FB, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention must remain justified by a continuing and lawful balancing exercise. Mental illness creates a strong presumption in favour of release, but that presumption may be outweighed by the public interest in preventing absconding and reoffending. A detainee’s refusal to co-operate with removal remains relevant where deportation is compulsory.

Nevertheless, the Secretary of State must pursue removal with reasonable energy and expedition. That duty applies while legal challenges remain and becomes especially important once all legal obstacles have ended. Where detention is causing serious deterioration in mental health and removal has not been pursued diligently, continued detention becomes unlawful and release should follow.

The claimant, an Algerian national and recognised refugee, had been detained under immigration powers after completing a prison sentence. The Secretary of State intended to revoke his refugee status and deport him, but obtaining an emergency travel document was delayed for a prolonged period.

The claimant challenged his continuing detention, relying on the Hardial Singh principles and the Secretary of State’s policy concerning detention of mentally ill persons. The central issues were whether the refusal to co-operate with obtaining travel documents justified continued detention, whether removal had been pursued with reasonable diligence and expedition, and whether the claimant’s deteriorating mental health required his release.

1. The claim succeeded in part. The claimant’s detention was lawful initially, but became unlawful after 19 January 2011. He was ordered to be released by 4.00 pm on 23 May 2011, subject to conditions.

2. The court applied the principles stated in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, including the requirement that the Secretary of State act with reasonable diligence and expedition to effect removal. Those principles continued to apply notwithstanding the claimant’s refusal to co-operate with obtaining an emergency travel document.

3. The claimant’s mental illness required a strong presumption in favour of release. That presumption had to be balanced against the strong public interest in preventing absconding and reoffending. His refusal to co-operate was relevant to the risk of absconding, particularly because absconding was likely to be accompanied by further offending.

4. At the end of the claimant’s sentence, the balance justified detention. The Secretary of State was nevertheless required to prepare actively for deportation, including pursuing the emergency travel document process. The legal challenge to deportation did not prevent reasonable preparatory steps being taken in parallel.

5. After the First-tier Tribunal dismissed the claimant’s appeal on 17 September 2010, the absence of an emergency travel document was the only practical obstacle to removal. By January 2011, the Secretary of State knew that detention was adversely affecting the claimant’s mental health, while progress towards removal remained very limited and future obstacles were substantial. The continued detention authorised on 13 January 2011 was therefore unlawful, and release should have occurred no later than 19 January 2011.

First instance judicial review. The judgment records that the claimant’s appeal against the deportation decision was dismissed by the First-tier Tribunal on 17 September 2010, with no further appeal pursued. Permission for judicial review was granted on 18 February 2011.