Belfken, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention is unlawful once it becomes apparent that there is no realistic prospect of removal within a reasonable period. The assessment must account for the public interest, risks of absconding and reoffending, non-cooperation, the individual’s history of detention and the fundamental importance of liberty. Subsequent evidence may assist in confirming an earlier assessment, but cannot create retrospectively a prospect that was not realistically identifiable when detention continued. Obstructive conduct may extend a reasonable detention period, but is not a justification for indefinite detention where it creates a complete barrier to removal. Unlawful detention ordinarily attracts substantial damages even where the detainee expressed a preference to remain detained pending suitable accommodation.

The claimant, a Moroccan national and foreign criminal liable to deportation, challenged his fourth period of immigration detention, which lasted from 12 July 2016 to 3 May 2017. Five earlier applications for an emergency travel document had failed, principally because the Moroccan authorities could not verify his nationality.

The Secretary of State accepted that detention from 7 September 2016 onwards was unlawful because there was no realistic prospect of removal within a reasonable period. The remaining issues were the lawfulness of detention before that date, whether only nominal damages were payable for the period after 2 March 2017, and the appropriate quantum.

1. Lawfulness of detention. The claim was allowed. The claimant’s detention throughout 12 July 2016 to 3 May 2017 was unlawful. The Secretary of State had not established any realistic prospect that the sixth emergency travel document application would succeed within a reasonable period.
2. The relevant power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 was subject to the Hardial Singh principles. The third principle required release once it became apparent that deportation could not be effected within a reasonable period. The claimant’s serious offending, very high absconding risk and obstructive conduct were weighty factors, but could not overcome the absence of a realistic removal prospect.
3. Five rejected applications over five years, including two face-to-face interviews, made the prospect of a different result on the same evidence negligible. Speculation that officials might take a different approach, that the claimant might disclose new information, or that the Moroccan authorities might have discovered new evidence did not establish a realistic prospect.
4. Although the court ordinarily assessed the legality of detention on the evidence available when the decision was made, later evidence could potentially confirm an earlier assessment. The later evidence relied upon did not do so, because there was no evidence that it reflected a new approach to cases such as the claimant’s.
5. Damages. The claimant was entitled to substantial, not nominal, damages for the period from 2 March to 3 May 2017. His agreement to conditional release pending suitable accommodation did not make the detention lawful or reduce the damages. Otherwise, sensible arrangements for the release of high-risk detainees could be discouraged.
6. An award of £40,000 was appropriate for 295 days’ unlawful detention. The assessment was global and fact-sensitive, with no separate award for the initial shock of detention and no aggravating features.