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

Immigration detention pending deportation is lawful only while there is a realistic prospect of removal within a reasonable period. The assessment is fact-sensitive and includes the period of detention, removal obstacles, the Secretary of State’s diligence, the detainee’s circumstances, and risks of absconding and reoffending. Where the prospect of obtaining a required travel document becomes too remote, detention must end, subject to a reasonable period for arranging safe release. A power to provide accommodation does not ordinarily impose a duty to do so, although the power must be exercised fairly and rationally. A public law error is material where it forms part of the operative reasoning underlying detention, even if correcting it would not have changed the final outcome.

EH, a Sudanese national convicted of a serious sexual offence, had been detained under immigration powers since 5 May 2017 pending deportation. He challenged the detention, the alleged delay in arranging release accommodation, and the lawfulness of the decision refusing his protection and human rights claims.

The principal issues were whether deportation remained realistically achievable within a reasonable period, whether the Secretary of State had unlawfully failed to arrange approved premises, and whether the omission of the Verney Report from the decision of 26 April 2017 was a material public law error.

1. Detention pending deportation. The principles summarised in [2011] UKSC 12 required a realistic prospect of deportation within a reasonable time. The relevant period was the immigration detention from 5 May 2017. Initially, efforts to obtain a Sudanese emergency travel document gave a sufficient prospect of removal. That prospect became too remote on 2 March 2018, when EH said that he could not contact his family in Sudan and no alternative route to obtaining the document had been identified.
2. The risks of harm to the public, reoffending and absconding justified a longer period of detention than might otherwise have been reasonable. They did not, however, justify detention after removal was unlikely within a reasonable period. The proposed use of a Sudanese fingerprint database did not provide a realistic prospect of removal and could not justify continued detention.
3. The Secretary of State had acted with reasonable diligence in pursuing the emergency travel document. The separate requirement to arrange accommodation did not itself add to the Hardial Singh duty to progress removal.
4. Release accommodation. Before 30 March 2018, the Secretary of State had not acted unlawfully. Section 4(1)(c) of the Immigration and Asylum Act 1999 conferred a power, subject to fair and rational policy operation, rather than a general duty. The same applied to paragraph 9 of Schedule 10 to the Immigration Act 2016, which operated only in exceptional circumstances. Once detention became unlawful, EH required approved premises under his licence. Allowing 28 days for arrangements, he should have been released by 30 March 2018.
5. Verney Report. The decision of 26 April 2017 materially overlooked the report, which contradicted a central reason for rejecting EH’s tribal identity. The omission affected operative reasoning on the protection and human rights claims and therefore bore on the decision to detain, notwithstanding that the later decision reached the same outcome.
6. The court ordered EH’s release, which occurred on 17 October 2018, and awarded nominal damages for the public law error. Damages for unlawful detention from 30 March 2018 were to be assessed by the Central London County Court if not agreed.

First-instance judicial review. Permission had been granted by His Honour Judge Dight. The High Court determined the substantive claim.