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

Immigration detention remains lawful only while the Hardial Singh principles are satisfied. The Secretary of State must intend removal, detain only for a reasonable period, maintain a realistic prospect of removal within that period, and act with reasonable diligence and expedition. The assessment is fact-sensitive and must look forward as well as backwards.

Where objective medical evidence shows serious mental illness worsened by detention, the relevant detention policy creates a strong presumption in favour of release. Detention may continue only in very exceptional circumstances, with the risk of reoffending or harm to the public carefully weighed against the medical evidence. Once removal ceased to have a realistic prospect within a reasonable time and the policy was engaged, continued detention became unlawful.

The claimant had completed a custodial sentence for robbery and remained detained under the deportation provisions of the Immigration Act 1971 while the Secretary of State sought emergency travel documentation from the Algerian authorities.

He challenged his detention from 16 May 2011, alleging that removal was not realistically achievable within a reasonable period, that the Secretary of State had failed to act with reasonable diligence, and that his detention seriously damaged his mental health. The Secretary of State relied on the claimant’s offending, absconding history, alleged lack of co-operation, and the continuing prospect of obtaining travel documentation. The central issues were whether detention complied with the Hardial Singh principles and whether the detention policy concerning serious mental illness was properly applied.

1. Applicable principles. The tort of false imprisonment requires imprisonment and absence of lawful authority. The burden lay on the Secretary of State to justify detention under the Immigration Act 1971. The Hardial Singh principles required an intention to deport, detention for a reasonable period, a realistic prospect of removal within a reasonable time, and reasonable diligence and expedition.
2. The assessment was fact-sensitive. Relevant factors included the length of detention, obstacles to removal, the Secretary of State’s diligence, the conditions of detention, its effect on the detainee and family, and the risks of absconding and reoffending. False or misleading information and failure to co-operate could extend the reasonable period, but could not justify detention beyond a reasonable period.
3. The court rejected a purely comparative approach based on the length of detention in other cases. The court had to assess the particular facts, including future prospects. As detention continued, greater certainty and proximity of removal were required. Earlier failures of diligence might not independently invalidate detention, but could affect the period thereafter reasonably available for detention.
4. The policy in paragraph 55.10 of the Enforcement Instructions and Guidance had to be interpreted objectively. Serious mental illness which could not be satisfactorily managed in detention normally justified detention only in very exceptional circumstances. Objective medical evidence had to address the nature and severity of the illness and the effect of continued detention. A serious suicide attempt, continuing suicidal intention or ideation, and evidence that detention was driving deterioration required adequate investigation.
5. The claimant’s mental health evidence engaged the policy by September 2011. The Secretary of State could nevertheless reasonably have continued detention until 9 May 2012, given the assessed risks, the claimant’s history, and the then-existing 3–6 month estimate for obtaining travel documentation. The policy did not require the court to treat the medical position in May 2012 as identical to that in September 2011.
6. By 9 May 2012 the estimated period had expired, there was no adequate evidence of imminent documentation or a realistic prospect of removal within a reasonable time, and the medical evidence showed that detention itself drove the claimant’s illness. Detention could no longer be justified. The claimant should have been released by 23 May 2012, subject to suitable arrangements.
7. The claim succeeded to that extent. The claimant had been unlawfully detained since 23 May 2012 and was entitled to damages. The damages issue was to be transferred to the Queen’s Bench Division, subject to consequential orders.

First-instance judicial review. The judgment records earlier interlocutory decisions refusing immediate release, but no appellate decision.