Choy v Secretary of State for the Home Department

Immigration detention remains lawful only for the period reasonably necessary to effect removal. The court must assess whether there is a reasonable prospect of removal within a reasonable time, considering all relevant circumstances. Relevant factors include the detainee’s cooperation, absconding and reoffending risks, the effect of detention, and the Secretary of State’s diligence. There is no fixed time limit or decisive factor. A failure to progress matters as quickly as possible does not, by itself, establish unlawful detention. Nor is the court required to conduct a detailed day-by-day assessment of administrative progress. Where detention derives from a court’s recommendation for deportation, the statutory basis continues after the deportation order is made under Schedule 3 to the Immigration Act 1971.

The claimant, a Nigerian-born man of Chinese parentage, had been convicted of deception, sentenced to imprisonment and recommended for deportation. He was detained after criminal proceedings on a later charge ended, while the Secretary of State sought an emergency travel document from the Chinese authorities. The claimant alleged that delays in obtaining the document resulted from failures to verify his passport and address information. He sought judicial review, a declaration that his detention had been unlawful, and damages for false imprisonment.

The central issues were whether the detention exceeded the period reasonably necessary for removal under the Hardial Singh principles and whether the statutory source of detention affected any claim for damages.

1. The claim was dismissed. The claimant’s detention from 26 January 2009 to 6 April 2010 was not shown to have exceeded the period reasonably necessary for removal. There had remained a reasonable prospect of removal within a reasonable time, and the Secretary of State had not breached the Hardial Singh principles.
2. The governing approach required consideration of all relevant circumstances. There was no fixed period after which detention became unlawful. Relevant factors included the claimant’s cooperation in obtaining an emergency travel document, the risk of absconding, the risk and consequences of reoffending, the effect of detention, and the Secretary of State’s diligence. No factor was necessarily decisive, and the burden of establishing lawful detention lay on the Secretary of State. The prospects of removal had to be assessed by reference both to the expected timing and to the degree of certainty, as explained in R(MH) v SSHD.
3. The Secretary of State’s conduct did not disclose significant lack of diligence. The search for the original passport was reasonable. The use of the Hong Kong address was not unreasonable on the information held. Any possible delays amounted only to a few weeks, and the Chinese authorities’ requirements created no indefinite impasse.
4. The court rejected the submission that R (WL (Congo)) v SSHD created a distinction enabling damages for false imprisonment after a deportation order was made. Paragraph 2(1) of Schedule 3 created a presumption of detention following a court recommendation for deportation, and paragraph 2(3) continued that presumption after the deportation order. The origin of the detention therefore remained the recommendation.
5. The court accepted that an arbitrary and unreasonable decision not to release might produce a different result, as illustrated by R(MXL and others) v SSHD. However, a lack of diligence alone did not create a public-law cause of action. The court was not required to conduct a detailed time-and-motion study of each period of detention.