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

Immigration detention must remain connected to a realistic prospect of removal within a reasonable period. Hardial Singh principles apply even where the detainee presents risks of absconding or further offending. Those risks may justify conditions of release, but cannot sustain detention after the lawful justification for detention has expired. The longer detention continues, the stronger the justification required, particularly where removal depends on a travel document and the detainee’s mental health has deteriorated during detention. A short further period may be justified to arrange accommodation and safeguards such as electronic monitoring.

The claimant, a Chinese national by assertion, sought judicial review of his continuing immigration detention and an order for release. He had been detained since December 2006 following criminal convictions and the making of a deportation order. Removal remained dependent on the Chinese authorities issuing an emergency travel document, which they had repeatedly refused.

The Secretary of State relied on the claimant’s alleged failure to provide adequate identity information, risks of absconding and further offending, and his history of failing to surrender to custody. The claimant disputed deliberately frustrating the travel-document process and relied on evidence that prolonged detention had contributed to schizophrenia and stress-related violence. The central issue was whether detention remained lawful at the date of the claim.

1. Detention unlawful. The continued detention was incompatible with the Hardial Singh principles. The claimant had been detained for about 30 months, and imminent removal was not possible because an emergency travel document had not been obtained.
2. The court accepted the statement of the applicable law in A and Others v Secretary of State for the Home Department [2008] EWHC Admin. The Secretary of State had not demonstrated that the claimant had persistently and deliberately withheld information necessary to verify his nationality. In any event, even if that had been established, the length and circumstances of detention made further detention unreasonable.
3. The risks that the claimant might abscond or commit further low-level offences did not justify continued detention. They could instead be addressed by stringent bail conditions. His mental illness, which had developed or worsened during detention, was a further troubling feature. The evidence indicated that close community supervision and medication would reduce the risks of deterioration and harm.
4. The claimant was to be admitted to bail as soon as reasonably practicable, subject to residence at accommodation identified by NASS, electronic tagging and weekly reporting. A further period of up to 48 hours was justified to arrange accommodation and fit the tag.

The judgment records that an immigration judge refused bail on 31 October 2008, relying on risks of offending, mental disorder and absconding. The Administrative Court subsequently held that continued immigration detention was unlawful and ordered release on bail subject to conditions.