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

Immigration detention pending removal remains lawful only while removal is genuinely intended and there is a reasonable prospect of achieving it within a reasonable time. The court must assess the total period of detention against all relevant circumstances, including the obstacles to removal, the Secretary of State’s diligence, the detainee’s conduct, and risks of absconding or reoffending.

Non-co-operation is relevant, and may be highly relevant, but it is not automatically decisive. Where the evidence establishes no realistic prospect of removal within a reasonable time, continued detention becomes unlawful even if the detainee’s own refusal to co-operate has materially contributed to the delay.

The claimant, an Iranian national whose asylum and appeal rights had been exhausted, had been detained for approximately 34 months, subject to periods of imprisonment following convictions for failing to assist the obtaining of travel documentation. The Secretary of State continued detention while pursuing deportation and possible further prosecution, relying on the claimant’s refusal to co-operate, the risk of absconding and the prospect that removal might become possible if his position changed or Iranian requirements altered.

The claimant sought judicial review of the legality of his continued detention. The court considered whether there was a reasonable prospect of securing removal within a reasonable time, and how the claimant’s non-co-operation and the risks associated with release affected that assessment.

1. Detention declared unlawful. The court applied the principles in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as approved in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 and developed in R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888.
2. The question was whether the Secretary of State had proved, on the balance of probabilities, a reasonable prospect of securing removal within a reasonable time. The court considered the claimant’s total detention, rather than merely the period after his deportation appeal rights were exhausted. The period was between 28 and 34 months, depending on whether imprisonment was excluded, and was in either event very long.
3. The claimant had a firmly settled intention not to return to Iran and would do nothing to facilitate removal. Possible changes in Iranian documentation requirements were speculative and unsupported by up-to-date evidence. The evidence did not establish even the limited prospect of removal identified in R (on the application of I).
4. Non-co-operation was a relevant, potentially highly relevant, factor. It could not automatically justify indefinite detention. The risk of absconding was real, but the claimant had no history of serious criminal offending or conduct indicating that he posed a serious threat to the public. That risk could not override the absence of a reasonable prospect of removal within a reasonable time.
5. The court therefore declared that the claimant’s detention was unlawful. It could not determine when unlawfulness began, and left any compensation issue to be addressed separately. Consideration of challenges to the repeated prosecutions and deportation order was adjourned. The declaration was not to be drawn up and sealed for 28 days, allowing arrangements for release, accommodation, reporting and possible electronic monitoring, and allowing the Official Solicitor to consider intervention.