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

Immigration detention pending deportation remains lawful where there is some or sufficient prospect of removal, even though removal is not imminent and no finite timetable can be identified. The question whether the reasonable period for operating the removal machinery has been exceeded is fact-sensitive. Duration alone is not determinative.

In assessing reasonableness, the court must consider all relevant circumstances, including the risk of absconding and re-offending. Those risks are of paramount importance, particularly where release would expose the public to a substantial risk. Administrative delay is unlawful only where it is sufficiently serious to amount to illegality, not merely because one stage took longer than it should have done.

The claimant, a national of Somaliland with indefinite leave to remain and a substantial criminal record including serious firearm offences, challenged his detention pending deportation. He was detained from 6 August 2007 and sought damages or other relief for detention between 10 April 2008, when the deportation order was served, and 14 April 2011, when he voluntarily returned to Somaliland.

He argued that the Secretary of State had delayed referring his case to the relevant removal unit and that the absence of a timetable for an emergency travel document made continued detention unlawful. The central issues were whether there was a sufficient prospect of removal and whether the reasonable period for detention had expired.

1. Claim dismissed. The claimant’s detention was not unreasonable, arbitrary or unlawful.
2. The governing principles under Article 5 of the Convention and paragraphs 2(2) and 2(3) of Schedule 3 to the Immigration Act 1971 did not require imminent removal. Detention could continue where there was some or sufficient prospect of removal to justify it. Whether the prospect was sufficient depended on the balance of all the circumstances, and the Secretary of State did not need to identify a finite period within which removal would be effective.
3. The relevant question was whether the reasonable period for operating the machinery of removal had been exceeded. There was no general maximum period. The assessment was fact-sensitive, and three years’ detention was not determinative by itself.
4. The risk of absconding and the risk of re-offending were of paramount importance. The claimant had a serious escalating criminal record, had failed to comply with bail conditions and had committed an offence while on bail. The court was not satisfied that conditions could sufficiently reduce the risk of further offending or protect the public.
5. The nine-month delay before referral to ReSCU did not establish illegality. The claimant had to show more than that one part of the process took longer than it should have done. On the evidence, the delay was partly explained by file problems, preparation of documents and uncertainty as to whether removal was sought to Somalia or Somaliland.
6. There was a sufficient prospect of removal. The papers had been submitted, the case was monitored at senior level, monthly enquiries were made, and there was no evidence that Somaliland would refuse appropriate removals, that the route was unavailable or that the biodata was inadequate. The claimant’s later voluntary return was noted but was not relied upon as determinative.
7. The Secretary of State’s reliance on previous refusal to return voluntarily was not considered because no allegation of non-co-operation was pursued. Costs were ordered in two parts, with the earlier order subject to public funding restrictions and the claimant liable for the costs of the hearing.