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

Detention under a deportation order may continue only to further removal or departure and for no longer than is reasonably necessary for that purpose. There must be a sufficient prospect of achieving removal or departure, assessed in all the circumstances, including the risk of absconding and danger to the public. Refusal of voluntary return and risk of absconding are important factors, but they do not justify indefinite detention where forcible removal is not realistically foreseeable. Prolonged detention may therefore become unlawful even though it was initially lawful. The assessment is fact-sensitive and must take account of the length of detention, the seriousness of the offending, the individual’s risk profile and the practical prospects of removal.

The claimant, an Iraqi Kurd convicted of street robbery, was subject to a deportation order and had been detained under immigration powers for 23 months after completion of his custodial sentence. He refused voluntary return to Iraq. Forcible removal through Baghdad was not possible because escorts were unavailable for security reasons, and there was no evidence of when that restriction would end. The Secretary of State maintained that detention remained justified by the deportation order, the claimant’s refusal to return and the risk of absconding. The central issue was whether detention that had initially been lawful had become unlawful because removal was not foreseeable.

1. Outcome. The court declared that the claimant’s detention had by then become unlawful. It ordered release on stringent bail conditions, including a 12-hour curfew, electronic tagging, daily reporting and residence at an address agreed with the Secretary of State. The declaration did not determine that the earlier period of detention had been unlawful.
2. Under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, read with section 5(1) of that Act and rule 362 of the Immigration Rules, detention pending removal or departure is lawful only if it is exercised to further that purpose and only for as long as is reasonably necessary. The court applied Khadir v Secretary of State for the Home Department [2005] UKHL 39 on the existence of the detention power.
3. Following the ratio identified in A v Secretary of State for the Home Department [2007] EWCA Civ 804, there must be a sufficient prospect that removal or departure can be achieved to justify detention, having regard to all the circumstances. Risk of absconding and refusal of voluntary repatriation may be decisive where deportation remains a genuine and realistically achievable purpose. They cannot, however, justify detention merely to compel voluntary departure.
4. The claimant’s 23-month detention was unlawful on the facts. Its exceptional length, the absence of any indication that escorted flights into Baghdad would resume, the lesser gravity of the offending compared with the case of A, and the claimant’s risk profile outweighed the factors favouring continued detention. Earlier periods considered lawful in MMH and SRH [2007] EWHC 2134 (Admin) did not govern because the periods there were materially shorter.
5. The defendant was ordered to pay the claimant’s costs. Permission to appeal was granted.

The judgment records that an immigration judge dismissed the claimant’s appeal against the deportation order on 15 December 2005. His appeal rights were then exhausted. The Administrative Court subsequently determined the judicial review claim and granted permission to appeal.