Shafiq-Ur-Rehman, R (on the application of) v Secretary of State of the Home Department

Detention pending deportation remains lawful only while removal is genuinely in prospect and detention remains reasonable in all the circumstances. Under the third Hardial Singh principle, detention becomes unlawful when it is apparent, on the material available to the Secretary of State, that removal cannot be effected within a reasonable period. “Apparent” does not require certainty, but a merely uncertain prospect of removal is insufficient unless the overall circumstances provide a sufficient prospect to justify detention. Past detention is relevant and increasing detention becomes harder to justify, but no period of past detention operates as a trump card. Risk of absconding is of paramount importance, while refusal or inadequate co-operation may reduce the weight given to the period of detention attributable to that conduct.

The claimant, a Pakistani national, was convicted of using a false passport and became liable to deportation. He was detained from November 2007 until September 2011, while efforts were made to obtain an emergency travel document from the Pakistani authorities. He was removed in November 2012.

He sought judicial review of the lawfulness of his past detention and damages. He accepted that detention was initially lawful and remained so while he refused to co-operate with the emergency travel document process. He argued that detention became unlawful once he began co-operating in January 2009, or once a mistake in his name was corrected in August 2010. The central issue was whether it had then become apparent that removal could not be effected within a reasonable period.

1. The claim was dismissed. Neither the second nor the third Hardial Singh principle was infringed during the claimant’s detention.

2. The statutory power to detain pending removal is limited to detention for the purpose of removal and to a period reasonably necessary for that purpose. The third principle is engaged when it becomes apparent that removal will not be possible within a reasonable period. The court retained the word “apparent”, rather than replacing it with “clear”, because “clear” could suggest certainty and would risk treating the judicial formulation as though it were the statutory language.

3. A realistic prospect of removal may exist even though its timing cannot be predicted and removal is not certain. Continued detention requires a sufficient prospect of removal when all relevant factors are considered. The Court of Appeal’s reasoning in R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270 was applied.

4. The claimant presented a high risk of absconding. That factor had paramount importance. His previous absconding, lack of UK ties, use of false passports and earlier refusal to complete the emergency travel document paperwork supported continued detention. His later compliance with release conditions did not establish that such compliance had been foreseeable while he remained detained.

5. Past detention was relevant to the reasonableness of continued detention, and its increasing length made further detention harder to justify. It was not, however, a trump card. The 15 months attributable to the claimant’s refusal to co-operate, and the later period affected by incorrect or incomplete identity information, carried reduced weight against continued detention.

6. It was premature in 2009 and 2010 to conclude that removal was not in prospect. Verification checks remained ongoing, further applications and interviews were pursued, and the correction of the claimant’s name created a reasonable basis for awaiting the result of enquiries under the apparently correct information. By September 2011 it had not become apparent that the January 2011 information would fail to produce an emergency travel document within a reasonable further period.

The judgment describes earlier permission and bail proceedings in the Administrative Court. Permission to bring this judicial review was initially refused by Owen J on 12 July 2010, but was later granted by Wilkie J. Interim relief was refused. The present court determined the lawfulness of past detention after the claimant’s release and removal.