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

Administrative detention pending deportation is lawful only while deportation remains the genuine purpose and there is a realistic prospect of removal within a reasonable time. The court must consider all relevant circumstances, including risks of absconding and reoffending. Those risks are important but do not provide a trump card where removal is not realistically foreseeable. Refusal of voluntary return has limited relevance, unless it supports an inference of likely absconding. A public authority must comply with disclosure orders and its duty of candour; legal advisers cannot unilaterally withhold material covered by an order. Where a detainee’s home country will not accept non-voluntary return and there is no proper consent, continued detention is unlawful.

The claimant, a Zimbabwean national liable to deportation after serving a custodial sentence, had been detained under immigration powers since October 2013. Zimbabwe would accept returning nationals only where they held a passport or agreed to return voluntarily. The claimant had no current passport and disputed that he had consented to return.

The Secretary of State relied on the claimant’s risks of absconding and reoffending, earlier procedural barriers to removal, a signed disclaimer, and the possibility of prosecution for failing to cooperate with re-documentation. The central issue was whether there remained a realistic prospect of removing him within a reasonable time so as to justify continued detention.

1. Outcome. The claim succeeded. The court had ordered the claimant’s release because, at the hearing, there was no realistic prospect of deporting him to Zimbabwe and continued detention could not be justified.
2. The governing principles were those stated in R (I) v SSHD [2002] EWCA Civ 888 and endorsed in R (Lumba) v SSHD [2011] UKSC 12. Detention must serve the purpose of deportation, last no longer than is reasonable, and be pursued with reasonable diligence. If there is no realistic prospect of deportation within a reasonable time, continued detention is unlawful.
3. The relevant inquiry requires consideration of the risk of absconding, the risk of reoffending, other barriers to removal, whether the detainee has consented to removal, the significance of any refusal of voluntary return, and the present prospect of removal. Risks of absconding and reoffending are of paramount importance, but they are not decisive where removal itself is not realistically foreseeable. Refusal of voluntary return is relevant principally if it supports an inference of absconding; it cannot justify indefinite detention.
4. The possibility of prosecuting the claimant under section 35 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 could not justify detention. Detention for the purpose of prosecution would not be detention for the purpose of deportation. The court also had grave doubts that failure to sign a document expressing an intention to leave voluntarily could constitute an offence where the claimant did not genuinely intend to return.
5. The signed disclaimer did not establish consent to removal. The form was equivocal and had been presented under threat of criminal proceedings despite being described as voluntary. The claimant had never properly agreed to return.
6. The Secretary of State’s repeated disclosure failures justified drawing factual inferences in the claimant’s favour. Orders of the court had to be obeyed. If material covered by an order required redaction, the proper course was to apply to vary the order. The court relied on the principles in M v The Home Office [1994] 1 AC 377, R (Das) v SSHD [2014] EWCA Civ 45 and Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment [2004] UKPC 6.
7. Since August 2015 the claimant had not consented to return, Zimbabwe would not accept a non-voluntary return, and nothing indicated that position would change in the foreseeable future. The detention was therefore unlawful.