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

Immigration detention pending deportation remains lawful only while the Hardial Singh limits are satisfied. The Secretary of State must intend to deport, detention must remain reasonable in all the circumstances, and removal must remain realistically achievable within that reasonable period. The Secretary of State must also act with reasonable diligence and expedition.

The assessment is fact-sensitive. Significant risks of absconding and reoffending, particularly risk to the public, may justify a lengthy period of detention. A period of administrative inactivity does not necessarily amount to unlawful delay. The court must distinguish administrative failure from unreasonableness amounting to illegality.

The claimant challenged his detention under immigration powers after the custodial part of a prison sentence expired. He had been detained from 15 September 2012 until being granted bail on 7 January 2014 while the Secretary of State sought a Moroccan emergency travel document.

The challenge was confined to the alleged breach of the second, third and fourth Hardial Singh principles. The central issues were whether detention had exceeded a reasonable period, whether it had become apparent that deportation could not be effected within a reasonable period, and whether the Secretary of State had acted with reasonable diligence and expedition.

1. Outcome. Ground 1 of the judicial review claim failed. The detention was lawful. Permission to appeal was refused and costs were reserved.
2. The power to detain under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 was undisputed. The Secretary of State bore the burden of showing that detention was lawful, and the court was entitled to assess its objective reasonableness.
3. The court applied the four Hardial Singh principles. The Secretary of State had to intend deportation; detention had to remain reasonable in all the circumstances; detention had to cease if it became apparent that removal could not occur within that reasonable period; and reasonable diligence and expedition were required.
4. In assessing reasonableness, the court considered the length of detention, the obstacles to removal, the diligence and effectiveness of the steps taken, the conditions of detention, their effect on the claimant, the risk of absconding and the risk of further offending. The assessment depended on the particular factual matrix, so decisions on different facts provided limited assistance.
5. The claimant was given credit for co-operation. Nevertheless, the evidence established significant risks of absconding and reoffending, including a risk to the public. Tagging and reporting would identify absconding more quickly but would not prevent it or reduce the risk of reoffending.
6. The information available when detention began indicated that obtaining the emergency travel document would take between one and two years. In light especially of the risks identified, that prospective period was reasonable. Although there had been a period of inactivity before the application was submitted, the Secretary of State had not crossed the line between administrative failure and illegality.
7. It never became apparent that deportation could not be effected within a reasonable period. Adding the case to a priority list and the passage of six months after submission of the travel-document application did not alter the expected timescale, and no later information undermined it.

The judgment itself does not state a prior appellate decision. Permission to appeal from this judgment was refused.