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

Administrative detention pending deportation remains lawful only for a period that is reasonable in all the circumstances. There is no fixed maximum period. The court must assess the realistic prospects and likely timing of removal, the detainee’s conduct, absconding and reoffending risks, medical condition, and the Secretary of State’s diligence. No single factor is determinative. Detention cannot be justified merely to prevent offending or absconding where it is no longer genuinely for the purpose of deportation. Once the Secretary of State cannot identify a realistic expected date of removal, continued detention may become arbitrary and unlawful under Article 5 of the Convention.

The claimant had been detained under paragraph 2 of Schedule 3 to the Immigration Act 1971 since June 2007, pending deportation to Algeria. Repeated applications for an emergency travel document had not resulted in Algerian acceptance of his identity or return. The Secretary of State had continued making enquiries, but could not identify when removal might realistically occur.

The claimant challenged the lawfulness of his continuing detention. The central issues were whether the detention had become unreasonable in duration and circumstances, and whether the risks of absconding and further offending justified its continuation.

1. The claim for damages was dismissed. The claimant’s detention had not been unlawful from the outset, and continued detention remained justified until the results of the latest employment enquiries were known.
2. The governing principles under Schedule 3 to the Immigration Act 1971 were settled. Detention must be for the purpose of deportation and only for a reasonable period. The period depends on all the circumstances. There is no universal threshold measured in months or years.
3. Relevant considerations included the claimant’s cooperation, the prospects and expected timing of removal, the risk of absconding, the likelihood and potential seriousness of reoffending, the effect of detention on his health, and the diligence and speed of the Secretary of State’s efforts. The list was non-exhaustive, and no factor operated as a trump card.
4. Although the claimant was likely to offend again and breach conditions if released, those risks could not themselves justify detention. Such detention would not be for the purpose of deportation. His past offending was acquisitive rather than violent, and appropriate reporting and residence conditions could reduce the practical risks.
5. After more than three years’ detention, the Secretary of State could identify no date by which removal was realistically expected. The remaining enquiries were uncertain in timing and outcome. Continued detention had therefore become unlawful under Article 5 of the Convention.
6. A declaration was made that continued detention was unlawful. The claimant was ordered to be released by 4 pm that day, subject to residence, reporting, notification, non-employment and overnight-stay conditions.