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

Immigration detention pending removal remains lawful while there is a realistic prospect of removal and the Secretary of State is investigating the practical means of achieving it. The detention must last no longer than is reasonable in the circumstances, and the Secretary of State must act with reasonable diligence and expedition. Difficulties in removal do not automatically require release. The risk of absconding or offending is relevant, but should not receive disproportionate weight. The court determines lawfulness for itself and does not apply ordinary judicial-review deference, except on matters where the Secretary of State is better placed to assess the evidence.

The claimant, a Jamaican national subject to a deportation order, sought judicial review and a declaration that his immigration detention between 3 February and 23 April 2010 was unlawful. He had significant physical and mental-health problems. Removal by air was found to be impracticable, while removal by sea required investigation of suitable medical facilities and arrangements. The central issue was whether detention became unlawful because removal could not be effected within a reasonable time, and whether the Secretary of State had acted with sufficient diligence in exploring removal by sea.

1. The claim was dismissed. The court refused permission to proceed because the claim did not cross the threshold of arguability. The detention between 3 February and 23 April 2010 was not unlawful.
2. Under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, detention pending removal is lawful only for such time as is reasonable to effect removal. If removal cannot be effected within that time, the detainee must be released. The relevant principles, derived from Re Hardial Singh [1984] 1 WLR 704, include the need to consider the risk of absconding or offending, the fact that removal difficulties do not necessarily require release, and the Secretary of State’s duty to act with reasonable diligence and expedition.
3. The court had to decide for itself whether detention was lawful. It was not reviewing the decision on conventional public-law grounds and owed no general deference to the Secretary of State, although weight could be given to matters on which the Secretary of State was better placed to make the relevant assessment.
4. By 6 February 2010 the claimant was recognised as unfit to fly, but removal by sea remained a possible means of removal. Given his medical condition, the need for hospital-equivalent facilities, the possible need for emergency evacuation, and the potentially substantial cost of chartering a vessel, the Secretary of State was entitled to investigate the feasibility of sea removal. The claimant’s history as an offender and absconder was also relevant to the period reasonably required.
5. The court found that the claimant became unfit for detention on 11 April 2010. However, an earlier notification that he was unfit to fly would not have enabled the sea-removal investigations to be completed materially before that date. Delays in pursuing medical assessments therefore did not affect the lawfulness of the detention. Costs were left for the parties to agree, subject to the court’s further directions.