Fardous v Secretary of State for the Home Department

Detention pending removal must comply with the Hardial Singh principles. The reasonableness of its duration depends on all circumstances known when detention is reviewed. There is no tariff, presumptive time limit, or point at which a different standard of scrutiny applies.

The risk of absconding is a factor of paramount importance because absconding defeats removal. It is distinct from any risk of reoffending. It cannot, however, justify detention indefinitely and must be balanced against the duration of detention and the realistic prospect of removal within a reasonable time.

The claimant, a Moroccan national, was detained pending removal while the Secretary of State sought an Emergency Travel Document from the Moroccan authorities. Although the Secretary of State acted diligently, the document was delayed for about two years. The claimant had a substantial history of dishonesty and there was a risk that he would abscond if released.

Andrew Edis QC, sitting in the Queen’s Bench Division, held that detention became unlawful on 8 November 2010, after about 14 months. The Secretary of State appealed. The central issue was whether the judge had erred in applying the second and third Hardial Singh principles concerning the reasonable duration of detention and the prospect of removal.

1. Appeal dismissed. The judge was entitled to hold that continued detention became unlawful on 8 November 2010.

2. The statutory power in paragraph 16(2) of Schedule 2 to the Immigration Act 1971 is constrained by the Hardial Singh principles. The Secretary of State must intend removal, detain only for that purpose, confine detention to a reasonable period, cease detention when removal cannot be effected within a reasonable period, and act with reasonable diligence and expedition.

3. The reasonableness assessment is fact-sensitive. There are no tariffs, temporal yardsticks, or periods after which detention requires a special legal justification. A court must objectively assess the information available to the Secretary of State at the time, without hindsight.

4. The risk of absconding is of paramount importance because it may frustrate the statutory purpose of removal. It is distinct from the risk of further offending. Its weight depends on the circumstances and it cannot justify detention for an unlimited period.

5. Here, the claimant’s dishonesty made absconding a serious consideration. But the judge was entitled to find that the risk had reduced as the claimant’s wish to return to Morocco became more credible. By November 2010 he had been detained for 14 months and there was no reliable prospect of the Emergency Travel Document being issued within a reasonable time. The continued detention was therefore outside the reasonable period permitted by the principles.

6. Applying the appellate approach in R (Muqtaar) v Secretary of State for the Home Department, the conclusion was within the permissible area of judgment open to the first-instance judge. Lady Justice Black agreed. Lord Justice Underhill also agreed and observed that reported decisions may illustrate the principles, but cannot create a tariff.

• Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed. The finding that detention was unlawful from 8 November 2010 was upheld.

• Queen’s Bench Division: Andrew Edis QC held on 5 September 2014 that detention pending removal had become unlawful on 8 November 2010.