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

Immigration detention must be justified on a correct factual understanding and used only where necessary. It must not become routine or be adopted for administrative convenience. Removal is not necessarily imminent merely because removal is contemplated; the circumstances must show that removal directions are about to be set or have been set. Before detaining a person for removal, the Secretary of State must consider the substance of any prior adjudicator’s findings relevant to the proposed destination. Where the prior decision accepted a real risk but relied on relocation or protection elsewhere, removal to an authority-controlled destination cannot proceed unless material shows that the finding has been overtaken or was clearly wrong. Failure to address those matters may render detention unlawful.

The claimant, an Iraqi Kurd, sought judicial review of his detention between 26 July and 6 September 2006 for removal to Iraq. His separate challenge concerning reconsideration of his protection claim was no longer pursued because the Secretary of State accepted that he was entitled to fresh consideration and a further right of appeal if refused.

An earlier adjudicator had found the claimant credible and accepted that he faced persecution from the KDP and the Islamic Movement of Kurdistan, while considering that protection or relocation might be available elsewhere. The proposed removal was to Irbil, which was controlled by the KDP. The issues were whether removal was imminent when detention began and whether the Secretary of State had properly considered the adjudicator’s findings and the safety of return to Irbil.

1. Detention principles. Detention for removal is a last resort. It must be justified by the particular circumstances and based on a correct factual understanding. It must not be used routinely or merely for administrative convenience.
2. Imminence and absconding. At the date of detention there were no removal directions, and removal was not imminent on the facts. The claimant had been in the United Kingdom for a substantial period and there was no sufficient basis at that time for concluding that he was likely to abscond. Once removal directions existed, imminence and the likelihood of absconding could provide relevant grounds, subject to consideration of all the circumstances. The judge stressed that the decision was fact-specific and did not prescribe a general period applicable to every case.
3. Prior adjudicator’s findings. The Secretary of State was required to have regard to the adjudicator’s factual findings and to comply with them unless material showed that they had been overtaken by events or were clearly wrong in light of subsequent evidence. The response asserting that the adjudicator had found no risk failed to engage with the actual finding that the claimant faced a real risk from the KDP.
4. Proposed destination. Returning the claimant to Irbil meant returning him to authorities controlled by the KDP, including officials at the airport. The proposed removal therefore exposed him to the very risk previously identified. The failure to consider that consequence also meant that detention for removal was unjustified.
5. The court declared the detention unlawful. The damages issue was transferred to the Queen’s Bench Division, with determination by a Master if necessary. The claimant was awarded his costs, subject to detailed assessment and legal aid assessment. An anonymity order was continued.