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

Immigration detention remains lawful only while there is a sufficient prospect of removal or departure within a reasonable time, assessed in all the circumstances. Relevant considerations include the risk of absconding, danger to the public, the length of detention and the Secretary of State’s diligence. Where identity documents are needed, it may be reasonable to place the principal burden of obtaining them on the detainee, particularly where the foreign authorities have indicated a willingness to assist. That approach may become harder to justify if events repeatedly show that the assistance will not be provided. Administrative mistakes do not by themselves make an otherwise lawful detention unlawful. The assessment is fact-sensitive.

The claimant sought a declaration that part of his immigration detention had been unlawful, with a view to pursuing compensation. He had been detained after completing a criminal sentence and exhausting his deportation appeal rights. His removal to Iran depended on establishing his identity and nationality, but the Iranian authorities had not issued the necessary documents and his solicitors had received no substantive response.

The central issues were whether there remained a reasonable prospect of removal, whether the Secretary of State had acted with sufficient expedition, and whether responsibility for obtaining identity documents had properly been placed on the claimant.

1. The claim was rejected on the evidence then available. Detention under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 was legally available, and section 5(1) of that Act together with rule 362 of the Immigration Rules required the claimant to leave following a deportation order.

2. The governing principle was that detention could not continue unless there was a sufficient prospect of achieving removal or departure within a reasonable time, having regard to all the circumstances. The court adopted the formulation summarised in R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804, including the risk of absconding and danger to the public. The Secretary of State also had to act with reasonable expedition and efficiency, as explained in Hardial Singh [1984] 1 WLR 784.

3. The claimant’s history of deception justified giving substantial weight to the risk that he would abscond or dishonestly evade departure. His detention of about 13½ months after exhaustion of appeal rights was lengthy but did not, by itself, establish unlawfulness. It was reasonable for officials to place the principal burden of obtaining Iranian identity documents on him, because the Iranian authorities had indicated a willingness to assist persons genuinely seeking return and claiming Iranian nationality.

4. The court accepted that the Iranian authorities’ failure to provide assistance might make reliance on such assurances more difficult in future cases. It did not, however, make the Secretary of State’s approach unreasonable on these facts. The mistaken belief that unrelated documents had been produced by the claimant was an administrative mishap and did not independently render the detention unlawful.

5. After judgment, the Secretary of State disclosed that release had followed an undeclared policy introduced in November 2007. No order was drawn up. The court left open the legality of detention from the date on which that policy was introduced and directed further evidence about the policy, its application to the claimant and related detention documents, with final consideration to be restored.

Not stated in the judgment.