Summary
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.
Factual background
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.
Held
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
Available to signed-in members.
Appeal route
- This judgment [2009] EWHC 2506 (Admin) High Court (Administrative Court)
- Appealed to[2010] EWCA Civ 1112Outcomeappeal dismissed
Key cases cited
10 authorities cited.
- Regina v. Secretary of State for the Home Department (Respondent) ex parte Khadir (FC) (Appellant) [2005] UKHL 39
- A, R (On the Application Of) v The Secretary of State for the Home Department [2007] EWCA Civ 804
- I, R (on the application of) v Secretary of State for the Home Department [2002] EWCA Civ 888
- Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence [2009] EWHC 2387 (Admin)
- Abdi, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin)
- Abdi & Ors v Secretary of State for the Home Department [2008] EWHC 3166 (Admin)
- Bashir, R (on the application of) v Secretary of State for the Home Department [2007] EWHC 3017 (Admin)
- R (A) v Secretary of State for the Home Department [2006] EWHC 3331 (Admin)
- Youssef v Home Office [2004] EWHC 1884 (QB)
- R v Governor of Durham Prison, Ex p Hardial Singh [1983] EWHC 1 (QB)
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Cases citing this case
15 later cases · 10 positive · 4 neutral · 1 caution
Most senior citing decisions:
- Hemmati & Ors, R (on the application of) v The Secretary of State for the Home Department [2018] EWCA Civ 2122 considered
- AB, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWCA Civ 59 mentioned
- DZ (Eritrea), R (on the application of) v The Secretary of State for the Home Department [2017] EWCA Civ 14 applied
- Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931
- Rapheael Olufemi Oluponle v The Home Office [2023] EWHC 3188 (KB)
- Miyanji v Secretary of State for the Home Department [2017] EWHC 1939 (QB)
- Simukonda v The Home Office [2017] EWHC 1012 (QB)
- Botan, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 550 (Admin)
- Ademiluyi, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 935 (Admin)
- Sino, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin)
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