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

Immigration detention may cease to be lawful when its duration becomes excessive in all the circumstances, even where release would create a substantial risk of reoffending and absconding. The length of detention is a material consideration in determining whether further detention remains lawful. A conclusion that further detention is unlawful does not necessarily determine whether earlier detention was unlawful. Where detention is no longer lawful, release may be effected by temporary admission subject to conditions imposed by the Secretary of State.

The claimant had been held in immigration detention for four years and eleven months. The Administrative Court considered, at an interim stage of the proceedings, whether any further detention would be lawful. The judge was satisfied that release would probably lead to reoffending and absconding, but had not yet heard full submissions on all the issues, including whether the Secretary of State had previously had power to detain the claimant until that date.

The immediate issue was whether the claimant could lawfully remain detained and what arrangements should follow if release was required.

1. Further detention. The court held that any further detention of the claimant would no longer be lawful in all the circumstances. The conclusion was reached notwithstanding the finding that it was much more likely than not that release would result in reoffending and absconding. The very substantial period already spent in detention, namely four years and eleven months, was a decisive consideration.
2. Scope of decision. The judge expressly limited the ruling to the lawfulness of any further detention. He reserved judgment on whether the Secretary of State had in fact possessed power to detain the claimant up to that date, together with other issues on which full submissions had not yet been heard.
3. Release arrangements. If the Secretary of State released the claimant on temporary admission, she could impose conditions. The judge was uncertain whether he himself had power to grant bail and indicated that the conditions would principally be a matter for the Secretary of State. The parties accepted proposed conditions that were less extensive than those potentially available to the Secretary of State, including no electronic tagging.
4. The claimant was therefore to be released once the appropriate order or declaration had been sealed, with the remaining issues to be determined at a later hearing.