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

Detention pending removal is lawful where there is a sufficient prospect that removal can be achieved, assessed in light of all the circumstances. Relevant circumstances include the risk of absconding and the risk to the public if the detainee is released. Repeated attempts to obtain travel documentation may justify continued detention where fresh or differing information gives a realistic prospect of eventual acceptance by the receiving state. A history of dishonesty, inconsistent nationality claims and previous absconding may materially support continued detention.

The claimant sought judicial review, a declaration and damages, alleging that he had been unlawfully detained after completing a custodial sentence and while arrangements were being made to deport him to Algeria. The Algerian authorities repeatedly declined to recognise him as an Algerian national, although further information and applications continued to be submitted. He was released on temporary admission after agreeing to a telephone interview with the Algerian authorities, and the deportation order was later revoked.

The central issue was whether detention between 18 January and 21 November 2006 was unlawful under the test agreed in A v Secretary of State for the Home Department [2007] EWCA Civ 804.

The application for judicial review was refused. The claim for a declaration and damages for unlawful detention therefore failed.

1. The applicable test, taken from A v Secretary of State for the Home Department [2007] EWCA Civ 804, was whether there was a sufficient prospect of achieving removal to justify detention or continued detention, having regard to all the circumstances. Those circumstances included the risk of absconding and the risk of danger to the public if the claimant were at liberty.
2. There remained a realistic prospect of removal to Algeria up to the proposed telephone interview. The claimant had provided fresh and differing biographical information after earlier refusals. It was reasonable for the Immigration Service to resubmit applications because further or corrected information could lead to acceptance by the Algerian authorities.
3. The claimant’s history was relevant. He had entered the United Kingdom on a forged document, had made inconsistent nationality claims and had previously absconded while on temporary admission. Four immigration judges had refused bail during the relevant period and had found a real risk of absconding.
4. Considering all the circumstances, continued detention while further information was submitted to the Algerian authorities was neither unreasonable nor unlawful. The court rejected the merits of the claim.
5. A preliminary objection concerning the timing and scope of the claim was not determined because the claim failed on its merits.