West, R (On the Application Of) v Secretary of State for the Home Department

The Hardial Singh principles apply to detention pending deportation, including detention under the mandatory provisions in paragraph 2(1) of Schedule 3 to the Immigration Act 1971. Detention must remain reasonable in all the circumstances and the Secretary of State must act with reasonable diligence and expedition. There are no fixed tariffs: legality depends on the facts of each case. Even where deportation remains possible and there are genuine risks of absconding or reoffending, detention becomes unlawful when removal is uncertain or sufficiently remote that continued detention is no longer reasonable. Administrative delay becomes unlawful where earlier reasonable enquiries would have shown that removal could not occur within a reasonable period.

The claimant had been detained following completion of his custodial sentence while the defendant attempted to obtain travel documentation for Jamaica or Ghana. His identity and nationality were uncertain, and the relevant authorities required supporting evidence before issuing an emergency travel document. The claimant sought judicial review of the length of his immigration detention, which lasted from 27 August 2007 until his release on bail on 14 January 2010.

The central issues were whether the defendant had acted with reasonable diligence and expedition, whether it should have become apparent that deportation could not be effected within a reasonable period, and whether continued detention remained reasonable in all the circumstances.

1. Application of the principles. The court applied the four Hardial Singh principles: detention must be for the purpose of deportation; it must last no longer than a reasonable period; detention must cease when it becomes apparent that removal cannot be achieved within that period; and the Secretary of State must act with reasonable diligence and expedition.
2. The initial period of detention was lawful. The defendant’s earlier notice of intention to deport and related documentation established the necessary intention, notwithstanding a delay of about three weeks before the defendant became aware that the custodial sentence had expired.
3. It was initially reasonable to await investigations by the Jamaican authorities. By 11 June 2008, however, it was clear that no timescale for return existed without supporting evidence. The defendant should then have pursued the available leads concerning the claimant’s identity and background. Simply waiting for the Jamaican authorities was no longer reasonable.
4. The enquiries eventually undertaken from February to June 2009 were sensible and reasonably thorough, but they should have begun in July 2008. Had they been pursued with due diligence, the defendant would have known by the November 2008 detention review that the enquiries had produced no result and that the case was at an impasse.
5. By 27 November 2008, continued detention was unlawful. Release under a strict contact-management regime would have been appropriate, notwithstanding the genuine and well-founded risk of absconding and the continuing possibility of deportation. The relevant question was whether detention remained reasonable, not whether all prospect of removal had disappeared.
6. The later enquiries concerning Ghana could not reduce the unlawful period. They depended on abandoning the Jamaican case and would have occurred after the claimant should have been released on bail.
7. The claimant was therefore entitled to a declaration that he had been unlawfully detained for 13 months. His damages claim was left for agreement or assessment.