Secretary of State for the Home Department v Jobe

Lawfulness of immigration detention pending deportation is assessed by reference to a reasonable period and all the circumstances. Relevant considerations include practical obstacles and the prospect of removal, the risk of absconding, the risk and potential harm of re-offending, and the effect on the detainee and family. A pending appeal does not automatically require release, and a finite removal date is unnecessary where a sufficient, soundly based prospect of removal exists. The risk of absconding is critical but cannot justify detention indefinitely. For a foreign criminal, the public interest in deportation carries great weight. The seriousness of potential harm from re-offending may outweigh the relative seriousness of the original offence. A child’s interests are relevant but may carry modest weight.

The respondent, a Gambian national and foreign criminal, was detained under immigration powers from 1 November 2011 pending deportation following a 12-month custodial sentence. After a second statutory appeal concerning revocation of the deportation order succeeded, he was released on 31 October 2013.

On judicial review, Davis J held that detention from 7 March to 31 October 2013 was unlawful because removal could no longer be effected within a reasonable period and because the decision-making did not adequately address relevant risks and family circumstances. The Secretary of State appealed. The central issue was whether continued detention, in the face of an in-country appeal, a significant absconding history, re-offending risk and a young child, remained lawful under the Hardial Singh principles.

1. Disposition. Lord Justice Tomlinson, with Lady Justice Black and Lord Justice Lindblom agreeing, allowed the appeal, set aside the declaration of unlawful detention and declared, if necessary, that detention from 1 November 2011 to 31 October 2013 was lawful.
2. The second and third Hardial Singh principles, reaffirmed in Lumba v SSHD [2012] 1 AC 245, require detention pending deportation to last only for a period reasonable in all the circumstances. If it becomes apparent before the expiry of that period that removal cannot be effected within a reasonable period, detention should cease. The assessment is fact-sensitive. A meritorious appeal does not automatically require release, and the risks of absconding and re-offending remain of paramount importance.
3. The Court of Appeal should show considerable respect to the Administrative Court’s assessment. It may interfere where the conclusion is inconsistent with primary findings, based on an error of law or not sensibly open on the facts, as explained in R (Muqtaar) v SSHD [2013] 1 WLR 649 and R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112.
4. Davis J’s conclusion was not open to him. He wrongly trivialised the respondent’s supply of Class B drugs, failed to give appropriate weight to the risk and potential harm of re-offending, and failed to recognise the serious and significant risk of absconding. The public interest in deporting a foreign criminal under the UK Borders Act 2007 and paragraph 396 of the Immigration Rules carries great weight, requiring very compelling reasons to outweigh it. The relevant consideration was the seriousness of potential harm from re-offending, not merely the respondent’s relative position in the spectrum of criminality. The applicable Enforcement Instructions and Guidance also required substantial weight to be given to the risk of further offending or harm to the public.
5. The risk of absconding required qualitative assessment but was plainly serious, given the respondent’s repeated failures to report and prolonged absence. There was a sufficient prospect of removal; a finite date for removal was not required, consistently with R (MH). The absence of specific consideration of electronic tagging did not establish unreasonable decision-making.
6. The impact on the respondent’s child was relevant, but it was capable of carrying only modest weight in the circumstances and could not sustain the finding of unlawfulness. The court expressed no concluded view on the adequacy of the Secretary of State’s assessment of that issue.

• Court of Appeal (Civil Division) — [2016] EWCA Civ 1035: appeal allowed; the declaration was set aside and the detention was held lawful.
• High Court of Justice, Administrative Court — Davis J held that detention from 7 March 2013 to 31 October 2013 was unlawful and directed an assessment of damages.