Botan, R (on the application of) v Secretary of State for the Home Department

Immigration detention pending deportation remains lawful only while there is a realistic prospect of removal within a period that is reasonable in all the circumstances. The assessment is fact-sensitive and must account for the length of detention, the obstacles to removal, the Secretary of State’s diligence, and risks of absconding and reoffending. A refusal by the receiving state to accept an enforced return does not automatically make detention unlawful where negotiations provide a realistic prospect of resolving the obstacle. The court assesses legality on the information available to the Secretary of State at the relevant time, rather than with hindsight. Risk of reoffending and absconding may justify detention, but neither permits indefinite detention.

The claimant, a Somali national and foreign criminal, was detained after release from prison on 7 June 2013 pending automatic deportation. His appeal against the deportation order was dismissed by the First-tier Tribunal and his appeal rights were exhausted by 25 March 2014.

He challenged detention between 8 June 2014 and 2 March 2017, arguing that the refusal of the Somali authorities to accept his enforced return on 7 June 2014 meant that there was no realistic prospect of removal within a reasonable period. He later abandoned the challenge to detention after 2 March 2017. The issue was whether continued detention breached the third Hardial Singh principle.

1. Disposition. The claim was dismissed. The claimant’s detention had been lawful from 7 June 2013 and remained lawful.
2. The statutory powers to detain under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 and section 36 of the UK Borders Act 2007 remained subject to the Hardial Singh principles and Article 5 of the ECHR. The Secretary of State bore the burden of justifying detention.
3. The court applied the four principles stated in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196: detention must be for the purpose of deportation; it must last no longer than a reasonable period; it must cease when it becomes apparent that removal cannot be effected within a reasonable period; and the Secretary of State must act with reasonable diligence and expedition.
4. The claimant’s serious criminal history justified substantial weight being given to the risks of reoffending, harm to the public and absconding. Those risks were relevant to the reasonableness of detention, but they did not displace the requirement for a realistic prospect of removal.
5. The refusal by the Somali authorities to accept the claimant as an enforced returnee was not foreseen before the first attempted removal. Thereafter, it was reasonable for the Secretary of State to continue negotiations because the Somali immigration service appeared under-resourced and its responses were unpredictable. The failed removal arrangements were attributable at various times to logistical problems, the claimant’s conduct and ongoing negotiations, rather than establishing that removal was impossible.
6. The legality of each decision had to be assessed on the evidence known to the Secretary of State when the decision was made. The later failure to remove the claimant did not retrospectively invalidate detention. The signing and implementation of the memorandum of understanding, followed by successful enforced removals, established a realistic prospect of the claimant’s removal after 2 March 2017.