ML (Morocco), R (on the application of) v The Secretary of State for the Home Department

The lawfulness of immigration detention depends on whether, at each material stage, there was a sufficient prospect of removal within a reasonable period. The assessment is fact-sensitive and must consider the circumstances in the round. Relevant factors include the length of detention, obstacles to removal, the Secretary of State’s diligence and expedition, the detainee’s conduct, the risk of absconding or reoffending, and the effects of detention. A further application for a travel document may be reasonable where it contains materially new evidence. Delay attributable to a foreign authority does not necessarily make continued detention unlawful, provided the Secretary of State acts reasonably and keeps the position under review.

The claimant sought judicial review and damages for alleged unlawful immigration detention between 23 January and 10 November 2015. He claimed to be stateless and argued that the Secretary of State had pursued ineffective travel-document applications, failed to approach the appropriate authorities, and detained him for longer than permitted by the Hardial Singh principles.

The Secretary of State relied on the claimant’s extensive offending, repeated absconding, dishonesty about his identity, and the steps taken to secure removal. The central issues were whether there remained a realistic prospect of removal within a reasonable period and whether the Secretary of State had acted with reasonable diligence and expedition.

1. Claim dismissed. The alleged breach of Article 5 added nothing to the common-law claim.
2. The statutory power to detain under the Immigration Act 1971 is subject to the Hardial Singh principles. Detention is lawful only where there is a realistic prospect of removal within a reasonable period. Principles 2 and 3 are distinct: detention becomes unlawful when the reasonable period has expired, or earlier if it becomes apparent that removal cannot be effected within that period.
3. The question must be assessed at each relevant point in time and in the round. Relevant considerations included the period of detention, obstacles to removal, the Secretary of State’s diligence, the conditions and effects of detention, the risk of absconding, the danger of further offending, and non-cooperation.
4. The claimant’s persistent absconding, criminal record, high risk of harm, and use of aliases weighed heavily in favour of continued detention. Ten months’ detention was not inherently unreasonable, particularly given the earlier period of detention, provided that removal remained realistically possible.
5. The second application to the Western Sahara Mission was materially different from the first because it included further supporting evidence. It was therefore reasonable to pursue that avenue until May 2015, when it became clear that the application would not provide an effective route to removal. The Secretary of State then reasonably pursued an application to the Moroccan authorities.
6. Subsequent delay was attributable to the Moroccan authorities rather than the Secretary of State. The application was chased, the interview was awaited, and release followed after the interview when removal was no longer being pursued as an immediate prospect. The Secretary of State acted with reasonable diligence and expedition throughout.

The claim was heard in the Administrative Court after King LJ granted permission on 16 March 2016 in relation to detention from 23 January 2015 to 10 November 2015 and remitted the matter for determination.