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

Immigration detention pending removal is lawful only for a period reasonably necessary to achieve removal. The court must assess, on the circumstances known at the relevant time, whether there is a sufficient prospect of removal within a reasonable period. Relevant factors include the removal obstacles, the Secretary of State’s diligence, the detainee’s co-operation, risks of absconding and re-offending, detention conditions, and the length of detention.

A detainee’s wilful failure to co-operate may substantially justify continued detention, but cannot justify indefinite detention. Once the available information has been obtained and no realistic route to removal remains, detention becomes unlawful. A published detention policy substantially reflecting the general law does not create a separate basis for liability.

The claimant, a Somali national subject to a deportation order, was detained under paragraph 2 of Schedule 3 to the Immigration Act 1971 from 16 April 2004 until his release on bail on 21 August 2007. He claimed damages for false imprisonment and declaratory relief.

The Secretary of State relied on the possibility of removal to Somaliland under memoranda of understanding, while the claimant challenged the prospect and length of removal, alleged breach of the Secretary of State’s detention policy, and complained about detention in prison and with convicted prisoners. The central issues were whether detention remained reasonably necessary for removal and whether it became unlawful at any identifiable point.

1. Result. The claim succeeded in part. The claimant was entitled to damages for false imprisonment and a declaration for the period from 20 June 2007 to 21 August 2007. His claims for more extensive relief were dismissed.
2. Under R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704, detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 may be used only for the purpose of removal and only for a period reasonably necessary for that purpose. The assessment is fact-sensitive and must be made from time to time.
3. The relevant assessment included the realistic prospect of removal, the availability of a route, the detainee’s co-operation, the risk of absconding, the risk and seriousness of re-offending, the conditions of detention, the diligence of the Secretary of State, and the period already spent in detention. The court should be slow to second-guess assessments concerning the likely conduct of a foreign government, while remaining the primary decision-maker on the reasonableness of detention.
4. The memoranda with Somaliland provided an objectively realistic possibility of removal. The claimant’s refusal to sign a disclaimer, failure to provide bio-data, and obstructive conduct were substantial factors supporting detention, particularly given the high risks of absconding and re-offending. Electronic tagging was considered and reasonably rejected.
5. By late May 2007 the claimant had supplied the further information which could reasonably be expected. After allowing a short period for assessment and any viable approach to the Somaliland authorities, the Secretary of State had no serious prospect of supplementing the information or effecting removal. Detention therefore became unlawful on 20 June 2007. Later events, including the claimant’s conduct after release, could not retrospectively alter the legality of detention at an earlier date.
6. The Operational Enforcement Manual substantially restated the general law and added nothing material. Detention in prison was not automatically unlawful under the policy where detention was otherwise justified and no suitable removal-centre accommodation was available. The complaint concerning sharing a cell with convicted prisoners was directed against the prison governor, not the Secretary of State.