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

Detention pending deportation remains lawful only while deportation is intended, removal remains reasonably practicable within a reasonable period, and the Secretary of State acts with reasonable diligence and expedition. The assessment is fact-sensitive and includes the obstacles to removal, the detainee’s conduct, the risks of absconding and reoffending, and the impact of detention. Non-co-operation is relevant but cannot justify indefinite detention. A mistaken statutory label does not invalidate detention where it merely misdescribes a lawful power and does not affect the decision-making process.

The claimant, a Pakistani national convicted of wounding with intent to do grievous bodily harm, challenged his detention pending deportation. A deportation order had been made, but removal required Pakistani travel documents which could not be obtained because his identity and nationality remained unverified. He had been detained for approximately two years after re-detention in April 2010.

He alleged that the re-detention decision was invalid because it referred to section 36(1) of the UK Borders Act 2007, although the applicable power was paragraph 2(3) of Schedule 3 to the Immigration Act 1971. He also alleged that the continuing detention breached the Hardial Singh principles and article 5 of the Convention. The central issues were whether the initial re-detention was lawful and whether continued detention remained reasonable.

1. Technical error. The re-detention was lawful. The reference to section 36(1) of the UK Borders Act 2007, which concerned detention pending the making of a deportation order, was a mislabelling of the power. The applicable power was paragraph 2(3) of Schedule 3 to the Immigration Act 1971. The misdescription did not introduce any unlawful element or show that different considerations had been applied. [2012] EWHC 1432 (Admin) [6]-[7].
2. Applicable principles. The principles stated in R (I) v Secretary of State for the Home Department [2003] INLR 196, adopting and expanding R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704, governed the detention. The Secretary of State must intend to deport the person and use detention only for that purpose. Detention must last no longer than is reasonable in all the circumstances. It must cease if it becomes apparent that removal cannot be achieved within a reasonable period. The Secretary of State must act with reasonable diligence and expedition. The same principles applied under article 5 of the Convention. [2012] EWHC 1432 (Admin) [8]-[9].
3. The relevant assessment included the length of detention, the obstacles to removal, the diligence and effectiveness of the Secretary of State’s efforts, the conditions and effects of detention, the risk of absconding, the risk of further offending, and the effect on the detainee and his family. Non-co-operation was relevant to reasonableness but was not a justification for indefinite detention. R (Lumba) v Secretary of State for the Home Department [2011] 1 AC 245 was relied on for these points. [2012] EWHC 1432 (Admin) [8], [25]-[31].
4. The initial re-detention was justified by the apparent prospect of obtaining travel documents within two or three months, together with the claimant’s serious conviction, previous absconding and loss of accommodation. Although the claimant had contributed to delay and UKBA had been at fault over an identity mix-up, UKBA had otherwise acted with appropriate diligence. [2012] EWHC 1432 (Admin) [12]-[15], [20]-[27].
5. By the date of judgment, however, the claimant had been detained for about two years, following a further period of detention, without any indication when travel documents would be obtained. The risks of absconding and reoffending were not sufficiently high to justify continued detention. The detention had therefore become unlawful, although it had not been shown to have become unlawful significantly earlier. The claimant was ordered to be released immediately subject to agreed conditions. [2012] EWHC 1432 (Admin) [29]-[33].

This was a first-instance judicial review. The claimant’s deportation appeal had been dismissed by the Asylum and Immigration Tribunal on 10 November 2009, and his appeal rights became exhausted on 11 December 2009. Permission to apply for judicial review was granted on 2 March 2012. The Administrative Court held that the initial re-detention was lawful but ordered immediate release because continued detention was no longer reasonable.