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

Immigration detention pending deportation remains lawful only while it serves the deportation purpose, lasts no longer than is reasonable, and is maintained when there is a reasonable prospect of removal within a reasonable period. The Secretary of State must act with reasonable diligence and expedition. These principles apply even where detention is mandated by section 36(2) of the UK Borders Act 2007. Administrative failings do not themselves establish unlawful detention unless they cross the threshold into illegality and caused a specific period of detention that would otherwise have been avoided. Risks of absconding and reoffending are particularly important in assessing whether continued detention is justified.

The claimant sought judicial review and a declaration that his immigration detention was unlawful for all or part of the period from 16 July 2012 to 24 June 2013. He had been convicted of arson and was liable to automatic deportation as a foreign criminal under the UK Borders Act 2007.

Before a deportation order was made, detention was exercised under section 36(1)(b). After the order, detention was required under section 36(2), subject to the Secretary of State considering it inappropriate. The claimant argued that removal to Iran was unavailable, that removal to Iraq was not reasonably foreseeable, that investigations had been unduly slow, and that his medical condition required release or hospital treatment.

1. The claim was dismissed. The claimant was detained for the purpose of deportation and was not detained for longer than a reasonable period. There remained a reasonable prospect of deportation.
2. The court applied the principles derived from R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as restated in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12. The Secretary of State had to intend deportation, use detention only for that purpose, detain only for a reasonable period, release when removal within a reasonable period became impossible, and act with reasonable diligence and expedition.
3. Those principles applied despite the statutory default in section 36(2) of the UK Borders Act 2007. Detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 remained subject to the requirement that it not continue beyond a reasonable time or without a reasonable prospect of deportation.
4. The court rejected the argument that investigation of nationality and possible removal to the Kurdistan Regional Government area had been so slow as to make detention unlawful. Some steps might have been taken more quickly, but the shortcomings were administrative failings falling well short of illegality. The claimant could not be detained indefinitely in the hope that something might turn up, but the detention reviews showed that this was not what occurred.
5. The risks of harm, reoffending and absconding materially supported continued detention, particularly because the claimant was a foreign criminal. The defendant’s response to the medical report was also lawful: the claimant was medically supervised in detention, and there was no obligation immediately to hospitalise him against his will or persuade him to go.