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

Detention pending deportation under Immigration Act 1971, Schedule 3, paragraph 2(3), must genuinely serve removal or departure and last only for a period reasonably necessary for that purpose. There must be a sufficient prospect of removal, assessed in all the circumstances.

A high risk of absconding, a serious risk to public safety and a refusal of available voluntary return are highly important factors and may often be decisive. The detainee’s reasons for declining return to an unstable country are irrelevant where protection and human-rights objections to return have been resolved adversely and circumstances have not materially changed. The court itself determines the legal limits of administrative detention.

A, a Somali national convicted of rape and indecency with a child, was made the subject of a deportation order. He remained in administrative detention after his custodial sentence. During part of that detention, enforced removal to Somalia was unavailable because no carrier would accept enforced returns, although he could have travelled if he consented.

Calvert-Smith J held the detention unlawful from 4 December 2004 to 20 July 2006, but lawful thereafter when enforced removals again became practicable. The Secretary of State appealed against the finding of unlawfulness. A cross-appealed against the finding that detention had later become lawful. The central issue was whether the earlier period remained reasonably necessary pending removal or departure.

1. The Secretary of State’s appeal was allowed and A’s cross-appeal was dismissed. The detention from 4 December 2004 to 20 July 2006 was lawful.

2. The detention power in Schedule 3, paragraph 2(3) of the Immigration Act 1971 is limited by purpose and duration. It may be used only to secure removal or departure, and only for as long as is reasonably necessary. A sufficient prospect of achieving that purpose must exist. Whether that prospect warrants continuing detention depends on all the circumstances, including the risk of absconding and danger to the public if the person is at liberty.

3. The judge below had found an exceptionally high risk that A would abscond and a high risk of serious sexual reoffending. Those factors materially supported continued detention because absconding would frustrate the deportation order and the offending risk was relevant to an order made on the basis that deportation was conducive to the public good.

4. A’s refusal of voluntary return was not an automatic answer to every challenge to detention. It was nevertheless a very important consideration. It both evidenced the likelihood of absconding and meant that he could immediately end the deprivation of liberty by leaving voluntarily. His concern about conditions in Somalia could not reduce the weight of those matters, since his protection and Convention claims had failed and no material change was alleged.

5. Although an enforced removal date could not confidently be predicted, there was some prospect of it and A could have departed at once by consent. Taken with the risks of absconding and reoffending, the length of detention remained reasonably necessary. Misleading statements by Home Office officials were regrettable but did not themselves make the detention unlawful.

6. The court also held that it determines the legal boundaries and lawfulness of administrative detention itself, rather than merely conducting a narrow review of the Secretary of State’s assessment.

• Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and dismissed A’s cross-appeal: [2007] EWCA Civ 804.
• Administrative Court: Calvert-Smith J held the detention unlawful from 4 December 2004 to 20 July 2006, but lawful thereafter. That finding of earlier unlawfulness was reversed.