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

Immigration detention is lawful only while there is a sufficient prospect of removal within a reasonable period and the Secretary of State acts with reasonable diligence and expedition. The assessment is fact-sensitive. Risks of absconding and reoffending are relevant, but they must be weighed against the practical prospect of removal and should not automatically justify continued detention. Where a claimed nationality remains unresolved and the relevant authorities have refused to issue travel documentation, further inquiries must be pursued within a reasonable period. In this case, three months after refusal of an emergency travel document was a reasonable period for further inquiries. Detention thereafter was unlawful.

The claimant, a foreign national subject to a deportation order, had been detained under immigration powers since 1 November 2009 after completing the custodial part of a sentence for conspiracy to supply cocaine. His nationality was disputed. Liberia had refused to issue an emergency travel document, while Nigeria had also refused after an interview. The claimant challenged continued detention on the grounds that removal was not realistically achievable within a reasonable period, that the reasonable period had expired, and that the Secretary of State had not acted with reasonable expedition. The central issue was whether continued detention remained justified under the Hardial Singh principles.

1. The claim succeeded. The claimant had been unlawfully detained since 15 June 2012 and was entitled to damages and release. Questions of damages, release and costs were reserved for further argument.
2. The court adopted the statement of the law in R (on the application of Ahmed Yakoub Mesbah Belkasim) v Secretary of State for the Home Department [2012] EWHC 3109 (Admin), including the four Hardial Singh principles: detention must be directed to deportation; it must last no longer than is reasonable; detention must cease when removal cannot be achieved within that period; and the Secretary of State must act with reasonable diligence and expedition.
3. The period of detention must be assessed by reference to all the circumstances. Relevant factors included the length of detention, obstacles to removal, the Secretary of State’s diligence, detention conditions, the effect on the detainee and family, the risks of absconding and reoffending, and the realistic prospect of removal.
4. There was no realistic prospect of removal within a reasonable period. The evidence did not establish whether the claimant was Liberian or Nigerian. Liberia had refused an emergency travel document in 2010, and Nigeria had refused one in March 2012. The Secretary of State’s proposed further inquiries were tentative, had not been shown to have progressed, and were unlikely to alter the position.
5. The claimant had not been shown to have failed to cooperate with the emergency travel document process. His attendance at interviews with both authorities was relevant, and the Nigerian identity documentation was not conclusive.
6. The claimant presented a low or medium risk of absconding and a moderate risk of reoffending. Those risks could be managed by suitably rigorous bail conditions. His unsuccessful legal challenges were relevant, but did not justify indefinite detention.
7. The refusal by the Nigerian authorities in March 2012 should have triggered an urgent reassessment. Any further inquiries should have been completed within three months. The claimant therefore became unlawfully detained on 15 June 2012.
8. The Secretary of State had acted with reasonable expedition before March 2012, despite logistical errors in arranging the Nigerian interview. After March 2012, however, she failed to act with reasonable expedition. The distinction identified in R (on the application of Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549 was satisfied because the claimant had shown a specific period during which, but for the failure, he would no longer have been detained.