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

Detention pending deportation must remain connected to a genuine intention to remove and must last no longer than is reasonable in all the circumstances. The Secretary of State must act with reasonable diligence and expedition. Detention becomes unlawful when the reasonable period has expired or when removal cannot reasonably be achieved within that period.

The risk of absconding and reoffending is relevant, but it cannot determine the issue regardless of the length and conditions of detention. Refusal to accept voluntary repatriation may be relevant, but its weight depends on the circumstances. Each case must be assessed on its own facts, and stringent conditions may provide a lawful alternative to continued detention.

The claimant, a convicted foreign national subject to a deportation order, had remained detained after completion of his sentence. Removal to Kenya had become impracticable because the Kenyan authorities would not issue a travel document. The Secretary of State then explored possible removal to Somalia, although the claimant disputed that he was Somali and refused to sign a voluntary-removal disclaimer.

The claimant sought judicial review, a declaration that his detention was unlawful, and release subject to conditions. The central questions were whether removal remained realistically possible, whether the period of detention was reasonable, whether the Secretary of State had acted with diligence, and whether the claimant’s conduct justified continued detention.

1. Detention principles. The court applied the four principles stated by Dyson LJ in R (I) v Secretary of State for the Home Department [2003] INLR 196: the Secretary of State must intend to deport; detention must last only for a reasonable period; detention should cease when removal cannot be achieved within that period; and reasonable diligence and expedition are required.
2. Prospect of removal. The fact that removal was not impossible did not itself make the detention lawful. The Secretary of State retained power to detain while there remained some prospect of removal, but the continuing detention still had to remain reasonable.
3. Relevant circumstances. The length of detention, obstacles to removal, administrative diligence, the risk of absconding, and the risk of reoffending were relevant. A refusal of voluntary repatriation could be evidence of a risk of absconding, but it was not a decisive consideration and could not operate as a trump card. The claimant’s refusal to accept Kenyan nationality was not fairly characterised as non-co-operation, since he had consistently denied being Kenyan and the Kenyan authorities themselves had declined to issue a travel document.
4. Application. The claimant’s serious offence and previous failures to answer bail established a real risk of absconding. The public-policy concern that false nationality claims might frustrate removal was valid, but it did not determine this case. The claimant had consistently asserted Somali nationality and had not newly adopted that position to defeat removal. The detention had nevertheless become unreasonably long, and there was no reasonable prospect that continued detention would end within a reasonable time.
5. Order. The claim succeeded. The claimant was to be released subject to conditions set by the Secretary of State, including electronic monitoring, to be put in place within seven days. Liberty to apply was granted. Costs were ordered against the defendant, subject to detailed assessment. The damages issue was adjourned generally.