Mohamed, R (on the application of) v Secretary of State for the Home department

Detention pending deportation remains lawful only while it is genuinely directed to removal and there is a reasonable prospect of deportation within a reasonable time. The court must assess all relevant circumstances, including the period already served, the detainee’s cooperation, obstacles to removal, the Secretary of State’s diligence, detention conditions, the risks of absconding and reoffending, and the effect on the detainee and family. Length of detention is important but is not automatically determinative. Where removal remains realistically achievable, continued detention may be lawful despite substantial delay, particularly where the detainee caused much of that delay and presents significant risks if released. The assessment is fact-sensitive and must be kept under review.

The claimant, a Somali national with indefinite leave to remain, had been detained under the Immigration Act 1971 for 34 months following a decision and order for his deportation. His removal required Somali government approval and an emergency travel document. He challenged continued detention under Article 5 of the European Convention on Human Rights, arguing that there was no reasonable prospect of removal within a reasonable time and that the process had reached an impasse.

The Secretary of State relied on the claimant’s earlier failure to provide information, recent communications showing continuing progress towards removal, regular detention reviews, and the risks of absconding and reoffending.

1. Application refused. Continued detention was lawful on the evidence before the court.
2. Under Article 5(1)(f) and paragraph 2 of Schedule 3 to the Immigration Act 1971, detention must remain for the purpose of deportation by removal. The Secretary of State must intend to deport, act with reasonable diligence and expedition, and detain only for a reasonable period. If it becomes apparent that removal cannot be achieved within a reasonable time, detention becomes arbitrary and unlawful.
3. The decisive question was whether there was a reasonable prospect of removing the claimant within a reasonable time. The court considered the ten relevant factors identified in the evidence and authorities: the length of detention; obstacles to removal; the Secretary of State’s diligence, speed and effectiveness; detention conditions; the effect on the claimant and family; risks of absconding and reoffending; general evidence concerning returns to Somaliland; regular detention reviews; and the tribunal’s recent bail decision.
4. The claimant’s 34-month detention was lengthy, but much of the delay resulted from his deliberate failure to provide information needed for identification and removal. The remaining obstacle was Somali approval, but recent communications showed no genuine impasse. The Secretary of State was taking active steps, the claimant had become the priority for return, and the outstanding questions could be answered from information already available.
5. The Secretary of State could have acted sooner in some respects, including correcting the inaccurate screening information and obtaining family information. Nevertheless, the overall conduct was reasonable. The claimant’s high risks of absconding and serious reoffending were relevant considerations, although they could not justify detention once removal ceased to be realistically achievable.
6. The tribunal’s recent conclusion that detention remained lawful deserved considerable respect, while the court retained responsibility to assess the Article 5 issue on the evidence before it. The balance could change if efforts to secure removal ceased or the Somali authorities became unwilling to accept the claimant promptly. A further challenge remained available.