Raki, R (on the application of) v Secretary of State for the Home Department & Anor

Immigration detention pending deportation is lawful only for a period reasonably necessary to achieve removal. Detention must end when it becomes apparent that removal cannot be effected within a reasonable period, even if the detainee has failed to co-operate. Non-co-operation is relevant only where it has a causal effect on removal and cannot justify indefinite detention. The court assesses continued detention objectively, considering the length of detention, the obstacles to removal, the Secretary of State’s diligence, the impact of detention, and the risks of absconding and reoffending. Mental-health difficulties must be weighed even where they fall short of serious mental illness. The claim succeeded because there was no substantial evidence of a realistic prospect of removal within a reasonable timeframe.

The claimant, believed by the Secretary of State to be Moroccan, sought a mandatory order for release from immigration detention. He had been detained for more than five years, including over four years under immigration powers pending deportation. No Moroccan travel document had been obtained, and the Secretary of State provided no evidence explaining the prolonged delay or showing a realistic prospect of removal within a reasonable period.

The claimant challenged the legality of his continued detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 and the common-law principles governing detention pending deportation. The central issues were whether further detention was unreasonable and whether removal remained realistically achievable.

1. Claim allowed. The claimant’s continued detention was unlawful under the common law. It was unnecessary to determine the alternative Article 5 issue.

2. Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 confers a discretion to detain pending removal. It creates no presumption that a person subject to a deportation order must remain detained.

3. The Hardial Singh principles applied. Detention may be used only for the purpose of deportation, for a period reasonably necessary in all the circumstances. The Secretary of State must act with reasonable diligence and expedition. Detention becomes unlawful when it is apparent that removal cannot be achieved within a reasonable period, even if the reasonable period has not yet expired.

4. The assessment is objective. Relevant considerations include the length of detention, the nature of the obstacles to removal, the diligence and effectiveness of the steps taken, the conditions of detention, the effect on the detainee and family, the risk of absconding, and the risk of reoffending. A realistic prospect of removal need not have a predicted date, but there must be a sufficient prospect to justify continued detention in the balance of all relevant factors.

5. Non-co-operation may be relevant where it has caused or materially accelerated the delay. It is not a trump card. Where the obstacle is extraneous to the detainee, unwillingness to return voluntarily cannot be held against him. Even where non-co-operation is established, it cannot justify detention where no realistic prospect of removal within any timeframe is shown.

6. The Secretary of State had produced no substantial or compelling evidence of removal to Morocco, and the court inferred from the absence of evidence that no travel document could be obtained within a reasonable timeframe. The claimant’s risk of absconding did not outweigh the prolonged detention, the lack of a realistic removal prospect, and the failure properly to consider the effect of detention on his mental health. Mental-health difficulties had to be considered even though they did not necessarily amount to serious mental illness.