Waryoba, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention pending deportation must remain directed solely to that purpose and must satisfy the Hardial Singh principles throughout. The court must make a fresh, fact-sensitive assessment of whether a reasonable period has expired and whether it has become apparent that removal cannot be effected within a reasonable period. Relevant matters include the length of detention, obstacles to removal, the Secretary of State’s diligence, the detainee’s conduct, risks of absconding and reoffending, detention conditions, and the effect on health and family. Legal challenges and refusal or failure to assist removal may be relevant, but neither can justify indefinite detention. Mental illness is relevant, with weight depending particularly on the impact of detention and the availability of adequate treatment.

The claimant sought a declaration and substantive damages for alleged false imprisonment arising from immigration detention between June 2010 and September 2012. He had been detained following imprisonment for conspiracy to defraud and a bail offence, pending automatic deportation. His deportation and asylum appeals were dismissed by the First-tier Tribunal on 12 March 2012, and permission to appeal was refused by the Upper Tribunal on 9 May 2012.

The defendant admitted delays in carrying out several 28-day detention reviews, but the claimant pursued the substantive claim principally on the basis that detention had become unreasonable under principles (ii) and (iii) of Hardial Singh. The central issues were whether a reasonable period had expired by February or March 2012, and whether by 16 July 2012 it had become apparent that deportation could not be effected within a reasonable period.

1. The court undertook a fresh reconsideration of the lawfulness of detention under principles (ii) and (iii) of Hardial Singh, rather than a Wednesbury review. The two principles are conceptually distinct and had to be considered separately.

2. There is no fixed maximum period of immigration detention. The assessment of reasonableness is fact-sensitive. Relevant factors included the length of detention, obstacles to removal, the Secretary of State’s diligence, detention conditions, the effect on the detainee and family, and the risks of absconding and reoffending.

3. The claimant’s appeals were at, or close to, the hopeless end of the spectrum and therefore attracted little weight in his favour when assessing the reasonable period. His dishonesty, use of aliases, previous absconding, failure to assist in obtaining an emergency travel document, and misinformation supported a real risk of absconding and reoffending. Those risks were of paramount importance, although refusal to return voluntarily could not operate as a justification for indefinite detention.

4. Mental illness was a relevant factor. A pre-existing condition could be taken into account where detention contributed to it. The critical question was the impact of continued detention and whether facilities existed to keep the illness under control and prevent suffering. The evidence of depression was accepted, but the PTSD diagnosis was uncertain and there was insufficient evidence that detention was materially worsening the conditions or that treatment was inadequate. The medical evidence therefore received relatively little weight.

5. Under principle (iii), the question was whether at all relevant times there remained at least one reasonable and justifiable lead capable of enabling deportation. A finite removal date was unnecessary. The defendant continued to pursue realistic leads through specialist teams, the Tanzanian authorities and Operation Terminus. It had not become apparent before release that removal could not be effected within a reasonable period.

6. The admitted failures to conduct timely reviews did not render the overall detention unreasonable under Hardial Singh and did not cause any earlier release. A declaration would serve no useful purpose, particularly since permission had been refused for the freestanding policy ground. The application for a declaration was refused, and the claim for damages was consequently refused.

• First-tier Tribunal: The claimant’s deportation and asylum appeals were dismissed on 12 March 2012.
• Upper Tribunal: Permission to appeal was refused on 9 May 2012, no arguable error of law having been disclosed.
• High Court (Administrative Court): The claim for declaratory relief and damages was dismissed.