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

Detention pending deportation is lawful only while it serves the purpose of deportation and lasts for a period reasonable in all the circumstances. Reasonableness depends on matters including the detention’s length and effects, obstacles to removal, the authorities’ diligence, and the risks of absconding and reoffending.

Serious risks of absconding and reoffending may justify a substantially longer detention, but cannot justify detention indefinitely. Mental illness caused or aggravated by detention is relevant. Its weight depends particularly on whether adequate treatment can control the illness in detention. Lawfulness must be assessed using the circumstances and evidence current at the date of the court’s hearing.

The appellant, an Iraqi national with indefinite leave to remain and several convictions, was detained under Schedule 3 to the Immigration Act 1971 after the Secretary of State decided to deport him. Removal to Baghdad had not occurred because the Secretary of State considered an escorted return too dangerous.

His judicial review challenge to the continuing detention was dismissed by HHJ Mackie QC on 9 November 2007. The appellant appealed after approximately 15½ months in detention. Updated evidence addressed his risks of absconding and reoffending, family support and depressive illness, including two suicide attempts.

The central issue was whether continued detention remained reasonable and therefore lawful, despite its length and the absence of an immediate prospect of removal.

1. Appeal dismissed unanimously. The statutory power to detain a prospective deportee is confined to the purpose of deportation and to a period reasonable in all the circumstances. The principles stated in R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 governed the appeal.

2. The court had to determine lawfulness at the date of its hearing using the updated evidence. Relevant matters included the length of detention, obstacles to deportation, the authorities’ efforts to overcome them, detention conditions and effects, and the risks of absconding and reoffending.

3. There was a substantial risk of absconding. The proposed family support was uncertain; the appellant had twice failed to surrender; and he had an intense fear of return to Iraq. His challenges to deportation were almost exhausted, and the immigration tribunal had previously found that he had lied to strengthen his case. The court gave little weight to the probation officer’s statement that she lacked evidence of a high risk because it did not address the wider evidence.

4. There was also a substantial risk of reoffending. The appellant’s numerous dishonesty offences, including domestic burglaries, were serious. Stable accommodation, employment and family support were important safeguards, but none was securely established. The combined risks of absconding and reoffending permitted a longer reasonable period of detention than would otherwise have been justified.

5. Those risks could not justify detention without temporal limit. The existing detention was very long and removal was not immediately foreseeable. Nevertheless, the risks were sufficiently grave that, with some hesitation, continued detention remained reasonable for the time being. No weight was given to the appellant’s failure to return voluntarily because his appeal process was incomplete.

6. Mental illness caused or aggravated by detention is relevant to the reasonable-period assessment. The critical question is whether treatment is available in detention to control the illness and prevent suffering. The appellant’s depression carried little weight because it was being managed, he had not been assessed as unfit for detention, and its causal connection with detention was uncertain. The outstanding immigration proceedings and any fresh claim required urgent and expeditious determination.

• Court of Appeal (Civil Division): The appeal was dismissed unanimously in [2008] EWCA Civ 307. The court held that continued detention remained reasonable for the time being.

• High Court, Queen’s Bench Division: HHJ Mackie QC dismissed the judicial review challenge on 9 November 2007, holding that continued detention was reasonably necessary for its statutory purpose.