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

Administrative detention pending deportation is lawful only while the statutory purpose remains genuinely pursued, the period is reasonable in all the circumstances, and the Secretary of State acts with reasonable diligence and expedition. The court must determine the legal boundaries of detention and should scrutinise lengthy detention anxiously. Relevant considerations include the length of detention, obstacles to removal, administrative diligence, the risk of absconding, and the risk of further offending. Lengthy detention may remain lawful without a fixed removal date where those factors, assessed cumulatively, establish a real risk of absconding or offending and the expected period remains reasonable.

The claimant, a Sudanese national subject to a deportation order, sought judicial review of his past and continuing detention under the Immigration Act 1971. He had been detained since 19 August 2008 while successive representations, including a late asylum claim based on alleged Darfur origin, were considered. He argued that removal was no longer imminent and that detention had become unreasonable. The Secretary of State relied on his history of dishonesty, repeated immigration applications, risk of absconding and risk of further offending. The central issue was whether continued detention remained lawful under the principles governing detention pending deportation.

1. Application refused. The claimant’s detention remained lawful and his application for judicial review was refused.
2. The governing principles, identified in R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888, were that detention must pursue the purpose of deportation; continue only for a reasonable period; cease when it becomes apparent that deportation cannot be achieved within that period; and be conducted with reasonable diligence and expedition.
3. The assessment of reasonableness is fact-sensitive and includes the length of detention, the nature of obstacles to removal, administrative diligence, the conditions and effects of detention, the risk of absconding and the danger of further criminal offending. The principles in Re Hardial Singh [1984] 1 WLR 704 were applied as further explained in R(I) v Secretary of State for the Home Department.
4. The court, rather than the Secretary of State, determines the legal boundaries of administrative detention, subject only to incidental factual matters on which the Secretary of State may be better placed. The court relied on R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 in rejecting any broader deference.
5. Although the claimant had not recently been convicted and the risk of harm from dishonesty was less serious than violence, his calculated history of dishonesty, lack of apparent means of support, determination to remain in the United Kingdom, repeated use of immigration procedures and unexplained lateness of the asylum claim created a real risk of absconding and further offending.
6. The Secretary of State had acted with reasonable diligence overall, despite some delay. Taking all factors cumulatively, the detention to date and its likely continuation while the asylum claim and any appeal were determined remained reasonable.