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

Detention pending deportation is lawful only while removal remains a realistic prospect and the Secretary of State acts with reasonable diligence and expedition. Risk of absconding, risk of offending and failure to co-operate are important factors, but none permits indefinite detention. The Secretary of State must continue to explore practical means of removal.

Under Chapter 55.10 EIG, serious mental illness engages the exceptional-detention policy only where it cannot be satisfactorily managed in detention. The detention was lawful on the facts, and Articles 3 and 8 of the ECHR were not breached.

The claimant challenged his detention under Schedule 3 to the Immigration Act 1971 from August 2012 to November 2013. He alleged breach of the Hardial Singh principles, failure to apply the Secretary of State’s published detention policy in Chapter 55.10 EIG, and breaches of Articles 3 and 8 of the ECHR.

The Secretary of State relied on the claimant’s persistent offending, risk of absconding, alleged lack of co-operation and the continuing possibility of obtaining travel documentation. The central issues were whether detention remained reasonable, whether the claimant’s mental illness could be satisfactorily managed in detention, and whether the Convention thresholds were met.

1. Hardial Singh principles. The Secretary of State bore the burden of establishing the legality of detention throughout. The court was the primary decision-maker on what was reasonable. The governing principles required a genuine intention to deport, detention for a reasonable period, release when removal could not be effected within a reasonable period, and reasonable diligence and expedition in pursuing removal.
2. Relevant factors. The court applied the factors identified in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, including the length of detention, obstacles to removal, official diligence, detention conditions, its effects, and risks of absconding and offending. The claimant’s high risk of further offending and significant risk of absconding carried substantial weight.
3. A failure to co-operate was relevant but could not justify indefinite detention. The Secretary of State could not simply wait for co-operation and had to explore other routes to removal. Here, the claimant had repeatedly given inconsistent identity information, and the Home Office continued to review detention and pursue enquiries with reasonable vigour.
4. Mental-health policy. Chapter 55.10 EIG applied only where serious mental illness could not be satisfactorily managed in detention. The claimant’s condition was monitored and managed in detention, so the policy was not engaged. Had the illness been unmanageable, release would have been required.
5. Articles 3 and 8 of the ECHR were not breached. The application for judicial review failed. Costs were reserved for further argument.

First-instance judicial review in the High Court (Administrative Court). The judgment does not state any prior decision on the merits.