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

Immigration detention pending deportation is lawful only for a period that is reasonable in all the circumstances. It must also remain realistically capable of achieving deportation within that period, and the Secretary of State must act with reasonable diligence and expedition.

The detainee’s lack of cooperation, risk of absconding and risk of reoffending are important factors. They do not permit indefinite detention or operate as a trump card. The court must reach its own judgment on the legality of detention. Where reasonable avenues for obtaining travel documentation have been exhausted and removal is no longer reasonably in prospect, detention becomes unlawful.

The claimant, a foreign national convicted of robbery, was detained under UK Borders Act 2007 provisions concerning automatic deportation and detention pending removal. His identity and nationality were uncertain. He had provided inconsistent information, withdrew an earlier asylum claim, and did not cooperate with attempts to obtain an emergency travel document.

He challenged detention lasting from 29 June 2010 until 12 September 2013, alleging breaches of the European Convention on Human Rights and the common law principles governing immigration detention. The central questions were whether the detention remained reasonable, whether removal continued to be achievable within a reasonable period, and whether the Secretary of State acted with reasonable diligence and expedition.

1. Applicable principles. The Hardial Singh principles governed the detention. The Secretary of State had to intend to deport the claimant, detain him only for a reasonable period, release him when it became apparent that deportation could not be achieved within that period, and act with reasonable diligence and expedition. Those principles applied to detention under section 36(1) of the UK Borders Act 2007, with appropriate modification while the exceptions to automatic deportation were being considered.
2. Relevant factors. The court had to consider all the circumstances, including the length of detention, obstacles to removal, official diligence, the claimant’s detention conditions and its effects, the risks of absconding and reoffending, and the claimant’s cooperation. The claimant’s lack of cooperation could lengthen the reasonable period, but could not justify indefinite detention. The risks of absconding and reoffending were important, but were not a trump card.
3. Assessment. The claimant presented a high risk of absconding and a real risk of reoffending. Those risks supported continued detention for a substantial period. The time taken to consider and withdraw the asylum claim and to seek information from the claimant and his acquaintance was reasonable in the circumstances. Up to 25 April 2013, the Secretary of State had acted with reasonable diligence and expedition, and delay had largely resulted from the claimant’s lack of cooperation and misleading information.
4. By 25 April 2013, however, the Bangladeshi High Commission could not verify the claimant’s nationality without new evidence, and there were no clear further avenues capable of securing an emergency travel document. It had then become apparent that removal could not be achieved within a reasonable period. Continued detention breached the second and third Hardial Singh principles and Article 5.
5. The detention was unlawful from 25 April 2013 until the claimant’s release on 12 September 2013. He was entitled to damages at common law and under Article 5(5), with assessment released to a master.