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

Detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 is lawful only while used for deportation, for a reasonable period and with reasonable diligence. It must end when that period expires or it becomes apparent that removal cannot be effected within it.

Reasonableness depends on all the circumstances, including the detention’s length and effects, obstacles to removal, official diligence, and the risks of absconding or offending. Refusal of voluntary repatriation cannot alone validate otherwise unreasonable detention. An asylum claim should not count as the cause of detention where it caused no delay and an independent political obstacle prevented removal.

The appellant, an Afghan national, was detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 after completing the custodial part of a sentence and becoming subject to a deportation order. Enforced removal to Afghanistan was not then possible. By the appeal hearing he had spent nearly 16 months in administrative detention, while the Government pursued negotiations intended to facilitate enforced returns.

The appellant sought habeas corpus and judicial review, contending that removal within a reasonable time had become impossible. His Honour Judge Wilkie QC, sitting as a deputy High Court judge in the Administrative Court, dismissed both challenges on 22 March 2002. The habeas corpus appeal proceeded as of right and the judicial review appeal with permission.

The central issue was whether, as at 29 May 2002, continued detention remained within the implied legal limits governing detention pending removal. The court also considered the relevance of absconding and reoffending risks, refusal of voluntary repatriation, and the appellant’s unresolved asylum proceedings.

1. Appeal allowed by a majority of two to one. Simon Brown LJ and Dyson LJ held that the appellant’s detention had become unlawful by 29 May 2002. The court ordered his release that day. Mummery LJ dissented and would have dismissed the appeal.

2. The governing limitations were those stated in Re Hardial Singh [1984] 1 WLR 704 and approved in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97. The Secretary of State must intend deportation and use detention only for that purpose. Detention may continue only for a period reasonable in all the circumstances. It becomes unlawful if that period expires or, before then, it becomes apparent that deportation cannot be effected within it. The Secretary of State must also act with reasonable diligence and expedition.

3. Per Dyson LJ, reasonableness requires consideration of all relevant circumstances. These include the length and conditions of detention, its effect on the detainee and family, the nature of obstacles to removal, the diligence and effectiveness of official efforts, and the risks of absconding or offending. Simon Brown LJ agreed that absconding and reoffending risks were relevant, but held that substantially stronger evidence of reoffending was required to justify further detention of indeterminate length.

4. The majority regarded refusal of voluntary repatriation as carrying little or limited weight. Per Dyson LJ, mere refusal cannot make reasonable a period which would otherwise be unreasonable. It may be relevant as evidence of a likelihood of absconding, but the Secretary of State bears the burden of establishing that inference. The unresolved asylum process made such an inference particularly uncertain here.

5. Chahal v United Kingdom (1996) 23 EHRR 413 showed that a detainee cannot rely upon delay necessarily caused by his own asylum proceedings. It did not govern a case where the asylum claim caused no lengthening of detention and the substantial reason for non-removal was the political impossibility of return. Simon Brown LJ and Dyson LJ agreed that the asylum proceedings were immaterial to the duration of this detention.

6. Simon Brown LJ concluded that no more than a hope of enforced removal by the summer could justify no further detention after nearly 16 months. Dyson LJ reached the same result because the period already served was unreasonably long, without deciding whether future removal within a reasonable period had also become impossible. Mummery LJ considered that the probable risk of absconding and the continuing negotiations supplied sufficient justification, and that there was consequently no breach of article 5(1)(f) of the European Convention on Human Rights.

1. Court of Appeal (Civil Division): In I, R (on the application of) v Secretary of State for the Home Department [2002] EWCA Civ 888, the court allowed the appeal by a majority of two to one and ordered the appellant’s release. The operative order was made on 29 May 2002; reasons were delivered on 28 June 2002.
2. High Court, Administrative Court: On 22 March 2002, His Honour Judge Wilkie QC, sitting as a deputy High Court judge, dismissed the linked applications for habeas corpus and judicial review. The habeas corpus appeal proceeded as of right and permission was granted for the judicial review appeal.