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

Immigration detention must remain directed to removal and must end when removal cannot be achieved within a reasonable period. The assessment is fact-specific and must consider the practical obstacles to removal, the Secretary of State’s diligence, the detainee’s conduct, and risks of absconding or reoffending. A refusal of voluntary return is relevant only within the limits identified in R (I) v Secretary of State for the Home Department and [2011] UKSC 12; it is not a trump card and cannot justify indefinite detention where return is impossible or legal challenges are being pursued. Detention cannot be used principally to coerce voluntary departure. A serious criminal record may justify a longer period, but cannot remove the temporal limits imposed by the Hardial Singh principles.

The claimant, an Iraqi Kurdish national from Baghdad, challenged his detention pending deportation under paragraph 2 of Schedule 3 to the Immigration Act 1971. He had been detained after serving a custodial sentence for robbery. His removal to the Kurdish Regional Government area was unavailable because he had no relevant links, while removal to Baghdad was not realistically available during the material period.

The claimant’s first deportation decision was withdrawn after the decision in HH (Criminal record; deportation; “war zone”) Iraq, and a second deportation decision was later made. His appeals and representations continued, and the First-tier Tribunal ultimately found that return would expose him to a real risk of serious harm. The issue was whether detention became unlawful under the third Hardial Singh principle and whether the claimant was entitled to more than nominal damages.

1. The claim succeeded in part. The claimant’s detention was unlawful from the outset until approximately 9 September 2008 because it was carried out pursuant to the unpublished Cullen policy. It was lawful between the withdrawal of that policy and 8 January 2009. From 8 January 2009, it breached the third Hardial Singh principle because removal was no longer realistically achievable within a reasonable period.

2. The court applied the four principles restated in R (I) v Secretary of State for the Home Department, [2002] EWCA Civ 888, and accepted in R (WL (Congo)) v Secretary of State for the Home Department, [2011] UKSC 12. The assessment is fact-specific and must not be rigid or mechanical. A reasonable period in this case was 18 months, taking account of the claimant’s serious offending history, risks of absconding and reoffending, and the fact that he had supplied biometric information.

3. Although conditions in Iraq had temporarily improved, the evidence showed no objective basis for believing that a Kurdish deportee from Baghdad could be removed within a reasonable time. Repeated formulaic statements that removal was realistic did not establish such a prospect. By 8 January 2009, the revocation of the first deportation order and the need for a fresh immigration decision and appeal made the absence of a realistic removal prospect clear.

4. The claimant’s refusal of voluntary return did not justify the prolonged detention. Following R (WL (Congo)), refusal is irrelevant where return is impossible for reasons external to the detainee or where non-abusive appeals are pursued. In other cases it is relevant but cannot justify detention for an unlimited period. The court would have held, absent authority, that “departure” in paragraph 2(3) of Schedule 3 did not enlarge the detention power to permit coercion of voluntary departure.

5. The first period of unlawfulness attracted nominal damages only, because the Secretary of State could and would lawfully have detained the claimant during that period. The claimant was entitled to compensatory damages for detention from 8 January 2009 until his release on bail, apparently on 25 August 2010. The parties were to make submissions on the form of order and any declaration.

This was a first-instance judicial review. The judgment describes earlier proceedings before the Asylum and Immigration Tribunal, the First-tier Tribunal and the Court of Appeal in related deportation and detention matters, but no appeal from this judgment.