The Court of Appeal has given judgment in R (AC (Algeria)) v SSHD  EWCA Civ 36. The case is about “grace periods” in unlawful detention claims.
A grace period, as described by Lord Justice Irwin in his judgment, is
that period of time allowed to the Secretary of State, once detention has ceased to comply with the Hardial Singh principles, to make suitable arrangements for release.
(See paragraph 46 here if you need a recap of the four Hardial Singh principles.)
The purpose of a grace period is to allow the Home Office to take stock of the change in circumstances which has contributed to the Hardial Singh breach (e.g. new evidence affecting timescales of removal) and to take final steps before release to prevent the detainee’s coming to or causing harm (e.g. by ensuring release to accommodation suited to their assessed vulnerability or risk levels).
The approach to determining the length of grace periods has developed in an ad hoc way. This judgment seeks to review previous cases and provide guidance on this issue.
The High Court judgment
In dismissing AC’s judicial review claim, on 6 February 2019, the High Court had found that “the claimant’s detention has not, at any stage, been unlawful”. This was despite earlier concluding that there was “no real prospect that [AC] will be removed within a reasonable period of time” and that AC’s “continued detention [was] therefore not compatible with [Hardial Singh]”.
The judge reconciled these findings by reference to previous cases stating that the Hardial Singh principles are not “hard edged” or “statutory rules which ineluctably give rise to illegality at the moment of breach”. Thus they should not be applied “rigidly or mechanically”. Given the soft-edged, flexible nature of the Hardial Singh principles, and the risk AC was deemed to present if released immediately, his detention would not become unlawful until after a grace period while the Home Office finalised arrangements for his release on immigration bail.
On the judgment date the Home Office had already had three weeks since the assessed Hardial Singh breach to make such arrangements. How much further should this twilight zone between lawfulness and unlawfulness extend before the Home Office became liable in damages?
The High Court stipulated that “any further period of detention must be short” and that detention after the end of February 2019 was “highly likely to be unlawful”. That gave officials about six weeks from the date of breach to arrange release.
AC appealed, arguing that this grace period was too long. He pointed out that the Home Office had already had months to make arrangements for release, as the First-tier Tribunal had first granted conditional bail in August 2018.