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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 JAN 2014

R (Saleh (Sudan)) v Secretary of State for the Home Department [2013] EWCA Civ 1378; (2013) PLLR 133

Immigration - Detention - Hardial Singh

The Secretary of State's delay in processing the Appellant's case rendered a portion of the period of his detention unlawful.

12 November 2013

Court of Appeal

McFarlane LJ, Sharp LJ and The Master of the Rolls

(1)        The Appellant, a 25 year old man from Sudan, had been detained for over 2 years pursuant to the Immigration Act 1971. The Appellant issued judicial review proceedings alleging that his detention had been unlawful, and appealed against the finding of the Court below which dismissed his claim.

(2)        The Appellant had arrived in the UK in November 2004 in the back of a lorry, and sought asylum on the basis that as a member of the Zaghawa tribe from Darfur, he was subject to intolerable treatment the authorities and the majority of the population. His asylum claim was refused on the basis that it was vague, unsubstantiated and lacking in detail. Due to his age however, the Appellant was given discretionary leave to remain in the UK until his eighteenth birthday.

(3)        On 8th May 2008, the Appellant was sentenced to four years detention in a Young Offender's Institution following a conviction for sexual offences against children. The Crown Court judge also recommended that the Appellant be deported, pursuant to provisions of the UK Borders Act 2007. The Appellant was released on 8 May 2009, but was immediately detained pending deportation. The total period of detention was 2 years and 2 weeks, ending 24 May 2011.

(4)        By this appeal, the Appellant contended that it was unreasonable for the Secretary of State not to have concluded her decision-making process as to the prospects of deporting him prior to the end of his criminal sentence. He also criticised the judgment of the Court below for lacking in detail or clarity as to the reasoning of the Judge.

(5)        The Appellant was granted permission to appeal on two bases: ‘a) Whether or not the time taken by the Secretary of State to reach a decision was a "reasonable period" indicating the deployment of "due diligence" in the administrative process; and b) Whether or not detention for all or part of the last seven days between refusal of permission to appeal and eventual discharge was lawful.'

(6)        The Secretary of State's case was that there was no basis for finding that her actions were lacking in reasonable diligence so as to render them illegal, and therefore lead to the quashing of the right to detain.

(7)        HELD: The Court held that whether or not the burden of proof was engaged on a particular issue was dependent upon context. Given this, it was not useful to carefully consider what the burden of proof was.

(8)        There is no definitive obligation on the Secretary of State requiring her to begin evaluating the Appellant's case whilst he is in criminal detention, rather the Courts should instead what is reasonable in the context of the circumstances of each case. Introducing a fixed period of time by when determination ought to have taken place would not be of assistance, and would be merely arbitrary.

(9)        In examining reasonableness in the context of this case, the Court noted that although the Appellant had committed a serious criminal offence, he had served the sentence imposed for that, and his extended period in immigration detention could not be justified by reference to this. Also relevant was that the Appellant had no opportunity to challenge the deportation decision until it was made on 12 August 2012.

(10)     The Court held that the Secretary of State had begun to evaluate the Appellant's case during his criminal prison sentence.

(11)     The Court noted however that there had been three periods during which little or no administrative activity took place in relation to the Appellant's case, these periods totalling over 12 months. The Defendant had failed to provide any evidence to explain the reasons for the delay. 

(12)     Given this, the Court held that any Court would be entitled to conclude that a proportion of the period of detention was unreasonable and unlawful.

(13)     The evaluation of reasonableness by the Court below was not satisfactory, as there had been an inadequate analysis of what was reasonable in the circumstances.

(14)     The Court found that two thirds of the twelve months during which no progress took place was unreasonable. Thus eight months was found to be unlawful and unreasonable. 

(15)     As to the second ground, the Court held that the Judge's finding was justified on the evidence available. The Court thus set aside the order of the Court below and made a declaration as to the unlawfulness of the Appellant's detention in relation to a period of eight months.

Appeal succeeded

Key paragraphs

[45] - Burden of proof.

[50] - Circumstances of each case.

[53] - Detention by reference to criminality.

[57] - Evaluation during sentence.

[60] - Period detention unlawful.

[62] - Reasonableness erred.

[63] - Reasoning inadequate.

[66] - Eight months unreasonable.

[67] - Second ground.

[68] - Conclusion and declaration.

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