Ibrahim & Anor v Secretary of State for the Home Department (Rev 1)

Immigration detention pending deportation is lawful only for the purpose of removal and for a period reasonably necessary to achieve it. Detention becomes unlawful when it is apparent that removal cannot be effected within a reasonable period, even if that period has not yet expired.

A substantial risk of absconding and refusal of voluntary return may materially justify continued detention, but neither is a trump card permitting detention of indefinite duration. An unpublished detention policy makes detention unlawful only if it was applied and materially caused the detention. Judicial review will ordinarily be refused where the challenge could have been raised through the statutory immigration appeal and review process.

Both claimants were Iraqi nationals and foreign national prisoners detained under Schedule 3 to the Immigration Act 1971 after criminal sentences and deportation proceedings. They challenged detention on three principal grounds: failure to apply an operational policy against enforcement action to nationals from active war zones; reliance on an unlawful blanket detention policy; and breach of the Hardial Singh limitations.

The claims were rolled-up permission hearings. Both claimants had appealed the deportation decisions to the immigration appellate system but had not raised the active-war-zone argument. The central issues were whether Iraq was an active war zone, whether any unlawful detention policy materially caused their detention, and when continued detention ceased to be lawful because removal could not be achieved within a reasonable period.

1. Active war zone policy. The policy was to be interpreted according to the reasonable understanding of its language and presumed purpose. An active war zone meant an area where armed conflict was actively being waged and all persons were exposed to serious physical risk. The policy concerned countries which, for practical purposes, could be considered wholly active war zones. Iraq as a whole was not an active war zone in 2006 or 2007. The policy ground therefore failed. In any event, judicial review was refused because the point could and should have been raised in the statutory immigration appeal and reconsideration process.
2. Unlawful detention policy. Under [2010] EWCA Civ 111, detention under paragraph 2(1) remained authorised by the criminal court’s recommendation, while detention under paragraphs 2(2) and 2(3) required a lawful decision by the Secretary of State. The unlawful blanket policy identified in the earlier proceedings was not shown to have been applied to either claimant or to have been the effective cause of their detention. Their detention was instead maintained because of assessed risks of absconding.
3. Hardial Singh principles. The Secretary of State had to intend deportation, detain only for a reasonable period, release the detainee when it became apparent that removal could not be achieved within that period, and act with reasonable diligence and expedition. Refusal of voluntary return and risk of absconding were important factors, but could not justify detention of any length. A hope that security conditions would improve was insufficient to support effectively indefinite detention.
4. Mr Ibrahim’s detention under paragraph 2(1) was lawful, and his detention after the deportation order was initially reasonable. By 30 June 2008, however, there were no plans for enforced removal to his area of Iraq and it was apparent that removal could not occur within a reasonable period. His detention became unlawful on 1 July 2008.
5. Mr Omer’s refusal to provide biometric information until November 2007 and his refusal of voluntary return made an overall period of 18 months reasonable in principle. But the January 2008 detention review acknowledged that enforced removal to his area was not planned and that voluntary departure was the only realistic route. It was apparent from 8 January 2008 that removal could not be achieved within a reasonable time. His detention from that date was unlawful.

Declarations were made accordingly. Permission was refused on the active-war-zone ground but otherwise granted, and the claims succeeded to the extent stated. Further relief and directions concerning damages were reserved.

First-instance judicial review claims were determined by the High Court (Administrative Court). The claimants had previously pursued appeals and reconsideration applications before the Asylum and Immigration Tribunal, but the active-war-zone point was not raised there.