A, R (On the Application Of) v The Secretary of State for the Home Department

Detention pending deportation must serve the statutory purpose and continue only for a period reasonably necessary to achieve it. Its reasonableness depends on the prospects of removal or departure and all relevant circumstances. An immediately available voluntary return, a high risk of absconding and a high risk of serious re-offending may justify lengthy detention despite uncertainty about when enforced removal will become possible. Refusal of voluntary return matters independently of its evidential significance for absconding, but detention must remain reasonably necessary. Where refugee and human rights claims have been rejected and no material change is suggested, reluctance to return because conditions in the destination country are chaotic does not offset those considerations.

A, a Somali national, challenged his administrative detention by the Secretary of State pending deportation. He had received an eight-year prison sentence for rape and indecency with a child. His appeals against deportation and the refusal of asylum and associated human rights claims were dismissed. He remained detained after becoming entitled to release from his custodial sentence.

During the disputed period, carriers would transport A to Somalia with his consent, which he refused to give. Enforced removals were unavailable until an agreement with a carrier was reached in July 2006. The evidence indicated very high risks of absconding and serious re-offending.

On 7 December 2006, Calvert-Smith J held that detention from 4 December 2004 to 20 July 2006 was unlawful, but that subsequent detention was lawful. The Secretary of State appealed the former conclusion, and A appealed the latter. The principal issue was whether the duration of detention remained reasonable, taking account of voluntary return, the risks on release and conditions in Somalia.

The Press Association also sought publication of A’s full name. By the appeal hearing, A had been released following a separate tribunal decision on human rights grounds concerning refusal to revoke his deportation order. Reconsideration of that decision had been ordered.

1. The Secretary of State’s appeal was allowed and A’s appeal dismissed unanimously. A’s detention during the disputed period remained reasonably necessary for the purposes of the deportation order. Toulson LJ delivered the leading judgment, with which Longmore LJ agreed. Keene LJ agreed with the disposition and added supplementary reasons.

2. The power under Schedule 3, paragraph 2(3) of the Immigration Act 1971 was limited by its statutory purpose and by the period reasonably necessary to achieve that purpose. The principles established in Hardial Singh, [1984] 1 WLR 704, required a sufficient prospect of achieving removal or departure to warrant continued detention in all the circumstances. The existence of sufficient prospect to establish the power was conceded; the principal dispute concerned its reasonable exercise ([43]–[45], [69]–[70]).

3. A refusal of available voluntary return and a risk of absconding were very important, and often decisive, considerations, provided deportation remained the genuine purpose. Refusal mattered both as evidence of absconding risk and because the detainee could immediately end detention by departing. Tan Te Lam, [1997] AC 97, involved an express statutory requirement concerning voluntary repatriation. The limited weight attached to voluntary return in R (I) v Secretary of State for the Home Department, [2003] INLR 196, reflected its particular circumstances ([46]–[54]).

4. Re-offending risk was also relevant, with weight depending on both its likelihood and the gravity of its consequences. Public protection could be the purpose of deportation where serious offending made continued residence contrary to the public good. Here, immediate voluntary departure remained available, some prospect of enforced removal persisted, and the risks of absconding and serious re-offending were high ([55], [58]–[59]).

5. A’s refugee and human rights claims had been rejected, and no subsequent material change was suggested before the judge. His understandable reluctance to return to a volatile and chaotic country was therefore irrelevant to the lawfulness of detention. The misleading statements by Home Office officials did not make detention unlawful on the actual circumstances established ([56]–[58]).

6. Although the result did not depend on the precise standard of judicial review, Toulson LJ stated that the court must determine the legal boundaries of administrative detention and whether the power was lawfully exercised. This responsibility existed at common law. Keene LJ additionally reasoned that section 6(1) of the Human Rights Act, 1998 required the court itself to determine Article 5 compatibility, including proportionality under Article 5(1)(f) ([60]–[62], [71]–[75]).

7. Keene LJ emphasised that refusal of voluntary return was neither a trump card nor of fundamental importance. Lengthy detention without a clearly predicted removal date required exceptional justification. The combination of risks and available voluntary return supplied that justification here ([77]–[83]).

8. A’s anonymity was maintained under the Practice Note, [2006] 1 WLR 2461. Publication could generate further arguments about risks on removal and prolong unresolved proceedings ([63]–[66]).

• Court of Appeal (Civil Division): In [2007] EWCA Civ 804 , allowed the Secretary of State’s appeal and dismissed A’s appeal. The finding that detention from 4 December 2004 to 20 July 2006 was unlawful was reversed.
• High Court, Queen’s Bench Division, Administrative Court: On 7 December 2006, Calvert-Smith J held that detention from 4 December 2004 to 20 July 2006 was unlawful, but subsequent detention was lawful. Both parties received permission to appeal. The earlier finding of lawful detention was unchallenged.
• Immigration Adjudicator: On 25 November 2003, dismissed A’s appeals against the decision to deport and refusal of asylum and associated human rights claims. The later judicial review concerned detention rather than an appeal from that adjudication.
• Asylum and Immigration Tribunal, separate related proceedings: After the High Court judgment, allowed A’s appeal on human rights grounds against refusal to revoke his deportation order. A was released. Reconsideration was subsequently ordered on the Secretary of State’s application and remained outstanding.