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

Immigration detention pending deportation must remain justified by a realistic prospect of removal within a reasonable time. The risks of absconding and reoffending are relevant, but neither can justify detention after that reasonable period has expired. The court must assess the facts for itself, giving primary weight to the presumption of liberty and requiring the Secretary of State to justify detention.

Where conditional bail depends on accommodation under the Immigration and Asylum Act 1999, a period of grace may be allowed to arrange suitable accommodation. The period may be longer where specialist accommodation is required, but administrative difficulties and a best-endeavours approach do not permit prolonged detention.

The claimant, a Tanzanian national and foreign national offender, challenged his detention under the Immigration Act 1971 after the First-tier Tribunal granted bail in principle on condition that he reside in accommodation approved by his offender manager.

He also challenged delay in providing accommodation under section 4 of the Immigration and Asylum Act 1999. Accommodation was eventually provided and he was released. The issues were whether detention remained lawful under the Hardial Singh principles and whether the accommodation process had been unlawfully delayed.

1. Detention unlawful in part. The court held that detention from 7 November 2018 to 2 January 2019 breached the second and third Hardial Singh principles. By early November there was no realistic prospect of removal within a reasonable time.
2. The court applied the presumption of liberty. The Secretary of State bore the burden of proving lawful detention, and the court had to assess reasonableness on the facts rather than by Wednesbury review.
3. The risk of absconding was important because absconding would defeat the statutory purpose of detention. However, the claimant’s supported asylum claim, legal representation and potential in-country appeal reduced its weight. The risk did not justify detention more than three months after conditional bail.
4. The risk of reoffending was relevant, contrary to the claimant’s submission and to an observation attributed to Mostyn J. It had to be weighed when determining the reasonable period, but could not make detention lawful after that period had expired if removal was not realistically achievable.
5. The absence of an emergency travel document after the expected three-month period, together with the unresolved asylum process and delay in providing accommodation, meant that removal was no longer realistically foreseeable. The claimant’s detention had already lasted about four months by early November.
6. The accommodation system had operated maladministratively, involving repeated referrals, checks and delay. Nevertheless, the court was not persuaded that the operation of section 4 itself was unlawful. A specialist accommodation requirement could extend the normal period of grace, but only to about five or six weeks on these facts.
7. The court made no separate finding on the alleged Padfield error or Article 5 ECHR issue. The claim succeeded to the extent that detention from 7 November 2018 to release was unlawful.