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

The statutory power to detain a person pending deportation is subject to implied limits. Detention is lawful only for a reasonable period and while removal remains a realistic objective pursued with reasonable diligence and expedition. The Secretary of State must establish, on the balance of probabilities, the facts justifying detention. The risk of absconding or reoffending is important, but it cannot justify detention indefinitely. A refusal of voluntary return is not a decisive reason for continuing detention where deportation cannot be effected within a reasonable period.

The claimant, a Zimbabwean national and foreign national offender, challenged his continuing detention pending deportation. He had been detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 since October 2006. Enforced returns to Zimbabwe had been suspended and, after their resumption, the claimant lacked a valid passport and would not co-operate with the emergency travel document process.

The first hearing was confined to whether mandatory relief requiring release from detention should be granted. The court decided that issue on 20 December 2011. Before the adjourned hearing on the remaining issues, the parties agreed a consent order concerning liability, withdrawal of the earlier detention claim, damages and a stay.

1. Release and unlawfulness. The claimant’s detention was unlawful under the third Hardial Singh principle. The Secretary of State could no longer lawfully detain him because, on the evidence as at 20 December 2011, it was uncertain when, or whether, removal to Zimbabwe could be achieved within a reasonable period.
2. Statutory limits. Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 permits detention pending removal, but the power is subject to implied limitations. The Secretary of State must intend to deport the person, use detention only for that purpose, detain for no longer than a reasonable period, stop detention when removal within a reasonable period has become apparent as unattainable, and act with reasonable diligence and expedition.
3. Relevant assessment. The assessment of reasonable duration may include the length of detention, the obstacles to removal, the diligence and effectiveness of steps taken to overcome them, detention conditions, its effect on the person and family, the risk of absconding, and the risk of further offending. The risks of absconding and reoffending remain important, but there comes a point at which detention pending deportation ceases to be lawful.
4. Voluntary return. Refusal of voluntary return is not a decisive reason permitting detention to continue indefinitely. Otherwise, refusal could make any period of detention reasonable whenever the Secretary of State was seeking to secure removal.
5. Burden of proof and final order. The executive bears the burden of proving on the balance of probabilities the facts necessary to justify lawful detention. The parties’ consent order was approved. The judicial review claim was stayed, with liberty to apply if agreement on damages could not be reached.

This was a first-instance judicial review in the Administrative Court. The judgment records no appeal from an earlier decision.