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

Immigration detention remains lawful where there is a realistic prospect of removal within a reasonable period and the Secretary of State acts with reasonable diligence and expedition. The assessment is fact-sensitive and must consider the length and conditions of detention, obstacles to removal, the steps taken to overcome them, the detainee’s circumstances, and risks of absconding or reoffending.

A detainee’s hunger strike does not, of itself, make detention unlawful under the Hardial Singh principles. Detention is also compatible with published policy where serious medical conditions are satisfactorily managed in detention and the applicable food-refusal procedures are followed.

The claimant, a Chinese national and convicted criminal deportee, challenged 22½ months of detention pending deportation. He alleged breaches of the Hardial Singh principles, the Secretary of State’s detention policies, and article 5 of the European Convention on Human Rights. The article 5 ground was not pursued separately because it was said to be subsumed within the Hardial Singh principles.

The principal issues were whether the Secretary of State had acted with reasonable diligence, whether it had become apparent that removal could not be effected within a reasonable period, whether the overall period of detention was reasonable, and whether the claimant’s hunger strike and medical condition made detention contrary to policy.

1. Claim dismissed. The claimant’s detention was lawful throughout the period ending with his release on 21 August 2012. No declaration of unlawfulness was made and the claim for damages failed.
2. The court applied the four Hardial Singh principles, as endorsed and explained in R (Walumba Lumba & Kadian Mighty) v Secretary of State for the Home Department [2011] UKSC 12. The Secretary of State had continued to pursue travel documentation through interviews, enquiries in China, specialist investigation and contact with the Chinese Embassy. The claimant’s asylum process did not materially stall removal preparations.
3. It had not become apparent that removal machinery could not operate within a reasonable period. The claimant’s repeated interviews and apparent cooperation created a continuing prospect of obtaining an emergency travel document. Inconsistent or inaccurate information could extend the reasonable period, although it could never justify detention beyond a reasonable period.
4. The 22½-month period was reasonable on the facts. The court considered the factors identified in Lumba, including the length of detention, obstacles to removal, official diligence, detention conditions, effects on the claimant and his family, and the risks of absconding and further offending. Direct comparison with other cases was inappropriate.
5. Following R (on the application of IM (Nigeria)) v Secretary of State for the Home Department [2014] 1 WLR 1870, the claimant’s hunger strike did not itself render detention unlawful. His physical decline could not be held against him, but the evidence showed that his condition was monitored and managed in detention.
6. The recommendation by an official that the claimant be released was not determinative. The decision whether a reasonable period had expired remained for the Secretary of State and ultimately the court, taking account of renewed removal efforts and the surrounding circumstances.
7. The claimant’s condition was satisfactorily managed under the Enforcement Instructions and Guidance, Chapter 55: Detention and Temporary Release and the Detention Service Order 07/04: Food and fluid refusal in Immigration Removal Centres. He was repeatedly assessed, monitored and advised, and hospital attendances resulted in discharge back to detention. The policies were therefore followed.

First-instance judicial review. The judgment does not state any prior appellate decision in the same proceedings.