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

Immigration detention pending deportation remains lawful only while it is reasonable in all the circumstances and there is a realistic prospect of removal within a reasonable period. The Secretary of State bears the burden of justification. The court must assess the position at the date of judgment, giving particular weight to the total period of detention, the nature and likely duration of obstacles to removal, administrative diligence, the detainee’s contribution to delay, and the risks of absconding and reoffending. Those risks may be relevant both to facilitating removal and to protecting the public good. Continued detention may remain lawful despite uncertainty as to the date or outcome of removal where the prospect is realistic and resolution is expected shortly, but the balance may change if that prospect disappears or is materially delayed.

The claimant sought judicial review of his detention pending deportation to India. He had no documentary evidence of Indian nationality, and the Secretary of State was seeking an emergency travel document through verification inquiries in Jammu and Kashmir. The claimant argued that the delay and uncertainty made continued detention unlawful under the Hardial Singh principles. He also argued that the Secretary of State had delayed initiating the travel-document process between March and July 2011.

The Secretary of State relied on the continuing verification process, the prospect of removal in the short term, and the claimant’s substantial risk of absconding and reoffending. The issues were whether detention remained reasonable and lawful at the date of judgment, and whether it had earlier become unlawful because of delay.

1. Applicable principles. The power to detain pending deportation under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 was subject to the Hardial Singh principles. The Secretary of State had to intend removal, act with reasonable diligence and expedition, and show that detention remained reasonable in all the circumstances. The burden of justification lay on the Secretary of State.
2. The relevant assessment was made at the date of judgment. The court had to consider the total period for which detention had lasted or was likely to continue, the nature of the obstacle to removal, the degree of certainty and proximity of removal, the Secretary of State’s diligence, the detainee’s contribution to delay, the effect and conditions of detention, and the risks of absconding and reoffending.
3. There remained a realistic, though uncertain, prospect that local inquiries would verify the claimant’s nationality and that an emergency travel document would then be issued within about two weeks. A precise removal date was unnecessary. The likely total detention period of about two years was substantial but did not by itself make detention unlawful.
4. The claimant had not actively frustrated the process, but his lack of information had necessarily required extended inquiries. The Secretary of State had acted with sufficient diligence after detention formally commenced. The delay in arranging the interview, the error concerning the village, and the waiting period for local verification did not establish unlawfulness.
5. The claimant’s history of absconding, offending, drug misuse and living outside immigration control created a substantial risk of absconding and reoffending. That risk had serious implications for removal and the public good and was entitled to considerable weight. The availability of support and accommodation under section 4 of the Immigration and Asylum Act 1999 did not eliminate the risk.
6. Balancing all the circumstances, continued detention was reasonable and lawful at the date of judgment. The conclusion depended on the expectation that the verification issue would be resolved shortly. If inquiries proved negative or were not pursued in the short term, the balance would likely change. The claim, including the challenge to detention between March and July 2011, was dismissed.

not stated in the judgment.