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

The common-law principles governing immigration detention require the court to assess all the circumstances. Detention must serve the purpose of deportation, last no longer than is reasonable, and be maintained only where removal remains sufficiently achievable. Risks of absconding and reoffending are important factors. Time spent pursuing a hopeless legal challenge receives minimal weight where it prevents removal. A detainee’s refusal to co-operate with voluntary return may be relevant, particularly to the risk of absconding. The court must assess whether there is a sufficient prospect of removal to justify continued detention, having regard to the risks and other relevant circumstances.

The claimant, a Libyan citizen, challenged the lawfulness of his immigration detention between 28 October 2011 and his removal to Libya on 8 August 2013. He had been convicted of assault occasioning actual bodily harm, recommended for deportation, and subsequently pursued an asylum claim and judicial review proceedings. The Court of Appeal granted permission to appeal and remitted the case for determination of the detention issue alone. The central questions were whether the prolonged detention was reasonable and whether, at the relevant times, there was a sufficient prospect of removal to justify its continuation.

1. Applicable principles. The principles in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as summarised in Lumba v Secretary of State for the Home Department [2012] 1 AC 245, governed the claim. The Secretary of State had to intend to deport the claimant, detention had to remain reasonable, detention had to cease if removal could not be achieved within a reasonable period, and reasonable diligence and expedition had to be used.
2. The claimant presented substantial risks of absconding and reoffending. Those risks did not alone justify prolonged detention, but were important circumstances. His refusal to co-operate with voluntary return, his asylum claim, and his subsequent legal challenges contributed to the delay. Minimal weight was therefore given to detention during periods when his challenges prevented removal.
3. The relevant removal question was whether there was a sufficient prospect of removal to warrant continued detention, taking account of all other relevant factors. The prospect had to be assessed by reference to the position during and after the legal challenges. The evidence showed that voluntary return, emergency travel documents, diplomatic assistance, third-country arrangements and escorted removals remained potential avenues. His removal shortly after refusal of permission to proceed supported the reasonableness of the expectation that removal could be achieved within a reasonable period.
4. The detention was reasonable throughout and lawful under the common law. The Article 5.1(f) argument stood or fell with the common-law challenge. The Article 5.2 argument was no longer open following the earlier refusal of permission. The claim was dismissed, and costs were assessed at £14,000.

1. Court of Appeal: On 5 February 2015, Aikens LJ granted permission to appeal and permission to proceed with judicial review on the detention ground alone. The issue was remitted to the Administrative Court.
2. High Court (Administrative Court): The claim was dismissed. The court held that detention from 28 October 2011 to 8 August 2013 was lawful.