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

Detention pending deportation is lawful only while it serves the purpose of removal and for no longer than is reasonable in all the circumstances. The court must assess the length of detention, the prospects and obstacles to removal, the detainee’s co-operation, risks of absconding or offending, the diligence of the authorities, and the impact on the detainee and any children. A pending asylum or deportation appeal does not automatically remove the prospect of lawful removal. A failure to follow family-separation policy is capable of affecting the detention decision and may make detention unlawful, although damages may remain nominal if lawful detention would inevitably have followed.

The claimant sought judicial review and damages for 26 months’ immigration detention between 18 May 2009 and 15 July 2011. He argued that detention was unlawful because asylum and deportation proceedings were pending, his wife and children remained in the United Kingdom, the defendant failed to consider their welfare and follow policy on splitting families, there was no sufficient risk of absconding, and the defendant delayed obtaining an emergency travel document.

The central issues were whether the detention complied with the principles governing detention pending removal and whether the defendant’s failures concerning the claimant’s family affected the lawfulness of detention.

1. Outcome. The claim succeeded in part. The defendant failed to show lawful justification for detention until 11 January 2010, when the Office of the Children’s Champion and Nottingham Social Services had been consulted. The claimant was therefore unlawfully detained and was entitled to nominal damages only.
2. Under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, detention pending removal must comply with the four Hardial Singh principles, as reformulated in R (I) v Secretary of State for the Home Department and approved in R (WL (Congo)) v Secretary of State for the Home Department: detention must pursue removal, remain reasonable in duration, cease when removal cannot be achieved within a reasonable period, and be pursued with reasonable diligence and expedition.
3. The assessment is fact-sensitive and requires consideration of all relevant circumstances. These included the pending appeals, the merits of the appeals, the claimant’s co-operation in obtaining travel documents, the prospects and obstacles to removal, the risk of absconding or offending, the length and effects of detention, and the interests of children. A pending appeal does not necessarily prevent a sufficient prospect of removal; a hopeless appeal may receive minimal weight.
4. The defendant’s failure to consult the OCC and properly consider the children when deciding to split the family through detention was not a technical error. The departmental policy expressly applied to detention, and the breach was capable of affecting the decision. The failure to use officials of the prescribed seniority, however, did not itself invalidate detention.
5. The claimant’s non-co-operation, refusal to return, history of returning to the United Kingdom after voluntary return, and use of false passports provided evidence of a risk of absconding. Those matters had to be assessed cumulatively, without treating non-co-operation or refusal of voluntary return as automatically decisive or counting the same factor twice. The loss of the travel-document application did not establish a lack of reasonable diligence.
6. Although detention was unlawful for the initial period, the claimant would inevitably have been detained had the correct policy and principles been applied. Following R (WL (Congo)), he was therefore entitled only to nominal damages.