News

Court of Appeal gives judgment clarifying the principles to be applied in determining the reasonableness of a period of immigration detention
9 March 2011

R(Abdi) v Secretary of State for the Home Department; R(Khalaf) v Same

Robin Tam QC, leading Jeremy Johnson and Sarah Hannett, represented the Home Secretary in the Court of Appeal in a case about the ambit of the Secretary of State's power to detain foreign nationals pending deportation.  

Hardial Singh established the principle that detention pending deportation had to be for a period that was reasonable in all the circumstances. The question in these conjoined appeals was whether time taken pursuing statutory appeals should be taken into account when deciding whether a foreign national had been detained for a reasonable length of time. 

The Court of Appeal (Sedley, Stanley Burnton and Sullivan LJJ) held: that there was no definite rule counting or discounting time spent in raising legal challenges. In deciding whether a foreign national facing deportation had been detained for too long, the court had to consider what had happened since the start of the detention, consider all relevant factors in the context of the time so far spent in detention giving each the weight it merited and ask whether, in all the circumstances, that was a reasonable time for effecting the statutory purpose.

This question had to be determined using familiar public law principles and was a matter for the judge to decide on the basis of the facts before him. Sometimes it would be difficult for the judge to determine a date after which detention became illegal; any date would inevitably be arbitrary to some extent.

The judgment can be found on Lawtel: [2001] EWCA Civ 242; and was reported in The Times 11/03/2011.