JXL, R (on the application of) v Secretary of State for the Home Department

Immigration detention is lawful only while removal remains realistically achievable within a reasonable period and the Secretary of State acts with reasonable diligence and expedition. The court must assess the relevant facts for itself. Risks of absconding or reoffending, the seriousness of past offending, refusal of voluntary return, and a weak asylum claim must be weighed with all other circumstances. None automatically makes prolonged detention lawful. As detention continues, a greater certainty and proximity of removal is required. A short period of grace may be allowed to arrange release, but detention becomes unlawful where removal is not realistically imminent.

The claimant, a Jamaican national subject to a deportation order, challenged more than two years of immigration detention. He had made asylum claims, withdrawn them, expressed and later withdrawn willingness to return voluntarily, and had been assessed as presenting risks of absconding and reoffending. The Secretary of State argued that the asylum claim was hopeless, that the claimant’s conduct caused delay, and that the risks justified detention.

The court considered the lawfulness of four periods of detention under the Hardial Singh principles, including whether there was a sufficient prospect of removal within a reasonable period and whether the claimant’s conduct materially affected that assessment.

1. Applicable principles. The four Hardial Singh principles, as distilled in R (I) v Secretary of State for the Home Department [2003] EWCA Civ 888, governed the case. Detention may be used only to effect deportation, must last no longer than is reasonable, must end when removal cannot be achieved within that period, and must be pursued with reasonable diligence and expedition.
2. The court had to make its own assessment of the facts, including the risks of absconding and reoffending. The Secretary of State’s reasoned assessments were relevant, but the court was not confined to reviewing their rationality. Bail decisions by the First-tier Tribunal were not determinative.
3. The asylum claim was weak but arguable, not spurious or hopeless. The Secretary of State had not certified it as clearly unfounded under sections 94(1) and 96 of the Nationality, Immigration and Asylum Act 2916. The claim therefore could not be given minimal weight on the basis that it was hopeless.
4. The risks of absconding and reoffending did not automatically justify detention. The claimant had previously been released despite those risks and had neither absconded nor reoffended during eleven months at liberty. The defendant’s risk assessments failed to address those facts and did not consider electronic tagging under Schedule 10 to the Immigration Act 2016. Past offending could not justify immigration detention.
5. Applying the principles to the four periods, detention from February to August 2021 was unlawful because the asylum claim had not been progressed and there was no prospect of removal within a reasonable period. Detention from August 2021 remained unlawful until removal directions were set on 5 May 2022, when removal became foreseeable within a reasonable time. Detention became unlawful again from 1 June 2022, after a short period for reassessment following renewed asylum representations, until the claim was withdrawn on 8 February 2023.
6. After 8 February 2023 there remained no realistic prospect of removal within a reasonable period. The claimant’s detention had already lasted over two years, and the risk evidence had not materially changed. The court ordered release to suitable accommodation within 14 days unless removal directions had been set.

The judgment records that the First-tier Tribunal dismissed the claimant’s deportation appeal on 19 August 2019, with appeal rights exhausted on 3 September 2019. The First-tier Tribunal later granted bail in principle, refused bail on 17 November 2022, and listed the asylum appeal for hearing. The present judicial review was determined at first instance by the Administrative Court.