Ademiluyi, R (On the Application Of) v Secretary of State for the Home Department

This is a claim for judicial review, brought with the permission of John Howell QC on 18 March 2016. The issue in the case concerns the lawfulness or unlawfulness of immigration detention which took place on and after 26 October 2015. Immigration detention ended with the grant of bail by the learned deputy judge at the permission hearing before him on 18 March 2016.

The relevant statutory power which authorises immigration detention in a case such as the present is to be found in section 36(1) of the United Kingdom Borders Act 2007. That provision expressly empowers the Secretary of State to detain in the context of so-called “automatic” deportation of foreign criminals, while consideration is being given to the applicability of section 32(5) and so the exceptions to it in section 33, and thereafter while the Secretary of State is dealing with the making of a deportation order.

It is common ground that the “Hardial Singh principles” were applicable to this immigration detention and applicable to it from the start. The Hardial Singh principles are well known and can be found encapsulated in Lord Dyson's judgment in the Supreme Court case of Lumbar [2011] UKSC 12 [2012] 1 AC 245, at paragraph 22. There are four relevant principles and this case centres around principle 3, which I will call "Hardial Singh 3". The Hardial Singh principles are:

In the absence of Hardial Singh 3, there could be no question of unlawfulness of detention in the present case. If the only requirements were that the Secretary of State must intend to deport and detain for that purpose, must act with reasonable diligence and expedition to effect deportation, and may only detain an individual for a period that is reasonable in all the circumstances, this detention would, in my judgment, plainly be lawful. That is because the claimant was detained during a period which, on any view, would have been a reasonable period within which to seek to effect deportation and there is no evidence of any lack of reasonable diligence or expedition.

However, it is vitally important, in my judgment, to appreciate the significance of Hardial Singh 3 and what it brings to the discipline and protection applicable in immigration detention cases. Hardial Singh 3 is a principle which requires consideration to be given prospectively, not to whether the reasonable period within which removal can be effected so as to justify detention has yet expired but rather consideration as to whether it is clear that that period will expire before the Secretary of State will be able to effect any deportation. I say “clear”; the word used by Lord Dyson in paragraph 22 of Lumba is "apparent."

In my judgment, from the very start of immigration detention, the legality of that detention will be vitiated in law if it is clear that the Secretary of State will not be able to effect deportation within the relevant reasonable period evaluated in the circumstances of the particular case. The principle of Hardial Singh 3 introduces an important discipline and an important protection in the context of the liberty of the individual.

Moreover, the principle of Hardial Singh 3, in my judgment, is one whose application is facilitated in the context of a foreign national prisoner. That is because much as to the circumstances of the individual will be known or readily ascertainable. The Secretary of State will be in a position to consider prior to the end of the relevant custodial term what it is that is envisaged and will be in a position, to a very large extent, in my judgment, to make an informed assessment of Hardial Singh 3. Such cases can be contrasted with other immigration detention scenarios where an individual may be picked up for the first time and arrested, and there needs from a ‘standing start’ to be the gathering of relevant information about them and their case.

That is not to say that the Secretary of State will know everything in foreign prisoner cases. It is not to say that there will not be uncertainties or matters that need to be investigated and evaluated. Everything will depend on the particular facts and circumstances of the individual case.

In the present case, the claimant had been convicted and sentenced on 30 March 2015. Those convictions involved three criminal offences:

The custodial term was due to end, and known to be due to end, on 26 October 2015 and the Secretary of State prepared for that in a number of ways. Notice of liability to deportation was issued on 2 June 2015. On 7 July 2015, the claimant's residence card, an EU entitlement, arising in connection with the marriage that was the subject of the criminal proceedings and a subsequent divorce from that marriage, was revoked. During that same period of time, moreover, consideration was expressly given to the question of whether the claimant should be placed in immigration detention on, and after, 26 October 2015.

The claimant and his legal team had provided the relevant authorities with written submissions on 22 June 2015, in a 14-page letter setting out clearly the basis on which the deportation action which had been notified was said to be contrary to ECHR Article 8. That letter of submissions was accompanied by relevant documents listed at the end of the letter. There was a letter from the claimant's wife, with whom he had been living and with whom he had 5 children. There were letters from the children themselves, there was a letter from the school confirming which of the children were in school.

The Secretary of State made a decision in relation to the appropriateness of detention on 13 October 2015. That decision was the subject of a decision letter of that date and the reasoning behind the decision can be seen from a Minute dated 13 October 2015.

After entering immigration detention on 26 October 2015, there were various relevant steps which took place. The Secretary of State issued a notice of decision to deport on 6 November 2015. The claimant and his representatives, for their part, filed an application for bail dated 5 November 2015. They wrote a letter requesting that he be released and referring to alternatives and conditions, open to the Secretary of State, also on the 5th November 2015; and they wrote a pre-action letter before claim on 6 November 2015. Hardial Singh 3 was expressly invoked and said to be being breached, among other points that were made. The Secretary of State's position, so far as bail was concerned, was as follows: she opposed bail, having prepared in a bail summary dated 30 October 2015 to do so; with a further bail summary being drawn up dated 12 November 2015.

The Secretary of State was successful in opposing bail. The immigration judge, Judge Woodcraft, on 13 November 2015 considered the question of bail and refused it on the grounds that he was satisfied that there are substantial grounds for believing that if granted bail the applicant will abscond. Reference was made to the claimant's bail immigration record and bad criminal record, his use of false documents, deliberate flouting of immigration control and the judge's conclusion was:

Alongside her opposition to bail, the Secretary of State decided on 10 November 2015 to refuse release on temporary admission with appropriate conditions. The Secretary of State then responded on 18 November 2015 to the pre-action letter before claim. Then on 23 November 2015, there was undertaken the first monthly detention review which was documented with a review report and a monthly progress report dated 25 November 2015. The following day, 26 November 2015, an assessment report entitled "OASys Assessment" was produced. Judicial review proceedings commenced on 2 December 2015.

The claimant's case is, and has always been, that this immigration detention was unlawful from the start, 26 October 2015; or alternatively, that maintaining the immigration detention at the date of relevant decisions in November 2015, in particular that the refusal of 10 November and the decision to maintain detention at the review on 23 November were unlawful.

At the permission hearing before John Howell QC, the question was ventilated as to whether it would be open to the claimant to rely on events post the commencement of the judicial review proceedings, to mount a secondary argument that even if lawful in October and November 2015, by the time of later decisions, this immigration detention became unlawful. The deputy judge explained that in his view that would need an amendment of the grounds for judicial review and permission of the court. There has been no amendment and it is fair to say the claimant does not seek to mount a secondary argument of that nature. The focus is squarely on the position in October and November 2015.

For her part, Ms Lean for the Secretary of State submitted that the other side of that same coin is that it is possible that even if unlawful at the outset there could have been events subsequently which rendered this detention lawful. I have failed to see, either as a matter of logic but more importantly on the particular facts of this case, how that contention could be sustained. It would mean that if unlawful, by reference to Hardial Singh 3 at the outset, this immigration detention did or could have become lawful by reference to some further circumstance.

The first issue I had to decide, announcing my decision during the substantive hearing, was whether to allow the Secretary of State to participate in the substantive judicial review at all.

The circumstances, so far as relevant pleading documents are concerned, make for discouraging reading. The acknowledgment of service in this case was late. Laing J abridged time for the acknowledgment of service in the light of the claimant's family circumstances and the fact that he was in custody. An application to extend time for the acknowledgment of service was filed before the expiry of the abridged deadline. The upshot was that by an order of Deputy High Court Judge Ben Emmerson QC, the Secretary of State was required to serve her acknowledgment of service and summary grounds by 4pm on 15 January 2016. She failed to do so. I have been told that the order of Mr Emerson did not or may not have come to the attention of those who were dealing with the case but I cannot see how that assists, even leaving aside the need for them to pursue and find out what had happened to their own application for an extension. On the face of it they were out of time, and no extension had been granted from their perspective. But in any event, looking at the matter objectively, the position is that an application was made and an extension was granted but the acknowledgment of service was filed out of time. It was filed on 29 February 2016. The Secretary of State is unable to say that that acknowledgment was filed within the time allowed by the rules or by orders of the court. That has consequences pursuant to Part 54 of the CPR.

Moreover, the substantive grounds, the detailed grounds of defence in this case, were also filed out of time under CPR 54.14. Four applications for extensions of time were considered by judges or deputy judges of the High Court and those judges were throughout singularly unimpressed by the position being put forward by the Secretary of State. The matter culminated in an order of Cranston J. On 18 November 2016, he said:

What Cranston J ordered was that the Secretary of State's application for an extension of time be refused unless within 7 days of the date of this order the defendant filed submissions fully addressing the relevant case law to satisfy the court that relief from sanction can be justified. He referred to Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633.

The Secretary of State and her advisers decided not to take advantage of the opportunity to file those submissions within 7 days. Possibly, they appreciated that it would not be possible to satisfy the court in relation to those principles. I know not, and do not speculate. But the upshot was that they did not have the court's permission for the extension of time sought for the defence that had been filed on 26 October 2016. The course they took was to withdraw reliance on that pleading and instead to seek to rely on the summary grounds.

For the claimant, Mr Emezie submits that in these circumstances, the Secretary of State cannot be permitted or should not be permitted to defend the claim as to liability. He raised in his oral submissions the prospect that the court might grant summary judgment in the absence of the Secretary of State being able to defend. I rejected that, at the hearing, as a tenable position in the circumstances of this case. There is before the court no application for summary judgment or judgment in default but even if there were I would not regard that as being an appropriate course. The judicial review court is the guardian of the public interest in public law cases. I recognise that this case is a damages case and would not involve the court making quashing orders, or orders as to declarations, and the consequences would be pecuniary in the award of damages in tort. I also recognise that this is not a case in which there are directly affected interested parties, although the public plainly has an important interest in relation to damages paid from the public purse in the context of detention. Notwithstanding these features it would not, in my judgment, be appropriate or in the public interest for issues such as the legality of the detention in this case to be decided by default and without reference to the legal and factual merits.

In my judgment, the true choice for the court in a case such as this would be either (1) to seek to evaluate the legality of the Secretary of State's actions hearing only from one side or alternatively (2) to allow the Secretary of State to assist the court in relation to fact, authority and submission.

It may well be that a judicial review court is likely in most cases to feel that it is in an invidious position and to be extremely reluctant to decide public law issues, knowingly shutting out assistance that could be provided by the executive. Apart from anything else, that undermines the court's ability get the right answer.

On the other hand, it cannot be the case that the Secretary of State can hold a gun to the head of the court, so far as default with the rules is concerned, knowing that there can be no sanction which goes to the way in which the legal merits of the case are resolved by the court.

Furthermore, I can see, by way of example, that if there were a case in which the Secretary of State were seeking to put forward a witness statement to materially add or detract from the position which appears on the face of contemporaneous documents, a court may think long and hard as to whether the Secretary of State would be permitted to adduce such evidence in circumstances of clear default of the rules and directions of the court. That is not, however, this case and no witness statement evidence has been sought to be put forward, nor did Ms Lean seek through submissions to give evidence.

In this rather unhappy position, I turn to the rules to see what indications they give. CPR 54.8 provides that a person served with a claim form who wishes to take part in judicial review must file an acknowledgment of service in accordance with the rules. The rules give the time limits, subject to such directions as are given by the court to vary those time limits. In this case, the Secretary of State is in default of that provision. She has not filed an acknowledgment of service in accordance with the relevant rules and directions of the court. CPR 54.9 goes on to deal with the situation where a person served with a claim form has failed to file an acknowledgment of service in accordance with 54.8. There are two relevant provisions: 54.9(1)(a) provides that such a person:

detailed grounds [...

What follows, in my judgment, is that the Secretary of State has no entitlement to take part in the hearing of the judicial review. The rules therefore expressly contemplate that she may be precluded from taking part in the hearing of the judicial review. It does not follow, in my judgment, that she must be precluded. The rule does not say that she may take part in the hearing, in the circumstances as set out, but not otherwise. Looking at the matter sensibly and reading the rules as a whole, it is clear in my judgment that in this situation what is needed is the permission of the court.

Permission was sought and I decided to grant it in the circumstances of this case. I was satisfied that this is a case in which it is in the interests of justice and the public interest, as well as consistent with the overriding objective, for me to have been prepared to allow the Secretary of State orally to assist me in relation to the contemporaneous documents; to assist me as to the implications of those documents; to bring to my attention any relevant passages in any relevant authorities; and to address me on the question of the lawfulness of the detention in this case.

In reaching that conclusion, I had regard to CPR 54.9(2), which deals with this situation and provides:

One of the key issues arising in this case is whether the Secretary of State asked herself the right question so far as Hardial Singh 3 is concerned. In my judgment, the Hardial Singh principles are intended to introduce not only a yardstick for application in the supervisory jurisdiction by the court, but also a disciplined framework for the decision maker.

In my judgment, it is a legally relevant question for the Secretary of State herself to ask, in the context of immigration detention, whether in her judgment - notwithstanding that the reasonable period has yet to expire - it has become apparent that she will not be able to effect deportation within a reasonable time. Where she concludes that it has become apparent she should release the individual.

Applying conventional judicial review principles, a failure to ask that relevant question, and a failure to take reasonable steps to acquaint herself with the relevant information to answer it, would be a basis for judicial review. The court could, in principle, quash a decision or grant a declaration of unlawfulness in the Secretary of State’s decision-making. But that would not lead to the conclusion that the detention was itself unlawful. Further questions would need to be asked and answered before that stage were reached.

In a case in which the claim is unlawful detention and the practical and effective remedy sought is damages or just satisfaction, it is unlikely that the court will focus on those conventional public law questions and certainly the court will not stop at such questions. In this case, the claimant wishes to establish that the detention was unlawful and seeks damages.

In such a case, it does not follow that the question of whether and how the Secretary of State has herself addressed Hardial Singh becomes an irrelevancy before the reviewing court, as I shall come on to explain later.

The parties agreed in the present case that the application of Hardial Singh 3 is essentially an objective question for the reviewing court. Ms Lean relied on that as part of her answer to the suggestion that the Secretary of State had failed to ask that question. In essence, she put it in this way. The Secretary of State cannot win a case on the basis that she has asked and answered the question; but nor should she lose a case on the basis of her failure to do so. If the court is satisfied objectively that the detention was compatible with Hardial Singh 3, the claim will fail, whether or not the Secretary of State considered the matter. Conversely, if the court is satisfied that Hardial Singh 3 is breached the claim will succeed whether or not the Secretary of State considered the question.

The appropriateness of the Secretary of State asking the Hardial Singh 3 question for herself is supported when one looks in the relevant guidance: chapter 55 of the Enforcement Instructions and Guidance. Paragraph 55.3.1 is headed: "Factors influencing a decision to detain." The guidance reads as follows:

In giving permission for judicial review, John Howell QC concluded that it was arguable that the Secretary of State had not addressed the Hardial Singh 3 question. He said this:

In my judgment, a consequence of the Secretary of State asking for herself the Hardial Singh 3 question, particularly if a reasoned judgment is formed by her, is that it may be appropriate for the reviewing court to recognise a latitude on her part for the exercise of such a judgment by her, within a discretionary area of judgment. That does not detract from the value of Hardial Singh principles as objective standards for the reviewing court. But if the Secretary of State asks a relevant question and forms an informed and reasoned judgment in relation to it, it may be that this will acquire some weight of entitlement to be afforded appropriate respect, when the court is evaluating the facts and circumstances. That, however, is quite impossible in a case in which the Secretary of State has failed to ask and answer the relevant question. Even then, there may be certain relevant factors which she has addressed, such as the weight that she gives to a risk of absconding for example.

I turn to consider whether in this case the Secretary of State can be said to have addressed Hardial Singh 3.

Ms Lean, in her helpful submissions, accepted that no document in terms addresses the Hardial Singh 3 question. In my judgment, she was right to accept that. She drew my attention to the minute of 13 October 2015. That minute importantly acknowledges that outstanding barriers to deportation include family split and deportation decision. It is a document which specifically refers to section 55 of the Borders, Citizenship and Immigration Act 2009 and the interests of children. It refers to the claimant as having 5 United Kingdom-born children under 18, residing in the United Kingdom, granted British citizenship by default. But nothing in that document, in my judgment, begins to grapple with the question that arises under Hardial Singh 3: the prospects, so far as timescale for deportation; the question of whether that would be within a period which would be a reasonable period in all the circumstances of the case; and whether the position is clear.

Ms Lean also invited my attention to the detention review document of 24 November 2015. That review described the claimant's marriage, described their 5 UK-born children with British citizenship and described various steps being taken. Those steps included a referral to local children's services for information about the children, and an email to the Tribunal to request the deportation appeal to be heard together with the EEA appeal. The review also made reference to the CMC hearing as being a few weeks away in the EEA appeal and it recorded:

As I have already explained, the Secretary of State submits and accepts that it is essentially for the reviewing court to consider objectively the Hardial Singh 3 principle, applied to the facts of this case. She emphasises, in my judgment correctly, that looking at that question objectively nevertheless involves considering the facts as they presented themselves to the Secretary of State. Moreover, she submits, again in my judgment correctly, that there is no room for hindsight or reliance on later events in evaluating the application at the outset of the detention of Hardial Singh 3.

My attention was drawn to paragraph 103 of Lumba , in which the application of Hardial Singh 3 is specifically addressed by Lord Dyson. Lord Dyson said this:

My attention was also drawn to the case of Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, in particular at paragraphs 36, 42 and 43. The judgment described the submissions of the Secretary of State at paragraph 36, including this phrase:

In this particular case, there is one particular issue which, in my judgment, illustrates the significance that could have arisen from the Secretary of State asking and answering the Hardial Singh 3 question for herself. The Secretary of State as the arm of the executive has certain powers of certification in the context of removal or deportation and human rights claims. Those certification decisions are themselves amenable to judicial review. They may have the consequence that an appeal against the certified decision is an out of country appeal, but there is then a judicial review of the certificate. That prospect is a potentially relevant feature – as indeed the bail judge here recognised – in circumstances where it is known that a deportation action will be resisted on human rights grounds, as in this case.

The Secretary of State would, as it seems to me, be entitled to address her mind to her certification power, the threshold for it and the discretion wo which it gives rise, where that threshold is satisfied. In this case, the Secretary of State did not address that question. She cannot, in my judgment, in this case put forward the prospect of certification as being a matter that would support a conclusion that a speedy removal was on the cards. Nor, it is fair to say, did Ms Lean for the Secretary of State seek to put forward that factor in that way. This did not feature in the list of factors which she gave me in her submissions, which she submitted would support a conclusion in the Secretary of State's favour, so far as Hardial Singh 3 is concerned. In my judgment, properly in the circumstances of this case, she treated it as at best a neutral matter. In any event, in my judgment such indications as there are in this case support this conclusion: that it could not be said that this was a case in which it was envisaged, or would have been envisaged, that there would be certification, still less that certification would realistically have led to the speedy removal of the claimant without the ventilation of his Article 8 rights.

For all the reasons I have explained, the questions becomes these. Viewed objectively and on the facts as they presented themselves to the Secretary of State at the relevant time, was there or was there not a realistic prospect of deportation during a time which in all the circumstances of this case would be a reasonable time? Was it sufficiently clear that no realistic prospect of that kind arose such that the Secretary of State should have released rather than detained?

I have already referred to paragraph 103 of Lumba . In my formulation, the language “clear" and the phrase "no realistic prospect" is language that I have taken from Lord Dyson's exposition in that paragraph.

In the passage that follows, Lord Dyson explains (by reference to previous authority) what factors in particular will inform the question of what is a reasonable time to effect removal where one is considering the legality of immigration detention. Those factors go to this question: when, at what point, will the reasonable period have expired?

At paragraph 104 of Lumba , citing paragraph 48 of a case called R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 [2003] INLR 196 paragraph 48, Lord Dyson says this:

In the passages that follow, Lord Dyson goes on to address how one should approach the passing of time which has been, or in this case would be, spent in pursuant of legal challenges. In particular, Lord Dyson identifies as relevant the question of whether such a challenge would fall to be characterised as ‘hopeless’, in which case minimal weight should be given to a period which is attributable to its pursuit; or, on the other hand, whether it could be ought to be characterised as ‘meritorious’, in which case much more weight would be given to such a period. In those respects, see paragraphs 120 and 121. Plainly, there will be cases in the middle and there will be a spectrum. Therefore the weight will vary accordingly. But in principle it is legally relevant to consider how the posited human rights appeal or challenge falls to be characterised.

The relevance to the reasonableness of the period of an appeal is something to which reference is also made in other authorities. I was shown on this point a passage referable to the Secretary of State's policy guidance in paragraph 32(2) of Tarakhil v The Home Office [2015] EWHC 2845.

I ought to add while dealing with Lumba that Lord Dyson at paragraph 118 also explained the limitations, so far as Hardial Singh principles are concerned, of bail materials and bail decisions. That is relevant in the present case, where the immigration judge made observations in refusing bail. As Lord Dyson explained, there is nothing in the statutory provisions which requires the Tribunal to apply the Hardial Singh principles when deciding whether or not to grant bail and, in particular, to have regard to past and likely future length of a detention.

Returning to the nub of the matter – the objective application of Hardial Singh 3 – the Secretary of State submitted, through Ms Lean, that this is a case in which no breach of that principle took place. She particularly emphasised the following points. This was only the beginning of immigration detention, the early stages. Section 36 of the 2007 Act expressly authorises such detention. There was, on the facts and circumstances at the time, as they appeared to the Secretary of State, an expressly evaluated abscond risk and re-offending risk. Those matters were questions that the Secretary of State addressed and at that stage, in the absence of further evaluative reports, both of those risks were assessed, and properly assessed, as 'medium'. Ms Lean reminds me that the immigration judge agreed with the assessment of the abscond risk. Ms Lean also relies in that regard on the nature of the three criminal offences. They are linked to immigration control, and the proper description of the claimant as highly deceptive, who had shown himself to have taken sustained steps to manipulate the application of immigration control. Ms Lean submits that those are matters worthy of very considerable weight and which inform the question of what a reasonable period of time would be. She further emphasised that the Secretary of State could and would keep the matter under review; could and would explore alternatives; and could and would be able to make enquiries, elicit information and consider possible steps to accelerate any relevant process. Ms Lean gave examples of information that might be elicited, more information about the children and the claimant's relationship with them; how many of them, in fact, were Britain citizens and she emphasised that this was not a case where there was any other barrier to removal such as relating to travel documents.

Cases like the present case are necessarily intensively fact specific. I am not persuaded, by reference to these matters or the other circumstances of the case, that applying the Hardial Singh 3 principle objectively to the facts as they appeared to the Secretary of State, this was detention compatible with that principle and protection.

Rather, I am persuaded by Mr Emezie for the claimant that this is a case in which it was apparent and indeed clear and should have been to the Secretary of State, had she asked the relevant question, that there could not be a removal within a period of time that was reasonable in all the circumstances such as to justify ongoing immigration detention. Of particular relevance, in my judgment, are the following points.

Ample information was already available to the Secretary of State and had specifically been provided to the Secretary of State on 22 June that: this was a man who was married; who was still together in a marital relationship; and who had been living prior to his custody with his wife and family at an address in Welwyn Garden City. That indeed was the address that the Secretary of State herself was prepared to recognise for the purposes of any bail conditions. There was ample evidence that there were 5 children, ages 2 to 10, who were the children of husband and wife. There was information from the wife, and indeed information from the children and about the children, including from their school. In my judgment, nothing can turn on the number, whether it was two, or three, or five of the children who had British citizenship. The fact is that this was a family unit and there were children of the family who were known or recognised by the Secretary of State as having British citizenship.

It was also, in my judgment, crystal clear that deportation would be being resisted in this case on the basis of Article 8 with relevant legal rights being invoked and pursued. The claimant had already filed an appeal in relation to the EEA issue, the revocation of the resident's card, and there were very clear submissions on Article 8 in the context of deportation. Those submissions continued into November with the letter before claim and continued in the context of the issue of detention itself, Hardial Singh 3 expressly being invoked by the time of the letters being written in early November. But in any event, as I have explained, Hardial Singh 3 was a principle that was plainly engaged and relevant from the outset.

It was known to the Secretary of State that the claimant had been present in the United Kingdom for 15 years and that all five of the children had been born here. It was inevitable that there would be consequential challenges and, in my judgment, those could not properly have been characterised as unmeritorious. Quite the contrary. On the facts and circumstances of this case and, in particular, the effect on the 5 children the implications of family rupture or uprooting of 5 children in education, at least some of whom had British citizenship, if anything that was to be characterised as a meritorious appeal. In adopting that characterisation, I say nothing of course to foreclose or predict the outcome of the human rights proceedings in this case as and when they come to be resolved.

The Secretary of State, in my judgment, was well able to make an informed decision in relation to detention in the light of the points that have been raised and in the light of what was already known by her.

Ultimately, what she did, as I have explained, was to conclude that detention was justified by reference to the abscond or re-offending risk. But had she evaluated the nature of the barrier to removal that Article 8 and Article 8 proceedings necessarily and inevitably engaged; and had she evaluated the question of what would be a reasonable time and whether there was a realistic prospect that removal could be effected within that time, the objectively reasonable conclusion, in my judgment, that would have been arrived at was that removal would not be possible within such a period.

Put another way, this is a case in which it was inevitable that at some stage the claimant would need to be released on the ground that the reasonable time had expired. That expiry of a reasonable time, as I have explained, would be informed by the length of detention to that date; the impact of it; diligence by the Secretary of State; how any legal challenges was characterised and the ongoing weight given to absconding or re-offending risks. But it being clear and inevitable that there would come a time in which release would be necessary pursuant to Hardial Singh principle 2, it follows in my judgment that when the Hardial Singh 3 question fell to be asked, the answer was clear: there is no realistic prospect that removal would take place before that period would have expired.

I entirely accept that abscond risk and re-offend danger are matters which are relevant in informing the reasonableness of the period in the circumstances of the individual case. It is, however, important that they are not regarded as being in the nature of a “trump card” and the courts have said as much in Fardous at paragraph 46 and in the case of R (Babbage) v Secretary of State for the Home Department [2016] EWHC 148 (Admin) at paragraph 90. Naturally, issues such as the risk of absconding or the risk of re-offending will inform questions as to the alternatives to detention and questions such as what conditions can properly be imposed in relation to any decision to release.

As I emphasised at the start of this judgment, the position would be otherwise if the law were otherwise: if the Secretary of State were entitled to detain during the period that would be a reasonable time for removal. But that is not the law. Hardial Singh principle 3, which is very clear, is an additional protection which introduces the discipline that I have described, in circumstances where the liberty of the individual is at stake.

An issue which crystallised in the helpful submissions of Ms Lean for the Secretary of State in this case, concerned the emphasis which she laid on the fact that this was ‘just the beginning’, being the early stages of immigration detention.

In that regard, Ms Lean emphasised that relevant factors so far as the reasonable period are concerned include the length of detention to date, see Lumba at paragraph 104. My attention was also invited to R (ZA (Iraq)) v Secretary of State for the Home Department [2015] EWCA Civ 168.

Ms Lean is right, the length of detention to date is a factor which informs the duration of the reasonable period and its expiry. Where one is at or near the start of the period of immigration detention, by definition the length of detention to date is 'zero’ or very short.

I also accept Ms Lean's submission that in looking at the length of detention to date, the court focuses primarily on immigration detention, rather than prior imprisonment. As it seems to me that must be right in principle. That is not least for this reason. The function of the length of the period which has already elapsed, in immigration detention to effect removal, is that it colours any conclusion as to whether and what further time can be reasonable, to detain in order to effect removal. That will clearly arise in cases where steps are being taken to effect or expedite removal and the picture emerges as to their progress and whether they are likely to succeed.

Ms Lean also emphasised the 'just the beginning' nature of the immigration detention so far as abscond risk and reoffend danger were concerned. Her submission was that abscond and reoffend risk are matters which have more weight in relation to the reasonableness of the period at the start. She cited Fardous paragraph 23 in support of that proposition, where reference is made to risk of absconding, as something which: "Might justify a detention up to a point." I accept that abscond-risk and reoffend-risk are matters which can properly be regarded as more weighty at the beginning of detention, and less weighty as detention goes on, when one is consider considering what is reasonable as a period in all the circumstances.

In my judgment, however, these submissions on ‘just the beginning’ provide no answer to the application of Hardial Singh 3, when one is considering a position at the start of detention. The question in such a case is not whether the reasonable period has now expired. That question is the application of Hardial Singh 2. The question under Hardial Singh 3 is whether it is already clear that by a future date, in which a reasonable period will have expired, the Secretary of State will not have been able to effect removal. Hardial Singh 3 projects forward to a period which will expire at some at a stage in the future.

Therefore, in my judgment, it misses the point to invoke the weight that would be given to factors that go to the question of whether the period has yet expired or not yet expired. The question, as I have emphasised, under Hardial Singh 3 is forward-looking. The weight to be given to such matters, the ongoing length of detention and any reduced weight to be given to abscond or re-offend risk would be part of the balance when the question would arise at a future stage as to whether the reasonable period has then expired. By then, of course, it will not be ‘just the beginning’.

So, what Hardial Singh 3 requires is this question to be grappled with, at the start: is this a case where there is a realistic prospect that the Secretary of State will be able to effect removal before such time as the reasonable period will have expired? Or is it clear that there is not?

What I readily accept, in relation to ‘just the beginning’ of immigration detention and Hardial Singh 3, is this. At the outset of immigration detention, the picture may be insufficiently clear. It may need further investigation. It may be appropriate for action to be taken and it may be that the position in relation Hardial Singh 3 will only crystallise at some later point at which those investigations or actions have taken place. I would go further. I would accept that in general terms a cautious or precautionary approach is appropriate in relation to the application of Hardial Singh 3, and particularly at the beginning of detention where one is engaging in a predictive evaluation. That is why it is appropriate, indeed necessary, that if it is the case that detention is unjustifiable the picture should be a clear one.

In my judgment, in this case, viewed objectively, the picture was a clear one. In my judgment, this was detention which was unjustifiable from its outset on 26 October 2015, in all the circumstances of this case.

I have considered the position, even if it were right that abscond risk or danger of reoffending were matters to be given a particular weight where one is considering the reasonable period prospectively at ‘the beginning’ in the application of Hardial Singh 3. Even giving those matters additional weight, for that reason, my conclusion would be the same.

Finally, if I were wrong about the unlawfulness of detention as at 26 October 2015, then in my judgment, by 23 November 2015, it ought to have been clear on the facts as they were and appeared to the Secretary of State that this was a case in which Hardial Singh 3 was violated.

For all of those reasons, this claim for judicial review succeeds.

That leaves a number of points with which I should deal. Firstly, I do not accept the distinct point that was ventilated by the claimant, in relation to Hardial Singh 3, so far as the EEA appeal and its pursuit is concerned.

Nor do I accept his distinct point in relation to failure to consider alternatives. In my judgment, alternatives were raised by the claimant on the 5 November 2015 and were considered by the Secretary of State on 10 November 2015.

What is left is the question of quantum of damages, which I anticipate will be a matter for directions. I have not heard any argument relevant to quantum of damages or just satisfaction.

I will now deal with any consequential matters, including any question of costs, having already explained in my judgment that implications for cost orders arise in principle from the position regarding default in the filing of acknowledgment of service and detailed grounds of defence.