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

Immigration detention must remain justified by a realistic prospect of removal within a reasonable time. The assessment requires a fact-sensitive balance between the length and conditions of detention, obstacles to removal, administrative diligence, absconding risk and risk of reoffending. A risk of reoffending is relevant, but cannot by itself justify detention after removal is no longer realistically achievable within a reasonable time.

Where conditional immigration bail has been granted subject to approved accommodation, the Secretary of State is allowed a period of grace to arrange release. Specialist accommodation difficulties may lengthen that period, but cannot justify prolonged delay. On the facts, detention became unlawful after 7 November 2018. The accommodation system was maladministrative but its operation was not itself unlawful.

The claimant, a Tanzanian national and foreign national offender, challenged his detention under the Immigration Act 1971 after the First-tier Tribunal granted conditional bail in principle. Release depended on the provision of suitable accommodation under section 4 of the Immigration and Asylum Act 1999.

The Secretary of State accepted that the claimant was entitled to accommodation, but suitable accommodation was not provided until 31 December 2018. He was released on 2 January 2019. The issues were whether detention after the conditional bail grant breached the Hardial Singh principles, whether the delay in arranging accommodation was unlawful, and whether detention had been used for an improper purpose.

1. Detention unlawful from 7 November 2018. The Secretary of State bore the burden of proving lawful detention. By early November 2018 there was no longer a realistic prospect of removal within a reasonable time. The absence of an emergency travel document after the expected three-month period, the unresolved asylum claim and the likely appeal process showed that removal was not reasonably foreseeable.
2. Relevant factors. The claimant’s absconding risk remained important because absconding would frustrate the statutory purpose of removal. However, his supported asylum claim, legal representation and conditional bail reduced the weight of that risk. The risk of reoffending was also relevant, particularly given the nature of the conviction, but its evidential basis was limited. It could help determine the reasonable period of detention, but could not make detention lawful after that period had expired.
3. Accommodation delay. The provision of specialist accommodation for a sex offender was difficult and the period of grace for arranging release could therefore exceed the usual period of a few days. On these facts, about five weeks from the conditional bail grant was the maximum lawful period. The delay thereafter was deeply unsatisfactory and amounted to maladministration, but the court was not persuaded that the operation of section 4 itself was unlawful.
4. The court found no need to determine separately the alleged improper-purpose challenge or the Article 5 ECHR claim. Detention from 7 November 2018 until release on 2 January 2019 breached the second and third Hardial Singh principles and was unlawful.

First-instance judicial review. The claim succeeded to the extent that detention from 7 November 2018 to 2 January 2019 was unlawful. The challenge to the operation of the section 4 accommodation system was not established.