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

Detention pending deportation is lawful only while it serves the purpose of removal and for no longer than is reasonably necessary for that purpose. The court must assess lawfulness itself, rather than merely review the Secretary of State’s judgment for irrationality. Relevant considerations include the period already spent in detention, the prospects and obstacles to removal, the diligence of removal efforts, the risks of absconding and reoffending, and the effect of detention on the detainee. Those risks may justify a longer period of detention, but cannot do so indefinitely. Where removal is not realistically achievable within a reasonable further period, continued detention is unlawful.

The claimant had been detained under paragraph 2 of Schedule 3 to the Immigration Act 1971 since June 2006 pending deportation. His deportation appeal had been dismissed, but permission to appeal remained outstanding while related litigation concerning returns to Somalia and humanitarian protection proceeded. The Secretary of State was also investigating whether removal to Kenya might be possible.

The claimant sought a declaration that continued detention had become unlawful. The court considered the length and effects of detention, the uncertain prospect of removal, and the competing risks of absconding and reoffending.

1. Statutory purpose and limits. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 permits detention pending deportation, but only for the purpose of removal and for the period reasonably necessary to achieve it. The word “pending” means “until”, subject to those limits. The circumstances relevant to reasonableness include the length and effects of detention, obstacles to removal, the diligence and effectiveness of removal steps, the prospect of removal, and the risks of absconding and offending.
2. Assessment of risk. A sufficient prospect of achieving removal is required to justify detention. Risk of absconding and refusal of voluntary repatriation may be very important, and risk of offending is also relevant, particularly having regard to its likelihood and potential gravity. Greater risks may justify a longer period, but there comes a point when detention is no longer reasonable.
3. Role of the court. The court determines the legal boundaries of administrative detention, whether the statutory power has been lawfully exercised, and whether detention is proportionate under article 5 of the European Convention. The issue is not confined to whether the Secretary of State’s assessment was unreasonable.
4. Application. The claimant had already been detained for three years. Removal to Kenya was wholly speculative. Removal to Somalia was not imminent because of continuing and potentially further litigation concerning humanitarian protection, country guidance and conditions in Somalia. His serious history supported significant risks of absconding and reoffending, although the likely offences were not of the gravest kind. Detention was also contributing to depression and restricting contact with his son.
5. Considering the period already served, the absence of a realistic prospect of removal within a reasonable further period, and the effects of detention, the court held that continued detention would be unlawful. The claimant was to be released on stringent conditions, including tagging, regular reporting and residence at an address agreed or identified by the Secretary of State, with release deferred until the conditions were arranged. The claimant was awarded costs on the standard basis.