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

Immigration detention remains lawful only while it genuinely serves the purpose of removal. The Secretary of State must act with reasonable diligence and expedition and must cease detention when removal cannot be achieved within a reasonable period. A detainee’s refusal to co-operate may strongly support detention, particularly where it indicates a risk of absconding or directly prevents removal. It does not, however, justify indefinite detention where the authorities merely repeat requests without pursuing other available measures. The court should assess the circumstances as a whole, including the length of detention, obstacles to removal, official diligence, the risk of absconding, public protection and the effect of detention. Courts should not establish a tariff based on detention periods in other cases.

The claimant, an Iranian national and failed asylum seeker subject to a deportation order, challenged the lawfulness of his immigration detention. He had been detained for approximately 56 months in two periods, separated by a short period on bail. Removal depended upon the issue of an Iranian emergency travel document, which in turn depended upon his signing a disclaimer. He repeatedly refused to do so.

The Secretary of State maintained detention on the basis of the claimant’s non-co-operation, the risk of absconding, his offending and the risk of re-offending. The claimant argued that the authorities had failed to take effective steps to secure removal and that detention had become unlawful. The central issue was whether continued detention remained genuinely for the purpose of deportation and was being pursued with reasonable diligence and expedition.

1. Applicable principles. The principles in R v The Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as restated in R (I) v Secretary of State for the Home Department [2003] 1 WLR 196, governed the case. The Secretary of State must intend to deport; detention may be used only for that purpose; detention must last no longer than is reasonable; it must cease when deportation cannot be achieved within a reasonable period; and the Secretary of State must act with reasonable diligence and expedition.
2. The relevant factors included the length of detention, the obstacles to deportation, the diligence, speed and effectiveness of official steps, the conditions of detention, the effect on the detainee and family, the risk of absconding and the danger of re-offending. The claimant’s refusal to co-operate was highly material because it directly affected removability and could evidence a risk of absconding. His offending and the risk of re-offending were also relevant.
3. Those considerations did not permit indefinite detention. The authorities were entitled initially to make strenuous efforts to obtain the claimant’s consent or to circumvent it, including approaches to the Iranian authorities. But repeated requests, without a plan or effective action to secure removal, could cease to constitute detention genuinely for the purpose of deportation.
4. From at least mid-2008 into 2009, the Secretary of State repeatedly recorded possible action but did not pursue it. There was no effective further approach to the Iranian authorities, no prosecution under section 35, and no meaningful alternative strategy. By September 2009 there was no longer a realistic prospect of achieving deportation within a reasonable period. The detention therefore became unlawful on 14 September 2009.
5. The court rejected attempts to derive a tariff from other single-judge decisions. Lawfulness depended on the circumstances of the individual case, not on whether detention had lasted a particular number of months or years. The assessment of damages was adjourned and costs were reserved.

The judgment was a first-instance decision of the Administrative Court. The judgment refers to an earlier judicial review application, which had been dismissed, but gives no citation for that decision.