Othman, R (on the application of) v Special Immigration Appeals Commission (SIAC) & Ors

Immigration detention pending deportation is lawful only for so long as deportation remains reasonably achievable within a reasonable time and detention remains reasonably necessary to achieve it. The assessment is fact-sensitive. Relevant considerations include the realistic prospect and timescale of deportation, the public risk, the detainee’s contribution to delay, the effect of detention, and the conduct of the Secretary of State. No factor is automatically decisive, although public risk may be of paramount importance. Where SIAC makes that assessment in a national-security case, the High Court should accord considerable respect to its specialist evaluation. Judicial intervention is justified only for a hard-edged or florid error of law or approach.

The claimant was detained pending deportation to Jordan and challenged the refusal of bail by the Special Immigration Appeals Commission. He sought habeas corpus and permission to apply for judicial review, arguing that his lengthy detention was unlawful under the Hardial Singh principles, that deportation was not sufficiently imminent, and that the Secretary of State had failed to act with reasonable diligence.

SIAC had identified a reasonable prospect that deportation could occur after its forthcoming determination of whether assurances and changed circumstances removed the Article 6 obstacle identified by the European Court of Human Rights. The issue was whether the refusal of bail disclosed an error of law requiring intervention by the High Court.

1. Applications refused. The claimant’s applications for habeas corpus and permission to seek judicial review were refused.
2. Under paragraph 2 of Schedule 3 to the Immigration Act 1971, detention pending deportation may be used only in aid of proposed deportation and only to the extent reasonably necessary to achieve it. If it becomes apparent that deportation cannot be effected within a reasonable period, continued detention becomes unlawful. The Secretary of State must act with reasonable diligence, but diligence alone is insufficient where removal cannot occur within a reasonable time.
3. The question is fact-sensitive and requires a balancing exercise. The starting point is whether, and when, there is a realistic prospect of deportation. Relevant considerations include the risk to the public, the timescale, the contribution of appeals or other steps by the prospective deportee, any refusal to leave voluntarily, and the effect of detention on the detainee and family. The factors are non-exhaustive and none is automatically determinative. In this case the exceptional public risk was of paramount importance, but was balanced against the very lengthy detention and the anticipated timetable.
4. SIAC was a specialist tribunal with access to evidence and procedures unavailable to the ordinary courts. Its assessment of the national-security risk and the practical management of bail therefore deserved considerable respect. The High Court retained jurisdiction to intervene, but should not re-determine the issue unless a hard-edged or florid error of law or approach was shown. No such error was established.
5. The period of earlier detention under the Anti-Terrorism Crime and Security Act 2001 was not legally detention under Schedule 3, although the total period of detention remained relevant. SIAC was entitled to consider the prospect of deportation after its October hearing, the risk of absconding, and the exceptional pressure on police and security services during the Olympic and Paralympic Games. A further bail application would remain possible if the anticipated timetable changed.
6. The claim based on lack of diligence was not open as a challenge to the SIAC decision because it had not been argued below, and the evidence did not establish any arguable failure by the Secretary of State. The court gave permission for the judgment to be cited.

The judgment describes earlier proceedings before SIAC, including its refusal of bail on 28 May 2012 and earlier bail decisions. The present court, sitting at first instance, refused the applications for habeas corpus and judicial review.