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

Detention pending deportation is lawful only where it is used to secure removal or departure and lasts no longer than is reasonably necessary for that purpose. Relevant considerations include the risk of absconding, the risk of further offending, and willingness to comply with immigration control or voluntary departure. Refusal of voluntary return is important, but it is not conclusive.

Where serious mental illness is raised with supporting evidence, the Secretary of State must engage with the applicable detention policy, including its exceptional-circumstances approach. A decision considering only the absence of a current suicide risk, without addressing the diagnosis and policy threshold, is unlawful.

Two Iraqi nationals challenged their continued detention under the Immigration Act 1971 pending deportation. Removals to Kirkuk and Makhmur were not then being enforced, although voluntary return remained possible.

The common issue was whether refusal to return voluntarily affected the lawfulness of detention in light of R (A, Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 204. The second claimant also argued that his detention was unlawful because the Secretary of State had failed to apply the detention policy after receiving psychiatric evidence concerning PTSD and suicide risk.

1. The claims were allowed in part. Leaving aside the second claimant’s mental health, both periods of detention were lawful. The second claimant’s claim concerning detention after 4 June 2007 was allowed, and a declaration was proposed that detention after that date was unlawful.

2. The statutory power to detain pending removal or departure is constrained by two principles drawn from R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and R (A, Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 204: detention must be for the purpose of securing deportation, and only for the period reasonably necessary for that purpose. If it becomes apparent that removal cannot be effected within a reasonable period, detention becomes unlawful.

3. The relevant assessment includes the risk of absconding, the individual’s background and risk of further offending, and willingness to comply with immigration control and voluntary departure. Refusal of voluntary return is not conclusive, but is important both as evidence of a risk of absconding and because detention may continue where the detainee could return immediately but chooses not to do so.

4. There remained a realistic prospect of enforced removal to southern Iraq. Arrangements for reception and routes were in place, and the remaining impediment was advice concerning the safety of British escorts. The absence of a foreseeable removal date did not itself make detention unlawful. The claimants’ significant risk of absconding, refusal to return voluntarily, and some risk of reoffending made their detention reasonably necessary.

5. The detention policy required detention to be used sparingly and for the shortest necessary period. It identified persons suffering from serious medical conditions or mental illness as normally suitable for detention only in very exceptional circumstances. Once the second claimant’s diagnosis and supporting psychiatric evidence had been brought to the Secretary of State’s attention, the decision-maker had to engage with that policy. The 4 June decision did not address the diagnosis or explain why the illness was insufficiently serious. Focusing only on the absence of a current suicide risk was insufficient. Detention from 4 June until release on 3 July was therefore unlawful.

6. Permission to appeal on the voluntary-return issue was refused. There was no order as to costs, and the claimants were entitled to detailed assessment.