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

Immigration detention remains lawful only while it satisfies the Hardial Singh principles. A realistic and sufficient prospect of removal may exist even where no fixed removal date can be predicted. The assessment remains fact-sensitive and must balance the length of detention, prospects of removal, risk of absconding or reoffending, and the Secretary of State’s diligence.

A Rule 39 indication does not automatically make detention unlawful. Following a material change, a reasonable period may be taken to assess the detainee’s individual position. A material public-law error bearing on a decision to detain can render detention under Schedule 3 unlawful and found a false-imprisonment claim, but an offer of voluntary return is not unlawful unless refusal is treated as relevant to whether detention has become excessive.

The appellant, a Somali national with a substantial offending history, was detained pending deportation for just over 41 months. His removal was interrupted by a Rule 39 indication from the European Court of Human Rights concerning removals to Somalia. He was released on bail shortly after the Strasbourg decision in Sufi and Elmi v United Kingdom.

His judicial-review claim alleged unlawful detention through flawed detention reviews, breach of the Hardial Singh principles, and breach of article 5 of the Convention. Mr Timothy Corner QC, sitting as a deputy High Court judge, dismissed the claim: [2011] EWHC 2707 (Admin). The appeal concerned whether the prolonged detention had ceased to be lawful, particularly after the Rule 39 indication and the Strasbourg judgment.

1. Appeal dismissed by a majority. Richards LJ, with whom Lloyd LJ agreed, upheld the dismissal of the claim. Elias LJ would have held the final eight days of detention unlawful.
2. The Hardial Singh principles required the court to assess whether removal remained realistically achievable within a reasonable period, together with all relevant circumstances. A sufficient prospect of removal does not require certainty or a defined timetable. The appellant’s detention was very long and near the outer limit of justification, but the judge’s conclusion that the limit had not been exceeded was open to him.
3. The Rule 39 indication did not make removal incapable of achievement within a reasonable period. Nor did the later application to revoke the deportation order. The case was materially different from Abdi and Khalaf v Secretary of State for the Home Department [2011] EWCA Civ 242. Following Sufi and Elmi v United Kingdom, the Secretary of State could reasonably take the period before the appellant’s release to assess his individual position; there was no general one-week limit.
4. The court should form its own judgment under the Hardial Singh principles, but an appellate court should not interfere with a careful first-instance evaluative decision unless it was legally wrong, inconsistent with primary facts, or not sensibly open on those facts.
5. Under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, continued detention was not insulated from challenge merely because the appellant had previously been detained. Applying R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 and R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, a material public-law error relevant to detention could make it unlawful. No such error occurred: adequate inquiries had been made about the Strasbourg proceedings, and the references to voluntary return did not treat the appellant’s pursuit of legal remedies as a reason to prolong detention.
6. Article 5(1)(f) added nothing material. Deportation proceedings were pursued with due diligence and detention did not exceed what was reasonably required for that purpose.

• Court of Appeal (Civil Division) — Appeal from the Administrative Court dismissed by Richards and Lloyd LJJ; Elias LJ dissented as to the final eight days of detention: [2012] EWCA Civ 1270.
• Administrative Court — Mr Timothy Corner QC, sitting as a deputy judge, dismissed the judicial-review claim challenging the lawfulness of immigration detention: [2011] EWHC 2707 (Admin).