Kedienhon, R (On the Application Of) v Secretary of State for the Home Department (Rev 1)

Immigration detention pending deportation is lawful only while removal remains a realistic and sufficiently probable prospect within a reasonable period. Mere uncertainty does not establish breach of the third Hardial Singh principle, but the strength of the prospect of removal is relevant to the overall reasonableness of detention. The court must assess the position using information available when the detention decision was made, without hindsight. The detainee’s risk of absconding and reoffending is highly important, although it cannot justify detention indefinitely. Once removal is no longer possible within a reasonable period, only a short and properly justified grace period is allowed to arrange release. The detention became unlawful one week after 15 June 2016, when the Secretary of State had failed to arrange suitable accommodation with reasonable diligence.

The claimant sought judicial review of his detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 from 3 July 2015 until his release on bail on 13 September 2016. A deportation order was in force, but the Nigerian authorities repeatedly declined to issue an emergency travel document because of reintegration and related concerns.

The claimant alleged breaches of the second and third Hardial Singh principles. He argued that detention became unlawful in July 2015, alternatively by the end of October 2015, or at the latest on 15 June 2016. The central issues were whether removal remained possible within a reasonable period and, if not, whether the subsequent period needed to arrange release was reasonable.

1. Applicable principles. The burden remained throughout on the Secretary of State to establish lawful detention. The court had to determine for itself whether the Hardial Singh principles were satisfied. Under the third principle, the question was whether it had become apparent that removal could not be effected within a reasonable period. Mere uncertainty was insufficient, and the Secretary of State did not need to identify a fixed removal date.
2. The strength and uncertainty of the removal prospect had to be balanced against all the circumstances. Relevant factors included the length of detention, the nature of the obstacle, the diligence and effectiveness of the Secretary of State’s efforts, the effect of detention, and the detainee’s risk of absconding or reoffending. Those risks were particularly important because they threatened the objective of securing deportation. The detainee’s own obstructive conduct could extend a reasonable period, but could not justify indefinite detention. Court proceedings were not to be treated as contributing delay unless hopeless or abusive.
3. At 28 July 2015 and through October 2015, the Nigerian authorities had accepted the claimant’s nationality and the remaining reintegration issue appeared capable of resolution by tracing family members. In the circumstances, it was not apparent that removal could not be secured within a reasonable period, and the overall detention was not unreasonable.
4. By 15 June 2016, the Secretary of State’s officers accepted that there was no current prospect of removal. The judicial review proceedings prevented removal, no family contact had been secured, and there was no evidence of effective further steps. It had therefore become apparent that removal could not be effected within a reasonable period.
5. A short grace period was permissible to arrange suitable accommodation. The Secretary of State failed to show proactive or urgent efforts to secure release accommodation. The detention became unlawful one week after the detention review of 15 June 2016, namely from 23 June 2016 until release on 13 September 2016. The claim was allowed in part. Assessment of damages and causation was transferred to the Queen’s Bench Division or the Central London County Court as appropriate.

First-instance judicial review. No earlier decision under appeal was stated.