A & Ors, R (on the application of) v Secretary of State for the Home Department

Immigration detention pending deportation is lawful only for the period reasonably necessary to achieve removal. The Secretary of State must act with reasonable expedition and must have a realistic basis for expecting deportation within the near future. The court must weigh the length of detention, obstacles to removal, official diligence, cooperation by the detainee, the risk of absconding and any risk of offending. Those risks may justify continued detention where removal is realistically achievable, but cannot do so indefinitely where an impasse has been reached. Where detention began lawfully but later became unlawful, the appropriate remedy is a mandatory order in judicial review, ordinarily providing for conditional release.

Four Algerian nationals subject to deportation orders sought habeas corpus or mandatory orders requiring their release from immigration detention. Their appeals against deportation had been exhausted, but the Algerian authorities had been unable to establish their identities or issue emergency travel documents.

The court considered separately whether detention remained lawful in the cases of A, B, MA and ME. The central questions were whether the Secretary of State had a realistic expectation of deportation within a reasonable time and whether the detainees’ conduct, including non-cooperation and the risk of absconding, justified continued detention.

1. A, B and ME: their detention had become unlawful. Although the Secretary of State had jurisdiction to detain under Immigration Act 1971, the removal process had reached an impasse. There was no realistic basis for saying when deportation could occur or for expecting it in the near future. The risk of absconding, and in A’s case the seriousness of his criminal offending, did not outweigh the absence of any realistic prospect of removal.
2. MA: detention remained lawful. His previous lies and lack of cooperation had materially prolonged the process. A renewed application for emergency travel documents had been made after he supplied information about a brother in Algiers, and there was evidence that such applications normally took six to twelve months. There was therefore a reasonable basis for expecting a decision within that period. His substantial risk of absconding and prior offending were relevant additional factors.
3. The principles in R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 apply. Detention must serve the purpose of deportation, remain within the period reasonably necessary for that purpose, and be pursued with reasonable expedition. The relevant date generally begins when appeal rights are exhausted.
4. The court applied the factors identified in R (on the application of I) v Secretary of State [2002] EWCA Civ (number missing), together with the significant weight recognised in R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804 for the risk of absconding, refusal of voluntary repatriation and risk of offending. A detainee’s refusal or failure to provide information necessary for removal is also a highly significant factor.
5. For A, B and ME, the court ordered mandatory relief. They were to be admitted to bail subject to a 12-hour curfew, tagging, daily reporting and residence at an address identified or agreed by the Secretary of State. Release was postponed until those conditions were in place. MA’s claim was dismissed, his application for permission to appeal was refused, the successful claimants received their costs, and MA was ordered to pay the defendant’s costs, not to be enforced without further order.

This was a first-instance judicial review judgment. The judgment records that the claimants’ appeals against deportation had been dismissed by the Asylum and Immigration Tribunal and that reconsideration applications had been refused. Permission to appeal was refused in MA’s case.