Muqtaar v Secretary of State for the Home Department

Immigration detention remains lawful only while there is a realistic prospect of deportation within a reasonable time. The court must assess that question itself by applying the Hardial Singh principles, rather than reviewing the Secretary of State’s decision on ordinary rationality grounds.

There is no fixed maximum period of detention. The assessment is fact-sensitive and must weigh the duration and conditions of detention, obstacles to removal, administrative diligence, the prospects and timing of removal, and the risks of absconding and reoffending. Those risks are highly important but are not invariably decisive. A rule 39 indication, pending legal proceedings, or a reasonable prospect of success does not automatically make continued detention unlawful. The claim was dismissed.

The claimant, a Somali national with a substantial criminal and absconding record, was detained under immigration powers from February 2008 until July 2011 pending deportation. A deportation order had been made, but removal was affected by proceedings before the European Court of Human Rights, including a rule 39 indication, country guidance concerning Somalia, and the claimant’s application to revoke the deportation order.

He sought a declaration that detention became unlawful at various stages, including after the rule 39 indication, after his revocation application and appeal, and after the decision in Sufi and Elmi v United Kingdom. He also relied on the Secretary of State’s alleged failure to consider the best interests of his claimed son under section 55 of the Borders, Citizenship and Immigration Act 2009. The central issue was whether continued detention remained lawful under the Hardial Singh principles.

1. The claim was dismissed. The court’s task was to determine for itself whether detention was lawful under the Hardial Singh principles. It was not confined to reviewing whether the Secretary of State’s detention reviews were Wednesbury reasonable. The lengthy detention required the most anxious scrutiny.

2. The governing test was whether, at the relevant time, there was a realistic prospect that deportation would take place within a reasonable time. Removal did not need to be certain or inevitable, but a remote or unrealistic prospect was insufficient. The assessment had to take account of the period already spent in detention.

3. There was no fixed maximum period of lawful detention. The relevant factors included the length and conditions of detention, the obstacles to removal, the Secretary of State’s diligence, the effect on the detainee and family, the likely timing of removal, and the risks of absconding and reoffending. Those risks were not an automatic trump card, but were of paramount importance because absconding could defeat the purpose of detention and the deportation order.

4. The rule 39 indication and the pending Strasbourg proceedings did not themselves eliminate a realistic prospect of removal within a reasonable time. Litigation necessarily involved uncertainty. The claim in Sufi and Elmi v United Kingdom had reasonable to good prospects, but its success was not inevitable and the court considered that the proceedings could still reasonably be expected to conclude within a reasonable time. The country guidance in AM and AM (armed conflict; risk categories) Somalia CG did not produce a different result.

5. By June 2010, and thereafter until release, the claimant’s detention had not exceeded what was reasonable in all the circumstances. His six convictions for absconding and substantial risk of reoffending outweighed the significance of restrictive conditions. The Secretary of State’s earlier delay in making the deportation order and securing travel documentation was regrettable but did not materially alter the outcome.

6. The decision in Abdi v Secretary of State for the Home Department was distinguishable. It involved a more complex and uncertain web of litigation and materially different removal issues. Following Sufi and Elmi v United Kingdom, the Secretary of State was entitled to take a short period to reconsider the claimant’s position; by his release thirteen days later, a reasonable time had not elapsed so as to require release.

7. The section 55 argument failed. Before July 2011 there was insufficient reliable evidence that the claimant was the biological father of the child relied upon. A statement from the child was insufficient in the circumstances, particularly because the claimant had previously stated that he was single and had no children. A duty to reconsider detention under section 55 might have arisen after receipt of biological evidence, but it had not arisen earlier.

First instance decision. The judgment records that the Court of Appeal had decided Abdi v Secretary of State for the Home Department, [2011] EWCA Civ 242, before judgment was handed down, and the parties made further submissions on it.