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

Immigration detention pending deportation is lawful only for the purpose of deportation and for a period reasonably necessary for that purpose. The court must assess all the circumstances, including the length of detention, the obstacles to removal, the Secretary of State’s diligence, the prospect of removal, the risk of absconding and the danger to the public if the detainee is released. Serious risks may justify a longer period, but cannot justify indefinite or unduly prolonged detention. Once removal within a reasonable period is no longer realistically achievable, continued detention becomes unlawful. The court retains ultimate responsibility for deciding whether detention remains reasonable.

The claimant had been detained under immigration powers for about 16 months after completing a sentence of imprisonment for a serious violent offence. He had entered the United Kingdom clandestinely, had made inconsistent asylum claims, and presented a high risk of absconding and reoffending. Cambodia had repeatedly declined to accept him, while there was no realistic prospect of removal to China or Spain. The claimant sought habeas corpus and judicial review of his continuing detention. The central issue was whether the period of detention had become unreasonable in circumstances where removal remained uncertain and the Secretary of State’s efforts had progressed slowly.

1. Applicable principles. Under Immigration Act 1971, Schedule 3, paragraph 2, detention pending deportation is limited to the purpose of carrying out deportation and to the period reasonably necessary for that purpose. The principles stated in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704, R(I) v Secretary of State for the Home Department [2003] INLR 196, R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and R(Mamki) v Secretary of State for the Home Department [2008] EWCA Civ 307 were applied.
2. The assessment is fact-sensitive and requires consideration of all relevant circumstances. These included the length of detention, the nature of the obstacles to removal, the diligence and effectiveness of the Secretary of State’s efforts, the prospect of eventual deportation, the risk of absconding and the risk of serious offending if the claimant were released. No single factor was decisive.
3. The risks of absconding and reoffending were high and serious. They nevertheless had to be assessed against the slender prospect of removal, the absence of any realistic prospect of removal to China or Spain, the lack of obstruction by the claimant, and the Secretary of State’s insufficiently energetic pursuit of removal to Cambodia.
4. After approximately 16 months, there was no realistic prospect of removal within a reasonable period. A further period of detention would therefore be unlawful. The claimant was ordered to be released by mandatory order, subject to tagging, daily reporting and residence at an identified address. No curfew was imposed. Tagging was subject to a seven-day long-stop, and either party had liberty to apply.
5. Permission to appeal was refused because the governing principles were established and the dispute concerned their application to the particular facts. The claimant received his costs, subject to detailed assessment; indemnity costs were refused.