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

The court must itself determine whether immigration detention remains lawful and reasonable. The Hardial Singh principles apply to detention pending a deportation order under paragraph 2(2) of Schedule 3 to the Immigration Act 1971. Detention must remain reasonable in all the circumstances, and the Secretary of State must act with reasonable diligence and expedition.

Risk of reoffending and risk of absconding are relevant. Absconding will always be important and may often be decisive, but it is not a trump card. Time spent pursuing appeals cannot automatically be disregarded, nor does it automatically make detention unlawful. The assessment is fact-sensitive and must balance the risks, the detainee’s conduct, the Secretary of State’s diligence and the likely duration of the appeal process.

The claimant, a Somali national who had lived in the United Kingdom since infancy, sought immediate release from immigration detention. He had been convicted of further offences after an earlier successful Article 8 appeal against deportation.

The Secretary of State had detained him while considering automatic deportation under the UK Borders Act 2007, although the statutory basis was later treated as detention pending a deportation order under the Immigration Act 1971. The claimant’s deportation appeal was outstanding. He argued that removal was unlikely within a reasonable period, that the detention had already lasted about 13½ months, and that the Secretary of State had acted inefficiently. The central issue was whether continued detention was lawful and reasonable at the date of the hearing.

1. Disposition. The application for an order requiring release from detention was dismissed. The court left the supplementary challenge to the lawfulness of earlier detention for later consideration.
2. The court’s role was primary. It had to determine the scope of the detention power and whether detention was lawful and reasonable, rather than merely reviewing whether the Secretary of State had reached a reasonable conclusion.
3. The principles in R v Governor of Durham Prison, ex p Singh and R (oao I) v Secretary of State for the Home Department applied to detention under paragraph 2(2) of Schedule 3 to the Immigration Act 1971. The Secretary of State had to intend to deport, detain only for that purpose, detain for no longer than reasonable in all the circumstances, release when removal could not be achieved within that reasonable period, and act with reasonable diligence and expedition.
4. The claimant presented a real risk of further offending, based on his significant and continuing offending history, including serious offending after an earlier warning by the tribunal. There was also a very significant risk of absconding, supported by previous failures to comply with conditions and an earlier finding that he was likely to abscond if granted bail.
5. Risk of absconding was always an important factor and could often be decisive because absconding would frustrate the purpose of detention pending deportation. It was not, however, a trump card requiring all other considerations to be disregarded.
6. The Secretary of State’s evidence established a process by which removals to Somalia could be effected, although its practical operation in the claimant’s case had not been tested. The fact that the claimant’s appeals prevented removal was highly relevant, but there was no inflexible rule that time spent pursuing an appeal must be disregarded. The court had to weigh the risks of reoffending and absconding, the claimant’s diligence in pursuing appeals, the Secretary of State’s diligence, and the likely period before the appeals concluded.
7. Although official errors had probably caused delay, they did not outweigh the risks, the apparent availability of removal, and the fact that the claimant’s appeals presently prevented deportation. The length of detention, considered alone or by comparison with other cases, was not determinative.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.