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

Immigration detention remains lawful while there is a reasonable prospect of removal within a reasonable time. The court must assess the whole period and weigh all relevant circumstances, including the detainee’s cooperation, risk of absconding, risk of further offending, and the progress of any asylum claim. A long period of detention requires particularly careful scrutiny. If removal cannot be achieved within a reasonable further period, continued detention becomes unlawful, even where the detainee presents significant risks.

The claimant, a Palestinian national, challenged the lawfulness of his detention pending deportation. He had been detained since October 2007 following a criminal conviction and the making of a deportation order. He argued that the length of detention had become unreasonable and that there was no realistic prospect of removal within a reasonable time.

The Secretary of State relied on the claimant’s extensive immigration history, prior non-cooperation, risk of absconding, risk of further offending, and the recent determination of a further asylum claim. The issue was whether detention had already become unlawful or whether any further detention was necessarily unlawful.

1. The claim was dismissed. The court held that no period of the claimant’s detention had yet been unlawful.

2. The governing principles were those identified in R v Governor Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888, R v Secretary of State for the Home Department, ex parte Kadir [2005] UKHL 39, R (on the application of Abdi) v Secretary of State for the Home Department [2009] 1 EWHC 1324 and R (on the application of Hussein) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin).

3. The claimant’s lack of cooperation had materially prolonged the detention. His immigration history also established a serious risk of absconding. His escalating history of violent offending provided a further proper reason for detention, notwithstanding that he did not meet the statutory criteria for a dangerous offender.

4. The Secretary of State had been entitled to await information needed to assess the claimant’s fresh asylum claim. Once that claim had been rejected, there was no reason why steps to obtain emergency travel documentation could not be taken urgently.

5. Applying the principle identified by Dyson LJ in R (on the application of I) v Secretary of State for the Home Department, the court had to consider whether removal could be effected within a reasonable time. A further period measured in weeks or a few months would not necessarily be unreasonable. A substantially longer period could make detention unlawful despite the risks of absconding and reoffending.

6. The court therefore dismissed the claim, while making clear that any continuation of detention for many months, or beyond the indicated period, should be subject to close scrutiny and might require a further application. Costs were ordered in the form appropriate for a legally assisted person.