MM, R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 1270

Case No C4/2011/3133[2012] EWCA Civ 1270
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2011] EWHC 2707 (Admin)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Timothy Corner QC
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/10/2012
Before
LORD JUSTICE LLOYDLORD JUSTICE RICHARDSLORD JUSTICE ELIAS
Between
The Queen on the application of M MAppellantSecretary of State for the Home DepartmentRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)Raza Husain QC and Laura Dubinsky (instructed by Deighton Pierce Glynn) for AppellantJulie Anderson (instructed by The Treasury Solicitor) for RespondentHearing Hearing dates : 12-13 July 2012
JudgmentLord Justice Richards :Introduction
[1]This is yet another case concerning the lawfulness of immigration detention. The total length of the appellant’s detention was just over 41 months. It is accepted that detention was lawful for the first 16 months or so but it is submitted that it became unlawful thereafter, on three broad grounds:(1) the periodic reviews of detention were flawed by public law errors,(2) breach of the principles in R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704 (“Hardial Singh”), and(3) breach of article 5 ECHR. The case was listed before us under the initials “MM” but it was accepted on the appellant’s behalf at the hearing that there was no basis for the continued protection of his identity.[2]The case was listed for hearing together with Case C4/2010/2912, R (AO (Somalia)) v Secretary of State for the Home Department, a claim for judicial review which raised a common issue; but that case was taken out of the list shortly before the hearing because the claimant’s solicitors were without instructions and had to withdraw.

The facts

[3]The appellant is a 35 year old Somali national who came to the United Kingdom in 1999, having previously spent some years in the Netherlands. He made an unsuccessful application for asylum but was granted exceptional leave to remain until September 2004.[4]He has convictions for a number of criminal offences in this country. In November 2001 he was convicted of two counts of robbery for which he was sentenced to 2 years’ imprisonment. In February 2004 he was convicted of motoring offences, resisting or obstructing a constable and failing to surrender to custody, for which he was subsequently sentenced to 4 months’ imprisonment. In April 2004 he was convicted of possessing an offensive weapon and failing to surrender, for which he was sentenced to 4 months’ imprisonment. In September 2004 he was convicted of taking a motor vehicle without consent and other offences, for which he was sentenced to 3 months’ imprisonment. In December 2004 he was convicted of theft and a public order offence, for which he was sentenced to 1 day’s imprisonment. In February 2005 he was convicted of theft and was again sentenced to 1 day’s imprisonment. In May 2005 he was convicted of having a bladed article in a public place and failing to surrender to custody, for which he was sentenced to 8 weeks’ imprisonment. In July 2005 he was convicted of offences of theft and failing to surrender to custody, for which he was sentenced to 6 weeks’ imprisonment. In August 2005 he was convicted of driving with excess alcohol and other motoring offences, for which he was sentenced to 5 months’ imprisonment. In December 2007 he was convicted of a public order offence and failing to surrender, for which he was sentenced to 4½ months’ imprisonment.[5]As was rightly observed on the appellant’s behalf, his most serious offences were the two counts of robbery of which he was convicted in November 2001; his subsequent offending was of lower gravity but he was a chaotic recidivist.[6]On 29 January 2008 the appellant was served with notice that the Secretary of State intended to make a deportation order against him. The same letter refused his application for indefinite leave to remain. On 1 February 2008 the appellant lodged an appeal against the decision to deport him.[7]From 8 February 2008, when the appellant had served half of his most recent custodial sentence and was eligible for release from prison, he was detained under paragraph 2(2) of schedule 3 to the Immigration Act 1971 (“the 1971 Act”) pending the making of the deportation order against him.[8]On 30 June 2008 the appellant’s appeal against the decision to deport him was dismissed, and by 8 July 2008 his appeal rights were exhausted.[9]On 29 October 2008 the Secretary of State signed the deportation order, and the appellant was detained thereafter under paragraph 2(3) of schedule 3 to the 1971 Act pending his removal from the United Kingdom.[10]On 2 June 2009, removal directions were set for 17 June 2009. Those removal directions were cancelled on 16 June, however, on receipt of a rule 39 indication from the European Court of Human Rights. The court’s letter referred to the fact that the appellant had lodged an application with the court on 15 May 2009, and stated:
“On 16 June 2009 the Acting President of the Chamber to which the case has been allocated decided … to indicate to your Government, under Rule 39 of the Rules of Court, that the applicant should not be deported to Somalia pending the Court’s decision in M(2) v the United Kingdom ….”
The context within which that rule 39 indication was given is considered further below.[11]Applications for bail were refused by immigration judges on 9 November 2009, 21 April 2010 and 14 July 2010.[12]On 10 June 2010 the appellant made further representations against removal, which were treated as an application for revocation of the deportation order. A decision on that application was not made until November 2010, following the commencement of judicial review proceedings in respect of the failure to respond to the appellant’s representations. On 17 November 2010 the Secretary of State refused to revoke the order.[13]On 19 November 2010 the appellant filed the present claim for judicial review, contending that his ongoing detention was unlawful.[14]On 25 November 2010 the appellant lodged an appeal against the refusal to revoke the deportation order. The hearing of that appeal was subsequently adjourned on a number of occasions.[15]On 17 June 2011 Hickinbottom J granted the appellant permission to apply for judicial review (pursuant to the claim filed on 19 November 2010) but refused an application for bail.[16]On 28 June 2011 the ECtHR handed down judgment in Sufi and Elmi v United Kingdom (Application nos. 8319/07 and 11449/07), which had become the lead cases before it on removals to Somalia. Again, the background to this is considered further below.[17]On 13 July 2011 the appellant was granted bail by an immigration judge, bringing to an end the period of immigration detention about which complaint is made.[18]On 22 July 2011, the day before the adjourned hearing of the appeal against the refusal to revoke the deportation order, the Secretary of State withdrew her refusal decision. No fresh decision on the application for revocation of the deportation order has yet been made.[19]The claim for judicial review in respect of the lawfulness of the appellant’s detention was heard by Mr Timothy Corner QC, sitting as a deputy judge of the High Court, on 7 October 2011. His judgment dismissing the claim was handed down on 14 November 2011. Permission to appeal was subsequently granted by Sullivan LJ.

The judgment below

[20]The essential nature of the appellant’s case before the deputy judge was that the detention was in breach of the principles in Hardial Singh. Having considered the general approach he should follow, the deputy judge started his analysis of the facts with the risk of absconding and reoffending. He took the view that the risk of absconding was substantial: he referred to the appellant’s convictions for failing to surrender, to the assessments made by judges who had refused applications for bail, and to other relevant matters. He was also of the view that the risk of reoffending was substantial and indeed that it had correctly been described as high: whilst accepting that the appellant’s offending had become less serious and more intermittent as time went on, he said that the fact remained that while free the appellant was committing offences of such seriousness as to require him to be imprisoned, including robbery and public order offences.[21]The deputy judge then turned to consider whether there was a realistic prospect of deportation within a reasonable time, looking for this purpose at various points of time during the period of detention, including the ECtHR’s issue of the rule 39 indication and the appellant’s application for revocation of the deportation order. His conclusion up to the time of the ECtHR’s judgment in Sufi and Elmi is summarised in the following passage (at para 128 of his judgment):
“Overall, I accept that as the period of detention becomes longer, so a greater degree of certainty and indeed proximity of removal is likely to be required. I accept also that there was no certainty that the litigation – the ECtHR proceedings and the application for revocation of the deportation order – would conclude in the Secretary of State’s favour, and that it was not possible precisely to predict when they would conclude. However, I think that at all times it could be anticipated that those proceedings would be completed within a reasonable time, and once they were concluded, if which might be the case the result was in the Secretary of State’s favour, then there was no other obstacle to deportation. I think in the circumstances of this case, and taking account of the risk the Claimant presented of absconding and re-offending, that was sufficient. Further, I do not think Hardial Singh principle (ii) had been breached either by June or November 2010, or at any time up to the Claimant’s release. The stage had not been reached where detention had lasted for a period longer than was reasonable in all the circumstances.”
[22]The deputy judge went on to find that the further period of just over two weeks’ detention following the judgment of the ECtHR in Sufi and Elmi did not breach the Hardial Singh principles, since the Secretary of State was entitled to take “that time at least” to consider what to do about the appellant, whose “own personal position had to be considered in the light of the judgment” (para 134).

The issues in the appeal

[23]The case now advanced on the appellant’s behalf by Mr Raza Husain QC and Miss Laura Dubinsky (neither of whom appeared below) has three main elements to it.[24]First, it is submitted that the detention was vitiated by two public law errors that bore directly on the decision to detain:(a) after the rule 39 indication, the Secretary of State failed to take any reasonable steps to acquaint herself with when the rule 39 indication might be lifted; and(b) the detention was maintained on the unlawful basis that the appellant could reduce the length of time in detention by withdrawing his application to the ECtHR (and later his application for revocation of the deportation order) and returning voluntarily to Somalia. It is said that those errors rendered the detention unlawful, so that a claim lies in false imprisonment in accordance with the approach laid down by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2012] 1 AC 245, and R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299.[25]In response to that line of argument, Miss Julie Anderson for the Secretary of State disputes the existence of any such public law errors but also makes the further submission that, even if the Secretary of State’s decision not to release the appellant was flawed, that did not render the detention unlawful or give rise to the tort of false imprisonment since there remained a continuing authority to detain pursuant to paragraph 2(3) of schedule 3 to the 1971 Act.[26]The second main submission on the appellant’s behalf is that the detention was in breach of Hardial Singh principles (ii), (iii) and (iv) (the principles are set out at para 33 below). It is accepted that the detention was lawful up to the time of the rule 39 indication in June 2009, but it is submitted that it became unlawful at the time of that indication, alternatively at the time of the appellant’s application in June 2010 for revocation of the deportation order or when the appellant lodged his appeal in November 2010 against the refusal to revoke the order, or in any event a week after the ECtHR’s judgment of 28 June 2011 in Sufi and Elmi (on the basis that a week was a sufficient period for the Secretary of State to react to the judgment – Mr Husain reserved his position on whether the reaction should have been immediate). As regards Hardial Singh principle (iv), there is said to have been a free-standing error in the failure of the Secretary of State to exercise due diligence.[27]The third main submission on the appellant’s behalf, though one that was conceded to be in some respects a “bootstraps” argument, is that the detention was in breach of article 5 ECHR.

The ECtHR proceedings

[28]Before considering those submissions it will be helpful to look more closely at the ECtHR proceedings which form the backdrop to the case.[29]The general approach of the ECtHR is to apply rule 39 “only if there is an imminent risk of irreparable damage”: Mamatkulov and Askarov v Turkey (2005) 41 EHRR 25, para 104. It cannot be said, however, that the issue of a rule 39 indication in the appellant’s case involved any specific assessment of risk to him, since at the material time the court had adopted a fact-insensitive approach towards rule 39 indications in respect of removals to Somalia. This is explained in the judgment of Maurice Kay LJ in R (AR) v Secretary of State for the Home Department [2011] EWCA Civ 857: “14. On 30 September 2008, the Registry of the ECtHR contacted the Foreign and Commonwealth Office (FCO) in relation to cases involving removal to Somalia. The Registry official said that the Court did not understand how the UK Government could continue to remove individuals to Somalia while there were still cases pending before the domestic and European courts. He made clear that the ECtHR was contemplating staying all existing Somalia removal cases pending the outcome of domestic proceedings. He asked if the UK Government would halt all removals to Somalia if the Court were to impose such a stay. The FCO consulted the UK Border Agency (UKBA) and an official spoke to the appropriate person at the ECtHR on 10 October 2008. The message was that the UK Government would not adopt a blanket suspension but would continue to consider each case on its merits because(1) there was recent country guidance concerning risk on return to Somalia (HH and others (Mogadishu: armed conflict risk) Somalia CG [2008] UKAIT 00022);(2) the situation in Somalia did not justify the conclusion that all removals to Somalia would necessarily involve a breach of Article 3 of the ECHR; and(3) enforced and voluntary removals were continuing. It seems that there were some 200 removals or returns to Somalia between January 2004 and September 2009, with only a short period of suspension in September/October 2008 because of security reasons at Mogadishu airport. 15. The Registry of the ECtHR wrote on 23 October 2008, notifying the UK Government that it was aware of the country guidance given in HH but that it also knew that HH was still pending in the Court of Appeal. (We now know that the Court of Appeal allowed the appeal on 23 April 2010: [2010] EWCA Civ 426.) For this reason, the ECtHR had decided on 7 October 2008 to adjourn all of the 116 pending applications concerning removal to Somalia ‘until the question of risk of return has been considered fully by the domestic courts’. 16. On 24 April 2009, the FCO obtained oral confirmation from the Registry that the ECtHR had been granting interim measures under Rule 39 to all applicants subject to removal directions to Mogadishu. The FCO passed this information to the UKBA. The evidence of the Secretary of State in the present case is that after 28 October 2008, those in communication with the Registry assumed that Rule 39 indications were being given on a blanket fact-insensitive basis. 17. The next development took place in the Administrative Court. On 22 May 2009, Davis J handed down his judgment in R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin), which was also concerned with detention pending removal to Somalia. He was told of the ECtHR’s fact-insensitive approach in relation to Rule 39 applications in such cases and that it was the policy of the Secretary of State to abide by Rule 39 indications once given but to continue with removal in the absence of such an indication and on a fact-sensitive basis. Davis J was not impressed …. 18. On 28 May 2009, the FCO resumed its correspondence with the ECtHR, pointing out that permission to appeal had not yet been granted in HH, which had been stayed in the Court of Appeal pending the judgment in the European Court of Justice in Elgafaji (which had been handed down in February 2009: [2009] 1 WLR 2100), and that the Asylum and Immigration Tribunal had promulgated further country guidance in AM and AM (armed conflict risk category) Somalia CG [2008] UKAIT 0009 on 27 January 2009. (A further strand in this tangled web is that AM was later joined with [HH] in the Court of Appeal and was considered in the same judgment on 23 April 2010: see paragraph 15 above. Moreover a yet further country guidance on Somalia has recently been heard, but not yet determined in the Upper Tribunal, and the long-awaited judgment of the ECtHR in Sufi and Elmi v United Kingdom, 8319/07 and 11449/07 was promulgated on 28 June 2011, but these developments do not impact upon the present appeal). 19. These historic developments illustrate the tension between the ECtHR and a member state. Such tension is not peculiar to the United Kingdom. The Council of Europe held a High Level Conference on the Future of the European Court of Human Rights in Izmir on 26-27 April 2011. It resulted in a Declaration, paragraph 3 of which states: ‘The Conference … Welcoming the improvements in the practice of interim measures already put in place by the Court and recalling that the Court is not an Immigration Appeals Tribunal or a Court of fourth instance, emphasises that the treatment of requests for interim measures must take place in full conformity with the principle of subsidiarity and that such requests must be based on an assessment of the facts and circumstances in each individual case, followed by a speedy examination of, and ruling on, the merits of the case or of a lead case.’ This complex history is the inevitable result of the volume of migration, the proliferation of litigation both here and elsewhere, the difficulties caused to courts and governments who are forever waiting for pending appeals and applications to be decided and the particular problems of the log-jam in the ECtHR. I have not mentioned every manifestation of the complexity. What I have mentioned should be sufficient to demonstrate the context.” ‘The Conference … Welcoming the improvements in the practice of interim measures already put in place by the Court and recalling that the Court is not an Immigration Appeals Tribunal or a Court of fourth instance, emphasises that the treatment of requests for interim measures must take place in full conformity with the principle of subsidiarity and that such requests must be based on an assessment of the facts and circumstances in each individual case, followed by a speedy examination of, and ruling on, the merits of the case or of a lead case.’[30]The issue in AR itself was whether it was open to the Secretary of State to continue with removals on a fact-sensitive basis in cases where no rule 39 indication had been given by the ECtHR. It was held by the Court of Appeal that the Secretary of State was under no legal obligation to anticipate the giving of such an indication and that knowledge of the court’s announced policy to issue such an indication on the making of an application for it did not vitiate the decision to issue removal directions or to detain pending removal.[31]The evidence in the present case, together with information provided in the Secretary of State’s skeleton argument, adds some relevant detail to the general picture described in AR. The FCO’s communication of 28 May 2009, referred to in para 18 of AR, informed the ECtHR that HH was no longer the leading decision as it had been overtaken by the new country guidance in AM and AM. The rule 39 indication given on 16 June 2009 in relation to the appellant was communicated promptly by the FCO to UKBA, with a request for written confirmation (which was presumably given) that removal directions had been cancelled. On 10 September 2009 the FCO updated the ECtHR and requested it to consider progressing the lead decision without waiting for domestic decisions, given the fluid situation in Somalia and the effect of delay in relation to detention. On 11 November 2009 the ECtHR confirmed, in response to a tribunal enquiry, that it had adjourned all applications concerning removal to Somalia pending the outcome of the AM and AM case. On 13 January 2010 the appellant wrote in person to the ECtHR, stating that he was still in detention and requesting the court’s assistance. The Registry replied by letter dated 14 January 2010, stating that “the Court is currently considering the question of risk on return to Somalia and it hopes to issue a lead judgment later in the year”. By 19 July 2010 the ECtHR had decided to go ahead with Sufi and Elmi as the lead cases: on that date it asked for written observations in those cases by 15 September 2010 and said that the cases were to be determined without an oral hearing on the observations. On 10 November 2010, in response to an FCO request for an update on the decision in the lead cases, the ECtHR indicated that the cases had been granted priority treatment and that it hoped to deliver a judgment or decision in them early in 2011. On 8 June 2011, in response to a further request by the FCO, the ECtHR stated that it was hoped that the court would give judgment in Sufi and Elmi “before the summer break”. In the event, as already noted, judgment was handed down on 28 June 2011.[32]The judgment in Sufi and Elmi records that the applications in the case were originally made in early 2007 and that rule 39 indications were issued soon afterwards; the cases were then adjourned at the UK Government’s request on 7 October 2008 pending the decision of the Court of Appeal in HH; but the adjournment was lifted when the Court of Appeal delivered its judgment in HH (together with AM, which had by this time been joined to HH) on 23 April 2010. As to the substance of the Sufi and Elmi judgment, the court concluded that “the violence in Mogadishu is of such a level of intensity that anyone in the city, except possibly those who are exceptionally well-connected to ‘powerful actors’, would be at real risk of treatment prohibited by Article 3 of the Convention” (para 250). That conclusion went further than the domestic country guidance in AM and AM in restricting the cases in which removals might safely be made to Mogadishu.

The Hardial Singh issue

[33]It is convenient to deal first with the Hardial Singh issue. The relevant principles were set out by Lord Dyson at para 22 of his judgment in Lumba, repeating what he had said in R(i) (I) v Secretary of State for the Home Department [2003] INLR 196: (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;(ii) the deportee may only be detained for a period that is reasonable in all the circumstances;(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.[34]The first point in time when the detention is said to have become unlawful pursuant to principles (ii) and/or (iii) was on the receipt of the rule 39 indication from the ECtHR in June 2009. Mr Husain acknowledged that, as stated by the Court of Appeal in Abdi and Khalaf v Secretary of State for the Home Department [2011] EWCA Civ 242 at para 59, a rule 39 indication will not necessarily render continuing detention unreasonable; but he pointed to the observation of Maurice Kay LJ at para 11 of the judgment in AR that release is “what normally happens, and what one would expect to happen, once a Rule 39 indication has been given in a specific case”, and he submitted that it should have been apparent on receipt of the rule 39 indication in this case that the Secretary of State would not be able to effect deportation within a reasonable period.[35]The deputy judge dealt at some length with this issue at paras 97-107 of his judgment. He referred inter alia to Chahal v United Kingdom (1997) 27 EHRR 414, in which a long period of detention pending deportation was not considered to have been unlawful. He said that there was no suggestion that the ECtHR proceedings in the present case would take longer than usual to resolve or that there was more than usual uncertainty about when judgment would be delivered. Although the applications in Sufi and Elmi had reasonable to good prospects of success, that did not prevent there being a realistic prospect of the Secretary of State deporting the appellant within a reasonable time.[36]I see no reason for differing from the conclusion reached by the deputy judge on this issue. At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did. Nor was it apparent that the ECtHR’s final decision would be such as to prevent the appellant’s removal. I stress “apparent”, because that is the word used in the approved formulation of Hardial Singh principle (iii) and in my view it is important not to water it down so as to cover situations where the prospect of removal within a reasonable period is merely uncertain.[37]Mr Husain submitted that for continued detention to be lawful it was necessary for the Secretary of State to identify the timescale within which removal could be effected, whereas in this case the timescale was wholly uncertain. An argument along those lines was rejected in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112. At para 64 of my judgment in that case (with which the other members of the court agreed) I referred to the approach taken by Toulson LJ in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, to the effect that there must be a “sufficient prospect” of removal to warrant continued detention, and that what is sufficient is a question of balance in each case. I continued:
“65. I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to established principles …. Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors ….”
[38]Mr Husain submitted that that reasoning cannot live with the formulation of the Hardial Singh principles by the Supreme Court in Lumba, in particular at paras 103-104 where Lord Dyson said that a convenient starting point in the application of the principles to Mr Lumba’s appeal was “to determine whether, and if so when, there is a realistic prospect that deportation will take place” and that “if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful”, and where he went on to identify factors relevant to the question of how long it is reasonable to detain a person pending removal. There is nothing to show, however, that Lord Dyson was intending to address the point made in the passage quoted above from MH, and there does not seem to me to be any inconsistency between his observations and that passage. I adhere to the view that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. At the time of receipt of the rule 39 indication in the appellant’s case, although it was not possible to say when the ECtHR proceedings would be concluded, there was nonetheless a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances.[39]The next points in time at which the detention is submitted to have become unlawful are the appellant’s application in June 2010 for revocation of the deportation order and the lodging in November 2010 of an appeal against the refusal of that application. The deputy judge dealt with these at paras 111-131 in conjunction with other aspects of the case. He said that relevant aspects included the prospect of the appellant absconding or reoffending, as well as the time already spent in detention and the prospects of deportation. He took into account that by the time the appellant submitted his application for revocation he had already been in detention for a period which on the authorities requires the most anxious scrutiny. He gave full weight to the period of detention, on the basis that none of the legal remedies pursued by the appellant could be characterised as hopeless. He considered the comparison sought to be made between the appellant’s case and the case of R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin) and [2011] EWCA Civ 242, which also concerned deportation to Somalia. He factored in the application for revocation of the deportation order, the appeal against the refusal to revoke, and the ECtHR proceedings, taking into account the lengthening period of detention and the prospects at each point of the matter being resolved within a reasonable period. This led to the overall conclusion expressed by the deputy judge at para 128 of his judgment, which I have quoted at para 21 above.[40]As part of his criticism of that conclusion, Mr Husain took particular issue with the deputy judge’s dismissal of the comparison with Abdi, which was relied on as supporting the appellant’s case. The Court of Appeal in Abdi, disagreeing to this extent with the analysis by Davis J at first instance,found that Mr Abdi’s detention had become unlawful after about two years, on the basis that at that point there was no realistic prospect of his removal in the foreseeable future. The court held that this should have been obvious to the Secretary of State following a tribunal hearing in December 2008 at which the Home Office accepted that Mr Abdi could not reasonably be expected to remain in Mogadishu if removed there, but submitted that he could be returned to Puntland. Issues were raised both as to the method and safety of the route to Puntland and as to whether he would be admitted to Puntland. The proceedings required to resolve those issues were likely to go on for a long time, even running into years. The Court of Appeal took the view that in those circumstances there was, by the end of 2008, no realistic prospect of removing Mr Abdi in the foreseeable future.[41]The deputy judge in the present case distinguished Abdi on the basis that there was no question of this appellant being removed to Puntland and that removal to Puntland raised different issues that required time-consuming litigation for their resolution. Mr Husain sought to persuade us that this distinction actually worked in the appellant’s favour, in that neither the appellant nor Mr Abdi could be removed to Mogadishu but in Mr Abdi’s case there was a potential alternative destination, so that the prospect of deportation was still less realistic for the appellant than for Mr Abdi. I disagree. In the appellant’s case there was no concession that he could not be expected to remain in Mogadishu, and there was a realistic prospect of it being established that he could lawfully be removed there; the additional complexities concerning removal to Puntland simply did not arise. Accordingly, the point of distinction drawn by the deputy judge in respect of Abdi was valid. More generally, comparison with the particular outcome in other cases is unlikely to be a useful exercise in this highly fact-sensitive area.[42]In any event, I can see no reason for differing from the overall conclusion reached by the deputy judge after careful consideration of all the relevant factors. The period of detention in question was very long – by the time of the ECtHR’s judgment in Sufi and Elmi it was approaching 41 months. Immigration detention of that length is a matter of great concern and it seems to me that the period was near the outer limit of what could be justified in the circumstances of this case. But I do not think that the deputy judge was wrong to conclude that the outer limit had not been exceeded.[43]The final point in time relied on in connection with Hardial Singh principles (ii) and (iii) comes after the ECtHR’s judgment in Sufi and Elmi. Mr Husain contended that even if there was no breach of the principles up to the point of the judgment, a week was sufficient for the Secretary of State to consider the judgment, and it should then have been apparent that there was no realistic prospect of the appellant’s removal within a reasonable period. He pointed to the fact that the order made by the Court of Appeal in Abdi allowed a week for consideration of the case by the Secretary of State following the December 2008 tribunal hearing on the basis of which it was said that it should have been obvious to the Secretary of State that there was no realistic prospect of removal within a reasonable period.[44]This issue was dealt with by the deputy judge at paras 132-134 of his judgment. One of the arguments advanced before him by the Secretary of State was that there was a duty in accordance with the published policy to review the appellant’s detention within a reasonable period by reason of the change of circumstances, and that to reconsider the appellant’s detention at the next monthly review (due on or about 17 July) would have been to review within a reasonable time. The deputy judge held that, whether or not it was reasonable to wait until 17 July, a reasonable time had not elapsed by 13 July (the date when bail was granted by an immigration judge), so that the detention remained lawful up to that date. He held that the Secretary of State was entitled to take that time at least to consider what to do about the appellant after the issue of the Sufi and Elmi judgment: the appellant’s own personal position had to be considered in the light of the judgment.[45]Albeit with some hesitation, I would accept the deputy judge’s conclusion on this point too. I do not think that the week that the Court of Appeal allowed in Abdi from the date of the relevant tribunal hearing was based on any general principle or was intended to have any wider application: it was a judgment made on the basis of the particular circumstances of that case. In the present case it must be borne in mind that the Secretary of State will have had numerous cases to re-assess in the light of the judgment in Sufi and Elmi. I do not think that the reasonable time for conducting such assessments can be said to have had an outer limit of one week, or that it ought to have been apparent to the Secretary of State within that time that there was no realistic prospect of removing the appellant within a reasonable period. There is indeed some force in the Secretary of State’s argument that it was reasonable to wait until the appellant’s next detention review, since one of the central purposes of monthly reviews is to ensure that the justification for continued detention is re-assessed on a regular basis in the light of up-to-date available information, including any changes in circumstances since the last review. In the event, the appellant was released on bail before the next review and just over two weeks after the judgment in Sufi and Elmi. The deputy judge could properly conclude that this was within the time that the Secretary of State was entitled to take to consider what to do about the appellant in the light of the judgment. Nor did it cause detention to exceed a reasonable period overall.[46]I have taken the view that the conclusion reached by the deputy judge on each of the issues considered above deserves considerable respect, given that he directed himself correctly on the law and undertook the task of applying the law to the facts in an obviously careful and conscientious manner. At para 7 of the judgment of the court in Abdi, Sedley LJ pointed out that the concepts of “reasonable period” and “in all the circumstances” are open-ended and describe “a large area of judgment to be made in each case that comes before the court”. He said at para 62:
“The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This Court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts”
. In similar vein, Longmore LJ observed in MH at para 73 that judges “have to make a judgment taking a range of (often competing) factors into account”, but that “once a judge has done that, it will be a rare case in which it would be right for this court to interfere”. I agree with those observations, which in my view represent the correct approach of an appellate court to cases involving the application of Hardial Singh principles.[47]Mr Husain submitted that in any such case there is in effect only one right answer and that the Court of Appeal must decide for itself whether the first instance judge reached the right answer. He referred to observations of Toulson LJ in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, at para 62, that “[i]t must be for the court to determine the legal boundaries of administrative detention” and that “it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised”. He argued further that the Court of Appeal has the same material before it as the first instance judge and is therefore in as good a position to answer the relevant legal question. He relies on what Laws LJ said in AS (Sudan) v Secretary of State for the Home Department [2009] EWCA Civ 1518, para 7, that “in a case of this kind, in which the court below dealt with the matter on the papers just as this court does, we are in effect in as good a position as the judge below to assess the legal quality of the appellant’s detention”.[48]Toulson LJ’s observations in R (A) v Secretary of State for the Home Department were directed to an argument that the role of the court was to review the reasonableness of the Secretary of State’s decision to exercise his power of detention; in the passage in question, he was not considering the respective positions of a first instance judge and an appellate court. It is well established that in applying the Hardial Singh principles the court must form its own judgment (for example, as to whether a reasonable period has been exceeded) rather than reviewing on Wednesbury grounds a judgment made by the executive. But the forming of such a judgment is an evaluative exercise, involving the balancing of a wide range of relevant factors. It is a situation in which, as it seems to me, the approach advocated by Sedley LJ in Abdi and by Longmore LJ in MH is entirely apposite; and I respectfully prefer that approach to the view expressed by Laws LJ in AS (Sudan).[49]I should deal finally in this section with what is said to be a free-standing argument that there was a breach of Hardial Singh principle (iv), namely the requirement to act with reasonable diligence and expedition to effect removal. The argument overlaps in part with the contention that the decisions to maintain detention were vitiated by a public law error in the form of a failure by the Secretary of State to take reasonable steps to acquaint herself with when a decision might be forthcoming from the ECtHR. That contention is considered and rejected later in this judgment; and for essentially the same reasons I do not accept that there was in this respect any breach of Hardial Singh principle (iv). In so far as other stages in the history are relied on as giving rise to a breach of the principle, it suffices to say that I am not persuaded that the Secretary of State was guilty at any stage of a lack of reasonable diligence or expedition to effect removal.

The alleged public law errors

[50]I turn to consider Mr Husain’s submission that the appellant’s detention was vitiated by two public law errors which rendered the detention unlawful and mean that a claim in false imprisonment will lie.[51]Before examining the substance of the errors alleged, I need to consider Miss Anderson’s argument for the Secretary of State that even if such errors were established they would not render the detention unlawful or give rise to the tort of false imprisonment.[52]In order to explain the argument it is necessary to set out paragraph 2 of schedule 3 to the 1971 Act:
“2(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuant of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs …, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail. … (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) 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 (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”
[53]This case concerns the lawfulness of detention pursuant to paragraph 2(3), in circumstances where the appellant was already in detention by virtue of paragraph 2(2) when the deportation order was made. The situation therefore falls within the words in parenthesis at the end of paragraph 2(3): the appellant “shall continue to be detained unless … the Secretary of State directs otherwise”. Miss Anderson’s argument is that those words confer a statutory authority to detain (indeed, a duty to detain) unless and until the Secretary of State makes a direction to release. Continued detention has statutory authority and is therefore lawful even if the Secretary of State’s decision not to direct release is flawed by public law error or the Secretary of State ought to have made a decision directing release.[54]In support of the argument, Miss Anderson referred to a passage in the judgment of Stanley Burnton LJ in R (WL (Congo)) v Secretary of State for the Home Department [2010] EWCA Civ 111, at paras 88-89:
“88. We consider, first, that it is necessary to distinguish between the detention of FNPs [foreign national prisoners] under sub-paragraph (1) of paragraph 2 of Schedule 3 to the 1971 Act and detention under sub-paragraphs (2) or (3). Sub-paragraph (1) is itself legislative authority for the detention of a FNP who has been sentenced to imprisonment and who has been the subject of a recommendation for deportation. If an unlawful decision is made by the Secretary of State not to direct his release, the Court may quash the decision and require it to be retaken, but the legislative authority for his detention is unaffected. It follows that the FNP will have no claim for damages for false imprisonment in such circumstances. Furthermore, SK is authority, binding on us, that a failure in breach of procedural rules to review his detention does not necessarily render the detention unlawful. 89. The position is different when the decision to detain is made under sub-paragraph (2) or (3). In these cases, there is no lawful authority to detain unless a lawful decision is made by the Secretary of State ….”
[55]The same analysis of paragraph 2(1) is to be found in the decision of Burnett J in R (MI (Iraq)) v Secretary of State for the Home Department [2010] EWHC 764 (Admin). In R (Choy) v Secretary of State for the Home Department [2011] EWHC 365 (Admin) the logic of the analysis was applied by Bean J to the words in parenthesis in paragraph 2(3), which Stanley Burnton J does not appear to have had in mind when referring to that paragraph in the passage quoted above: Bean J held that a foreign national prisoner already in detention at the time when the deportation was made was detained thereafter on the authority of the statute and could not claim damages for false imprisonment. The approach in those cases was followed by Cranston J in R (Solomon) v Secretary of State for the Home Department [2011] EWHC 3075 (Admin). His exposition at paras 34-42 of the judgment in Solomon includes this summary of the effect of the parenthesis in paragraph 2(3):
“39. … Paragraph 2(1) creates the presumption of detention for a foreign national prisoner deriving from the recommendation for deportation made by the judge when sentencing for the criminal offence. Paragraph 2(3) continues the presumption following the making of the deportation order where the person was already detained before it was made. The basis of detention throughout is the court’s recommendation to deport and is pursuant to statute, not to any discretionary decision of the Secretary of State, as is the case with detention under paragraph 2(2). Since detention is by virtue of statute a claim for false imprisonment must, on ordinary principles, fail ….”
[56]Choy and Solomon were both cases where there had been a recommendation for deportation and the original detention had therefore been by virtue of paragraph 2(1). Miss Anderson’s submission, as I understand it, is that the same effect is to be attributed to the parenthesis in paragraph 2(3) in the case of a person originally detained by virtue of paragraph 2(2) (though it will be apparent that a possible point of distinction is that the origin of detention in such a case is a discretionary decision of the Secretary of State).[57]Whatever attractions that line of argument might otherwise have, in my judgment it cannot survive the Supreme Court decisions in Lumba (itself on appeal from the Court of Appeal decision in WL (Congo))and Kambadzi.[58]The appellants in Lumba were detained originally under paragraph 2(2) but this became detention pursuant to paragraph 2(3) on the making of the deportation orders against them. The court held that their detention was unlawful and that they had a claim in false imprisonment because the Secretary of State’s decision to detain and to maintain detention was vitiated by reliance on an unlawful, unpublished policy. The court rejected an argument that the appellants could not succeed in false imprisonment because the unlawful policy had no causative effect, in that their detention would have been inevitable if the decision had been taken lawfully: that point was held to go only to the quantum of damages. Lord Dyson, with whose judgment the majority of the court agreed, made clear at para 68 that it is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment:
“the breach of public law must bear on and be relevant to the decision to detain”
. In para 69, when commenting on an illustrative case where a claim would lie, he said that the detainee in that case was the victim of “a material public law error” which was “relevant to the decision to detain him” and “was capable of affecting the decision to continue to detain him and did in fact do so”. In holding that the decision to detain the appellants was tainted by public law error in the sense described, he drew no distinction between their original detention under paragraph 2(2) and their later detention pursuant to paragraph 2(3), although it is clear from para 55 that he was aware of the words in parenthesis in paragraph 2(3).[59]The Secretary of State did not contend in terms in Lumba that, as a matter of statutory language, continued detention is authorised by the parenthesis in paragraph 2(3) until such time as the Secretary of State takes a decision to release, and that the statutory authority remains effective even if a decision not to release is vitiated by a material public law error. Such a contention, however, is simply inconsistent with the court’s reasoning and conclusion.[60]That is confirmed by consideration of Kambadzi, in which the court, applying Lumba, held that the appellant’s detention was rendered unlawful by the failure to carry out monthly reviews of detention in accordance with the Secretary of State’s published policy. Here too the original detention was under paragraph 2(2) but was continued under paragraph 2(3) following the making of the deportation order. Lord Hope, with whose judgment the majority of the court agreed, made express reference to this when formulating the issue before the court:
“34. … Until 24 August 2007, when the deportation order was made and served on the appellant, the appellant was being detained under paragraph 2(2) pending the making of a deportation order. From that date onwards he was being detained under paragraph 2(3) because he had not been released on bail and the Secretary of State had not directed otherwise. On the other hand Mr Tam [for the Secretary of State] accepts that the breakdown in the system was a breach of duty owed by the Secretary of State to the appellant in public law. The appellant could have obtained a mandatory order at any time requiring the reviews to be carried out if he had asked for this. 35. The focus of attention therefore is on the authority to detain. Is the review essential to the legality of the continued detention? Or is it a sufficient answer to the claim for damages for the Secretary of State to say that, unless and until he directed otherwise, the authority to detain is there throughout in terms of the statute?”
[61]Lord Hope referred to R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139 as showing that lawful authority for an executive power of detention may be absent when there is a departure from the executive’s published policy. He accepted that the published policy in Nadarajah entitled the detainee to release because it narrowed the grounds on which the power of detention was exercisable, whereas the policy in Kambadzi was concerned not with the grounds for detention but with procedure, in providing for review at regular intervals. He continued: “41. … But I do not think that this difference means that Nadarajah’s case offers no assistance in this case. On the contrary, it seems to me to indicate that a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful. I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise …. 42. … The published policy narrowed the power of executive detention by requiring that it be reviewed regularly. This was necessary to meet the objection that, unless it was implemented in accordance with a published policy, the power of executive detention was being applied in a manner that was arbitrary. So it was an abuse of the power for the detainee to be detained without his detention being reviewed at regular intervals. Applying the test proposed by Lord Dyson JSC in Lumba, it was an error which bore on and was relevant to the decision the detain throughout the period when the reviews should have been carried out ….”.[62]He engaged in further discussion of the issue at paras 49ff, where he made clear once more that he was considering detention under paragraph 2(3) as well as under paragraph 2(2). For example, he said at paras 50-51 that the initial decision to detain will be held to be lawful if it is made under the authority of the Secretary of State pending the making of a deportation order; but it cannot be asserted, in the light of what was said in Hardial Singh, that the initial decision renders continued and indefinite detention lawful until the deportation order is made, whatever the circumstances; nor can it be said that it has that effect after the deportation order is made and the person is being detained under paragraph 2(3). The authority that stems from the initial detention is not unqualified. The question is “whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that [the Secretary of State] has under the statute”. He went on to answer that question in the affirmative, holding that the review provisions in the policy were “limitations on the way the discretion may be exercised”.[63]Again, it appears that the Secretary of State did not contend in terms in Kambadzi that continued detention was authorised by the parenthesis in paragraph 2(3) despite the failure to apply the policy; and it may be said that Lord Hope’s references to a “discretion to detain” beg the question that arises in relation to the parenthesis. Again, however, it seems to me that the contention is simply inconsistent with the court’s reasoning and conclusion.[64]It follows that if the present appellant is able to show that the decisions to maintain his detention were vitiated by public law errors in the sense described in Lumba, he will succeed in establishing that detention was unlawful and will have a claim in false imprisonment. I refer to “decisions” because Mr Husain contended, and Miss Anderson did not dispute, that the decision reached at each monthly detention review was a separate decision amenable in principle to challenge on public law grounds.[65]I turn to consider the two ways in which the decisions are said to have been vitiated by such errors.[66]It is submitted first that following the receipt of the rule 39 indication, the Secretary of State failed to take any reasonable steps to acquaint herself with when a decision might be forthcoming from the ECtHR and the measure might be lifted. This is described as a “process” failing, amounting to a breach of the duty of inquiry referred to in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014, where Lord Diplock, at page 1065B, expressed the question for the court as being:
“did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”
. The detention review forms contained a heading, “Likelihood of removal within a reasonable time scale (outline details of barriers to removal … and likely time need to resolve these)”. Whilst the completed forms referred repeatedly under that heading to the existence of the rule 39 indication, they did not address the likely timescale for the lifting of the measure, and it is submitted that no or insufficient steps were taken to ascertain that timescale.[67]I do not accept that argument. It can reasonably be inferred from the history set out at paras 29-32 above that the Secretary of State was aware at all times of where matters stood in relation to the relevant ECtHR proceedings. Whilst communications with the court took place through the FCO, the Secretary of State was plainly in the loop. One gets further indications of this from the detention review forms themselves. For example, the form for August 2010 included the comment, in relation to the rule 39 cases in the ECtHR, that “[w]e have been advised that some of these case[s] are being looked at after a long time on hold and we are hopeful of a breakthrough in the not too distant future”; the December 2010 form stated that “[t]here has recently been some movement on some Rule 39 cases …”; and the forms for February 2011 and March 2011 stated, in relation to the ECtHR position, “we should in the very near future have an outcome”. Nor do I accept that more should reasonably have been done to ascertain when a decision might be forthcoming. Appropriate inquiries and requests were made through the FCO. It is unrealistic to suggest that any better indication of the timescale might have been obtained had greater pressure been applied.[68]The second error alleged relates to what was said in the detention review forms about the possibility of the appellant’s voluntary return to Somalia. The first form specifically relied on in this connection is that for July 2009, where one of the sections relating to authority to maintain detention (though not, it would seem, the last and operative section) includes this statement, after reference to the rule 39 indication:
“Whilst this means that enforced removal is not possible, Mr M could reduce the length of time he spends in detention by withdrawing the application and returning voluntarily.”
A similar point features as part of the reasons for maintaining detention in some, though not all, of the later forms. For example, the form for February 2010 states:
“Rule 39 ECHR is a barrier to removal but I note that FRS [facilitated return scheme] is an option that should be explored to the full to expedite his removal from the UK”
. The form for July 2010 states:
“The length of detention is a direct result of his appeals against deportation and, although it is now 29 months, he has the real option of return to Somalia with the Facilitated Returns Scheme. This option should be further explained to the subject.”
By way of further example, the form for December 2010, having made reference to the application to the ECtHR and the rule 39 indication, states that the appellant “could minimise his time in detention by withdrawing that application and taking up FRS which is offered each month”, and that he could “end his detention by volunteering to return (with or without FRS) at any time”.[69]Mr Husain submitted that the Secretary of State erred in relying on the possibility of the appellant withdrawing his application to the ECtHR and returning voluntarily to Somalia. Reliance on the possibility of voluntary return in circumstances where the appellant had made an application to the ECtHR and had subsequently appealed to the tribunal against the refusal to revoke the deportation order was inconsistent with certain observations of Lord Dyson in Lumba. In relation to cases where return would be possible but the detained person was not willing to go, Lord Dyson said this:
“127. … Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a real risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees … or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return.”
[70]It is, however, important to note the context of those observations. Lord Dyson was dealing with a series of points concerning the application of Hardial Singh principles, in particular as to what is a reasonable period of detention. As he said at para 123, what was in issue was “whether a failure to return voluntarily can of itself justify a period of detention which would otherwise be unreasonable and therefore unlawful”. Moreover, he was not suggesting that it was wrong to offer voluntary return; only that a detainee should not penalised for the refusal to accept such an offer, which was not relevant to whether detention had exceeded a reasonable period.[71]I do not accept that the references in this appellant’s detention reviews to the possibility of voluntary return gave rise to any material error of law. It may have been unrealistic in the circumstances to pursue the question of voluntary return with him, but pursuit of that question did not mean that he was being pressured to withdraw his application to the ECtHR or his appeal to the tribunal or that he was being penalised for pursuing his legal remedies. For so long as his detention had not exceeded a reasonable period on Hardial Singh principles, it could properly be pointed out to him that voluntary return would reduce the length of detention. What could not properly be done was to treat the refusal of an offer of voluntary return as a relevant factor in determining whether a reasonable period had been exceeded. Whilst some of the passages in the detention reviews are not very happily expressed, I do not read any of them as involving that legal error. I note moreover that the decision that continued detention was justified was reached in all the detention reviews, irrespective of whether reference was or was not made in them to the question of voluntary return. This supports my view that the refusal of the offer of voluntary return played no material part in the assessment of whether detention should be maintained.[72]Accordingly, I reject the contention that the detention review decisions were vitiated by material public law error in the respects contended for by Mr Husain. To use the language of Lord Dyson in Lumba (see para 58 above), in neither respect was there a breach of public law bearing on and relevant to the decision to detain.

Article 5 ECHR

[73]Article 5 provides, so far as relevant:
“1. Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person … against whom action is being taken with a view to deportation or extradition.”
[74]Mr Husain’s submission was that on the facts of this case it could not be said that action was being taken with a view to deportation, in view of(i) the inability of the Secretary of State to identify the period within which deportation could reasonably be expected to occur, and(ii) the alleged failure to act with due diligence or to take active steps to pursue deportation.[75]There is clear authority that a deprivation of liberty under article 5(1)(f) is justified only for as long as deportation proceedings are in progress, and that detention will cease to be permissible if the proceedings are not pursued with due diligence: see, for example, Ryabikin v Russia (2009) 48 EHRR 55, para 133; A v United Kingdom (2009) 49 EHRR 29, para 164; and Mikolenko v Estonia (Application no. 10664/05, ECtHR judgment of 8 October 2009), para 63. I have explained above, however, why in my view there was no failure to act with due diligence in this case.[76]Mr Husain sought to rely on Mikolenko v Estonia at paras 64-68, and in particular at para 66, in support of the proposition that lack of a realistic prospect of deportation within a defined period renders detention under article 5(1)(f) unlawful. I do not read the judgment as laying down any such principle, and the case itself is factually far removed from the present. It seems to me that the relevant principle is that stated in A v United Kingdom at para 164, that “the length of detention should not exceed that reasonably required for the purpose pursued”, and again I have explained why in my view the appellant’s detention did not exceed that reasonably required for the purpose of his deportation.[77]More generally, the various protections identified in A v United Kingdom at para 164 were described by Lord Hope in Kambadzi,at para 58, as “redolent of the Hardial Singh principles”; and in para 59 he said that there are reasons for thinking that the Hardial Singh principles are in some respects more favourable to detainees than Strasbourg requires. I do not think that article 5(1)(f) adds anything of substance in the present case.

Conclusion

[78]For the reasons set out above I would dismiss the appeal.

Lord Justice Elias :

[79]I agree with the judgment of Richards LJ on all matters save one.[80]In my view, there was an unlawful detention arising out of the period for which the appellant was kept in detention once the decision of the ECtHR in Sufi and Elmi had been determined and promulgated. The judgment was handed down on the 28 June 2011 and yet bail was not granted until the 13 July, over two weeks later. It is true that this decision did not place a complete embargo on returns to Somalia; it envisaged the possibility that a return to that country could, in exceptional cases, be compatible with Article 3. I accept that some time was therefore necessary for the Secretary of State to assimilate the decision and to decide whether, depending on their particular circumstances, the appellant and others similarly detained pending a return to Somalia could be sent back to that country compatibly with their human rights. However, I do not consider that it was reasonable for that decision to take as long as it did.[81]Once Strasbourg had spoken, this appellant was being detained in circumstances where the Secretary of State must have known that there was every likelihood that he could no longer properly be kept in custody because it was unlikely, in accordance with Hardial Singh principles, that he could be returned within a reasonable period to Somalia. At that point the authorities ought to have given some priority to determining, one way or the other, whether he and similarly placed detainees could be lawfully returned to Somalia in accordance with the Strasbourg judgment. If not, their continued detention could not be justified and they should have been released, subject no doubt to stringent bail conditions.[82]Mr Husain accepted that a week may be justified to review the situation, as it was in the case of R(Abdi) v Secretary of State for the Home Department [2011] EWCA Civ 242, but no longer. I agree with that submission. Of course, I accept that Abdi was not seeking to lay down any rule to the effect that a week is always a reasonable period in these cases, but I think that at least absent any evidence that a longer period was necessary on the facts of the case, a week should certainly have sufficed here given that liberty is at stake. Once it was determined that the appellant could not be returned then, in accordance with the Hardial Singh principles, he ought to have been released.[83]I agree with Richards LJ that there is not one right answer to the question what is a reasonable period. It is a matter of judgment, and this court should only interfere if satisfied that the assessment of the judge below was wrong. Like Richards LJ, I also respectfully disagree with the observations of Laws LJ in AS (Sudan), referred to by Richards LJ at para. 47 above, to the extent that they were seeking to suggest that where the Court of Appeal is reviewing a case on the papers, it can effectively decide the matter for itself afresh. That, it seems to me, renders virtually pointless the first instance decision. No doubt the fact that a decision is reached on the papers means that the appellate court can more readily be satisfied that a decision is wrong than it can where, for example, an assessment has to be made of oral evidence. But a decision is not wrong simply because the Court of Appeal would have exercised its judgment differently. So I accept that in acceding to the appeal on this point, we must be satisfied that in allowing in excess of two weeks for the Secretary of State to review the appellant’s situation, the judge was wrong.[84]In this case the judge, when giving his reasons for concluding that there was no unreasonable delay at that final stage, said this (paras 133-134): “The Secretary of State went on to say that although she would have a duty in accordance with her policy to review the Claimant’s detention within a reasonable time by reason of the change of circumstances, to reconsider the Claimant’s detention at the next monthly review would be to review within a reasonable time. Given that the June review took place on 17 June, that presumably suggests that it would be acceptable to review the Claimant’s detention on or about 17 July. Whether or not it was reasonable for the Secretary of State to wait until 17 July, in my view by 13 July a reasonable time had not elapsed so as to require the Claimant’s release. I think the Secretary of State was entitled to take that time at least to consider what to do about the Claimant after the issue of the Sufi and Elmi decision. The Claimant’s own personal position had to be considered in the light of the judgement.”85. It seems, therefore, that the Secretary of State was under the impression that in principle it was sufficient to address this matter in accordance with the normal monthly review (although in fact the appellant was released a few days before that would have taken place). In my judgment, that displays too cavalier an approach to the right to liberty. Once the continuing detention of a prisoner is put into doubt, as it obviously was here following the Strasbourg decision, the matter has to be addressed as a matter of some urgency. In my view it is simply not good enough to allow the normal administrative procedures to dictate the timetable for release, even if in the event they were not strictly followed. If there were particular reasons why the decision could not have been reached more quickly, then in my view they should have been vouchsafed by the Secretary of State in evidence. The appellant had already spent almost 41 months in custody which, as Richards LJ has observed, was very long indeed and already near the outer limit of what could be justified under Hardial Singh principles.86. In my view, in those circumstances it was particularly important that there should be a speedy response to the Strasbourg ruling. In my judgment, therefore, there was no proper basis on the evidence to conclude that a period of over two weeks was a reasonable period, and one week ought to have been enough. Hence I would hold that the period from July 5 to the date of release on July 13 was a period of unlawful detention.[87]However, since this is a minority view the appeal fails on all points.

Lord Justice Lloyd :

[88]Like Elias LJ I agree with Richards LJ on the period of detention up to 5 July 2011, a week after the decision of the European Court of Human Rights in Sufi and Elmi. As regards the final eight days of the detention, I see force in the view of Elias LJ that it was incumbent on the Secretary of State, first, to give urgent consideration to the appellant's position, he having already spent 41 months in detention, and, secondly, to put in evidence as to why (if it was her case) it was necessary to take more than a week to reach a conclusion as to the appellant's position. Nevertheless, on balance, I find myself in agreement with the views expressed by Richards LJ on this point, and like him I would uphold the decision of the deputy judge on this point, as on all other points. The appeal will therefore be dismissed.

Cited in 32 later judgments

and 23 more of the most senior