IMMIGRATION — Deportation — Detention pending removal — Claim for asylum refused — Exceptional leave to remain granted — Claimant convicted of serious crime — Home Secretary making deportation order and order for detention pending removal — Claimant detained after otherwise entitled to release from prison but refusing to return voluntarily — Lack of carrier for enforced returners — High risk of claimant absconding and re-offending if not detained — Whether claimant’s reasons for not wishing to return relevant — Whether lengthy period of detention pending removal lawful — Immigration Act 1971, s 3(5)(a)

R(A) v Secretary of State for the Home Department

CA (Keene, Longmore and Toulson LJJ): 30 July 2007

The Secretary of State had not acted unlawfully in continuing to detain pending removal a failed asylum seeker who, having served a sentence of imprisonment for rape, was considered to be a risk to the public and highly likely to abscond. The period of detention was not unreasonable in the circumstances and where the detainee had refused to return voluntarily and no means were available for his enforced return.

The Court of Appeal so stated in a reserved judgment allowing the appeal of the Secretary of State for the Home Department and dismissing the appeal of the claimant, A, from the decision of Calvert-Smith J on 7 December 2006 that the claimant had been unlawfully detained from 4 December 2004 to 20 July 2006, but lawfully detained during the period between 21 July 2006 and the date of his judgment.

Schedule 3, para 2(3) of the Immigration Act 1971 provided “ Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom”.

TOULSON LJ said that it was not disputed that the claimant was liable to deportation under s 3(5) of the Immigration Act 1971 on the ground that the Secretary of State deemed his deportation to be conducive to the public good. The Secretary of State’s exercise of the statutory power to detain a prospective deportee was not unfettered. It was limited in two fundamental respects. First, it could be exercised only for the purpose for which the power existed. Secondly, it could be exercised only during such period as was reasonably necessary for that purpose. The period which was reasonable would depend upon the circumstances of the case. There had to be sufficient prospect of the Secretary of State being able to achieve that purpose to warrant the detention, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. His Lordship referred to R(I) v Secretary of State for the Home Department [2003] INLR 196.The purpose of the power of deportation was to remove a person who was not entitled to be in the United Kingdom and whose continued presence was not conducive to the public good. If the reason for that was his propensity to commit serious offences, protection of the public from that risk was the purpose of the deportation order and had to be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure. The period of the claimant’s detention after he would otherwise have been entitled to release at the end of his custodial sentence was lengthy. However throughout that period it would have been possible for him to be transported to Somalia, if he had not refused to go, and there was moreover some prospect of the Secretary of State being able to carry out his enforced removal. In the meantime the risk of the claimant absconding if he were at liberty was as high as it could be. There was also a high risk of him re-offending. It was wrong in principle to offset against those factors the claimant’s reasons for not wishing to return to Somalia which were irrelevant to the lawfulness of his detention in circumstances where his return would not have involved a breach of the Convention relating to the Status of Refugees (1951)(Cmd 9171) or of the Convention for the Protection of Human Rights and Fundamental Freedoms. In the circumstances the detention was reasonably necessary for the purposes of the deportation order and so lawful.

LONGMORE LJ agreed.

KEENE LJ delivered a concurring judgment.

Appearances: Richard Drabble QC and Graham Denholm ( Community Law Clinic Solicitors) for the claimant; Nigel Giffin QC (Treasury Solicitor) for the Secretary of State.

Reported by: Carolyn Toulmin, barrister