Chuck, 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 Secretary of State must intend to deport, act with reasonable diligence and expedition, and maintain a sufficient prospect of removal within a reasonable period. There is no fixed maximum period, and the detainee’s obstruction, risk of absconding and risk of reoffending are relevant, but none is a trump card permitting indefinite detention. The court’s role is supervisory and involves legal assessment of the detention decision, not substitution of its own primary decision. A failure to conduct required detention reviews renders detention unlawful during the affected period, although damages may be nominal if detention would otherwise have been justified.

The claimant sought permission to challenge his detention pending deportation. A separate challenge to the deportation decision was withdrawn. He had been detained since 9 March 2012 after serving a custodial sentence and maintained that he was a British citizen, while the Secretary of State investigated his identity and nationality. It was accepted that detention reviews were not carried out between March and July 2013. The central issues were whether detention was unlawful during that period or at any later stage, whether the Secretary of State had acted with reasonable diligence and expedition, and whether removal remained realistically achievable.

1. Permission and outcome. Permission to judicially review was granted. The substantive review was dismissed except in relation to the period between March and July 2013 when required detention reviews were not conducted. The claimant was entitled to nominal damages for that period only; release was not ordered.
2. The power to detain pending deportation is controlled by the four Hardial Singh principles: the Secretary of State must intend to deport and use detention only for that purpose; detention must last no longer than is reasonable in all the circumstances; detention must cease if it becomes apparent that removal cannot be effected within a reasonable period; and the Secretary of State must act with reasonable diligence and expedition.
3. The assessment is fact-sensitive. Relevant considerations include the length of detention, obstacles to removal, the Secretary of State’s diligence, the conditions and effects of detention, the risk of absconding and the risk of further offending. There is no fixed outer limit. A detainee’s refusal to co-operate or provision of misleading information may extend the reasonable period, but cannot justify indefinite detention.
4. The court’s role is supervisory. It applies ordinary public-law and Wednesbury principles and undertakes the legal assessment required by the detention policy and the Hardial Singh principles; it does not act as the primary decision-maker.
5. The Secretary of State had continued to investigate the claimant’s identity and nationality independently of his co-operation. By the time of judgment, the investigations, including contact with the Nigerian task force, provided a sufficient prospect of removal. Detention was therefore presently lawful. However, if emergency travel documents could not be obtained and deportation could not progress within a relatively short period, continued detention would become unlawful. The court indicated that detention was likely to be unlawful if those steps had not occurred by the end of May 2015, while recognising that the assessment belonged to the court considering the circumstances at that time.