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

Immigration detention pending deportation is lawful only while the Secretary of State intends to deport, detention remains reasonable in all the circumstances, removal remains realistically achievable within a reasonable period, and reasonable diligence and expedition are used.

The assessment is fact-sensitive. A detainee’s dishonesty, failure to co-operate, absconding and risk of reoffending may justify prolonged detention, but cannot justify detention indefinitely. Earlier administrative delays may affect whether later detention remains reasonable, although a breach of the duty to act expeditiously requires a causal connection with the detention period claimed to be unlawful. Failure to conduct a required detention review makes detention unlawful for the relevant period.

The claimant, a convicted criminal and subject to a deportation order, challenged the lawfulness of his immigration detention from 10 September 2011 until his release was ordered on 21 September 2012. The challenge concerned the Secretary of State’s attempts to obtain Chinese travel documentation, the claimant’s alleged failure to co-operate, administrative delays, missed detention reviews and compliance with the Hardial Singh principles.

Permission was granted for the unlawful detention claim and for amended grounds relying on the fourth Hardial Singh principle and failure to comply with guidance. The central issues were whether detention was maintained for a proper deportation purpose, whether its duration and prospects of removal remained reasonable, and whether the Secretary of State had acted with reasonable diligence and expedition.

1. Purpose and duration. The detention was imposed only for the purpose of effecting deportation. The claimant’s criminal history, repeated absconding, dishonesty, failure to report and failure to provide sufficiently detailed information justified a substantial period of detention. The first, second and third Hardial Singh principles were not breached.
2. Co-operation and prospects of removal. A detainee’s own conduct is relevant to the reasonable period of detention. The claimant had gradually provided inconsistent and incomplete information and had not shown that he had supplied all information available to him. There was therefore no point at which the Secretary of State ought to have concluded that documentation and removal had ceased to be realistically achievable.
3. Reasonable expedition. What amounts to reasonable expedition depends on the circumstances, including the destination country’s arrangements and timescales, available resources and case priorities. A claimant will generally be unable to establish breach of the fourth principle unless the lack of expedition is egregious. Earlier delays may make later detention less easy to justify, and cumulative delays may render detention unreasonable, but causation must be shown where a particular period is alleged to have been unlawfully prolonged.
4. Review and administrative delay. The missed detention review made detention unlawful from 7 October to 20 October 2011, applying R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23. The delay caused by re-submitting an internal interview request was unjustified and lacked reasonable expedition, but it was not shown to have extended the detention. By 21 September 2012, the cumulative delay meant that further detention was no longer justified and the fourth principle had been breached.
5. The claimant was entitled to a declaration that detention was unlawful from 7 October to 20 October 2011 and to damages, likely only nominal because detention during that period was inevitable. In all other respects the claim was dismissed.