Reported Case

Our client, SB, was successful in his unlawful detention claim in which the High Court found a breach of the Hardial Singh principles notwithstanding SB’s serious offending history.


Background

SB is a national of Ghana. Following the service of a deportation order on 30 October 2018, he was detained by the First Defendant ('SSHD') under section 2(3) of Schedule 3 to the Immigration Act 1971. The detention lasted from 2 November 2018 until 17 June 2019.

It was also argued that the SSHD failed to comply with her own policy on detention in relation to adults at risk. A further pleaded allegation that her conduct breached SB's rights under Article 5 of the European Convention on Human Rights was not pursued.

The SSHD denied that the detention of SB was unlawful at any stage and denied any breach of public law or human rights law.

SB was granted permission to bring this claim by John Bowers QC, sitting as a Deputy High Court Judge, on 16 July 2019. The claim for damages against the Second Defendant (National Probation Service) was transferred to the County Court and stayed pending the outcome of the challenge to the legality of SB's detention made in this claim.


Judgment

John Kimbell QC, sitting as Deputy High Court Judge divided the detention into three periods.

In the third period of detention four key developments occurred:

i) On 3 April 2019, the SSHD refused SB's asylum and human rights claims but chose not to certify the claims as 'clearly unfounded'.

ii) On 16 April 2019, SB exercised his right of appeal to the First-Tier Tribunal.

iii) On 25 April 2019 an expert report was submitted on SB's behalf by Duncan Lewis Solicitors together with a request seeking reconsideration of the NRM decision of 30 January 2019.

iv) On 27 May 2019 the SSHD acting in her capacity as the Competent Authority reversed the decision of 30 January 2019. The SSHD now accepted that there were reasonable grounds to suspect that SB had been a victim of human trafficking.

The judge decided that detention after 16 April 2019 ceased to be justified pursuant to HS3, subject only to a period of grace for arranging secure accommodation.

It was decided that a grace period ought to be allowed to the SSHD once it became clear that continued detention would be in breach of HS3 in light of the decision of the Court of Appeal in R (AC) Algeria v SSHD [2020] EWCA Civ 36.

In R (AC) Algeria v SSHD Court of Appeal held, in summary, that:

i) Once any of the Hardial Singh principles are breached, any further detention can be lawful for a reasonable period to put in place appropriate conditions of release.

ii) The duration of a "grace period" is fact specific. The risk to the public is a "highly important factor" but any risk posed cannot justify preventative detention: that would be out-with the statutory power to detain.

iii) In future cases, an increased energy and focus should be required of the SSHD in relation to such final periods of detention: when the question of a grace period arises or might arise the SSHD will be expected to advance some evidence and to make considered submissions as to what period would be appropriate and why.


In SB’s case, given its history, it was decided that two weeks is the maximum reasonable "grace period" which is appropriate to allow. It follows that if a grace period of 14 days is allowed following the date on which the judge held that it was apparent that removal within a reasonable time would no longer be possible (16 April 2019), the detention of SB ceased to be lawful when the grace period expired on 30 April 2019. Detention beyond that time was unlawful.

Therefore, it was decided that SB is entitled in principle to substantial damages for unlawful detention from 1 May 2019 until his release on 17 June 2019.

The assessment of damages will be carried out in the County Court.


Representation

The Claimant was represented by solicitor, Marina Khan and trainee solicitor, Alex Dempsey from the Luton office with counsel, Althea Radford of One Pump Court.

Find full details of this case on Bailii’s website here.