The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been released. The respondent argued that it was seeking to make arrangements for his deportation. He argued that it was clear that he would not be deported within any reasonable time, and that his continued detention breached his rights.
Held: The appellant could have secured his own release by agreeing to a voluntary repatriation. The phrase ‘reasonable time’ in the Tan Te Lam case must include time already spent awaiting deportation. The possibility of his re-offending was part of the circumstances and to be taken into account. The appellant’s renewed application for asylum was critical. Even so, the reasonable time had already been exhausted by the time the judge’s decision was made, and the appellant was to be released. (Mummery dissenting)
Simon-Brown LJ said: ‘The likelihood or otherwise of the detainee absconding and/or re-offending seems to me to be an obviously relevant circumstance. If, say, one could predict with a high degree of certainty that, upon release, the detainee would commit murder or mayhem, that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainee’s removal abroad.’
However: ‘Given . . that the appellant had by then been in administrative detention for nearly 16 months and that the Secretary of State could establish no more than a hope of being able to remove him forcibly by the summer, substantially more in the way of a risk of re-offending (and not merely a risk of absconding) than exists here would in my judgment be necessary to have justified continuing his detention for an indeterminate further period. .) In short, I came to the clear conclusion that . . it was simply not justifiable to detain the appellant a day longer; the legal limits of the power had by then been exhausted.’
Dyson LJ summarised the law: ‘There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh [1984] 1 WLR 704, 706D . . This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97, 111A-D . . In my judgment, [counsel] correctly submitted that the following four principles emerge:
(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.
Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person ‘pending removal’ for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.’
Mummery LJ (dissenting) said: ‘As the appellant does not want to go back to Afghanistan, refuses to co-operate with the authorities to return voluntarily and has so far had no success in his asylum claims, there are, in my judgment, reasonable grounds for believing that, given the chance, he will probably seek to frustrate attempts to remove him under the deportation order before it is possible to carry it into effect. So, there is a real risk that, if he is now released from his present detention under paragraph 2(3) of schedule 3 to the Immigration Act 1971, he will probably abscond and never return to Afghanistan.
. . In my judgment, the Secretary of State has supplied a valid justification of the detention to date and of the need for it to continue for a longer period. In addition to the risk that the appellant will probably abscond if he is now released, the Secretary of State reasonably relies on continuing efforts on his behalf to operate the machinery for the appellant’s removal.’
Lord Justice Simon Brown, Lord Justice Mummery And Lord Justice Dyson
[2003] INLR 196, [2002] EWCA Civ 888
Bailii
European Convention on Human Rights Art 5, Immigration Act 1971
England and Wales
Citing:
Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
Cited – Re Wasfi Suleman Mahmod Admn 1995
The applicant was an Iraqi who had been granted asylum in Germany. On entering England as a visitor he was found in possession of opium and sentenced to four years’ imprisonment with a recommendation for deportation. He was served with a deportation . .
Cited – Tan Te Lam v Superintendent of Tai A Chau Detention Centre PC 27-Mar-1996
(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. . .
Cited by:
Cited – Secretary of State for the Home Department v Regina on the Application of Khadir CA 3-Apr-2003
The Secretary of State appealed an order requiring him to reconsider refusal of exceptional leave to remain. The applicant was an Iraqi Kurd. It was not possible to make immediate arrangements for repatriation after the order.
Held: The . .
Cited – Khadir, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Jun-2005
The applicant who had entered England hidden in a lorry, claimed asylum, and had his claim rejected. It was said that as an Iraqi Kurd, he would be safe in the Kurdish area of Iraq. No safe means had been found of ensuring his return over some four . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
Cited – SK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
Cited – Rostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
Cited – Saleh, Regina (On the Application of) v Secretary Of State for the Home Department Admn 5-Oct-2009
The claimant challenged his past and continuing detention pending deportation. He had a long series of convictions for dishonesty.
Held: ‘it is indeed disconcerting to find that a non-violent person subject to immigration control has been in . .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for the Home Department Admn 16-Jun-2003
The claimant challenged his continued detention under the 1971 Act after his appeal to the Immigration Appeal tribunal had been successful. He had been accused of rape, but was convicted of a sexual assault, though still serious. Before being . .
Cited – MH, Regina (on The Application of) v Secretary of State for The Home Department CA 14-Oct-2010
mh_rCA2010
The claimant complained that his administrative detention for over 40 months had been unlawful. He now appealed against a finding that it had been lawful save for the final two months.
Held: The appeal failed. The period of time for which he . .
Approved – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – B (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .
These lists may be incomplete.
Updated: 21 June 2021; Ref: scu.175162