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

Immigration detention must satisfy the four Hardial Singh principles throughout the period of detention. A serious criminal record, a high risk of absconding or a likelihood of reoffending may justify detention for longer, but no factor is decisive. The Secretary of State must show a genuine and realistic prospect of removal within a reasonable period and must act with reasonable diligence and expedition. Once it becomes apparent that removal cannot be achieved within that period, continued detention is unlawful. A fresh assessment is required after material developments, but it must consider the whole history rather than stand in isolation.

The claimant, a Moroccan national according to his case, challenged his immigration detention pending deportation. He had an extensive criminal record and had previously been detained and released after unsuccessful attempts to obtain Moroccan travel documentation. In Belfken [2012] EWHC 2932 (Admin), Beatson J had granted permission and ordered his release in earlier proceedings.

The present detention began on 18 March 2013, although it was not authorised under the immigration provisions until 3 July. The central issue was whether, by 13 August 2013, the Secretary of State should have appreciated that removal could not be effected within a reasonable period.

1. Outcome. The claim succeeded. The detention was unlawful on public law grounds between 18 March and 3 July 2013 and became substantively unlawful under the Hardial Singh principles from 13 August 2013. The claimant was to be released subject to agreed conditions, and recovered his costs.
2. The four principles require the Secretary of State to intend deportation; detain only for a period reasonable in all the circumstances; cease detention when it becomes apparent that deportation cannot be effected within a reasonable period; and act with reasonable diligence and expedition.
3. Whether detention remains reasonable depends on all relevant circumstances. Factors include the detainee’s cooperation, the risk of absconding, the risk and potential gravity of reoffending, the effect of detention and the Secretary of State’s conduct. The list is not exhaustive. No factor is determinative, and the burden of establishing lawfulness rests on the Secretary of State. The analysis adopted from R Mahfoud v Secretary of State the Home Department [2010] EWHC 2057 (Admin) was applied.
4. The claimant’s criminal record and likely non-compliance could justify a longer period of detention, but did not provide a trump card. After the face-to-face interview with the Moroccan consulate produced no travel documentation, and particularly once it was clear that the embassy would be closed throughout August, there was no sensible expectation of removal within a reasonable period. Detention therefore became unlawful on 13 August.
5. A fresh assessment after the earlier release order was required, but it could not disregard the previous history. The Secretary of State had not discharged the burden of showing compliance with the third Hardial Singh principle. The release conditions included practicable electronic monitoring with a curfew from 9 pm to 6 am and reporting at a reasonably practicable location.

This was a first-instance judicial review. The judgment records earlier proceedings before the Administrative Court in Belfken [2012] EWHC 2932 (Admin), in which Beatson J ordered the claimant’s release.