Zerom, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention remains lawful only while deportation is intended and there is a sufficient prospect of removal within a reasonable period. The Secretary of State must act with reasonable diligence and expedition. The assessment is fact-sensitive and includes the length of detention, obstacles to removal, the detainee’s cooperation, risks of absconding and reoffending, and the effect of detention. No fixed maximum period applies. At the initial detention stage, the court reviews the exercise of discretion for rationality. A claimant’s non-cooperation, criminal history and failure to report may justify continued detention where, considered with the other circumstances, the Hardial Singh principles are not breached.

The claimant sought a declaration that his immigration detention from 28 November 2008 until his release on 11 July 2012 had been unlawful. He had been made subject to a deportation order and remained detained while attempts were made to remove him to Ethiopia. The removal process was complicated by questions about his Eritrean ethnicity and Ethiopian nationality, his refusal on several occasions to complete Ethiopian emergency travel document documentation, unsuccessful removal attempts and outstanding legal proceedings.

The central issues were whether the initial decision to detain was irrational and whether continued detention breached the Hardial Singh principles because removal was not reasonably foreseeable or the Secretary of State had failed to act with sufficient diligence.

1. Initial detention. The initial decision to detain was subject to review for rationality under [1948] 1 KB 223. The claimant had not overcome that high hurdle. Three failures to report, the deportation order and his extensive criminal record provided a rational basis for detention.
2. Applicable detention principles. The court adopted the principles set out in R (on the application of Ahmed Yakoub Mesbah Belkasim) v Secretary of State for the Home Department [2012] EWHC 3109 (Admin). The Secretary of State must intend to deport, may detain only for a reasonable period, must release the detainee if removal cannot be achieved within that period, and must act with reasonable diligence and expedition. The relevant circumstances include the length of detention, obstacles to removal, the steps taken to overcome them, detention conditions, its effect on the detainee and family, the risk of absconding and the risk of reoffending.
3. The court also adopted the further principles drawn from R (Lumba and Mighty) v Home Secretary [2011] UKSC 12, R (MA) v Secretary of State for the Home Department [2010] EWCA Civ 1112 and the other authorities identified in the judgment. There is no fixed maximum period of lawful detention. A realistic prospect of removal may exist without a predicted removal date, but the prospect must be sufficient when balanced against all relevant factors. Absconding risk must not become a trump card. The weight given to delay caused by legal proceedings depends on their merits, and non-cooperation may be relevant to absconding risk and the practicability of removal.
4. Application. The claimant’s repeated refusal to cooperate with the emergency travel document process was relevant. His failures to report, criminal history, risk of reoffending, changing position on return and conduct were also relevant. The detention reviews and monthly reviews, together with the absence of criticism of detention conditions, supported the Secretary of State’s position. Taken cumulatively, the factors meant that the Hardial Singh principles had not been breached.
5. The detention was lawful. The claim was dismissed.