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

Immigration detention pending deportation remains lawful only while the Secretary of State intends to deport, detention is reasonable in all the circumstances, and there is a realistic prospect of removal within a reasonable period. There is no fixed maximum period. The court must assess all relevant factors, including the length and conditions of detention, obstacles to removal, diligence, the detainee’s conduct, and the risks of absconding and re-offending. A pending appeal is not automatically excluded from the assessment. After 53 months, detention was at the limit of reasonableness but remained lawful because a forthcoming nationality interview created a realistic prospect of removal. If that avenue failed, continued detention would probably become unlawful, subject only to a short period for assessing the outcome.

The claimant, a foreign criminal liable to automatic deportation, sought judicial review of his detention under the Immigration Act 1971. He had been detained pending removal since May 2009. His nationality was uncertain: Sierra Leone and Nigeria had repeatedly declined to recognise him or issue travel documents.

He argued that 53 months’ detention was unreasonable, that removal was not realistically achievable within a reasonable period, and that the Secretary of State had not acted with reasonable diligence. The claim was remitted to the Administrative Court after permission to appeal and permission to apply for judicial review were granted.

1. Claim dismissed. The claimant’s detention up to the date of judgment was lawful. The Secretary of State remained intent on deporting him, there was some prospect of removal, and the period was reasonable in the circumstances.
2. The governing principles were those stated in Walumba Lumba and Kadian Mighty v Secretary of State for the Home Department [2011] UKSC 12: detention must be for the purpose of deportation, for no longer than a reasonable period, and must cease when it becomes apparent that removal cannot be achieved within a reasonable period. The Secretary of State must act with reasonable diligence and expedition.
3. There was no fixed limit on detention. The assessment was fact-sensitive and included the period and conditions of detention, the obstacles to removal, the Secretary of State’s diligence, the effect of detention, the detainee’s conduct, and the risks of absconding and re-offending. A pending appeal could not simply be ignored, particularly where it was not said to be hopeless or abusive.
4. The claimant’s prolonged detention, including the harder regime at HMP Belmarsh, weighed heavily against continued detention. However, his criminal history, continuing connections with gang associates, lack of candour, and conduct in detention established a very significant risk of absconding and re-offending. Those risks were important considerations in assessing reasonableness.
5. The Secretary of State had pursued nationality investigations with reasonable diligence. The forthcoming interview with a Sierra Leonean official could not be disregarded. It provided a realistic, albeit final, prospect of removal within a reasonable period.
6. Detention had been pushed to the limit of what was reasonable. If the interview produced no change and no unforeseen development occurred, continued detention would probably cease to be lawful beyond the period reasonably necessary to assess the decision, unlikely to exceed three months.

• Administrative Court: Permission to apply for judicial review was refused on the papers by Langstaff J and subsequently by a deputy High Court judge.
• Court of Appeal: Permission to appeal and permission to apply for judicial review were later granted by the Master of the Rolls, and the matter was remitted to the Administrative Court.
• Administrative Court: The claim for judicial review was dismissed.