentation and an assessment of timescales to removal”.
No suitable accommodation had been provided by the time of the hearing below.
The judge's conclusions as to the last period of detention before the hearing below must be considered in more detail. The relevant passage reads:
“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 [2011] EWCA Civ 1549 at [12]:
“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...
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