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

Immigration detention must remain objectively justified under all four Hardial Singh principles. There is no fixed period or automatic red line: legality depends on the particular circumstances, including the duration of detention, obstacles to removal, diligence, removal prospects, detention conditions, impact on the detainee and family, and risks of absconding or reoffending.

Administrative inactivity requires a convincing explanation. An assessment of a foreign authority’s likely response may receive appropriate latitude, but it cannot replace evidence of effective and reasonably prompt steps. Absconding and reoffending risks are important factors, but are not a trump card. Once the reasonable period has expired so that the duration principle is breached, later steps cannot retrospectively make the continuing detention lawful.

The claimant challenged immigration detention which began on 22 April 2015 after the custodial element of a prison sentence. Removal to Pakistan required an emergency travel document. The Pakistan High Commission interview and a subsequent NADRA process failed to verify his identity. The Secretary of State later relied on possible prosecution for non-cooperation, referral to a Returns Liaison Officer, and a further NADRA interview.

The claimant sought declarations, release, damages for false imprisonment and violation of article 5. The central issues were whether detention complied with the duration, removability and diligence principles, and whether later information or renewed removal steps could justify continued detention.

1. The claim succeeded. The court declared the detention unlawful from 18 August 2016, ordered release by 22 February 2017, granted liberty to apply, transferred the damages claim to the Queen’s Bench Division, and ordered the defendant to pay the claimant’s costs subject to detailed assessment.

2. The Hardial Singh principles were to be applied objectively. The purpose principle was satisfied because detention was maintained for the purpose of removal. The remaining principles required reasonable duration, a reasonable prospect of removal within a reasonable time, and reasonable diligence and expedition.

3. There was no fixed benchmark beyond which detention automatically became unlawful. The court had to assess the circumstances as they appeared without hindsight, including the length of detention, obstacles to removal, the Secretary of State’s diligence, detention conditions, impact on the detainee and family, absconding risk and risk of offending. The claimant’s asylum claim explained the initial delay, and the first 13½ months were lawful because the Secretary of State pursued the available travel-document processes with sufficient diligence.

4. After the NADRA process failed on 6 June 2016, urgent, practical and effective steps were required. The proposed section 35 prosecution could not justify detention because there was no continuing failure to co-operate. The late Returns Liaison Officer referral lacked evidence of diligence, prospects or prioritisation. By 18 August 2016, the reasonable period had expired and removal within a reasonable time had become sufficiently unlikely.

5. Absconding and reoffending risks were significant but could not operate as a trump card. The Secretary of State could receive appropriate latitude when assessing how a foreign government might respond, but no such latitude was available without an informed assessment. Later information about family details did not objectively establish a material prospect of a successful NADRA interview.

6. Once the duration principle had been breached, subsequent allegedly diligent steps could not render the continuing detention lawful. In any event, the duration, removability and diligence principles remained breached at the date of judgment.

First-instance judicial review. The judgment states that permission was granted by Edis J on 8 November 2016. No prior appellate decision is stated.