ASD v Secretary of State for the Home Department

Continued immigration detention pending deportation remains lawful where there is a realistic prospect of removal within a reasonable period. The absence of a fixed or finite removal date is not determinative. The court must assess all the circumstances, including the outstanding immigration process, delay attributable to the detainee, the risk of serious harm if released, the risk of absconding, and the Secretary of State’s diligence and expedition. A substantial period of detention may nevertheless be justified where the sole obstacle to removal is a pending appeal and the public-safety risks are high.

The claimant, an Algerian national and former refugee, challenged the continued detention pending deportation following a conviction for serious contamination offences. He had been detained for 54 months after completing the custodial part of his sentence. The deportation process was subject to further representations and immigration proceedings, including an outstanding appeal to the First-tier Tribunal. The claimant alleged breaches of the second, third and fourth Hardial Singh principles. The Secretary of State relied on the realistic prospect of removal, the claimant’s high risk of reoffending and the risk of absconding.

1. Application dismissed. The court held that the claimant’s continued detention was justified because there remained a sufficient prospect of deportation.
2. The detention powers under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 are constrained by the four Hardial Singh principles: detention must pursue removal; it must last only for a reasonable period; detention must cease when it becomes apparent that removal cannot be effected within that period; and the Secretary of State must act with reasonable diligence and expedition.
3. The essential question was whether there was an insufficient prospect of removal to justify continued detention. No finite period within which removal must occur was required. The outstanding appeal was the sole obstacle to removal, and it had a realistic prospect of resolution.
4. The length of detention caused considerable disquiet, but it had to be assessed with all the circumstances. Relevant considerations included the claimant’s substantial delay in challenging deportation, the high professional assessment of the risk of reoffending, the serious nature of his previous offending, his recent assault in detention and the risk of absconding if deportation were ultimately required.
5. The claimant’s licence conditions and proposed accommodation did not displace the professional assessment that he presented a high risk of serious harm. The Secretary of State had not breached the second or third principles. Although the immigration appeal had taken longer than anticipated, the claimant’s late service of expert evidence meant that the Secretary of State had not failed to act with reasonable diligence and expedition. The fourth principle was therefore not breached.

The judgment describes earlier proceedings before the Upper Tribunal and the High Court, including judicial review and bail applications, but records no appeal from the present decision.