BCT v Secretary of State for the Home Department

Detention pending deportation remains lawful where there is a genuine intention to remove and a realistic prospect of removal within a reasonable period. The court must assess the Hardial Singh principles as primary decision-maker, with the burden on the Secretary of State throughout. Relevant considerations include the length of detention, obstacles to removal, the diligence and effectiveness of steps taken, the risk of absconding, and the risk of reoffending. A period of uncertainty or paused removals does not itself make detention unlawful if new evidence creates a realistic prospect of removal within a reasonable period.

BCT, a Democratic Republic of Congo national and foreign national offender, challenged his immigration detention between 16 January 2013 and 30 October 2014. He argued that removal to the DRC could not be effected within a reasonable period, particularly after P&R (DRC) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin), which identified a real and substantial risk of imprisonment and ill-treatment for criminal deportees returned there.

The central issues were whether detention had become unlawful before or after the Secretary of State abandoned an appeal in that case, whether new country evidence justified continued detention, and how the risks of reoffending and absconding affected the assessment.

1. Applicable principles. The power to detain pending deportation under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 is subject to the implied limitations identified in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 and summarised in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196.
2. The burden of proving legality throughout rests on the Secretary of State. The court is the primary decision-maker on what period of detention is reasonable. The risks of absconding and reoffending are relevant throughout the period under review.
3. Detention up to 30 January 2014 was lawful. The earlier order restraining removal of another DRC detainee did not require BCT’s release; the Secretary of State was entitled to investigate the evidence and consider an appeal in P&R (DRC) [2013] EWHC 3879 (Admin).
4. After the appeal was abandoned, the review had to proceed, absent new evidence, on the basis that a criminal deportee would be detained and imprisoned on return to the DRC in conditions contrary to Article 3 ECHR. The February 2014 country bulletin supplied sufficiently weighty new evidence. Senior Congolese assurances, the experience of other democratic states and resumed UK removals created a realistic prospect of removal.
5. Applying R (Muqtaar) v SSHD [2012] EWCA Civ 1270, uncertainty about the eventual outcome did not establish that removal lacked a realistic prospect. The application was dismissed.