The Court of Appeal was asked to decide upon the unlawful detention of Mr F, a Morroccan national who had expressed in 2009, a wish to be returned to his country of origin. It took the Home Office two years to make removal arrangements and for an emergency travel document to be issued by the Morocco authorities.
During his detention, Mr F made several applications to be released on bail while he awaited for removal to be finalised, but all were all requests were denied.
In assessing the lawfulness of his detention, the Court stated that the risk of a person disappearing, once released on bail, is one of the crucial aspects to be considered. The magnitude of the risk will vary in each case according to the circumstances. The risk would be greater where, the person had a track record of dishonesty.
The Court observed that, while the risk of a person absconding is not the only issue to be considered, it ought be regarded of paramount importance that might even justify cases of periods of detention.
Other factors to be considered include the risk of a person committing an offence. Through scrutiny is required where a person is detained and is thus deprived of their liberty.This does not depend on a particular length of time having lapsed in detention.
The Court concluded that Mr F had been unlawfully detained from November 2010. His detention had become unreasonable from that point, on the basis that his wish to return to Morocco had been assessed as genuine on that date. Additionally the risk of him disappearing upon release from detention had become minimal.
Any person detained whether or not awaiting removal, requires the Home Office to assess their case thoroughly to avoid unlawful detention.