Kamara v Secretary of State for the Home Department

Immigration detention remains lawful only while removal is intended and can reasonably be achieved. The Secretary of State must act with reasonable diligence and expedition. Detention may properly continue for longer where the detainee has failed to co-operate, behaved obstructively, or created difficulties through deception and dishonesty. The legality of detention depends on the particular facts, including the prospects of obtaining an emergency travel document and the steps taken to secure removal. Extended detention requires clear justification. A failure to investigate relevant nationality evidence and an excessive reliance on an erroneous identity link may cause detention to exceed the reasonable period.

The claimant, who had used several identities and false documents, had been detained pending removal after serving a custodial sentence. Neither Sierra Leone nor The Gambia accepted him as a national or issued an emergency travel document. He sought judicial review and argued that his detention had become unlawful under the principles in R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 804, particularly after January 2011.

The Secretary of State relied on the claimant’s failure to co-operate, his history of deception, the risk of absconding and continuing efforts to establish his nationality. The central issue was whether detention remained justified in the circumstances and, if not, when it became unlawful.

The claim succeeded in part. The court held that the claimant’s detention was unlawful for four months, from August to December 2012, although detention before that period was lawful.

1. Applicable principles. The power to detain could be exercised only while there was an intention to remove the individual. It had to cease when removal within a reasonable time was unlikely. Because detention involves loss of liberty, the Secretary of State had to act with reasonable diligence and expedition.
2. Relevant circumstances. The claimant’s failure to co-operate with a nationality interview, his past deception, use of false documents and history of unlawful residence could justify a longer period of detention and supported the assessment that he was a flight risk. The difficulties faced by the High Commissions in considering nationality and issuing emergency travel documents were also relevant.
3. Assessment of the evidence. It was reasonable initially to investigate whether the claimant was Gambian, despite the error concerning an alleged fingerprint match with a person refused entry in 1993. There were independent grounds for considering that possibility. Persistence with the Gambian route until April 2012, however, was unreasonable, and the error caused unnecessary delay when it continued to be relied on.
4. Unlawful period. By August 2012, after approximately three years in immigration detention, the Secretary of State should have acted on the indication that release should be considered. The claimant’s continuing risk of absconding did not justify continued detention without adequate progress towards removal. The detention became unlawful for four months.

The court recognised that further sensible investigation through the Foreign and Commonwealth Office might still secure an emergency travel document. The claimant had already been released on bail, and the precise consequential order was to be considered after submissions.