Neutral Citation Number: [2011] EWCA Civ 1549

Case No: C4/2010/2285
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
HIS HONOUR JUDGE WAKSMAN QC
SITTING AS A JUDGE OF THE HIGH COURT
CO/6575/2010
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/12/2011
Before :

LORD JUSTICE CARNWATH
LORD JUSTICE MOSES
and
LORD JUSTICE SULLIVAN
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Between :

	THE QUEEN ON THE APPLICATION OF DRITAN KRASNIQI	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPT	Respondent	

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Melanie Plimmer (instructed by Paragon Law) for the Appellant
Thomas Roe (instructed by the Treasury Solicitor) for the Respondent

Hearing date : Thursday 1st December, 2011
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Approved Judgment

LORD JUSTICE CARNWATH : 
1.	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. 
2.	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. 
3.	Since then he has had a long record of criminal offending, described in detail in the judgment. The main features are:
i)	In September 2002 he was convicted of driving with excess alcohol and fined. In July 2003 he was sentenced to 4 months’ imprisonment for driving whilst disqualified. In June 2004 he was convicted of further offences for which he received community punishment and rehabilitation orders.
ii)	On 7 April 2005 the appellant was sentenced for a variety of offences: two common assaults, an assault occasioning actual bodily harm and two breaches of community punishment orders. The court imposed a series of custodial sentences to run consecutively. They totalled 2 years and 3 months’ imprisonment. The sentencing judge commented that he was a man who persistently used violence.
iii)	On 2 June 2006 he was convicted of sending offensive or menacing messages to his then girlfriend, for which he received a three year conditional discharge.
iv)	On 24 September 2008 he was convicted of possessing (during the currency of his conditional discharge) a bladed instrument in public, and of common assault. He was sentenced to 30 months’ imprisonment for the former and 3 months’ concurrent for the latter. He could expect to be released on licence on 4 September 2009
4.	The Secretary of State’s attempts to secure his deportation date from September 2007:
i)	On 5 September 2007 the Secretary of State initiated the procedure for deportation based on the 2005 convictions. This relied on section 72 of the Nationality, Immigration and Asylum Act 2002, under which a sentence of at least two years’ imprisonment gives rise to a rebuttable presumption of conviction of “a particularly serious crime” for the purpose of the exception in article 33(2) of the Refugee Convention. 
ii)	The decision to deport was made on 31 December 2007. But on 27 January 2009 his appeal was allowed by the Asylum and Immigration Tribunal on the grounds that the 2005 convictions did not satisfy section 72 because no single conviction had resulted in a sentence of imprisonment of two years. 
iii)	On 14 July 2009 the Secretary of State gave notice that because of the 2008 convictions the appellant was liable to be deported, this time under section 32(5) of the UK Borders Act 2007. This provides for automatic deportation of a “foreign criminal” (a non-British citizen sentenced to imprisonment for at least 12 months), except where this would breach Convention rights or the Refugee Convention.
iv)	On 28 August 2009 the Secretary of State told the appellant that he was to be detained under section 36(1) of the 2007 Act, pending consideration of deportation under section 32(5). On 4 September 2009 the Appellant ceased to be a criminal serving his sentence and became a foreign criminal detained pursuant to section 36(1) of the 2007 Act. 
v)	An internal detention review dated 29 September 2009 noted that advice was being sought on the application of section 72, and that in the meantime his detention was justified, because of the risk of re-offending and the serious harm to the public that could result, and because of past failures by him to report to his reporting centre.
vi)	On 13 October 2009 the Secretary of State indicated that section 72 did apply and invited representations. On 4 November 2009 his solicitors replied, relying on his status as a refugee. They also asked that he be moved to an immigration detention centre. 
vii)	On 27 November 2009 the Secretary of State indicated that the section 72 presumption had not been rebutted, and that there would shortly be put in hand “cessation action” to end his refugee status.
viii)	On 30 March 2010 the appellant was notified that the Secretary of State was proposing to cancel his status as a refugee.
ix)	On 10 June 2010 he was moved from prison to an immigration removal centre. 
x)	On 20 August 2010 the decision was made to cancel his status as a refugee, with the result that section 32(5) of the 2007 Act applied. A deportation order was made on 31 August 2010.
xi)	Appeals to the First-tier and Upper Tribunal were dismissed, that route being finally closed on 2 June 2011. Further representations seeking revocation of the deportation order were refused on 9 November 2011.
5.	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 judgment below
6.	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.”
7.	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.” 
8.	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.
The appeal
9.	Two questions are raised by the appeal: 
i)	whether the judge should have decided that the detention of the appellant, though lawful at the date of the trial, had been unlawful during an earlier period, giving rise to a common law cause of action for damages;
ii)	whether he should have decided that the Secretary of State’s failure to follow the published policy as to the place in which persons should be detained before being deported (usually an immigration removal centre, not a prison) was, of itself, a breach of the appellant’s rights under Article 5 of the European Convention, giving rise to a claim for damages under the Human Rights Act.
Unlawful detention
10.	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.
11.	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. 
12.	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.
13.	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.
14.	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. 
15.	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.
Place of detention 
16.	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. 
17.	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.”
18.	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” (Saadi v 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. 
19.	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.
Conclusion
20.	For these reasons, I would dismiss the appeal on both grounds.
LORD JUSTICE MOSES :
21.	I agree.
LORD JUSTICE SULLIVAN :
22.	I also agree.