SH (Iraq) v Secretary of State for the Home Department

Administrative detention pending removal must remain directed to the statutory purpose and last no longer than is reasonably necessary for removal. It becomes unjustified when it is apparent that removal cannot be enforced within a reasonable period. Relevant circumstances include the risks of absconding and reoffending, and whether the detainee has refused voluntary return. Where the evidence raises a substantial question whether there is any foreseeable prospect of removal, permission to appeal may properly be granted so that the appellate court can examine the correct approach to that evidence. The grant of permission does not itself determine that continued detention is unlawful.

MH and SH, Iraqi nationals who had completed prison sentences, challenged their continuing administrative detention pending deportation to Iraq. Beatson J held that MH’s detention remained lawful, subject to continuing review, but that SH’s detention became unlawful on 4 June 2007, when the Secretary of State should have addressed the implications of psychiatric evidence concerning his mental health.

Permission to appeal had been refused on the papers. On renewal, the Court of Appeal considered whether the evidence about the suspension of enforced returns to southern Iraq raised an arguable issue concerning the prospect and timing of removal. Permission was granted for MH but refused for SH. The central issue was the proper approach to the evidence concerning the foreseeability of removal.

1. MH: Permission to appeal was granted. The evidence showed that enforced returns to southern Iraq had not taken place since the 2004 announcement of the returns programme, because of concerns about the safety of British escorts. Although arrangements for reception and a route for voluntary returns existed, it was arguable that there was no immediate or foreseeable prospect of enforced removal. The court therefore considered that the proper approach to this evidence should be examined on the appeal.
2. SH: Permission to appeal was refused. The court accepted that his detention up to 4 June 2007 could be justified for the reasons given by Beatson J, including the evidence and the judge’s assessment of the relevant circumstances. The proposed discrete argument that an earlier date should have been selected was not pursued if no other permission was granted.
3. The governing framework was that the power to detain pending deportation was confined to the purpose for which it existed and to the period reasonably necessary for that purpose. Detention could not remain justified once it became apparent that removal could not be enforced within a reasonable period. Relevant circumstances included the risk of absconding, the risk of further offending and refusal of voluntary return.
4. The court recognised the tension between releasing a person who might abscond or offend and maintaining administrative detention indefinitely where removal had no clear prospect. Sedley LJ identified whether detention should ultimately result in release on bail or discharge from detention as an underlying question for consideration on the appeal.

Order: Application granted in part.

• Court of Appeal (Civil Division): [2008] EWCA Civ 321. On renewed applications, permission to appeal was granted for MH and refused for SH.
• High Court of Justice, Administrative Court: Beatson J dismissed MH’s challenge to his continuing detention, subject to continuing review, and held that SH’s detention became unlawful on 4 June 2007.
• Earlier permission stage: Laws LJ refused permission on the papers.