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

Immigration detention pending deportation must remain connected to a realistic prospect of removal and must last no longer than is reasonable in all the circumstances. The court must determine lawfulness for itself under the Hardial Singh principles and Article 5 ECHR; the issue is not merely whether the Secretary of State’s assessment was Wednesbury reasonable.

Risk of reoffending, risk of absconding and non-cooperation are relevant factors, but none is a trump card. They must be balanced against the length and conditions of detention, removal obstacles, official diligence, and the impact on the detainee and family.

The claimant challenged his immigration detention from 21 July 2009 to 5 July 2012. A deportation order had been made following serious criminal convictions and exhaustion of his immigration appeals. He argued that detention was unlawful from inception, during successive reviews, or following the closure of the Iranian Embassy on 30 November 2011.

The central issues were whether there was a realistic prospect of removal within a reasonable period, how non-cooperation and risks of reoffending and absconding affected the assessment, and when the diplomatic closure made continued detention unlawful.

1. The court had to determine the legal boundaries and lawfulness of detention for itself under Article 5 ECHR and the Hardial Singh principles. Initial detention in July 2009 was lawful because removal to Iran remained a realistic prospect and the claimant’s serious criminal record, local evidence of risk, non-cooperation and some risk of absconding justified detention.
2. A realistic prospect of removal does not require certainty or a predictable removal date. The reasonable-period assessment is fact-sensitive. Risk of reoffending, risk of absconding and non-cooperation are relevant, but none is decisive irrespective of detention length and the other circumstances.
3. The Embassy closure did not automatically make detention unlawful on 30 November 2011. A reasonable period could be allowed to investigate alternative arrangements. Detention remained lawful through February 2012.
4. By 26 March 2012, after about 32 months’ detention, no effective alternative strategy for obtaining travel documents had been established. The claimant had provided the requested information from November 2011, so continuing to attribute delay to non-cooperation was unjustified. Detention was unlawful from that date. Damages were deferred; exemplary damages were refused.