‘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 [2003] 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.’
‘Mr Husain [counsel for the applicant] submitted that some adaptation of these principles was necessary to reflect the nature of the power to detain under s.36(1)(a) of the 2007 Act. Mr Eadie [counsel for the Secretary of State] accepted that a degree of modification was necessary. In the end I am not sure that there was any significant difference between the positions canvassed by the parties. In any case, I would express the implied limitations in this context in this way: i) The Secretary of State must intend to deport the person unless one of the exceptions in s.33 applies and can only use this power to detain for the purpose of examining whether they do. The Secretary of State must have this conditional intention because otherwise it would not be possible for him to say that detention was pursuant to action with a view to deportation. It is clear that the s.36(1)(a) power may be used by the Secretary of State while the issue of whether one or more of the exceptions in s.33 is applicable. There was some debate at the hearing as to whether this power could also be used while the Secretary of State examined whether any of the other conditions on which the automatic deportation depended were fulfilled. Could he, for instance, rely on this power if the detainee claimed that he was in truth a British Citizen (and so not a ‘foreign’ criminal)? Mr Eadie was inclined to argue that he could. The consequence would be that even if the detainee was to persuade the Secretary of State (or a court) that he was indeed British, his detention in the meantime could have been lawful. I agree with Mr Husain that that would be a dramatic extension of the law. It may have been achieved by the 2007 Act, but this issue does not arise for decision on the facts of the present case. It would be better in my view for it to be answered in a case where it does. ii) The detainee may only be detained for a period that is reasonable in all the circumstances. No change is needed to this statement of principle. 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 that reasonable period he should not seek to exercise the power of detention. No change is necessary to the formulation here, but this principle will be infringed if detention continues even though it is apparent that either resolution of the question of whether any of the exceptions in s.33 is applicable, or any subsequent deportation, or both together, will take more than a reasonable time. iv) The Secretary of State should act with reasonable diligence and expedition to determine whether any of the exceptions in s.33 is applicable. An analogous limitation to Dyson LJ's fourth principle is clearly to be read into the s.36(1)(a) power, but some adaptation is necessary to reflect the exercise on which the Secretary of State is engaged. Of course, if none of the exceptions in s.33 apply and the automatic deportation obligation in s.32(5) arises and detention is continued under s.36(1)(b) , that power will be subject to the implied limitations as formulated by Dyson LJ. The Secretary of State will then have to act with reasonable diligence and expedition to effect deportation. What is reasonable will no doubt take account of the totality of the period that the person concerned has spent in detention after the conclusion of his criminal sentence pursuant to immigration powers.’
‘it may be that the [Secretary of State] could have started the process of deciding whether any of the exceptions in s 33 applied at an earlier stage and before the custodial term of the Claimant’s sentence had almost expired. In the future it would be sensible for him to do so in many cases. It may not be practicable if the person concerned has spent a lengthy time on remand which is ordered to count against his sentence so that the custodial term comes to an end shortly after he has been sentenced. On the other hand, if a lengthy term of imprisonment has been imposed, there are obvious disadvantages in starting too early the consideration of what the position will be when the custodial sentence comes to an end. Things may change. But in cases such as the Claimant’s where there are a few months between sentence and the automatic release date neither concern will apply. As [counsel] argued, if the initiation of the process is delayed, it is likely to prolong the period of s 36(1)(a) detention.’
“Accordingly, the issues essentially resolved themselves to two. Chronologically, the first is whether there was unreasonable delay in deciding whether the exceptions in section 33 applied. The second is whether the claimant should have been granted bail once the strength of his Article 3 claim was appreciated, even though it was not unreasonable for the defendant to challenge that claim. Finally I must look at the last seven days of detention, once permission to appeal to the Upper Tribunal had been refused.”
“In this case, prior to May 2009 the claimant had been refused asylum, and had not appealed that decision. He had not raised his ethnicity as a relevant factor, nor had it been flagged up as a potential problem in the Defendant’s Operational Guidance. He was by then an adult, and had been serving a long custodial sentence as a result of which he was subject to the automatic deportation regime. Even if given the option of remaining in the UK, he would be released on licence and subject to the requirements of being on the Sex Offenders Register and might very well prefer to be assisted in leaving the UK. I can see no good reason for requiring consideration of his case prior to8th May 2009 .”
“The reality is that, even if the information had been obtained earlier, it would still have needed checking, and the possibility of internal relocation would have been a live one until November 2009.”
“A reasoned decision was required on the application of the refugee convention as well as an analysis of the evidence of ethnicity. The background of the automatic deportation provisions of the 2007 Act meant that it was reasonable for this evidence to be tested thoroughly. Indeed, Mr Symes accepts that the decision letter rejecting the claim to be a Sudanese Zaghawa was not irrational.”
“Thereafter more expedition would have been ideal, but the delay was not unlawful. I note, whilst making it clear that it is by no means decisive, that the claimant made no attempt to get bail or to start judicial review proceedings between May 2009 and August 2010.”
“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.”
“that the Appellant was detained unlawfully for 8 months by the Respondent”