Mohamed, 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 for the period reasonably necessary to effect removal. The Secretary of State must take all reasonable steps towards removal and must conduct a careful, continuing appraisal of the prospects and likely duration of removal. Risks of absconding or reoffending are relevant, but cannot outweigh prolonged detention and all other circumstances. Where an appeal has little more than speculative prospects, would take months, and would still require further proceedings before removal could occur, continued detention may cease to be reasonable. On the facts, detention became unlawful when the Secretary of State failed properly to reassess the claimant’s position and remained unlawful until release.

The claimant, a Somali national, had been convicted of indecent assault, recommended for deportation and detained under the Immigration Act 1971. His asylum and human-rights appeal was ultimately allowed by the Immigration Appeal Tribunal, which found that return would expose him to persecution and breach Article 3 of the Convention.

The Secretary of State considered seeking permission to appeal, first on the evidence and later on a new Article 33 point. Permission was not sought within time, and the claimant remained detained until 10 April 2003. The issue was whether detention from about 21 December 2002 was lawful under the statutory power.

1. The claim succeeded. The court declared that the claimant had been unlawfully detained from 21 December 2002 until his release on 10 April 2003.

2. Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 authorises detention pending removal, but the power is impliedly limited to the period reasonably necessary for that purpose. If removal cannot be achieved within a reasonable time, continued detention is not authorised. The Secretary of State must take all reasonable steps within his power to secure removal.

3. The relevant authorities establish that detention powers must be construed strictly and narrowly. The likelihood of absconding or reoffending is relevant, but it must not become a decisive factor which outweighs the length of detention and the other circumstances of the case.

4. The Secretary of State had not carried out the required careful reappraisal. The evidence included serious factual errors in the bail summary, no adequate assessment of the claimant’s prolonged immigration detention, and no proper evaluation of the speculative prospects or likely duration of the proposed appeal.

5. After 4 March 2003, continued detention was independently unreasonable. Even on the most favourable view, the new Article 33 issue would have required months of further litigation, possible remittal to the Immigration Appeal Tribunal, and an uncertain future improvement in conditions in Somalia. The damages claim was adjourned for directions, and the defendant agreed to pay the claimant’s costs.

• Immigration Appeal Tribunal: an appeal against refusal to revoke the deportation order was allowed on 29 November 2002, including findings concerning persecution and Article 3 of the Convention.
• High Court (Administrative Court): the Secretary of State’s proposed appeal had not proceeded. The court declared the subsequent detention unlawful.