HY, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention pending deportation must remain directed to removal and last no longer than is reasonably necessary. The existence of a power to detain is distinct from the lawfulness of exercising it in the circumstances of the case.

The court must assess all relevant circumstances, including the length of detention, the obstacles to removal, the Secretary of State’s diligence, the detainee’s cooperation, risks of absconding and reoffending, and the availability of release conditions. Non-cooperation and risk factors may justify a longer period, but are not automatic or indefinite answers. After very lengthy detention, continuing detention requires a reasonable prospect of removal within a reasonable time and, absent such prospect, exceptional circumstances.

The claimant challenged his administrative detention under Immigration Act 1971, Schedule 3. He had been detained for approximately 45 months following a decision to deport him and the making of a deportation order.

Removal depended on obtaining an emergency travel document from the Algerian authorities, who repeatedly declined to recognise the information supplied about his identity and nationality. The Secretary of State relied on the claimant’s previous non-cooperation, risks of absconding and reoffending, and continuing investigative steps.

The central issue was whether continued detention remained lawful under the principles governing detention pending deportation.

1. Power and lawfulness. The statutory power to detain pending deportation exists in principle where there remains some prospect of removal. That question is distinct from whether continued detention is lawful, which must be assessed under the principles in Hardial Singh and related authorities.
2. The Secretary of State must intend to deport the person, use detention only for that purpose, detain only for a reasonable period, act with reasonable diligence and expedition, and release the person when it becomes apparent that removal cannot be achieved within a reasonable period. The court adopted the overriding inquiry stated in FR (Iran): whether the Secretary of State had shown a reasonable prospect of securing removal within a reasonable time.
3. Relevant circumstances included the length of detention, the nature of the obstacles to removal, the diligence and effectiveness of the steps taken, detention conditions, its effect on the detainee and family, risks of absconding and reoffending, and the potential seriousness of offending. Non-cooperation could justify a longer reasonable period, but could not operate indefinitely as a trump card.
4. After approximately 45 months’ detention, the absence of any predicted removal date and the total uncertainty surrounding the investigations and any fresh travel-document application meant that the Secretary of State had not established a reasonable prospect of removal within a reasonable time. The claimant’s prior non-cooperation did not justify indefinite detention.
5. Although the risk of absconding was high and there was some risk of reoffending, the evidence did not establish a sufficiently grave risk of public harm to outweigh the length of detention and the availability of proportionate release conditions. The claimant’s offences were principally theft-related, and the evidence concerning detention conduct did not establish a high risk of serious public harm.
6. The claim succeeded prospectively. Continued detention after the date of judgment was declared unlawful. The claimant was to be released within 48 hours, subject to residence, reporting, curfew, electronic monitoring and notification conditions. The court declined to declare the earlier detention unlawful. The claimant received costs on the standard basis; indemnity costs were refused.

This was a first-instance judicial review. The judgment refers to earlier permission and bail decisions in the same proceedings, but records no appeal.