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

Detention pending deportation is lawful only for a period that is reasonable in all the circumstances and only while there is a sufficient realistic prospect of removal. A predicted date or finite period for removal is not invariably required. The degree of certainty and proximity required increases as detention lengthens.

The assessment requires a balance of all relevant factors, including the likelihood of removal, the detainee’s co-operation, risks of absconding and reoffending, and time already spent in detention. The court makes that assessment independently, although it may properly recognise that the executive is better placed to assess a foreign authority’s likely response.

The claimant, a Somali national liable to deportation following repeated criminal offending, was held in immigration detention for about 40 months pending removal to Somaliland. Removal depended upon a viable route, the acceptance of the Somaliland authorities, and sufficient biographical information demonstrating his connection with Somaliland.

Sales J held that detention was lawful until 20 June 2007 but unlawful thereafter, awarding a declaration and damages for the final period: [2009] EWHC 2506 (Admin). The claimant appealed, contending that detention had become unlawful much earlier because there was no realistic prospect of removal within a finite period and because alternatives to detention had not been properly considered.

1. Appeal dismissed. The judge was entitled to hold that the first 38 months of detention, although exceptionally long and requiring anxious scrutiny, remained lawful. The Court of Appeal upheld the finding that detention became unlawful only on 20 June 2007, when there was no longer a serious prospect of a workable route to removal.

2. Under Immigration Act 1971, Schedule 3, detention pending removal is constrained by the Hardial Singh principles. There must be a sufficient prospect of achieving removal to warrant continued detention when all relevant circumstances are balanced. The authorities did not impose an additional legal requirement that the Secretary of State identify a definite date, or a predictable finite period, by which removal would occur. The extent of uncertainty about whether and when removal will occur is instead an important feature of the balance.

3. The court, rather than the Secretary of State, must assess whether detention is reasonable; the inquiry is not confined to Wednesbury review. It was nevertheless legitimate for Sales J to give appropriate weight to the executive’s superior position in assessing whether the Somaliland authorities might accept a return.

4. Sales J permissibly treated the claimant’s high risk of absconding and potentially serious reoffending, his obstructive conduct in supplying bio-data, and the continuing possibility of voluntary or enforced removal as factors supporting detention. His lack of co-operation was relevant not only to absconding risk but also to the prospect that further information might enable removal. The increasing duration of detention was also given proper and increasing weight.

5. The alternative policy ground added nothing. Release subject to electronic tagging had been considered and was reasonably rejected as ineffective against the assessed risk of absconding.

• Court of Appeal (Civil Division) Dismissed the claimant’s appeal and upheld the finding that detention was unlawful only from 20 June 2007: [2010] EWCA Civ 1112.

• High Court of Justice, Queen’s Bench Division, Administrative Court Sales J held the detention lawful until 20 June 2007, but unlawful from then until release on bail on 21 August 2007, and granted declaratory relief and damages to be assessed: [2009] EWHC 2506 (Admin).