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

Immigration detention pending deportation remains lawful only while there is a realistic prospect of removal within a reasonable period. The assessment is fact-sensitive and must be made without hindsight, with anxious scrutiny of each period of detention. The length of detention, obstacles to removal, administrative diligence, and the risks of absconding and re-offending are relevant. Those risks are important but are not a trump card. A person may be detained without a definite removal date, but as detention lengthens a greater degree of certainty and proximity of removal is required. Once an impediment to removal is resolved, the Secretary of State must promptly reassess the individual case and arrange release where removal can no longer occur within a reasonable time.

The claimant, a Somali national convicted of sexual assault, was detained under Schedule 3, paragraph 2(2) of the Immigration Act 1971 after completion of the custodial part of his sentence. He remained detained for nearly 38 months while domestic and international proceedings concerning removal to Somalia were pursued.

The claimant challenged the lawfulness of his detention under the Hardial Singh principles. The principal issues were whether there remained a realistic prospect of deportation within a reasonable time, and whether the risks of absconding and re-offending justified continued detention after the ECtHR decided Sufi & Elmi v United Kingdom.

1. Applicable principles. The court applied the four Hardial Singh principles. It had to assess lawfulness itself, rather than review whether the Secretary of State’s decisions were Wednesbury reasonable. There is no fixed period after which detention becomes unlawful, and each case depends on its particular facts. The assessment must avoid hindsight and must be conducted with anxious scrutiny.
2. Relevant factors. A realistic prospect of removal does not require a definite removal date or certainty that removal will occur. Relevant factors include the period already spent in detention, the obstacles to removal, the Secretary of State’s diligence and effectiveness, detention conditions and personal impact, and the risks of absconding and criminal offending. The risks of absconding and re-offending are highly important, but neither operates as a trump card.
3. Application before June 2011. The changes in Somalia country guidance, the Rule 39 indication, the Sprakab report and the outstanding international litigation did not, at the relevant reviews, eliminate a realistic prospect of deportation within a reasonable time. The claimant’s high risk of absconding and significant risk of serious sexual re-offending justified a lengthy period of detention. The Secretary of State was not required to predict the precise date of removal.
4. Later period. Once the ECtHR delivered judgment in Sufi & Elmi v United Kingdom on 28 June 2011, the Secretary of State had to reassess the claimant’s individual position. A short period was permissible to digest the judgment and arrange stringent release conditions, but the claimant could no longer realistically be deported within a reasonable time. His continued detention after 21 July 2011 infringed Hardial Singh principle (iii).
5. Order. The court declared that the claimant should have been released on 22 July 2011 and directed that loss and damage, if any, be determined by a Master of the Queen’s Bench Division.