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

Under the Hardial Singh principles, immigration detention pending deportation must remain directed to removal, last only for a reasonable period, and be pursued with reasonable diligence. The Secretary of State bears the evidential burden of showing that continued detention complies. Whether removal can occur within a reasonable period is fact-sensitive and includes the time already spent in detention and realistic prospects of voluntary or enforced removal. A hope that conditions in the receiving country may improve may support detention initially, but cannot justify prolonged detention where no sustained improvement or removal plan is evidenced. Appellate intervention is limited, but required where the lower court’s conclusion was not reasonably open on the evidence.

The appellant challenged the lawfulness of his immigration detention between 4 July 2007 and 14 August 2009. The Deputy Judge dismissed the judicial review claim, finding that unlawful policy considerations and failures to conduct detention reviews justified only nominal damages, while holding that the detention as a whole remained lawful under the Hardial Singh principles: [2013] EWHC (Admin). The appeal concerned whether the Secretary of State should have recognised, by early 2008 or by 10 November 2008 at the latest, that the appellant could not be returned to Iraq within a reasonable time, having regard to voluntary return evidence and the prospects of enforced removal.

Appeal allowed in part. Sullivan LJ gave the leading judgment, with Pitchford LJ and King LJ agreeing. The Deputy Judge’s conclusion that there was no point during the detention when removal could not be effected within a reasonable time was not reasonably open on the evidence.

1. Appellate approach. Applying R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270, an appellate court should give considerable respect to a careful first-instance assessment of the open-ended concepts of reasonableness and the circumstances of detention. Intervention remains appropriate where the decision is inconsistent with primary findings, based on an error of law, or was not sensibly open on the evidence.
2. Voluntary return. The Deputy Judge had no proper evidential basis for finding that the appellant might later co-operate with removal. The Secretary of State’s own pleaded case recorded repeated refusals of voluntary return under the FRS, and the evidence showed continuing unwillingness to return. The general possibility that a detainee may change his mind could not support that conclusion in this case.
3. Enforced removal and evidential burden. The Secretary of State had to demonstrate by evidence compliance with the Hardial Singh principles. The authorities did not establish a continuous six-and-a-half-year prospect of removal. Earlier decisions were confined to their own dates and evidence. R (MMH) v SSHD [2007] EWHC 2134 (Admin) concerned the position in September 2007. MI Iraq and AO Iraq [2010] EWHC 764 (Admin) and R (Murad) v SSHD [2012] EWHC 1112 (Admin) showed the significance of the deterioration in conditions, the absence of enforced returns and the time needed to establish arrangements. R (Mahmoud) v SSHD [2012] EWHC 2201 (Admin) did not govern because it concerned different evidence and a detainee whose detention had begun at a different stage.
4. Application. By 10 November 2008 the appellant had been detained for eighteen months. There was no evidence supporting a realistic prospect of enforced removal within a reasonable time, and the material relied upon by the Secretary of State could lead only to the conclusion that continued detention after that date was unlawful. The appeal was allowed to that extent.

• Court of Appeal (Civil Division): Allowed the appeal to the extent that the appellant’s detention after 10 November 2008 was unlawful. The court applied the Hardial Singh principles and held that the contrary conclusion was not reasonably open on the evidence.
• High Court of Justice, Queen’s Bench Division: Dismissed the judicial review claim, while awarding nominal damages for periods affected by unlawful policy considerations and failures to conduct detention reviews. The judgment is cited as [2013] EWHC (Admin).