Polanco, R (on the application of) v Secretary of State for the Home Deparment

Immigration detention has no fixed maximum duration, but it is subject to an effective limit in each case. The longer detention continues, the greater the justification required. Risks such as absconding and reoffending must be weighed against the loss of liberty, and their weight may diminish as detention continues. The seriousness of past offending is not itself a direct justification for immigration detention, which is not punitive. It may matter indirectly where there is a real risk of further serious offending. The Secretary of State cannot justify lengthy detention by relying on future diligence if earlier delay materially prolonged detention. Continued detention was unjustified where the risk of reoffending was very low, the risk of absconding was limited, and much of the detention resulted from failure to determine an asylum claim promptly.

The claimant, a Colombian national, had been detained under the Immigration Acts for nearly thirty-three months. He had convictions for sexual offences, had overstayed his leave, and was later served with notice of a decision to make a deportation order. His asylum claim was eventually refused, and his appeal concerning residence rights as the former spouse of an EEA national remained subject to further proceedings. The claimant sought interim relief by release from detention.

The central issue was whether continued detention remained justified pending the outcome of his immigration appeal and any subsequent removal.

1. Application granted. The claimant was ordered to be released on terms to be agreed.
2. The court applied the principles in R v Governor of Durham Prison ex parte Singh [1984] 1 WLR 704, as summarised in R(I) v SSHD [2002] EWCA Civ 888. Detention must pursue removal, remain reasonable in all the circumstances, cease when removal cannot be achieved within a reasonable period, and be pursued with reasonable diligence and expedition.
3. The relevant factors included the length of detention, obstacles to removal, the Secretary of State’s diligence, the effect of detention, the risk of absconding, and the risk of further offending. The court must balance the gravity of those risks against the principle of liberty. A risk which may initially justify detention can lose weight as detention continues. There is no absolute statutory time limit, but there may be an effective limit in an individual case.
4. The claimant presented some risk of absconding, but it was less weighty than in cases involving a demonstrated determination to remain in the United Kingdom at all costs. The court rejected the Secretary of State’s assessment of reoffending risk. A sexual conviction may indicate some risk, but the evidence showed that the claimant’s current likelihood of reoffending was very low.
5. The seriousness of the original offences was not directly relevant because immigration detention is not punishment. It had only indirect relevance where there was a real likelihood of reoffending, which was absent here. The claimant could be readily removed if unsuccessful in his appeals.
6. The period of detention under Schedule 2 was particularly significant. Much of it resulted from the Secretary of State’s failure to determine the asylum claim efficiently and promptly. That past failure could not be remedied merely by an undertaking to act diligently in future.

The judgment was a first-instance decision on an application for interim relief. The claimant’s appeal against the deportation decision had been dismissed by the Asylum and Immigration Tribunal and again on reconsideration in [2008] UKAIT 00074. The Court of Appeal had granted permission to appeal, and the substantive judicial review claim concerning detention was stayed pending that appeal.