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

Immigration detention pending deportation must remain directed to deportation and must last no longer than is reasonable in all the circumstances. The court must decide that question for itself. It must first consider whether there is a realistic prospect of removal within a reasonable time, then assess the relevant circumstances, including the obstacles to removal, the Secretary of State’s diligence, the conditions and effects of detention, and the risks of absconding and reoffending. A refusal of voluntary return is relevant, particularly to absconding risk, but is not decisive. A lengthy period of detention requires anxious scrutiny. Where removal has no realistic prospect within a reasonable time, continued detention is unlawful.

The claimant, a foreign national prisoner subject to a deportation order, had been detained under the Immigration Act 1971 since 31 December 2007. He sought declarations that his detention had become unlawful, release, and damages for false imprisonment and breach of article 5 rights.

The Secretary of State relied on the claimant’s uncertain identity and nationality, non-cooperation, criminal convictions, conduct in detention, and risks of absconding and reoffending. The central issue was whether, having regard to the continuing attempts to establish his nationality and arrange removal, his detention remained reasonable and lawful.

1. Detention unlawful. The claimant’s continued detention was unlawful and had been unlawful for approximately four months. Release was to take place subject to twice-weekly reporting, residence at an address provided by the defendant, and electronic tagging.
2. The power to detain under paragraph 2 of Schedule 3 to the Immigration Act 1971 could be used only for the statutory purpose of facilitating deportation and only for a period reasonably necessary for that purpose. The court had to decide for itself whether detention remained reasonable; its task was not confined to reviewing the Secretary of State’s decision on Wednesbury principles.
3. The court adopted the principles in R (I) v Secretary of State [2002] EWCA Civ 888, as approved in Walumba Lumba v Secretary of State for the Home Department [2011] UKSC 12. The court had first to determine whether there was a realistic prospect of deportation within a reasonable time. It then had to balance the length of detention, removal obstacles, official diligence, speed and effectiveness, detention conditions, its effects, and the risks of absconding and reoffending.
4. The refusal of voluntary repatriation was relevant, particularly as evidence of absconding risk, but was not a decisive justification for detention of indefinite duration. A finite removal date was unnecessary, although the prospect of removal had to be sufficient to justify continued detention when all other factors were considered.
5. There was no realistic prospect of removal within any known timeframe. The Moroccan authorities had not responded substantively to fingerprint enquiries for about ten months, and any positive identification would still require an emergency travel document process. The claimant’s moderate to high risk of absconding did not outweigh the extreme length of detention, the lack of a realistic removal prospect, and the deteriorating effect of detention on his mental health.

Not an appeal. The judgment records earlier refusals of permission-related or interim release applications, including an interim release refusal by Mr Justice Blair on 12 April 2011.