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

Immigration detention pending deportation is lawful only for the purpose of effecting deportation and for the period reasonably necessary to achieve it. The Secretary of State must act with reasonable expedition. The assessment is fact-sensitive and includes the length of detention, the obstacles to removal, official diligence, the detainee’s conduct, the risk of absconding and the risk of offending if released.

Where there is no realistic prospect of removal within a foreseeable and reasonable period, continued detention becomes unlawful. Serious offending and risks posed by release do not, by themselves, justify detention for public protection. The same conclusion may arise under domestic law and Article 5.1(f) of the European Convention on Human Rights.

The claimant, a Sudanese national, had been detained under an immigration power for almost three years after serving sentences for attempted robbery and possession of an offensive weapon. His removal was delayed principally by the absence of Sudanese emergency travel documentation and prolonged administrative difficulties.

The Secretary of State argued that the claimant had obstructed removal, posed risks of absconding and reoffending, and might eventually be removed. The claimant sought judicial review, a declaration that his detention was unlawful, and damages for false imprisonment. The central issue was whether continued detention remained justified under the principles governing detention pending deportation.

1. Outcome. The court declared that the claimant’s detention was unlawful from 20 January 2009. The claim for aggravated or exemplary damages was not established. Further orders, including release terms and consequential matters, were adjourned.
2. Applicable principles. Under paragraph 2 of Schedule 3 to the Immigration Act 1971, detention pending deportation is limited to the purpose of enabling deportation and to the period reasonably necessary for that purpose. The Secretary of State must take all reasonable steps with reasonable expedition. Detention cannot be maintained once it is apparent that removal cannot be achieved within a reasonable period.
3. The relevant assessment is one of fact and degree. Relevant considerations include the length of detention, the nature of the obstacles to removal, the diligence, speed and effectiveness of official action, the conditions and effects of detention, the risk of absconding, and the danger of offending after release. Those considerations must be balanced in the circumstances of the individual case.
4. The claimant had not materially obstructed removal. His reluctance to engage with the Sudanese Embassy did not cause the inability to obtain documentation, and he could not properly be detained to compel his alleged mother to assist. The principal causes of delay were the absence of travel documentation, an extended fees impasse and administrative failures.
5. Although the Secretary of State had acted in good faith and was entitled initially to investigate the possibility of deportation, the evidence showed that by 20 January 2009 there was no realistic prospect of return within a foreseeable period. Continuing detention was therefore no longer authorised, despite the claimant’s criminal record and the asserted risks of absconding or reoffending. Detention could not lawfully be used for public protection.
6. The same conclusion would have been reached under Article 5 of the European Convention on Human Rights. The detention was not being maintained with a genuine and feasible view to deportation.