Krasniqi, R (on the application of) v Secretary of State for the Home Department

The issue in this appeal is whether the appellant is entitled to damages for wrongful detention between 1 March and 20 August 2010 (or possibly September 2009 and March 2010), or alternatively for being held (until 10 June 2010) in prison rather than an immigration detention centre.

The appellant, a Kosovan of Albanian descent, entered the United Kingdom clandestinely on 24 November 1998, aged 16, during the war in Kosovo. On 26 May 1999 he was granted indefinite leave to remain on the ground that he was a refugee.

Since then he has had a long record of criminal offending, described in detail in the judgment. The main features are:

The Secretary of State’s attempts to secure his deportation date from September 2007:

Throughout this period the appellant has remained, and remains, in detention pending deportation. There is no outstanding challenge to the principle of deportation, or to his current detention since August 2010. From 4 September 2009 until 10 June 2010, he continued to be held in prison, rather than a detention centre, even though the custodial part of his sentence had come to an end. The judge found (para 65), and it is not now disputed, that if the published policy had been correctly applied, he would, and should, have been transferred to the detention centre on completion of his sentence.

The judge dismissed both claims. As to the lawfulness of detention itself, he held that the Secretary of State should have begun the cessation procedure at an earlier date. Assuming reasonable diligence, the process should have started by the end of September 2009, shortly after the appellant went into immigration detention, and should have lasted no more than five months, leading to a decision by the end of February, rather than in August 2010 (para 48). He commented (para 49):

“On that footing it could be said that after the end of February 2010 [the appellant]’s detention was not justified because a reasonable period of detention was now exceeded. However, as the authorities make clear the reasonableness or otherwise of the period cannot finally be assessed until the question of risk of absconding or commission of further offences and the question of the now-projected time of release, are also factored in.”

He found that, based on the appellant’s past record, there was a significant risk of absconding and of further offences, and that, by the time of the hearing before him, there was a prospect of removing the appellant within a reasonable time. He concluded (para 61):

“Having taken all of the relevant factors into account, including the expected length of further detention, I have concluded that the period of detention is not, overall, an unreasonable one. The result is that [the appellant] is not being unlawfully held and there is no basis for ordering his release or awarding damages.”

As to the claim based on the delayed move from prison to the detention centre, the judge held, following the decision of the Court of Appeal in R (SK) (Zimbabwe) v Secretary of State [2008] EWCA Civ 1204, that failure to follow a published procedure did not in itself invalidate the detentions. He noted that there was no evidence that the particular conditions in which he had been detained in prison were such as to render the detention itself arbitrary. He referred to R (Chaboub) v Secretary of State for the Home Department [2009] EWHC 1989, and Mikolenko v Estonia [2009] ECHR 10664/05, but found nothing in them to support such a claim under Article 5 unsupported by evidence.

Two questions are raised by the appeal:

The principles underlying a claim for unlawful detention pending deportation have been exhaustively examined in R (Lumba) v Secretary of State [2011] UKSC 12, [2011] 2 W.L.R. 671. There is no dispute as to the law so far as relevant to this appeal. Miss Plimmer relies on the so-called Hardial Singh principles, as approved by the majority of the Supreme Court (derived from R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 W.L.R. 704 per Woolf J, adopted and explained by Dyson LJ in R (I) v Secretary of State [2002] EWCA Civ 888). She relies in particular on the principles (ii) that a deportee may only be detained for a period that is “reasonable in all the circumstances”; (iii) that, if before the end of that period it becomes apparent that deportation will not be effected within that reasonable period, the detention should end; and (iv) that the Secretary of State should act with reasonable diligence and expedition to effect removal. She submitted that on the judge’s findings there was a breach of those principles. Further, he had looked at the matter solely as at the date of the hearing before him, rather than at an earlier date.

There was some inconsistency in the appellant’s identification of the period in respect of which damages were to be claimed. In her supplementary skeleton for the hearing (para 17), she identified the relevant period as September 2009 to March 2010. The judge’s finding as to the lack of action during that period should have led to the conclusion that, “in doing so little to pursue cessation… and not effectively commencing the process until 30 March 2010”, the Secretary of State was detaining the appellant for a longer period than was necessary, and that accordingly “the detention for that six month period (September 2009 to March 2010) was unlawful”. By contrast, an earlier statement (under PD52 para 4.14A, signed by Mr Fullwood) identified the period of unlawful detention as February and August 2010. In his judgment giving permission to appeal (para 6), Maurice Kay LJ recorded Mr Fullwood’s submission that the cessation process should have been completed by February 2010, and that “detention thereafter” was therefore excessive.

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.

Miss Plimmer’s difficulty in choosing which period should be taken as founding the damages claim reflects a more fundamental difficulty with her argument. She does not now challenge the judge’s conclusion that, as at the date of the hearing, the detention was lawful. This is because, in her words, detention that has previously been unlawful may become lawful “by virtue of a predictable date for detention”. But even at that stage, as we now know, the date of actual removal was far from predictable, because, even when the obstacle of refugee status had been removed, the appellant was able legitimately to raise other hurdles.

The position can be tested by asking what, on the balance of probabilities, would have happened if an application had been made to court on either of the dates suggested as the beginning of the unlawful detention. Realistically neither would have secured his release. An application in September 2009 might have spurred the Secretary of State to action, but the period of detention pending deportation had only just begun, and there was nothing to suggest that it would become unreasonable. By March 2010, although there had been a period of unjustified delay, the Secretary of State would be able to point, on the one hand, to the commencement of active steps to remove refugee status, with every prospect of them being successful, and, on the other, to the serious risk to the public of release at that stage.

In my view, the judge was entitled to find that, whether viewed at the date of the hearing, or at any earlier time, the continued detention of the appellant was justified, and accordingly to reject the claim for damages.

It is not in dispute that, under the Secretary of State’s policy, the appellant should have been moved to a detention centre in September 2009 rather than June 2010. Miss Plimmer accepts that this does not give rise to any claim at common law. In R (Lumba) (above) at para 68, Lord Dyson JSC made clear the limits of the principle that a departure from published policy may render detention unlawful. The same would not apply, he said, to -

“…a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain.”

She argues, however, that a claim may lie under Article 5 for “arbitrary” detention, which in her submission may include arbitrariness in the selection of the place of detention.

There is nothing in the words of Article 5 to support that submission. It says nothing about the conditions of detention or their place. It provides simply:

“… No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

…

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

Mr Roe accepts that, in accordance with decisions of the Strasbourg court, detention will not be lawful if it is “arbitrary”, which might include detention in bad faith, or not genuinely for the purpose of the relevant exception, or where there is not “some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention” (Saadiv United Kingdom [2008] 47 EHRR 17, paras 68-74). However, none of the cases relied on supports a claim based solely on an irregularity in the selection of the place of detention, at least in the absence of any evidence that the conditions of detention were unduly harsh.

The only specific example Miss Plimmer was able to offer of a finding of illegality under article 5, depending solely on the place of detention, was Mayeka v Belgium [2007] 1 FLR 1726. There a five year old Congolese girl was detained for two months, alone among strangers, in an adult detention centre. This, as the court found, caused such distress and potential psychological damage as to amount both to inhuman treatment contrary to article 3, and to a violation, under article 5, of the principle that the place and conditions of detention must be related to the permitted ground of deprivation of liberty. This was clearly an extreme case, and the contrast with the present case is striking. In my view it underlines the force of Mr Roe’s submission. The judge was correct to reject the claim under this head, in the absence of any specific evidence challenging the conditions of detention.

For these reasons, I would dismiss the appeal on both grounds.

I agree.

I also agree.