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

Immigration detention pending deportation is lawful only while it serves a genuine deportation purpose and remains within a reasonable period. The Secretary of State must investigate removability, statutory exceptions and relevant human-rights issues with reasonable diligence, speed and effectiveness. The assessment is fact-sensitive and includes the period already spent in detention, the obstacles to removal, the prospects of removal, the detainee’s conduct, and risks of absconding or re-offending. A serious criminal record may justify initial detention, but it does not by itself justify prolonged detention after the custodial sentence has ended. Where excessive detention results principally from administrative error, neglect or incompetence, the detention becomes unlawful despite continuing risks.

The claimant, a Somali national with indefinite leave to remain, sought judicial review of his detention under sections 32 and 36 of the UK Borders Act 2007 following a 15-month sentence for assault occasioning actual bodily harm. He had been detained from 21 May 2012 while the Secretary of State investigated deportation to Somalia or Somaliland and considered possible exceptions under section 33.

The claimant relied on the Hardial Singh principles and Article 5 ECHR. The central issue was whether the length and continuation of detention were justified, having regard to the prospects and timing of removal, the Secretary of State’s diligence, and the risks of absconding and re-offending.

1. The claim succeeded. The court held that the claimant’s detention had become unlawful and ordered his release subject to residence, reporting and electronic-tagging conditions.
2. Under the Hardial Singh principles, detention must be for the statutory purpose of facilitating deportation. It may continue only for a reasonable period. It must end when it becomes apparent that deportation cannot be effected within a reasonable period, and the Secretary of State must act with reasonable diligence and expedition.
3. The reasonable-period assessment is contextual. Relevant matters include the length of detention, the nature of obstacles to removal, the diligence and effectiveness of the steps taken, the conditions and effects of detention, the risk of absconding, and the danger to the public if the detainee is released. The statutory and policy context for foreign national offenders, including the presumption in favour of temporary admission or release in Chapter 55 of the Enforcement Instructions and Guidance, must be taken into account.
4. The Secretary of State had not realistically been able to remove the claimant to Mogadishu during the period of detention. Removal to Somaliland remained realistic, but its timing was uncertain. The Secretary of State had failed to investigate the claimant’s identity, family history, possible section 33 exceptions and family circumstances with due diligence. Missing questionnaire pages, failure to examine relevant immigration files, delay in investigating the children and the mischaracterisation of representations as a fresh asylum claim materially prolonged the process.
5. The claimant’s prior convictions and risks of absconding and re-offending justified his initial detention. They did not justify detention after the custodial sentence and licence had ended, particularly where the risk assessment placed the likelihood of serious harm at medium and the claimant had previously complied with bail. The prolonged detention was therefore unlawful under domestic law and Article 5 ECHR.

First-instance judicial review in the Administrative Court. No prior appellate decision is stated in the judgment.