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

Detention pending deportation remains lawful only while deportation is genuinely intended and there is a reasonable prospect of removal within a reasonable period. The assessment is fact-sensitive and must be made prospectively, while recognising that the longer detention has lasted, the harder future detention becomes to justify.

Relevant considerations include removal obstacles, administrative diligence, the effect of detention, the risk of absconding, and the risk of further offending. Time spent pursuing appeals is not automatically excluded or automatically decisive. A public-law error may make detention unlawful for a period, but detention may become lawful again when the error is corrected. Delay is unlawful only where it reaches the threshold of illegality.

The claimant, an Iraqi national of Kurdish ethnicity, challenged the lawfulness of his immigration detention under the Hardial Singh principles. His detention began after a custodial sentence for dangerous driving and continued while the Secretary of State sought to deport him.

Removal was affected by changing arrangements for enforced returns to Iraq, uncertainty concerning the treatment of returnees, the setting aside and rehearing of country guidance in HM (Iraq), the claimant’s own appeals, and an undertaking not to remove him pending judicial review. The court considered whether detention was lawful during successive periods from May 2008 onwards.

1. Applicable principles. Detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 must be for the purpose of deportation and only for a period reasonably necessary for that purpose. The Secretary of State must act with reasonable diligence and expedition. The court must assess the prospects of removal and the relevant circumstances period by period.
2. The assessment includes the length of detention, the nature of the removal obstacles, the Secretary of State’s diligence, the conditions and effects of detention, the risk of absconding, and the risk of further offending. The last two risks may carry substantial weight. Appeals are relevant, but there is no automatic rule excluding time spent pursuing them from the assessment. A hopeless challenge may receive little weight; a meritorious challenge does not automatically require release.
3. The initial detention in May 2008 was lawful. Although removal arrangements were incomplete, the claimant had committed a serious offence, the public interest in deportation had been upheld, the risk of absconding was very high, and the Government was working towards establishing enforced returns.
4. Detention from December 2008 to August 2009 was unlawful because reviews proceeded on the mistaken belief that the claimant originated from the Kurdish Regional Government area. The error justified nominal damages. It did not taint later detention, since detention could become lawful again after the error was corrected and the claimant would otherwise have remained detained.
5. Detention from September 2009 onwards remained lawful. The prospects of removal had materially improved. The October 2009 difficulties concerning Kurdish returnees were capable of resolution within a reasonable period, and the June 2010 pre-clearance exercise was foreseeable rather than an improbable breakthrough.
6. The court could not determine whether returnees had been mistreated in Iraq. It was nevertheless foreseeable that the Upper Tribunal would resolve that issue. After the first HM (Iraq) decision was set aside, awaiting its rehearing remained a removal obstacle, but the rehearing was expected to occur within a reasonable period. The country guidance decision had retained sufficient weight to make that prospect realistic.
7. The Secretary of State’s delay in deciding whether to revoke the deportation order was unjustifiable as a matter of administration, but it did not prolong detention because removal was already suspended by an undertaking pending judicial review. The delay therefore did not reach the threshold of illegality.
8. The detention order remained lawful throughout. The claimant was on bail, which reduced the practical burden of detention, but the very high risk of absconding and the reasonable prospect that removal-related litigation would conclude within the foreseeable future continued to justify the order.

First-instance judicial review concerning the lawfulness of immigration detention. The judgment records earlier bail and permission decisions but does not identify an appeal from the present proceedings.