QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF FARZAD QADERI
|- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Rory Dunlop for the Defendant
Hearing dates: 1 May 2008
Crown Copyright ©
Mr Justice Wyn Williams :
"First of all, it [the 1971 Act] can only authorise detention if the individual is being detained in one case pending the making of a deportation order, in the other, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of the deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise its powers of detention.
In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary for the removal of the individual within a reasonable period of time."
In R (On the Application of I) v The Secretary of State  EWCA Civ 888 Dyson LJ at paragraph 48 said: -
"It is not possible or desirable to produce an exhaustive list of all circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences"
"The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose [i.e. effecting removal or departure] to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty".
Later in his judgment (paragraph 54) Toulson LJ said: -
"I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of a risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual's continued detention is the product of his own making."
He went on in paragraph 55: -
"A risk of offending if the person is not detained is an additional relevant factor, the strength of which will depend on the magnitude of the risk, by which I include both the likelihood of its occurring and the potential gravity of the consequences……."
"Our evidence suggests that the removals of Iranian nationals without a passport or birth certificate are not possible. We are concerned at the effects on these detainees of long-term detention with no apparent prospect of removal."
The remainder of the publication provides the material upon which that conclusion is based.