In DM (Tanzania) v Secretary of State for the Home Department [2019] EWHC 2351 (Admin), the High Court ruled that the lack of accommodation for foreign national offenders cannot be a defence in a claim for unlawful detention.

The case involved DM’s deportation for a sexual offence for which he was sentenced to six months’ imprisonment. The period of imprisonment had already been served on remand but from 6 July 2018, DM had been detained under the Immigration Act 1971 on the grounds that he was due to be removed imminently. After sundry procedure including an asylum claim and bail applications, DM was granted bail on 26 September 2018 subject to being provided with approved accommodation by the Home Office. The problem was that he was not actually released until 3 January 2019, almost three months later. Aggrieved, DM challenged the legality of his detention between 26 September 2018 and 3 January 2019 when he was eventually released.

Section 4(2) of the Immigration and Asylum Act 1999 provides:

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of a person if –

(a) He was (but is no longer) an asylum-seeker, and

(b) His claim for asylum was rejected.

The main argument for the claimant was that detention was in breach of the Hardial Singh principles (for a quick refresher, see this excellent course).

The power to detain will lapse if there is no realistic prospect of removal. Important principles regarding the reasonableness of detention arose from R v Governor of Durham Prison ex parte Hardial Singh [1983] EWHC 1 (QB):

1. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
2. The deportee may only be detained for a period that is reasonable in all the circumstances.
3. 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, [s]he should not seek to exercise the power of detention.
4. The Secretary of State should act with the reasonable diligence and expedition to effect removal.

Here, the claimant had made a fresh asylum claim whilst he was in detention and by the time his release was authorised on 26 September 2018, he had only just been interviewed. That is a strong argument because the Home Office took no account of the fact that even if a refusal was issued, it was almost certain that the claimant would appeal it, which would take up even more time.

The Home Office argued that the lack of

• suitable accommodation;
• DM living rough and having no fixed abode; and
• that the offence in question was particularly serious

meant that detention was lawful.

Ultimately, the High Court was unpersuaded that the Home Office had done enough to hasten removal. The fact that accommodation was in such high demand:

…may not, however be taken so far as the SSHD in this case would wish, in order to excuse or explain the extraordinary delay between the grant of conditional bail, and the release of DM to his accommodation…The rest of the delay presents a sorry tale of a deeply unsatisfactory “system” operating between the SSHD, his suppliers, the Probation Service and sometimes the Police

The court also said that the Home Office should have expected that DM might appeal against a refusal and it should have been apparent that would have taken at least some time. It was also said that the risk of absconding was not a trump card. There had been a material change in DM’s circumstances; he now had a solicitor to guide him, was actively pursuing an asylum claim and had attended the screening interview. 

It is unfortunately common, even with the presence of a court order, for the Home Office to work at a leisurely pace, no matter how urgent or serious matters are. Given the culture of abuse in these removal centres, it’s not hard to imagine how much of a psychological impact detention can have, especially when the person detained doesn’t even know when they are to be released. It seems like politicians have forever been promising to end indefinite detention. How long before we give up hope?

The blatant disregard by the Home Office in the face of a court order granting bail in principle, is astonishing. As Alex points out, UK national offenders are released to housing without any hint of difficulty. But it does appear the courts are perhaps turning a blind eye to issues of delay particularly where there seems to be involvement from the police and social work etc. There is no good reason for that. If the Secretary of State chooses to detain someone, they should ensure adequate resources are available so that those detained are not detained for longer than necessary. 

Statistics show that from 2012-2015, the Home Office paid out £13.8 million of taxpayers’ money in unlawful detention cases. I’ve said before it before; the Home Office is like a dodgy handyman who charges extortionate fees, turns up late, breaking everything in the process and has the cheek to say it’s all your fault.