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

Immigration detention pending deportation is lawful only for a period reasonably necessary to achieve removal. The Secretary of State must act with reasonable diligence and expedition and must show a realistic or reasonable prospect of removal within a reasonable time. The assessment is fact-sensitive. It must account for the length of detention, obstacles to removal, official diligence, risks of absconding and reoffending, and the effect of detention. Non-cooperation may be highly relevant, but cannot justify indefinite detention. As detention lengthens, it becomes increasingly important that removal is realistically achievable within a predictable and reasonable period. The court, not the Secretary of State, determines the legal limits of detention.

The claimant challenged his detention under the Immigration Act 1971 from 7 August 2006 to 1 December 2009, following a decision to deport him because his presence was considered not conducive to the public good. A deportation order was made on 30 July 2007. The claimant accepted that detention was lawful until his fingerprints were obtained in December 2008 and an Emergency Travel Document application was sent to the Moroccan authorities on 21 January 2009.

The central issue was whether the Secretary of State had established a reasonable prospect of removing the claimant within a reasonable time, having regard to his earlier and continuing non-cooperation, the absence of a travel document, the length of detention, official diligence, and the risks of absconding and reoffending.

1. Principles governing detention. The statutory power to detain under Schedule 3 to the Immigration Act 1971 exists to enable deportation machinery to operate. Detention is limited to the period reasonably necessary for that purpose. The Secretary of State must act with reasonable diligence and expedition and must not continue detention once it is apparent that removal cannot be achieved within a reasonable period.
2. The relevant assessment is fact-sensitive. It includes the length of detention; the obstacles to removal; the diligence, speed and effectiveness of steps taken to overcome them; detention conditions; the effect on the detainee and family; the risk of absconding; and the risk of further offending. There must be a realistic or reasonable prospect of removal within a reasonable time. The court determines both the legal boundaries of detention and whether detention falls within them.
3. Non-cooperation is an important factor, and may often be decisive where deportation remains a genuine and achievable purpose. It does not create an unlimited entitlement to detention. Even where delay has been caused substantially by the detainee, the increasing length of detention may ultimately make it impossible to establish a reasonable prospect of removal within a reasonable time.
4. On the facts, the claimant’s non-cooperation had ceased to be a significant obstacle by 23 February 2009. The Secretary of State knew that obtaining the travel document might take up to 24 months, yet failed to pursue the application with sufficient diligence or to arrange an interview capable of remedying known deficiencies. The risks of absconding and reoffending did not justify continued detention in the absence of a sufficiently predictable removal date, particularly after almost 40 months’ detention.
5. The Secretary of State failed to establish continuing lawful detention from 23 February 2009. A declaration was made that detention from that date until release was unlawful. The court declined to add a further general principle concerning the presentation of information to bail tribunals, since that issue was not pleaded and required fuller argument.