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

Detention under paragraph 2 of Schedule 3 to Immigration Act 1971 is limited to the period reasonably necessary to facilitate deportation. The Secretary of State must intend removal, act with reasonable diligence and expedition, and stop detaining when it becomes apparent that removal cannot occur within a reasonable period. Lawfulness is assessed as circumstances develop. The likely duration of unresolved nationality and revocation processes matters, as do the risk of absconding and countervailing family ties. A real risk of absconding does not by itself justify continued detention. Applying the principles in [1984] 1 WLR 704, as restated in [2011] UKSC 12, detention became unlawful after a short review period when deportation could not reasonably be expected within a reasonable time.

The claimant, a foreign national convicted of possessing false identity documents, was transferred from prison to immigration detention under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 after a deportation decision and order. Disputed nationality prevented travel-document arrangements, while a revocation application, family-life considerations and possible appeals remained unresolved. He was released on bail on 28 June 2010. The Secretary of State later revoked the deportation order and granted discretionary leave, leaving only the detention claim. Kenneth Parker J, in EWHC 1200 (Admin), held detention lawful and dismissed the judicial review. The appeal asked when initially lawful detention became unlawful under the Hardial Singh principles.

1. Applicable principles. Lord Justice Jackson held that the detention power in paragraph 2 of Schedule 3 to the Immigration Act 1971, although subject to no express time limit, is impliedly limited to the period reasonably necessary to facilitate deportation. The court adopted the guidance in [2011] UKSC 12, including the requirements that deportation be intended, detention remain reasonable in all the circumstances, detention cease when removal cannot be achieved within a reasonable period, and the Secretary of State act with reasonable diligence and expedition.
2. The Hardial Singh principles reflect broader public-law duties concerning statutory purpose and reasonableness, but are not exhaustive. The risk of absconding is particularly important, although it must be assessed alongside the other circumstances. Lawfulness may change over time as the prospects and expected duration of removal develop.
3. The court permitted the claimant to advance a new argument on appeal. The Secretary of State suffered no substantial prejudice, and the case concerned personal liberty and the legality of detention.
4. Detention was lawful up to the end of 2009. The first-instance judge had properly evaluated the Secretary of State’s investigations and the real risk of absconding. By contrast, the revocation application, the effect of section 55 of the Borders, Citizenship and Immigration Act 2009, established family ties, and the likely in-country appeal and possible judicial review created substantial prospective delay. The Secretary of State also intended to postpone consideration of revocation until nationality was resolved. By late January 2010, three possible nationalities remained under consideration and no state had accepted the claimant. He had already been detained for 16 months.
5. Balancing the real risk of absconding against the real prospect that the claimant would remain at his settled home with his partner and children, the court held that Hardial Singh principle (iii) was engaged. After allowing a short period for review, the cut-off date was 28 January 2010.
6. The detention was declared unlawful from 28 January 2010 to 28 June 2010. The question of remedy was remitted to the Administrative Court unless the parties agreed the remedy within 21 days. Lord Justice Sullivan and Lord Justice Pill agreed with Lord Justice Jackson.

1. Court of Appeal (Civil Division), [2012] EWCA Civ 414: allowed the appeal, declared the detention unlawful for the period 28 January 2010 to 28 June 2010, and remitted the question of remedy.
2. Queen's Bench Division, Administrative Court, Kenneth Parker J, EWHC 1200 (Admin): held that detention up to 28 June 2010 was lawful and dismissed the judicial review claim.