SM, R (on the application of) v FM

Administrative detention pending deportation is lawful only for the purpose of securing removal and for the period reasonably necessary for that purpose. The court must assess all relevant circumstances, including absconding risk, reoffending risk, cooperation and the realistic prospect of removal. A fixed removal date is unnecessary, but continued detention requires a sufficient and increasingly persuasive prospect of removal as time passes.

Under Borders, Citizenship and Immigration Act 2009, a child’s best interests are a primary consideration. British citizenship must receive particular weight. An approach assuming that a British child can simply accompany a parent abroad and return on reaching adulthood fails to address the child’s best interests. Where that error undermines the prospect of lawful deportation, continued detention is unlawful.

The claimant, a Bosnian Roma man, had been detained under the Immigration Act 1971 after serving a sentence for serious violence. The Secretary of State sought to deport him, but the Bosnian authorities had repeatedly declined to issue travel documents and had not confirmed that he would be admitted.

The claimant challenged his detention on the grounds that removal directions could not lawfully be issued, that the period of detention was unreasonable, and that reviews had failed to consider properly the welfare and best interests of his British-citizen son, FM. The central issues were whether there remained a realistic prospect of removal within a reasonable period and whether the detention decision complied with section 55 of the Borders, Citizenship and Immigration Act 2009.

1. Detention pending removal. The power under Schedule 3 to the Immigration Act 1971 is limited to securing removal and may be exercised only for the period reasonably necessary for that purpose. The court, rather than the Secretary of State, determines whether the period is reasonable. Relevant factors included the risk of absconding, the risk of reoffending, cooperation with immigration arrangements and the ability to remove the claimant.
2. A realistic prospect of removal may exist even though no removal date can be predicted and removal is not certain. However, as detention continues, the degree of certainty and proximity required to justify it increases. The claimant’s lack of cooperation materially contributed to the delay, but did not make the problem entirely his responsibility because voluntary return to Bosnia was unavailable.
3. The outstanding enquiries with the Bosnian and Serbian authorities initially provided a sufficiently realistic prospect that further information would secure travel documents and admission. The claimant’s detention was therefore not unlawful solely on that ground at the January hearing. The court also accepted the continuing weight of the Probation Service’s high-risk assessment, taking account of the serious violence, aggressive behaviour and disciplinary adjudications.
4. Section 55. The Secretary of State had considered FM’s position and obtained advice from the Office of the Children’s Champion. Nevertheless, the approach was legally defective. It treated FM’s British citizenship as having no material effect because he could accompany the family to Bosnia and return as an adult. It did not address his best interests or follow up the specialist welfare assessment recommended by Dudley Social Services.
5. Following ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, British citizenship is of particular importance in assessing a child’s best interests, and the child’s interests cannot be devalued because of the parents’ precarious immigration status. The flawed assessment affected the realistic prospect of deporting the claimant within a reasonable period because the deportation decision required reconsideration under section 55 and Article 8(2) of the Convention.
6. Detention became unlawful on 22 October 2010, when authority was sought to split the family for detention on the basis of the flawed assessments. The claimant was ordered to be released on bail, subject to residence with his family, reporting three times weekly, a 7 pm to 7 am curfew and electronic monitoring.