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

Detention pending deportation is lawful only while it remains reasonable in all the circumstances under the Hardial Singh principles. Article 5 of the ECHR imposes no fixed maximum period of immigration detention. The assessment is contextual and requires consideration of the realistic prospect of removal, the Secretary of State’s diligence and expedition, the risk of absconding and reoffending, the effect of detention on the detainee, and other relevant circumstances. The court determines lawfulness for itself, and the Secretary of State bears the burden of justification. Continued detention may become unlawful even where removal remains a realistic prospect, particularly where the likely further period is substantial, removal is uncertain, the authority has failed to act urgently, and detention has a serious detrimental effect on a vulnerable detainee.

The claimant sought judicial review of his continuing detention under Schedule 3 to the Immigration Act 1971, pending removal pursuant to a deportation order. He relied on the Hardial Singh principles and Article 5 of the ECHR. The principal obstacle to removal was the absence of an Algerian emergency travel document. The Secretary of State relied on the risk of absconding and reoffending, and on the prospect that the document would be obtained within a further six to twelve months. The central issues were whether detention had become unreasonable and unlawful, and whether Article 5 imposed an independent fixed time limit.

1. The claim succeeded. The claimant’s continued detention was declared unlawful. The court held that the Article 5 issue was effectively co-extensive with the statutory detention issue.

2. Article 5 does not impose an absolute limit of 18 months, or any other fixed period, on detention pending deportation. The authorities of the European Court of Human Rights relied upon by the claimant were concerned with diligence and the realistic prospect of removal, rather than a fixed cap.

3. The court must determine the lawfulness of detention for itself, rather than merely review the Secretary of State’s decision. The Secretary of State bears the burden of establishing lawfulness. Any material uncertainty or evidential gap should be resolved in the detainee’s favour.

4. The relevant assessment required balancing the substantial likely period of detention, the real but uncertain prospect and timing of an emergency travel document, the Secretary of State’s diligence, the serious risk of absconding and reoffending, the availability of accommodation and support, and the particular effects of detention on the claimant’s mental and physical health.

5. Although the risk of absconding and reoffending remained a paramount consideration, the evidence showed a likely total detention period of 21 to 27 months, no adequate evidence of progress by the Algerian authorities, and a lack of urgent pursuit by the Secretary of State after the application for an emergency travel document. The claimant’s vulnerability and the detrimental effects of detention, including self-harm and serious psychiatric risk, weighed materially against continued detention. In the circumstances, detention had become unreasonable and unlawful, although it had not been unlawful at an earlier stage.