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

Immigration detention must remain connected to the purpose of deportation and must last no longer than is reasonable in all the circumstances. Deliberate non-cooperation may substantially extend the reasonable period, but it is not a justification for indefinite detention. The Secretary of State must continue to act with reasonable diligence and expedition. Detention cannot lawfully be maintained for the purpose of pursuing a prosecution under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, whether or not prosecution is intended to encourage cooperation. Where removal efforts ceased for a material period, detention became unlawful.

The claimant, a Sudanese national and foreign criminal, was detained under paragraph 2 of Schedule 3 to the Immigration Act 1971 pending deportation. He challenged the lawfulness of detention from 29 March 2013 to 24 November 2015, relying on the Hardial Singh principles and the defendant’s policy concerning detention of persons with serious mental illness.

The claimant had repeatedly refused to complete travel-document forms or attend interviews with Sudanese officials. Removal efforts progressed during 2013 and 2014, but no further interview was arranged in 2015. The central issues were whether the overall period was reasonable and whether continued detention could be justified by possible prosecution for failing to comply with travel-document requirements.

1. The claim succeeded in part. Applying the Hardial Singh principles, detention was lawful until the end of 2014 but unlawful thereafter.

2. The Secretary of State intended to deport the claimant, satisfying the first principle. The claimant’s immigration history and assessed risk of absconding and serious harm justified detention in principle. His deliberate and consistent non-cooperation was an important circumstance. It could substantially increase the reasonable period of detention, but it was not a trump card permitting indefinite detention.

3. The Secretary of State acted with reasonable diligence and expedition through the end of 2014. Attempts were made to obtain an emergency travel document and to arrange interviews with Sudanese authorities. The interviews did not occur because the claimant refused to attend.

4. In 2015, however, the defendant did not materially progress removal. Earlier enquiries had indicated that an interview was required, and there was no evidence of a reasonable prospect that a further enquiry would produce a travel document without one. The detention after the end of 2014 therefore exceeded a reasonable period and breached the Hardial Singh principles.

5. Detention under paragraph 2 of Schedule 3 to the Immigration Act 1971 could not lawfully be used to hold the claimant while the Home Office pursued a possible prosecution under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Such detention would not be for the purpose of deportation. In any event, no prosecution was commenced during the relevant year.

6. The serious-mental-illness policy issue was not decided. It was unnecessary to determine it after the finding that detention in 2015 was unlawful, and the issue could not realistically be separated from the unlawfulness and duration of that detention.

First-instance judicial review proceedings. No prior appellate decision is stated in the judgment.