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

Immigration detention remains lawful only while removal is intended and can reasonably be achieved within a reasonable period, or while another lawful detention ground remains. The assessment is fact-sensitive and includes the obstacles to removal, the Secretary of State’s diligence, the risk of absconding and reasonable alternatives to detention.

Pending judicial review or related appellate proceedings does not automatically make removal non-imminent. Where release depends on publicly funded accommodation, detention may continue while the person remains an abscond risk and suitable accommodation is secured, provided the Secretary of State acts reasonably and diligently.

The claimant was an Afghan refugee and a safe-third-country asylum seeker whose removal to Greece was pursued under the Dublin Regulation. He was detained after entering the United Kingdom clandestinely, apart from a period in local-authority care pending an age assessment.

Removal directions were cancelled after judicial review proceedings were commenced. The Secretary of State later decided to release him once suitable accommodation was available. He was released on 13 February 2009, after the House of Lords had dismissed the appeal in Nasseri [2009] 2 WLR 1202. The remaining issue was whether detention during four identified periods had been unlawful and whether damages were payable.

The claim was dismissed. The claimant’s detention throughout the four periods was lawful.

1. The applicable principles were those in I [2002] EWCA Civ 888, including that detention must be for the purpose of removal, must last no longer than is reasonable in all the circumstances, and must be pursued with reasonable diligence and expedition. Relevant circumstances included the period of detention, obstacles to removal, the Secretary of State’s conduct, the claimant’s circumstances, the risk of absconding and reasonable alternatives.

2. From 17 October to 19 November 2008, removal was reasonably regarded as imminent. The grant of permission to appeal in Nasseri did not itself justify suspending removal. The Secretary of State was entitled to rely on the existing Court of Appeal authority and the evidence then available concerning Greece. The claimant was also a clear abscond risk.

3. From 19 November to 19 December 2008, the cancellation and reissue of removal directions, the commencement of judicial review and the internal review of the claimant’s case did not make detention unlawful. The review took a reasonable period. The Secretary of State decided to release the claimant when it became apparent that removal was no longer imminent.

4. From 19 December 2008 to 13 February 2009, the claimant remained lawfully detained on the independent ground that he was likely to abscond. Release could reasonably be conditional on an address, residence requirement and reporting restrictions. The Secretary of State was not responsible for delay by an independent accommodation provider and had taken reasonable steps to progress the application.

5. The detention was lawful throughout. The claim for a declaration and damages was dismissed.