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

Detention pending removal is lawful only while removal remains the purpose, the period is reasonably necessary, and the Secretary of State acts with reasonable diligence and expedition. The assessment is fact-sensitive and includes the length of detention, obstacles to removal, the Secretary of State’s efforts, detention conditions, the effect on the detainee, and the risk of absconding or offending. The risk of absconding is relevant but is not decisive. Detention may remain lawful where removal is realistically imminent, even after a lengthy period, particularly where the detainee has obstructed removal. If the removal plan fails and further delay is likely, continued detention may become unlawful.

The claimant, a national of the Democratic Republic of Congo, had been detained for about 19 months pending removal. He sought habeas corpus and immediate release, contending that the duration of detention had become unreasonable. The Secretary of State relied on the claimant’s resistance to earlier removal attempts, his failure to co-operate with travel-document arrangements, the risk that he would abscond, and a recently established plan for removal on 30 September 2003.

The central issue was whether detention remained lawful under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, applying the principles governing detention pending removal.

1. Application dismissed. The claimant’s detention was authorised by paragraph 2(3) of Schedule 3 to the Immigration Act 1971, but that power was subject to the limits identified in Re Hardial Singh [1984] 1 WRL 704: detention must be for the purpose of removal, for no longer than reasonably necessary, and must be pursued with reasonable expedition.
2. Those principles, approved in Tan Te Lam v Tai A Chaw Detention Centre 1997] AC 97, required an assessment of the circumstances as a whole. The factors identified in I v Secretary of State for the Home Department [2002] EWCA Civ 888 included the length of detention, the obstacles to removal, the diligence and effectiveness of the Secretary of State’s efforts, detention conditions, its effect on the detainee and family, the risk of absconding, and the risk of further offending.
3. The claimant’s conduct was relevant. He had resisted or frustrated earlier removal attempts and had repeatedly failed to co-operate with travel-document and identity procedures. The absence of substantial evidence of prejudice caused by the conditions of detention was also relevant, although it could not justify indefinite detention.
4. The risk that the claimant would abscond was a relevant factor but was not a trump card. At the hearing, the position had materially changed: a flight, escorts and seats had been arranged, a removal direction had been set, and the Democratic Republic of Congo had assured the Secretary of State that emergency travel documents would be issued promptly. Removal was therefore no longer an indefinite or speculative prospect.
5. Detention was near the point at which continued detention would become unreasonable, but remained lawful on the present evidence. If the plans failed and further delay occurred, absent deliberate delay by the claimant, a different conclusion would be justified. There was no order as to costs.

The judgment describes an earlier application for judicial review which was refused on paper by Mr Justice Pitchford. The present proceedings were a first-instance habeas corpus application in the Administrative Court.