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

Detention pending deportation is lawful only while there is a continuing intention to remove and removal remains achievable within a reasonable period. The Secretary of State must act with reasonable diligence and expedition throughout. A detainee’s refusal to volunteer return does not, by itself, justify detention until removal becomes possible. That must be distinguished from deliberate deception or a campaign to frustrate removal. The legality of detention is distinct from an immigration judge’s decision whether to grant bail. Where prolonged and ineffective administrative activity shows that removal will not occur within a reasonable period, continued detention becomes unlawful.

The claimant challenged the legality of his detention under paragraph 2 of Schedule 3 to the Immigration Act 1971. He had been detained from 6 March 2010, after completing a sentence of imprisonment, until his release on bail on 7 February 2012. Removal was repeatedly attempted or contemplated, but uncertainty about whether he was Kosovan or Albanian prevented the issue of an emergency travel document.

The claimant argued that he had consistently maintained that he was born in Kosovo, had Albanian ethnicity and would co-operate with removal. The Secretary of State relied on his offending, alleged non-co-operation, risk of absconding and continuing nationality enquiries. The central issue was whether detention remained lawful after those enquiries had made little effective progress.

The claim succeeded in part. The court held that detention was initially lawful, but became unlawful on 10 October 2011.

1. Paragraph 2 of Schedule 3 to the Immigration Act 1971 had to be exercised consistently with the principles in Hardial Singh, as restated and expanded in 2003 INLR 196 and approved in [2011] UKSC 21. Detention must be for the purpose of removal; it must last no longer than is reasonable in all the circumstances; detention must cease when it becomes apparent that removal cannot be effected within that reasonable period; and the Secretary of State must act with reasonable diligence and expedition.

2. Applying Lumba, refusal of voluntary return was not a decisive basis for detention until removal could be effected. The court distinguished a failure to co-operate from deliberate deception or a campaign intended to frustrate removal, drawing on Sino and Amougou-Mbarga.

3. The claimant’s detention through July 2010 was lawful. After the immigration appeal, the Secretary of State could reasonably proceed on the basis that the claimant knew of relatives in Kosovo and had not supplied their details. However, the evidence did not establish active deception or frustration. The claimant repeatedly gave the same account and had been willing to co-operate with removal.

4. By 10 October 2011, after 19 months’ detention and little effective progress in establishing nationality or securing removal, the Secretary of State should have recognised that removal would not be achieved within a reasonable period. Continued detention was therefore unlawful. The claimant should have been released on bail subject to significant conditions and restrictions. Refusals of bail by an immigration judge did not determine whether detention itself was lawful, as explained in MXL and Others.

First-instance judicial review in the Administrative Court. The judgment states that permission was granted and that the claimant had previously been released on bail by Mr Justice Charles on 7 February 2012. No appellate decision is stated.