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

Detention pending deportation is lawful only where it serves the purpose of removal and continues for no longer than reasonably necessary. There must be a realistic or sufficient prospect of removal, although the authorities need not be able to predict the date of removal or provide certainty that it will occur. The assessment is fact-sensitive. Relevant considerations include the detainee’s failure to co-operate, refusal of voluntary return, risk of absconding, risk of re-offending and the availability of effective alternative measures. A change in removal policy may establish a realistic prospect of removal even where implementation is delayed. The claimant’s detention remained lawful because removal to Zimbabwe had become realistically possible and the risks arising from his conduct materially supported continued detention.

The claimant sought judicial review of his detention by the Secretary of State pending enforcement of a deportation order. He had been detained since 10 December 2006 following completion of a custodial sentence. He claimed that there had been no real or imminent prospect of removal, particularly because he disputed that he was Zimbabwean and had asserted United States nationality.

The Secretary of State relied on the claimant’s lack of co-operation, the risk of absconding, the risk of serious re-offending and his ability to return voluntarily. During the proceedings, the Secretary of State announced that enforced returns to Zimbabwe would resume, subject to further country guidance. The central issue was whether the claimant’s detention remained lawful despite the absence of a fixed removal date.

1. Statutory power and governing principles. Under Immigration Act 1971, Schedule 3, paragraph 2(3), a person against whom a deportation order is in force may be detained pending removal or departure. The power must be exercised for the purpose of removal and only for the period reasonably necessary for that purpose.
2. Prospect of removal. A realistic prospect of removal is sufficient. The authorities need not identify a precise removal date, predict the period within which removal will occur or establish certainty that removal will ultimately take place. The degree of certainty is one factor in the overall assessment.
3. Relevant factors. The claimant’s attempts to frustrate removal, refusal to co-operate with establishing his nationality and failure to accept voluntary return were matters of substantial weight. There was also a very high risk of absconding, based on his history, dishonesty and lack of meaningful ties in the United Kingdom. The evidence, although not particularly strong, was sufficient to establish a significant risk of offending if released.
4. Application and order. The announced change in policy towards enforced returns to Zimbabwe created a realistic prospect of deportation, notwithstanding the temporary delay pending country guidance. Balancing that prospect against the risks and the claimant’s conduct, the court held that the detention had been and remained lawful. The claim was dismissed. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment and not to be enforced without leave of the court. The court declined to declare that the claimant was a Zimbabwean national.