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

Immigration detention remains lawful only while removal is pursued actively, detention lasts no longer than a reasonable period, and there remains a sufficient prospect of removal within that period. The court must form its own judgment and the Secretary of State bears the burden of showing that detention is reasonable. Relevant factors include the detention period, obstacles to removal, administrative diligence, detention conditions, the detainee’s welfare, and the risks of absconding and offending. A high risk of absconding is not decisive by itself, but may outweigh factors favouring release. Detention must remain under frequent review because changed circumstances may make continued detention unlawful.

The claimant was detained under immigration powers pending deportation to India. He challenged the lawfulness of detention under the Hardial Singh principles after approximately 13 months in custody. Removal depended on obtaining an emergency travel document, and the proceedings examined delays in that process, the claimant’s cooperation, prison conditions, his welfare, the risk of absconding, and the risk of re-offending. The central issues were whether detention had already exceeded a reasonable period and whether a further period of up to six months could reasonably be justified.

The claim for judicial review was dismissed. The claimant’s continued detention remained lawful on the facts as they stood at the date of judgment.

1. Under the Hardial Singh principles, the Secretary of State must pursue removal actively, may detain only for a period reasonable in all the circumstances, and must release the detainee if it becomes apparent that removal cannot occur within that reasonable period. The court, rather than the Secretary of State, makes the independent assessment, and the burden lies on the Secretary of State.
2. A realistic prospect of removal does not require a precise or predictable removal date, or certainty that removal will occur. It is sufficient that the prospect of removal warrants continued detention after all relevant factors are considered.
3. The court considered the 13 months already served and a possible further six months. Administrative errors delayed the emergency travel document application, but at least six months of the delay was attributable to the claimant’s acts or omissions, including failures to sign forms and the provision of an apparently incorrect address.
4. The category B prison conditions, the claimant’s deteriorating mental health, self-harm history and fear of COVID-19 strongly favoured release. The risk of re-offending was assessed as low. However, the claimant presented a high or very high risk of absconding, supported by repeated previous absconding, non-compliance with reporting requirements and independent assessments by probation, police and immigration judges.
5. The risk of absconding was not a trump card, but in this case it outweighed the factors favouring release. There remained a sufficient prospect of removal within six months, making the aggregate period of about 19 months reasonable. The Secretary of State was required to keep the case under very frequent review and to reconsider release if the travel document application failed, the claimant’s condition deteriorated, or COVID-19 risks increased.