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

Detention pending deportation must remain justified throughout by a sufficient prospect of removal, assessed against the period already spent in detention and all other relevant factors. A detainee’s refusal to co-operate is a strong factor, but it cannot justify detention indefinitely. The required prospect of removal rises as detention continues.

For a disabled detainee, the Secretary of State must consider the wider effects of disability, including facilities, transport, dignity and harassment. A medical assessment of fitness to remain detained is insufficient. Breach of the disability policy or the duty to have due regard is relevant within the Hardial Singh balancing exercise. Detention became unlawful when prolonged detention, slim removal prospects and substantial disability-related hardship outweighed the factors supporting detention.

The claimant, an Iranian national and foreign national prisoner with a serious disability, challenged his detention pending deportation between December 2007 and his release on 1 June 2010.

He argued that detention became unlawful because there was no realistic prospect of removal, because the Secretary of State had failed to comply with her detention policy and disability duties, and because detention conditions did not accommodate his disability. The Secretary of State relied on the claimant’s refusal to co-operate, risks of absconding and reoffending, and the availability of suitable detention arrangements.

The central questions were when detention ceased to be lawful under the Hardial Singh principles and whether breaches of the Disability Discrimination Act 1995 affected that conclusion.

1. Hardial Singh principles. The court had to determine whether the detention already endured was unreasonable and, if not, whether there remained a sufficient prospect of removal within a reasonable time. The assessment required a balance of the length of detention, removal prospects, the risk of absconding, the risk of harm from reoffending, the conditions and effects of detention, and any failure to co-operate.
2. The claimant’s refusal to complete the Iranian removal documentation was a strong factor supporting continued detention. It was not, however, determinative for all time. Detention could not be used to motivate co-operation, and the refusal could not justify indefinite detention. The required prospect of removal increased as the period of detention lengthened.
3. Detention remained lawful on 20 November 2008 and during the period at Harmondsworth. At those stages there remained some prospect that the claimant might change his mind, and the factors supporting detention outweighed the length of detention and the disability issues then established.
4. Disability. Chapter 55.10 of the Enforcement Instructions and Guidance required the court to give substantial weight to disability within the overall detention assessment. The Secretary of State had to consider whether the claimant’s disability could be satisfactorily managed in the detention estate. This involved wider issues than medical fitness, including accommodation, transport, dignity and harassment.
5. The Secretary of State breached the duty under section 49A of the Disability Discrimination Act 1995 from at least the end of November 2009 by failing properly to consider the claimant’s wider disability-related difficulties. The claimant nevertheless failed to establish indirect discrimination under section 21B, because the general detention practice had been adjusted through policy and the application of Hardial Singh principles.
6. From late January 2010 the Secretary of State failed adequately to plan transfers and failed to provide suitable facilities at Campsfield, Colnbrook and Brook House. By 11 February 2010, the claimant had been detained for over two years, removal prospects remained slim, and the substantial hardship caused by unsuitable disability arrangements tipped the balance in favour of release.
7. The application was allowed in part. The court declared that detention from 11 February 2010 to 1 June 2010 was unlawful. The claim under section 21B and the claim for damages for breach of the Disability Discrimination Act were dismissed. No separate declaration was made for the section 49A breach. Damages for false imprisonment remained to be determined.