Abunasir, 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 court must assess the reasonable period objectively and by reference to all the circumstances, including the time already spent in detention, the obstacles to removal, the Secretary of State’s diligence, the risk of absconding, and the risk and gravity of reoffending.

Obstruction of removal and failure to engage in voluntary return may extend the reasonable period, but they do not justify indefinite detention. A realistic prospect of removal may remain where later developments could resolve an apparent impasse. The court dismissed the claim because detention remained within a reasonable period and there remained a sufficient or realistic prospect of removal.

The claimant, an illegal entrant and failed asylum seeker, was convicted of a serious sexual offence and detained under the UK Borders Act 2007 and the Immigration Act 1971 after completing his custodial sentence. A deportation decision and order were later made. The claimant maintained that he was Syrian, while the Secretary of State considered that he was probably Egyptian.

After approximately 18 months in immigration detention, he sought judicial review on the basis that removal was not realistically achievable within a reasonable period, that the Secretary of State had failed to act with due diligence, and that detention had become unreasonable. The central issues were whether Hardial Singh limbs 2, 3 and 4 were satisfied.

1. Outcome. The claim was dismissed. The detention was lawful under Hardial Singh limbs 2, 3 and 4.
2. Due diligence. The Secretary of State had taken a series of steps to resolve the claimant’s identity and nationality and there were no significant periods of inactivity. The delay in making the deportation decision did not amount to illegality. The decision to deport was important and the Secretary of State was entitled to take time to consider it, as recognised in JS(Sudan) [2013] EWCA Civ 1378. The court distinguished administrative failing from unreasonableness amounting to illegality, applying Krasniqi.
3. Reasonable period. The assessment was objective and fact-specific. The 18 months already spent in detention was a matter of considerable significance, but it was outweighed by the combination of the serious sexual offence, the risk and gravity of reoffending, the risk of absconding, and the claimant’s obstruction of removal.
4. Realistic prospect of removal. The court accepted that the claimant could not be assumed to change his position without evidence. Nevertheless, the situation was not static. The First-tier Tribunal had recently found that he was unlikely to be Syrian and likely to be Egyptian and had dismissed his deportation appeal. Those developments gave the Secretary of State a reasonable opportunity to investigate their consequences. There therefore remained a sufficient or realistic prospect of removal within the reasonable period.
5. Obstruction could extend the reasonable period, and the claimant’s failure to engage in voluntary return could also be relevant. Neither justified indefinite detention. The claim under limb 2 and the claim under limb 3 were dismissed.
6. Postscript. The claim was premature. The Secretary of State was expected, if continued detention were challenged after further enquiries, to produce a carefully formulated plan addressing the difficulties and proposed action. The court considered that no more than six months should ordinarily be required for those enquiries, subject to unforeseen developments.