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

Immigration detention must remain directed to removal or a decision whether removal should occur. It may continue only for a period that is reasonable in all the circumstances, and the Secretary of State must act with reasonable diligence and expedition. Risk of absconding, danger to the public and refusal of voluntary return may be important factors, but refusal cannot justify detention indefinitely. A blanket presumption of detention for serious foreign national offenders is incompatible with the requirement for individual consideration. The court must determine legality for itself, considering all relevant material.

The claimant, a Congolese national convicted of serious violent offences, challenged his continuing detention pending deportation. His deportation appeal had been dismissed, but removal was delayed while the risk to failed asylum seekers returning to the Democratic Republic of the Congo was considered in BK (Failed asylum seekers) DRC CG [2007] UKAIT 00098 and related proceedings.

The claimant alleged that detention had been maintained under an unpublished policy which reversed the published presumption in favour of release and created a presumption of detention for serious foreign national offenders. The immediate issues were whether detention was presently lawful under the Hardial Singh principles, and whether the policy and past detention required further determination.

1. Present legality. The claim for immediate release and a declaration that further detention was unlawful was refused. Detention was lawful from the date of judgment, subject to any material change of circumstances, because there was a substantial risk of absconding, a danger of serious reoffending, and a genuine purpose of deportation.
2. Applicable principles. Under Schedule 3 to the Immigration Act 1971, detention may be used only pending a decision on removal or to effect removal. Applying R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and R (I) v Secretary of State for the Home Department [2003] INLR 196, detention must not exceed a reasonable period; it must cease if removal cannot be effected within that period; and the Secretary of State must act with reasonable diligence and expedition.
3. Reasonableness depends on the individual circumstances. Relevant matters include the length of detention, obstacles to removal, the Secretary of State’s diligence, the conditions of detention, effects on the detainee and family, risk of absconding and danger of reoffending. Refusal of voluntary return is relevant, particularly where it evidences absconding or prolongs detention, but it is not an absolute justification and cannot support detention ad infinitum. The approach in R (A) v Secretary of State [2007] EWCA Civ 804 was applied.
4. The court is the primary decision-maker on the legal limits of administrative detention. It must consider all relevant material, whether or not relied on by the individual officer when objecting to bail. In this respect the court did not agree with the limitation suggested in R (SK) v Secretary of State for the Home Department [2008] EWHC 98 (Admin).
5. The published policy required a presumption in favour of release, consideration of alternatives and individual assessment. A blanket presumption of detention for serious foreign national offenders was inconsistent with those principles and was provisionally regarded as contrary to article 5. The legality of the changed policy and the lawfulness of past detention were left for further argument. The judgment was interlocutory and did not dispose of the remaining claim.

This was a first-instance judicial review. The court described earlier permission, bail and related proceedings, but no lower-court judgment was under appeal. The remaining issues concerning past detention and the legality of the changed policy were reserved for further argument.