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19th Dec 2011
The appellant (K) appealed against a decision that he had not been unlawfully detained by the respondent secretary of state.
K was a Kosovan of Albanian descent who had entered the United Kingdom in 1998 and subsequently been granted indefinite leave to remain on the ground that he was a refugee. He was later convicted of a number of criminal offences and from September 2007 the secretary of state attempted to secure his deportation on that basis. From then until June 2010, K was detained in prison rather than a detention centre. K unsuccessfully sought damages for his detention and for being detained in prison rather than a detention centre for some of the period. It was not disputed at the instant hearing that, if the secretary of state's policy had been correctly applied, K would have been transferred to a detention centre after completing his criminal sentences. The court considered whether the judge should have decided (i) that K's detention, though lawful at the trial date, had been unlawful during an earlier period, thereby giving rise to a common law cause of action for damages; (ii) that the failure to follow the published policy as to the place in which individuals should be detained before being deported breached K's rights under the European Convention on Human Rights 1950 art.5, thereby giving rise to a claim for damages.
K submitted that, on the judge's findings, there had been a breach of the principles set out in R. v Governor of Durham Prison Ex p. Singh  1 W.L.R. 704.
(1) The principles in Singh, were not the equivalent of statutory rules, a breach of which was enough to found a claim in damages. Instead, they were no more than applications of two elementary propositions: first, that compulsory detention had to be properly justified; secondly, that statutory powers had to be used for the purposes for which they were given, Singh explained. To found a claim in damages for wrongful detention, it was not enough that, in retrospect, some part of the statutory process was shown to have taken longer than it should have done. There was a dividing line between a mere administrative failing and unreasonableness amounting to illegality. Even if that line had been crossed, it was necessary for a claimant to show a specific period during which, but for the failure, he would no longer have been detained. In the instant case, the position could be tested by asking what, on the balance of probabilities, would have happened if an application had been made to the court on either of the dates suggested as the beginning of the unlawful detention. Realistically, neither would have secured his release. At the first date there was nothing to suggest that the detention would become unreasonable. At the second date the secretary of state would have been able to point to the commencement of active steps to remove K's refugee status, with every prospect of them being successful, or to the serious risk to the public of K's release at that stage. The judge was therefore entitled to find that K's continued detention was justified, and to reject his damages claim (see paras 12, 14-15 of judgment). (2) There was nothing in the words of art.5 to support an argument based on arbitrariness in the selection of the place of detention. Further, none of the cases relied upon supported 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, Mayeka v Belgium (13178/03)  1 F.L.R. 1726 considered (paras 17-19).
The court upheld a refusal to award damages for wrongful imprisonment to an individual who had been detained for just under three years in prison rather than an immigration detention centre. To obtain damages for wrongful detention it was necessary for a claimant to show that some part of the statutory process took longer than it should have done and that there was a specific period during which, but for the failure, he would no longer have been detained.
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