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

Immigration detention pending deportation remains lawful only while the Hardial Singh principles are satisfied. The period must be reasonable in all the circumstances, assessed by balancing matters including detention length, removal obstacles, official diligence, and the risks of absconding and reoffending. Continued detention requires a sufficient prospect of removal. Uncertainty alone does not establish a breach, but prolonged detention and sustained lack of progress may do so. Administrative delay does not itself establish illegality without a specific period in which the claimant would otherwise have been released.

The claimant challenged his detention under the immigration legislation between September 2007 and June 2012. He alleged breaches of the Hardial Singh principles, detention under the unpublished policy considered in Lumba v Secretary of State for the Home Department [2011] 2 WLR 671, and detention reviews affected by an erroneous belief that he had been convicted of indecent assault.

The central issue was whether, and when, continued detention ceased to be lawful because removal to Morocco was no longer sufficiently realistic within a reasonable period.

1. The court applied the four Hardial Singh principles stated in Re Hardial Singh [1984] 1 WLR 704 and restated in Lumba v Secretary of State for the Home Department [2011] 2 WLR 671. The second principle requires a sufficient prospect of removal, assessed by balancing that prospect against all relevant circumstances. The third principle is distinct and is engaged when it becomes apparent that removal cannot be effected within a reasonable period. A fixed removal date or certainty of removal is unnecessary.

2. Until October 2010 and in March and May 2011, removal remained a realistic prospect. The claimant’s repeated assertion of a false Palestinian identity materially obstructed documentation. The Secretary of State was pursuing enquiries in Spain, submitting an emergency travel document application, and pursuing fingerprint verification through diplomatic channels.

3. By February 2012, after four years and five months’ detention, the balance changed. The Moroccan authorities had made no apparent progress despite sustained efforts, no response timescale had been given, and the detention had become exceptionally long. Continued detention breached the second principle and, alternatively, the third principle.

4. The Secretary of State had acted with reasonable diligence overall. Earlier action might have been possible, but the shortcomings did not cross the line into illegality under the fourth principle. The erroneous references to an indecent-assault conviction did not materially extend detention.

5. The May 2008 review showed detention pursuant to the unlawful Operation Cullen policy identified in Lumba. The claimant was entitled to a declaration, but not damages, because he accepted that he would not otherwise have been released during that period.