DZ (Eritrea), R (on the application of) v The Secretary of State for the Home Department

Under the Hardial Singh principles, detention pending deportation remains lawful only while deportation is intended, removal remains realistically possible within a reasonable period, and the Secretary of State acts with diligence. Removal need not be imminent, certain, or linked to a predictable date. The court decides reasonableness for itself, while giving weight to executive assessments of foreign-government responses. Deliberate non-cooperation may materially prolong the reasonable period; a detainee cannot secure release by obstructing deportation. Continuing risks of absconding and reoffending remain relevant, alongside detention’s effects and the Secretary of State’s conduct. An appellate court should not substitute its own assessment where the first-instance judge applied the correct law and reached a decision within the available evaluative judgment.

The appellant, an ethnic Eritrean who had arrived in the United Kingdom as an Ethiopian national, was detained pending deportation to Ethiopia from 28 November 2008 until his release on 11 July 2012. His deportation was delayed by travel-document difficulties, alleged non-cooperation, and legal challenges. He sought judicial review, declaratory relief, and damages for unlawful detention.

His claim was dismissed by HHJ Birtles in the High Court, at [2014] EWHC 92 (Admin). The appeal challenged the judge’s application of the Hardial Singh principles, his assessment of the prospect of removal and the effect of time, and the adequacy of his reasons.

1. Appeal dismissed. The High Court judge was entitled to conclude that the detention was lawful. His terminology that the Hardial Singh principles were not “engaged” or “involved” was imprecise, but the context showed that he meant that the relevant delay was attributable to the appellant, or that the principles had not been breached.
2. The statutory detention power arose under paragraph 2 of Schedule 3 to the Immigration Act 1971. The applicable principles, summarised in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and approved in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, required an intention to deport, detention for a reasonable period, release when removal could not be effected within that period, and reasonable diligence and expedition.
3. The court had to decide for itself whether detention had become unreasonable, rather than applying Wednesbury review. It could nevertheless give proper weight to the Secretary of State’s assessment of likely foreign-government reactions. A realistic prospect of removal did not require removal to be imminent, certain, or capable of being assigned a precise date. The judge was entitled to regard removal to Ethiopia as reasonably possible and to avoid second-guessing the Ethiopian authorities.
4. The appellant’s repeated refusal to cooperate with the emergency travel-document process was highly material. Deliberate obstruction had to be distinguished from genuine resistance based on a well-founded fear of persecution. The appellant’s continuing failure to obtain travel documentation, his legal challenges, and the continuing risks of absconding and reoffending justified substantial weight being given to those factors despite the length of detention.
5. The absence of evidence of detrimental effects from detention was a relevant consideration, not a necessary element of unlawful detention. The appellate court would not interfere with the judge’s evaluative assessment where the law was correctly stated and the conclusion fell within the available area of judgment, as explained in Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 and R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270. The claim therefore remained dismissed.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the finding that the detention was lawful.
• High Court, HHJ Birtles, dismissed the judicial review claim for declaratory relief and damages at [2014] EWHC 92 (Admin).