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

The power to detain a person subject to a deportation order is constrained by the Hardial Singh principles. Detention must pursue removal, remain reasonable in all the circumstances, cease when removal cannot be achieved within a reasonable period, and be supported by reasonable diligence and expedition. Where immigration bail is granted subject to suitable accommodation, the court should first assess whether the Secretary of State conscientiously and in good faith sought to provide it. Continued detention must then be assessed under the same principles. The reasonable period is fact-sensitive and may take account of absconding and offending risks, resistance to removal, accommodation difficulties, diplomatic negotiations and exceptional disruption such as the Covid-19 pandemic.

The claimant, an Iranian national and foreign criminal, was detained under Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 after completing his custodial sentence. A deportation order was in force, and the defendant sought his removal to Iran.

Between January and June 2020 the First-tier Tribunal granted immigration bail on several occasions, each subject to suitable accommodation. Accommodation was not provided, and the claimant remained detained. The defendant accepted that detention from 12 August 2020 was unlawful but disputed liability for the earlier period. The central issue was whether detention from 30 August 2019 to 12 August 2020 was lawful.

1. The claim succeeded only to the extent accepted by the defendant. Detention from 30 August 2019 to 12 August 2020 was lawful. Detention from 12 August 2020 was unlawful, and the claimant was entitled to damages for false imprisonment for that period.

2. The applicable principles were those summarised in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at [46]. The Secretary of State must intend to deport the person and use detention only for that purpose. Detention may last only for a reasonable period. It must end if removal cannot be achieved within that period, and the Secretary of State must act with reasonable diligence and expedition.

3. The reasonable period is fact-sensitive. Relevant considerations included the risk of absconding or further offending, resistance to removal, the availability of emergency travel documentation, accommodation requirements and the progress and uncertainty of diplomatic negotiations. The nuanced nature of diplomatic negotiations meant that the apparent absence of immediate progress did not necessarily establish that the end of the road had been reached.

4. For the period before the first grant of bail, the principles were satisfied. The claimant’s detention was regularly reviewed, he posed significant risks, he resisted removal and the Iranian authorities had agreed in principle to issue an emergency travel document.

5. For the period after bail was granted subject to suitable accommodation, the court first considered whether the defendant had diligently and in good faith sought to provide accommodation. Reasonable efforts had been made. The Covid-19 pandemic, the scarcity of suitable accommodation and the need for probation approval had made provision virtually impossible. The resulting detention remained lawful under the Hardial Singh principles because removal remained a realistic prospect and the reasonable period had not expired.

6. The detention became unlawful on 12 August 2020 because the decision to maintain detention after bail did not identify any material change in circumstances justifying continued detention.

This was a first-instance judicial review claim. The judgment records that the claimant’s appeal against the deportation decision was dismissed by the First-tier Tribunal on 18 February 2019, and that he became appeal rights exhausted on 5 March 2019.