Fardous v Secretary of State for the Home Department

Administrative detention pending removal remains lawful only while removal is pursued for a genuine purpose, the period is reasonable, and removal remains realistically achievable within that period. The risk of absconding is important, but it must be balanced against detention length, removal obstacles, official diligence, the effect of detention and any risk to public safety. There is no fixed permissible period. Detention lasting 12 months or more requires anxious scrutiny.

The claimant, a Moroccan national, was returned from Norway to the United Kingdom on 7 September 2009 and detained pending removal. He accepted that his detention was initially lawful, but argued that it became unlawful during the 22-month period before his release on bail.

The claim began by judicial review and was transferred to the Queen’s Bench Division. The central issue was when, applying the Hardial Singh principles, the reasonable period for detention expired or it became apparent that removal would not occur within that period.

1. The detention power arose under paragraph 16(2) of Schedule 2 to the Immigration Act 1971. The four Hardial Singh principles required a genuine intention to remove, detention for no longer than a reasonable period, release when removal within that period became impossible, and reasonable diligence and expedition.
2. The risk of absconding could justify detention but could not automatically outweigh all other factors. The assessment was fact-sensitive and included detention length, removal obstacles, official diligence, detention conditions, effects on the detainee and family, absconding risk and public-safety risk.
3. Removal did not have to be possible within a fixed period. There had to be a realistic prospect of removal throughout detention. The court determined lawfulness by reference to the circumstances as they presented themselves to the Secretary of State, rather than by ordinary irrationality review.
4. The first 12 months were lawful. By the November 2010 detention review, however, continued detention was unlawful because removal was not realistically achievable within the remaining reasonable period. Eight of the 22 months were unlawful.
5. The parties were directed to attempt to agree quantum, with a further hearing if necessary.

Not an appeal. The proceedings began by judicial review and were transferred to the Queen’s Bench Division under Part 7 of the Civil Procedure Rules.