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

Immigration detention pending deportation is lawful only while the Secretary of State genuinely intends removal and acts with reasonable diligence and expedition. The court must decide for itself whether detention remains justified and whether its duration is reasonable in all the circumstances. The assessment includes the length of detention, removal obstacles, administrative diligence, detention conditions and effects, and the risks of absconding or reoffending. There is no inflexible rule excluding time spent pursuing an appeal or judicial remedy. Such proceedings may be highly relevant, but they do not automatically justify continued detention. On the facts, detention became unreasonable on 1 March 2007.

The claimant, a Nigerian national with indefinite leave to remain, had been imprisoned for a serious drug-importation offence and was detained pending deportation after becoming eligible for parole. He remained detained from 21 May 2005 until his release on bail on 6 April 2009.

His appeals against deportation and later legal proceedings caused substantial delay. He brought this judicial review claim alleging unlawful detention throughout the period. The central issues were whether detention had been properly authorised, whether it was initially justified, and when its continuation ceased to be reasonable.

1. Initial authorisation and justification. The court found, on the balance of probabilities, that the Secretary of State had decided to detain the claimant and had issued and served the necessary documents by 20 May 2005. The initial detention was lawful because the Secretary of State intended to deport him, detention was used for that purpose, he had no settled release address, and the seriousness of his conviction supported detention.
2. Applicable principles. Applying R(I) v The Secretary of State for the Home Department [2002] EWCA Civ 888, detention pending deportation must be for a reasonable period, and the Secretary of State must act with reasonable diligence and expedition. If it becomes apparent that removal cannot be achieved within a reasonable period, detention becomes unlawful. The court had to decide for itself whether detention was justified initially and whether its length remained reasonable.
3. Relevant circumstances. The assessment included the period of detention, obstacles to removal, the diligence and effectiveness of the steps taken, detention conditions and effects, and the risks of absconding and reoffending. The claimant’s lack of an address justified detention for only a few weeks. A sufficient risk of absconding nevertheless justified detention beyond that period.
4. Effect of appeals and legal proceedings. Following R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin), there was no inflexible rule requiring all time spent pursuing an appeal or judicial remedy to be excluded from the assessment. The proceedings were relevant but, in the particular circumstances, did not justify continued detention.
5. Duration and outcome. The Secretary of State could not be blamed for the unexplained delay in the deportation appeal, and detention remained lawful until early 2007. From the beginning of February 2007, however, the Secretary of State failed to obtain travel documentation with reasonable expedition. Given the existing period of administrative detention, continued detention became unreasonable on 1 March 2007. The claim succeeded to that extent. The precise form of relief was left for the parties to formulate.

The judgment records earlier proceedings concerning the claimant’s deportation and detention. His second judicial review claim was dismissed by Blake J on 23 May 2008, but the Court of Appeal allowed his appeal on 26 February 2009. A further appeal by the Secretary of State was stated to be pending. The present court determined the separate unlawful-detention claim at first instance.