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

Detention pending deportation must comply with the Hardial Singh principles. The Secretary of State must intend to deport, detention must remain reasonable in all the circumstances, detention must cease if removal cannot be achieved within a reasonable period, and removal must be pursued with reasonable diligence and expedition.

In assessing reasonableness, the court may consider the prospects and merits of the underlying appeal, delay, co-operation with removal arrangements, risk of absconding, risk of reoffending and protection of the public. The court conducts an objective assessment of reasonableness, rather than merely reviewing the decision on traditional irrationality grounds. A long period of detention does not by itself require release where substantial risks justify continued detention.

The claimant, a Moroccan national who had lived in the United Kingdom since childhood, sought judicial review of the Secretary of State’s decision to maintain his detention pending determination of his appeal against a deportation order. He had been detained since June 2008 following convictions for numerous offences, including burglary and sexual offences.

The parties accepted that the claimant had initially been detained under an unlawful blanket policy applied to foreign national prisoners. The issues before the court were whether detention would nevertheless have been justified under the correct principles, whether continued detention remained lawful and reasonable, and when detention, if at all, had become unreasonable.

1. Applicable principles. The detention power under Immigration Act 1971, section 3(5)(a) and Schedule 3, paragraph 2, was subject to the Hardial Singh principles. The Secretary of State had to intend to deport, detention had to last only for a reasonable period, detention had to cease when removal could not be achieved within that period, and reasonable diligence and expedition were required.
2. The court’s task was objective. It was not confined to reviewing the Secretary of State’s reasoning on Wednesbury grounds. The court had to decide whether detention was or had become unreasonable in all the circumstances. Relevant considerations included the likelihood of absconding, risk of reoffending, protection of the public, the prospects and merits of the underlying appeal, delay, and any refusal to co-operate with travel-document arrangements.
3. Initial detention. Although the claimant had been detained under an unlawful blanket policy between June and September 2008, the court found that detention would inevitably have been imposed under the lawful principles. His extensive and continuing offending, convictions for failure to surrender to bail, failure to notify a change of address while on the sex offenders’ register, and the then limited evidence of family ties justified detention. The issue of damages was therefore confined to nominal damages for the unlawful detention.
4. Continued detention. There remained a sufficient prospect of removal within a reasonable time, despite the absence of a precisely predictable removal date. The claimant’s Article 8 case was not hopeless, and the delay attributable to pursuing potentially meritorious appeals was not held against him. His refusal to assist with an emergency travel document had no causative effect on delay because he could not lawfully be removed while his appeal remained outstanding.
5. The decisive considerations were the claimant’s repeated offending over almost 20 years, the risk of reoffending and harm to the public, the risk of absconding, and repeated refusals of bail. Those factors outweighed the concerning length of detention. The application was dismissed, subject to nominal damages for detention between June and September 2008. Questions concerning exemplary or vindicatory damages and any earlier release were left undecided.

First-instance judicial review. The judgment records that an earlier deportation appeal had been allowed by consent in the Court of Appeal in November 2010 and remitted to the Upper Tribunal, but this was not an appeal from the present claim.