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

Immigration detention of a foreign national offender recommended for deportation is initially authorised by Schedule 3 to the Immigration Act 1971, but remains subject to the Hardial Singh principles. Detention must pursue deportation, last only for a reasonable period, and be supported by reasonable diligence and expedition. Where it becomes apparent that deportation cannot be achieved within a reasonable period, the Secretary of State must release the detainee, subject to arrangements addressing flight risk. Mental illness is a factor in assessing the reasonable period and may engage relevant detention policies, but breach of such a policy does not itself invalidate the statutory authority to detain. In this case, detention became unlawful when continued efforts after refusal of an emergency travel document no longer offered a realistic prospect of removal.

The claimant, a foreign national offender, pleaded guilty to possessing a false identity document and received a 12-month sentence together with a judicial recommendation for deportation. After serving the custodial element, he was detained under Schedule 3 to the Immigration Act 1971, released briefly on bail, and then detained again while the Secretary of State investigated his identity and nationality and sought to secure his removal.

He sought judicial review, challenging the lawfulness of his detention under the Hardial Singh principles, alleging application of an unlawful blanket detention policy, and relying on his mental illness. The central issue was whether continued detention remained justified, particularly after the Nigerian authorities refused to issue an emergency travel document.

1. Jurisdiction and procedural limits. The court had jurisdiction under rules 54.3(1)(a) and 54.3(2) of the Civil Procedure Rules 1998 to consider a declaration and an allied claim for damages. However, judicial review was not a suitable forum for resolving inadequately pleaded allegations or complaints about treatment in detention which did not bear materially on the public-law legality of detention. Claims concerning decisions made before the end of June 2011 were also out of time under rule 54.5(1) ([8]-[21]).
2. Statutory authority and governing principles. A foreign national offender recommended for deportation is prima facie lawfully detained under paragraph 2(1) of Schedule 3 to the Immigration Act 1971. After a deportation order is made, the authority derives from paragraph 2(3). Those provisions do not exclude the Hardial Singh principles. The Secretary of State must intend to deport, may detain only for that purpose and for a reasonable period, must act with reasonable diligence and expedition, and must release the detainee once it becomes apparent that removal cannot be achieved within a reasonable period ([23]-[31]).
3. Relevant factors. The risk of absconding was highly relevant. The claimant’s repeated use of identities and nationalities, refusals to engage with officials, and conduct obstructing investigations materially increased the reasonable period. A risk of further offending could also be relevant, but on these facts added little beyond the risk of absconding ([34]-[40]).
4. Mental illness. Mental illness was not a separate ground rendering detention unlawful. It was a factor in assessing the reasonable period. The Secretary of State could generally rely on clinical assessments after making reasonable inquiries, although she could not abdicate her own public-law responsibilities. Breach of the relevant policy could not itself invalidate the statutory warrant or found damages in this public-law claim ([41]-[44], [82]-[84]).
5. Application and order. Until the end of 2011, detention remained reasonable in light of the serious risk of absconding, the claimant’s obstructive conduct, and the conflicting psychiatric evidence. After the Nigerian authorities refused an emergency travel document on 19 December 2011, further steps were largely window dressing. Deportation had become incapable of being achieved within a reasonable period. The claimant was therefore unlawfully detained from 1 January 2012 until his release on 9 August 2012. No wider declaration arose under Articles 3, 5 or 8 of the ECHR ([115]-[125]).

First instance judicial review in the Administrative Court. The court granted a declaration limited to the period from 1 January 2012 to 9 August 2012.