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

Administrative detention does not become unlawful merely because it has continued for a lengthy period. There is no fixed time at which detention becomes unlawful automatically. The court must assess all the circumstances, including the realistic prospect of removal, the detainee’s conduct and co-operation, the availability of travel documentation, and the risk of absconding.

Where removal is realistically achievable if the detainee provides necessary identity documents, and the evidence indicates that the detainee has failed to take the required steps or has delayed the process, continued detention may remain lawful. The burden lies on the evidence before the court; unsupported assertions and unexplained failures to co-operate may be insufficient.

The claimant, an Iranian national, had been held in administrative detention since 30 November 2005 following completion of a sentence for robbery. He sought judicial review on the basis that there was no realistic prospect of removal within a reasonable time and that the length of his detention rendered it unlawful.

The case also raised other issues, including the effect of failures to conduct statutory detention reviews and an unpublished detention policy. Those matters were to be addressed separately. This interim judgment concerned whether removal to Iran was realistically achievable and whether the detention was unlawful on account of its duration.

1. Realistic prospect of removal. On the evidence, there was every reason to believe that removal could occur within a short period if the claimant obtained a birth certificate, identity card or other proof of identity. The outstanding documentation was the principal barrier to an Iranian emergency travel document.
2. The court was not satisfied that the claimant had taken adequate steps to obtain the documentation. His conduct showed intermittent co-operation, but also unexplained refusals, incomplete forms and apparent delaying tactics. There was insufficient evidence from the claimant or his family explaining why the documents could not be obtained or what efforts had been made to secure them.
3. Length of detention. A period of approximately 31 months placed the court on alert, particularly because personal liberty was involved. However, there was no fixed period which automatically determined the legality of detention. The issue had to be decided by reference to all the circumstances.
4. The risk of absconding was difficult to assess. The claimant’s history and conduct gave some basis for concern, although the evidence was inconclusive. If that had been the only remaining issue, conditional release might have required serious consideration. It was not, however, the only issue.
5. The claimant had not shown that he had co-operated in the manner necessary to make removal possible. In the absence of contrary evidence, the court considered that he had deliberately stalled the acquisition of the required documentation. Judicial review was therefore not granted on the issues considered. The judgment was interim, and the proceedings continued on the other grounds.

Permission to apply for judicial review had been granted by Ouseley J on 16 April 2008. This was an interim first-instance judgment. The court recorded that further issues, including the effect of statutory review failures, remained to be determined.