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

Immigration detention pending deportation is lawful only while deportation remains a realistic prospect within a reasonable time. The Secretary of State must intend to deport, act with reasonable expedition and keep detention within a period reasonable in all the circumstances. Detention may become unlawful before that period has elapsed where it becomes apparent that removal cannot be achieved within a reasonable period. The court itself determines the legal limits and lawfulness of detention. Risks of absconding or reoffending may justify detention for longer, but cannot do so indefinitely and should be addressed by proportionate release conditions where appropriate.

The claimant, an Iraqi national subject to a deportation order, challenged his continued immigration detention. His removal to Baghdad had failed when Iraq refused entry to most deportees on the October 2009 flight. The Secretary of State relied principally on the prospect of renewed removal arrangements and on the claimant’s relatively short period of current detention.

The court considered the findings in R (Ahmed) v Secretary of State for the Home Department, [2010] EWHC 625 Admin, concerning the same failed removal operation. The central issue was whether, notwithstanding the shorter period of current detention, there remained a reasonable prospect of removing this claimant within a reasonable time.

1. Applicable limits. Although paragraph 2 of Schedule 3 to the Immigration Act 1971 confers power to detain pending deportation or removal, the power is limited by the common law. The Secretary of State must intend to deport, use detention only for that purpose, act with reasonable expedition and detain only for a period reasonable in all the circumstances.
2. Reasonable prospect of removal. Detention becomes unlawful before the end of an otherwise reasonable period when it becomes apparent that deportation cannot be effected within a reasonable period. The question is not confined to the length of detention already served. It also requires a realistic assessment of the expected timing and basis of removal.
3. Judicial responsibility. The court must determine whether the legal boundaries of administrative detention have been exceeded. The issue is not merely whether the Secretary of State’s position is Wednesbury unreasonable, although appropriate weight may be given to incidental factual matters better assessed by the executive.
4. Application. The Iraqi delegation’s postponed visit had no firm replacement date and was only the first of five proposed steps towards renewed removals. The Secretary of State could not provide a reliable timetable. The court therefore found no reasonable prospect of removal within a reasonable time. The claimant’s shorter current detention did not alter that conclusion.
5. Risk and remedy. The court accepted that the claimant presented risks of absconding and reoffending, but held that those risks could be proportionately managed by conditions of release. Continued detention from the date of judgment was unlawful. The Secretary of State was given 14 days to implement appropriate conditions. The claimant obtained the costs of establishing the unlawfulness of continuing detention, and the remaining judicial-review issues were left for further proposals.