Muqtaar v Secretary of State for the Home Department [2011] EWHC 2707 (Admin)

[2011] EWHC 2707 (Admin)Case No CO/12095/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/11/2011
Before
TIMOTHY CORNER QC(Sitting as a Deputy Judge of the High Court)
Between
MR MOHAMMED MUQTAARClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
David Jones (instructed by Pierce Glynn) for ClaimantJeremy Johnson QC (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 7 October 2011
Approved Judgment

Timothy Corner, QC:

[1]This is a claim by Mr Mohammed Muqtaar for a declaration that the Defendant, the Secretary of State for the Home Department, acted unlawfully in continuing to detain him.[2]The Claimant was detained under immigration powers between 7 February 2008 and 13 July 2011, a period of three years, five months and seven days. The Claimant contends that his detention was unlawful by one or all of the following dates: a) On or after 16 June 2009 when he secured a rule 39 indication from the European Court of Human Rights ( “ECtHR”) which effectively precluded his enforced removal; b) On or immediately after the 16 June 2010 when he presented an application for the revocation of the deportation order signed against him to the Defendant; c) At all points after the Defendant’s revocation refusal on 17 November 2010, the Claimant then enjoying a further in – country right of appeal, which he exercised.[3]The handing down of this judgement has been delayed longer than I intended. The hearing took place on 7 October 2011. On 18 October 2011 I caused a draft judgement to be sent to the parties for typing corrections, with a view to handing down judgement on Friday 21 October. However, in his suggested corrections counsel for the Secretary of State referred to the Court of Appeal judgement in the case of Abdi v Secretary of State, [2011] EWCA Civ 242. That decision had not been drawn to my attention at the hearing before me, although I understand counsel for the Secretary of State had referred to the then pending appeal in his Summary Grounds submitted in this matter, and had referred to the decision itself in a skeleton argument submitted for an earlier hearing in this matter. Counsel for the Claimant, who had relied before me on the first instance decision, was unaware of the Court of Appeal’s decision. In order to allow both parties to deal with the Court of Appeal’s decision, I deferred handing down my judgement in order to allow written submissions to be made. I then amended the draft judgement previously sent to the parties in order to take account of the decision and the parties’ further submissions.

FACTUAL BACKGROUND

[4]The Claimant is a Somali national born on 1 February 1977 in Mogadishu and a member of the Darood clan. He lived in Mogadishu until 1992, when his family left Somalia and travelled to the Netherlands where they sought asylum. The Claimant was originally granted exceptional leave to remain in the Netherlands but refused further extensions due to his criminal convictions.[5]The Claimant came to the United Kingdom in 1999 and made an application for asylum not disclosing that he had lived in the Netherlands since 1992. The Claimant’s application for asylum was refused by the Secretary of State on 22 September 2000 but the Claimant was granted exceptional leave to remain in the UK until 22 September 2004. His application for indefinite leave to remain in the UK made on the 5 December 2005 was refused due to his criminal convictions. He has 10 criminal convictions over the period from 16 November 2001 to 4 August 2005.[6]So far as the details of the convictions are concerned, on 16 November 2001 the Claimant was convicted of two counts of robbery and sentenced to 2 years imprisonment. On 2 February 2004, the Claimant was convicted of a number of offences including failing to surrender to custody and ultimately sentenced to 4 months imprisonment.[7]On 21 April 2004 the Claimant was convicted of possessing an offensive weapon and failing to surrender to custody and sentenced to 4 months imprisonment. On 3 September 2004 the Claimant was convicted of taking a motor vehicle without consent and other offences, and sentenced to 3 months imprisonment.[8]On 9 December 2004 the Claimant was convicted of theft and a public order offence and sentenced to one day in prison. On 10 February 2005 the Claimant was convicted of theft and sentenced to one day in prison.[9]On 9 May 2005 the Claimant was convicted of having a bladed article in a public place and failing to surrender to custody at the appointed time and sentenced to 8 weeks imprisonment. On 15 July 2005 the Claimant was convicted of offences of theft and failing to surrender to custody and sentenced to 6 weeks imprisonment. On 8 August 2005 the Claimant was convicted of drink-driving and other offences and sentenced to 5 months imprisonment.[10]On 17 December 2007 the Claimant was sentenced to 4 months and 14 days imprisonment for offences of using threatening, abusive insulting words or behaviour with intent to cause fear or provocation of violence and failing to surrender to custody.[11]I pause to note that as the Claimant points out, while his original conviction was for robbery, and attracting a two-year custodial sentence, the Secretary of State has indicated in various detention reviews that his other convictions were “primarily for driving offences, theft.”[12]The Claimant served half the sentence given on 17 December 2007 and was eligible for release on 7 February 2008 allowing for time on remand. However, on 29 January 2008, the Secretary of State decided to commence deportation proceedings against the Claimant. The decision was served on the Claimant on the same day. The Claimant appealed.[13]On 7 February 2008 the Claimant was detained by the Secretary of State under immigration powers. At the beginning of his immigration detention he remained in HMP Peterborough, where he had concluded his prison term. In or around April/May 2008 he was transferred to HMP Manchester “Strangeways”, a category A prison. Thereafter he remained detained among the ordinary prison population in Strangeways until April/May 2009. He was so detained when his deportation appeal fell to be heard.[14]The deportation appeal was heard on 13 June 2008. The Claimant’s deportation appeal was dismissed with the decision promulgated on 25 June 2008. A deportation order was signed by the Secretary of State on 29 October 2008.[15]Some eight months later, on 2 June 2009, the Secretary of State set removal directions to take effect on17 June 2009. On 16 June 2009 and the Claimant was granted a rule 39 interim protection indication by the ECtHR. Enforcement action was suspended.[16]Between the 13 June 2008 and 19 July 2010 the Claimant applied for and was declined bail by the Tribunal on four occasions.[17]On 9 November 2009 bail was refused by an Immigration

Judge for the following reasons:

“On the application before me today I am not satisfied the applicant will answer to any conditions that might be set. I acknowledge that he has now been in detention for a lengthy period but the most recent period of detention is on account of delays with his own application to the European Court of Human Rights. It is accepted that as things stand at present the Home Office are unable to remove the applicant but this is not due to any delay or maladministration on the part of the Home Office personnel. The applicant has a bad criminal history and has not shown himself capable of observing conditions involving reporting regularly to the authorities. Neither surety is accommodating the applicant or living close to the proposed accommodation. It has been submitted the applicant chose not to live with or communicate with the sureties when he arrived in the UK and there is little to lead one to conclude they will have any influence over his activities or movements. There were submissions about the applicant’s education, voluntary work and changed drug habits but no documentary evidence of this has been produced.”
[18]Bail was also refused on 21 April 2010. The following reasons were given:
“The applicant has a very poor criminal record, including failures to report regularly to the authorities. I was not provided with any evidence to support the submissions that he has addressed the problems of addiction said to be the cause of his offences. He has no sureties today to confirm they would support him although it is said he could live with his father. He has used deception in the past and disregarded the laws of the UK. I cannot be satisfied he would comply with any bail conditions & not abscond & not commit further offences. I adopt the findings of the judge on 9/11/9 as to the delay in his removal.”
[19]On 10 June 2010 the Claimant made a fresh claim for asylum. He also made further Article 8 representations based on the disclosure of evidence that he has a 15-year-old son, Y, who is a Dutch citizen residing in the UK with his mother, and further that all of his immediate family members now live permanently in the UK.[20]Bail was refused on 14 July 2010. The following reasons were given:
“Counsel for the applicant has set out matters very clearly and in great detail. This application for bail was previously considered by Immigration Judge Charlton-Brown on 21 April 2010. Although situation has changed since that date her reasons for refusing bail I find [are] still relevant. In particular, she noted that against the backdrop of criminal activity and poor record of bail and with drug addiction difficulties that there were no sureties available and that was material in refusing bail. That I find is still the case. It is contended that the applicant will live with his family, with his father, but the absence of his father or other members of the family from the address willing to stand surety greatly weakens the application.............. The applicant has now been detained for considerable period of time and the respondent would appear not to be responding to a fresh application. Against that the applicant is subject to a deportation order made after judicial scrutiny. Against that there is a application which the respondent would appear not to be actively considering This is not acceptable. I consider that the application for bail is to be refused. I find that his detention is proportional having regard to the necessary protection of the public and the risk of absconding which is not met by one or more adequate sureties.”
[21]On 17 November 2010 the Secretary of State issued a refusal decision in respect of the fresh claim for asylum. That decision was accompanied by a decision refusing to revoke the Claimant’s deportation order.[22]On 19 November 2010 the claim subject of this judgement was begun contesting the lawfulness of the Claimant’s detention and seeking interim relief in the form of bail.[23]On 25 November 2010 an appeal to the Immigration and Asylum Chamber was made in respect of the decision refusing to revoke the deportation order.[24]On 22 December 2010 Karen Monaghan, QC sitting as a High Court Judge ordered an urgent hearing of the Claimants application for permission and interim relief. The matter was finally set down on 17 June 2011 before Hickinbottom J following an initial stay to await the decision of the Supreme Court in Lumba v Secretary of State for the Home Department [2011] UKSC 12. Before Hickinbottom J the Secretary of State conceded the grant of permission. The judge declined bail and set the matter down for an early full hearing.[25]There is no transcript of what Hickinbottom J said. The following is an extract from Treasury Solicitor’s note of the judgement. Mr Jones, counsel for the Claimant, said he could not confirm the accuracy of the note, but said he was not suggesting the note was inaccurate in any material particular:
“Counsel for SSHD opposes bail and given the C’s criminal record and history of absconding and the proposed date for the substantive hearing that opposition is unsurprising............ I am unpersuaded by the [submissions in support of bail] for the following reasons: 1 the C has an appalling criminal record in the UK and the Netherlands and a similar history of absconding. Even if his offences were linked to alcohol, I am unconvinced that the C would not revert to old ways once in the community. Being free from alcohol in the detention is different from being free from alcohol outside detention. In that context, Counsel for the SSHD referred me to the 11 May 2011 entry in the detention review concerning the C being put in a secure unit as he appeared intoxicated. 2 While counsel for the C made submissions that much of the C’s crime was at the lower level, he was convicted of robbery (2 years imprisonment) and public order offences (4 months). In addition to the risk of further offending being committed which I consider high, I consider there is a risk of serious crime and consequent risk to the public. Since he commits crime when intoxicated, the precise consequences of his crimes cannot be judged as medium or less. 3 As regards absconding, he has family in the UK. However, nothing in the past has prevented him from absconding if the opportunity arose. I am unconvinced his family or the 2 sureties [offered in court today] of £1000 will prevent his absconding. 4 The SSHD, although not referring to this in the monthly progress reports, has taken family life and the outstanding claims into account in the detention reviews. Further the AIT has repeatedly refused bail. The criteria taken into account by the Tribunal is limited to reasonableness and excludes the lawfulness or otherwise of detention, a factor I can and must take into account. Nevertheless, the conclusion by the expert tribunal is a matter I can and do into account. This is a bail application but the comments of Lord Dyson in R(Lumba and Mighty) v SSHD [2011] 2WLR 671 at 121 are relevant in this context. He said that ‘the risks of absconding and reoffending are always of paramount importance.’ The risks are not determinative but they are of very great weight. I also take into account the substantive hearing in this matter is to be heard within a few months. Of course 43 months is not the same as 40 months in detention. 3 months is a substantial restriction. However the early date for the hearing is a matter I can properly take into account.”

I am unpersuaded by the [submissions in support of bail] for the following reasons:

[26]On 28 June 2011 the ECtHR ruled in the lead cases of Sufi and Elmi v United Kingdom -8319/07 [2011] ECHR 1045 behind which the Claimant’s case was adjourned.[27]On 12July 2011, the day before the Claimant’s revocation appeal hearing, the Secretary of State withdrew her decision refusing to revoke the deportation order made in respect of the Claimant, with the effect that no appeal lay before the Tribunal. The following day, the Claimant was bailed by Immigration Judge Bird on the basis of sureties in the sum of £800, a recognizance of £10 and two secondary conditions namely(a) that he live and sleep at his father’s address: and(b) that he report fortnightly to the Secretary of State. It has not been suggested that the Claimant has since failed to comply with the conditions of his bail. Further, he has not been convicted of any further offences subsequent to his release, nor does he stand charged with any offence. The Secretary of State has not thus far issued a further decision on the application for revocation of the deportation order.

LEGAL AND POLICY FRAMEWORK

[28]The essential legal framework appears to be common ground between the parties. It is for a custodian to justify detention by pointing to a power to detain; see Liversidge v Anderson [1942] AC 206 per Lord Atkin at 245, and to establish that the power is being exercised for the purpose for which it was granted: see Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 at 114E.[29]Section 3(5) (a) of the Immigration Act 1971 (“the 1971 Act”) provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. Paragraphs 2(2) and 2(3) of Schedule 3 to the 1971 Act provide power to detain. They state “(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 the 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).”[30]Since judgement in R v Durham Prison Governor ex parte Hardial Singh [1984] 1WLR 704 it has been accepted that the power to detain under immigration powers is subject to limitations. Woolf J stated at 706:
“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 his power of detention.”
[31]The principles set down in Hardial Singh have been considered and refined over time in a number of subsequent cases, most notably by Dyson LJ (as he then was) in R(i) (I) v Home Secretary [2002] EWCA Civ 888 [2003] INLR 196 where he summarised the law as follows: “46. …. [T]he following four principles emerge; (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 that 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 in effect removal. 47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of States 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 the 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” (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 that 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 in effect removal.[32]The Hardial Singh principles and Dyson LJ’s formulation in R(I)v Home Secretary were approved by the majority of the members of the Supreme Court in Lumba v Secretary of State for the Home Department [2011] UKSC 12. In that case, all the Justices save for Lord Phillips agreed with Lord Dyson’s analysis.[33]Lord Dyson said at paragraph 103:
“A convenient starting point is to determine whether, and if so when, there is no realistic prospect that deportation will take place. As I said at para 47 of my judgement in R(I), there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to the determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention was unlawful.”
[34]Lord Dyson rejected a submission by the Secretary of State that the time taken to resolve legal challenges brought by an individual against deportation should generally be left out of account in considering whether a reasonable period of detention has elapsed. At paragraph 121 he said:
“To summarise, I would reject the exclusionary rule. If the detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re- offending, which would compel an appellant’s release if the appeals process lasted very long time through no fault of the appellant. He admits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi [[2009] EWHC 1324 (Admin)] and I agree with it. The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, that more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”
[35]So far as policy is concerned, a “presumption” of release has been entrenched in the Secretary of State’s published policies for many years. Current policy is contained in the document Enforcement Instructions and Guidance. That document provides in part:
“55.1.1 General In the 1998 White Paper ‘Fairer, Faster and Firmer – a Modern Approach to Immigration and Asylum’ it was made clear that the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention.......The White Paper went on to say that detention would most usually be appropriate -to effect removal: -initially to establish a person’s identity or basis of claim; or -where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release...... 55.1.2 Criminal Casework Directorate Cases Cases concerning foreign national prisoners – dealt with by the Criminal Casework Directorate (CCD) – are subject to the general policy set out above in 55.1.1, including the presumption in favour of temporary admission or release. Thus, the starting point in these cases remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (‘the deportation criteria’) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.”
In the 1998 White Paper ‘Fairer, Faster and Firmer – a Modern Approach to Immigration and Asylum’ it was made clear that the power to detain must be retained in the interests of maintaining effective immigration control. However, the White Paper confirmed that there was a presumption in favour of temporary admission or release and that, wherever possible, we would use alternatives to detention.......The White Paper went on to say that detention would most usually be appropriate -to effect removal: -initially to establish a person’s identity or basis of claim; or -where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release...... Cases concerning foreign national prisoners – dealt with by the Criminal Casework Directorate (CCD) – are subject to the general policy set out above in 55.1.1, including the presumption in favour of temporary admission or release. Thus, the starting point in these cases remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (‘the deportation criteria’) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.”[36]Paragraph 9 of the Detention Centre Rules 2001 (SI 2001/238) provides for review of detention:
“(1) Every detained person will be provided by the Secretary of State, with written reasons for his detention at the time of initial detention, and thereafter monthly. (2) The Secretary of State shall, within a reasonable time following any request to do so by a detained person, provide that person with an update on the progress of any relevant matter relating to him. (3) For the purposes of paragraph (2) ‘relevant matter’ means any of the following: (a) a claim for asylum;.... (f) the proposed removal or deportation of the detained person from the United Kingdom; (g) an application for bail under the Immigration Acts...... (h) an appeal against, or an application for judicial review in relation to, any decision taken in connection with a matter referred to in paragraphs (a) to (g).” (a) a claim for asylum;.... (f) the proposed removal or deportation of the detained person from the United Kingdom; (g) an application for bail under the Immigration Acts......

(g) ”

[37]I was told also that it is the Secretary of State’s policy to review detention where there is a change of circumstances.

THE CLAIMANT’S CASE

[38]The Claimant’s case may be summarised as follows.[39]Overall, the Secretary of State in persisting with the Claimant’s detention, infringed principles (ii) and (iii) outlined in R(I) which in the rest of this judgement I will call the “Hardial Singh principles”, the duration of his detention being beyond what was reasonable. The case was put more particularly as follows. Mr Jones, counsel for the Claimant, said that principle (iii) was particularly relevant at the time when the rule 39 indication was given, in June 2009, and that principle (ii) was of particular importance by 16th June 2010, when the Claimant applied for revocation of the deportation order. The Claimant’s more detailed submissions can be summarised thus.[40]First, the Claimant suggested that his removal was actually enforceable for no more than 20-30 days. His detention began on 8 February 2008. At the time of hearing of AM and AM (armed conflict; risk categories) Somalia CG [2008] UKAIT 00091, on the 27th to 29th of October 2008, the Secretary of State confirmed that she was not enforcing removals to Somalia due to documentation problems. The Claimant went on to argue that the Secretary of State’s operational guidance notes on Somalia suggest that documentation problems had persisted as far back as 2007.[41]Between 29January 2008 and 25 June 2008, the Claimant was exercising a statutory right of appeal against deportation action under section 82 (2)(j) Nationality Immigration and Asylum Act 2002, which suspended the effect of the decision to deport. Then, said the Claimant, there was no signed deportation order until 29 October 2008. Removal directions were then not set until 2 June 2009, with removal set for 17 June 2009. The Rule 39 indication was granted on 16 June 2009. That prevented removal and the removal directions were cancelled.[42]The Claimant continued that his subsequent application for revocation of the deportation order, sent on 10 June 2010, further operated to bar removal, any refusal attracting a right of appeal, which the Claimant subsequently exercised after the Secretary of State’s refusal to revoke on 17November 2010.[43]That appeal remained pending when eight months later on 28 June 2011 the ECtHR gave its decision in Sufi and Elmi, in consequence of which the Secretary of State withdrew her refusal to revoke the deportation order on 13 July 2011.[44]The Claimant said that these circumstances were of profound importance to any determination of the reasonableness of his detention, combining to found such uncertainty as to the likely date for removal as to render untenable any suggestion that throughout the period after 16June 2009 there was always a realistic prospect of removal within a reasonable time.[45]In oral submissions Mr Jones added a further refinement to this aspect of his case. He drew attention to what he said were material delays by the Secretary of State at the outset of the Claimant’s detention, which lengthened the process. Detention had begun in February 2008, and the Secretary of State could have removed the Claimant at any time after the Claimant’s appeal against the decision to make a deportation order failed on 30 June 2008, subject to actually making the deportation order and procuring emergency travel documents (“ETD”) for the Claimant. There was no practical obstacle to either. However, the deportation order was made only on 29 October 2008, and the Secretary of State did not arrange ETD until May or June the following year, shortly before the rule 39 indication. Accordingly, the Secretary of State had failed to pursue removal with due diligence, and that was an important context to what happened afterwards.[46]Secondly, in relation to the rule 39 indication itself, the Claimant relied on R (AR) v Secretary of State for the Home Department [2011] EWCA Civ 857. In that case the Court of Appeal noted that the rule 39 indication had been enough to prompt the appellant’s release. Maurice Kay LJ said [11] that the position in that case illustrated “what normally happens, and what one would expect to happen, once the rule 39 indication has been given in the specific case”.[47]The Claimant recognised that in AR factors such as absconding and risk of offending did not arise, but said that the court had clearly recognised that a rule 39 indication is a profound development strongly encouraging release.[48]In this case the rule 39 indication encouraged release all the more strongly because in addition to the fact that the Claimant had by then already been detained for over 16 months, the ECtHR gave no time frame for its ruling, and nor did the Secretary of State seek from it any indication as to a time frame. In the absence of clarity as to when the ruling would come, the Claimant argued that the Secretary of State could not properly conclude that there was a realistic prospect of removal within a reasonable time.[49]The Claimant noted that the Secretary of State herself acknowledged as early as August 2009 that because of the rule 39 indication, removal would “not be determined in the short term.” Indeed, said the Claimant, the Secretary of State’s attitude was that the Claimant was the agent of his own predicament having frustrated enforcement action by lodging his petition in the ECtHR, and that he should withdraw it.[50]The Claimant went on to argue that it is material to consider the substance of the proceedings before the ECtHR. The issue of a rule 39 indication should have caused the Secretary of State to recognise the Claimant’s claim as meritorious, particularly given that the ECtHR in Mamatkulov and Askarov v Turkey (2005) 41 EHHR 25 said [103] that it applied rule 39 only in restricted circumstances, and [104] that it applies rule 39 only if there is an imminent risk of irreparable damage.[51]The decision in Sufi and Elmi was settled on principles of law and fact that were well established before the decision was handed down. It was the ECtHR’s decision in NA v United Kingdom (Application no 25904-2008) which enabled the court in Sufi and Elmi to rule that all a potential deportee had to show was that the general situation of violence in the destination country was of sufficient intensity to create a real risk that any removal to that country would violate Article 3. Further, the dire humanitarian conditions in Somalia identified as the basis for the court’s decision arose mainly due to the “direct and indirect actions of the parties to a conflict”, conditions which had persisted throughout the Claimant’s detention.[52]Thirdly, the Claimant contended that the country guidance case of AM and AM was a “precursor” to the decision in Sufi and Elmi, finding that Mogadishu is no longer safe for the great majority of its citizens. The Claimant argued that his case before the Immigration Judge in June 2008 was likely to have been disposed of differently had the case been considered after AM and AM. There was no evidence, said the Claimant, that the Secretary of State had reconsidered the Claimant’s case in the light of AM and AM until the revocation decision of 17 November 2010. The Claimant attacked the reasoning of that decision as unconvincing.[53]Fourthly, and in any event, argued the Claimant, the revocation application, the Secretary of State’s refusal of that application and the consequent appeal by the Claimant, combined with the effect of the rule 39 indication to produce such uncertainty about the likely date for any enforcement that the only proper conclusion was that the Secretary of State had no realistic prospects of removing the Claimant within a reasonable time. The Claimant said the Secretary of State’s own officers had in effect recognised that at the time when commenting in the Detention Summary of 9 November 2010 that if after 28 days a right of appeal arose in respect of the revocation application and the rule 39 application remained outstanding, “a release referral should be made as removal is not imminent.”[54]Fifthly, in relation to the risk of the Claimant absconding and/or reoffending, it was contended that having regard to R(HY) v Secretary of State for the Home Department [2010] EWHC 1678, neither the risk of re-offending nor that of absconding could be regarded as a “trump card” in all circumstances.[55]In any event, the Secretary of State’s contention that the Claimant represented a high risk of re-offending was contradicted by the probation reports prepared before the sentencing of the Claimant in 2007 which assessed him as a “medium risk of further offending and medium risk of causing direct harm.” The Claimant noted that the probation officer had assessed the risk presented by the Claimant as greater when he was drunk, and said that the evidence following his imprisonment showed that he had taken steps to manage his “dependencies”, testing free for illicit substances whilst in prison, for instance. The Claimant observed further that the offences he committed became less serious and more intermittent as time went on.[56]Overall, the Claimant argued, his past conduct did not justify a finding of such risk of re-offending as to merit his detention under immigration powers for the time he was in fact detained. The Claimant said that there was a degree of consensus in the cases that periods of lengthy detention, in particular in excess of 24 months, in circumstances where there exists an uncertainty as to when removal will be effective, will be permissible only where there exist the most compelling indicators of a risk of either very serious further offending or a risk to national security; see R (HY) v Secretary of State for the Home Department, R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin) and R(Wang) v Secretary of State for the Home Department [2009] EWHC 1578.[57]In relation to the risk of absconding, the Claimant argued that this risk, whether alone or in combination with the other matters relied on by the Secretary of State, was incapable of justifying the Claimant’s detention for the period for which he was detained. The Secretary of State herself assessed the risk of the Claimant absconding as medium and not high, and in any case, in reaching even that judgement, the Secretary of State misdirected herself.[58]The Secretary of State had until the March 2011 detention review continued to assert that the Claimant had no family living in the United Kingdom despite adduction by the Claimant of evidence of such family with his June 2010 revocation application and despite the fact that it was to his father’s address that he had consistently sought release. This was a significant error, given that in R (MXL) and Others v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) Blake J had identified strong family ties as a “compelling counterpoint” to an assertion that an individual represented a high risk of absconding.[59]Further, contended the Claimant, the Secretary of State relied on the Claimant’s refusal to make a voluntary departure as indicative of risk of absconding, but the fact that he was pursuing a meritorious application for protection made this consideration irrelevant on the authority of Lumba. I should note that the Secretary of State did not rely on this argument at the hearing before me.[60]Again, the Claimant argued that the Secretary of State’s failure to assess the merits of the Claimant’s application to the ECtHR also rendered her assessment of his outstanding risk unreliable, because were he to abscond he would not be able to pursue his claim, and this would be contrary to his interests.[61]Finally, the Secretary of State had failed to consider whether the risk the Claimant represented of absconding, such as it was, could be displaced by the application of rigorous conditions. In this regard, the Claimant drew attention to a decision of Langstaff J who in R(Ahmed) v Secretary of State for the Home Department [2010] EWHC 625 found that a significant risk of absconding could be met in the circumstances of that case by appropriately restrictive conditions.[62]Sixthly, the Claimant argued that even if all his earlier submissions were rejected, the Secretary of State clearly detained him unlawfully between the date of the Sufi decision and the date on which he was released on bail by the Immigration Judge.[63]Seventhly and finally,the Claimant contended that the detention was unlawful by virtue of the Secretary of State’s failure to consider whether such detention was compatible with the best interests of his son, by reference to her duty under section 55 of the Borders Citizenship and Immigration Act 2009. DISCUSSION 64. The approach

DISCUSSION

[64]I begin by considering the nature of my task in this case. As is clear from R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 (at [67]) the court’s task in a case such as this is not to determine whether the Secretary of State’s assessment from time to time as to whether to continue to detain was a Wednesbury reasonable one, but itself to assess the lawfulness of the detention in the light of the Hardial Singh principles.[65]It was agreed that the Claimant could not succeed on Hardial Singh principles-which were the basis of the claim as put at the hearing before me- simply by showing that at some stage during his detention the Secretary of State had failed to review whether to continue to detain, or had when conducting such a review failed to take account of a relevant consideration. Such a failure could be relevant to my assessment of the lawfulness of detention, but if I decided that that, nevertheless, the detention was lawful overall, the claim would still fail.[66]There is a further point to be drawn from MH. The period of detention in MH was 40 months, similar to, but shorter than, the period of detention in this case. Detention for 38 of those months was held to have been lawful. The court said [63] that “Detention for that length of time merits the most anxious scrutiny.” It was agreed that the same approach should be applied here, even though the Claimant has now been released. It would be absurd to apply anxious scrutiny if reviewing the lawfulness of the detention before release, and not to apply anxious scrutiny retrospectively once he had been released.[67]Both counsel agreed that my task was to decide whether there came a point at which the Secretary of State had acted unlawfully in continuing to detain. It was common ground that I was not being asked to decide whether, if the Secretary of State had acted unlawfully at some point by continuing to detain, the Claimant was therefore entitled to damages for false imprisonment. Mr Johnson, QC, for the Secretary of State, said that he would wish to argue that point, based on the effect of Schedule 3, paragraph 2(3) to the 1971 Act, should I decide the current proceedings against his client.[68]Much of the Claimant’s case centred on the application of principle (iii). It is important to consider what that principle means. It seems to me that in order for detention to be lawful having regard to the principle, it is not required that removal should be a certainty or an inevitability. Nor is it enough, however, that there should be some prospect, however remote or unrealistic, of removal. It seems to me that the most authoritative current statement on the principle is that of Lord Dyson in Lumba. At paragraph 103 Lord Dyson put the test this way:
“That if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention was unlawful.”
[69]In considering the submissions on this matter, I need to consider whether there was a “realistic prospect” that deportation would take place within a reasonable time.[70]I turn to consider the approach to be taken to the question of a “reasonable time.” As I have said, the Claimant argued there is a degree of consensus in the cases that periods of lengthy detention, in particular in excess of 24 months, in circumstances where there exists an uncertainty as to when removal will be effective, will be permissible only where there exist the most compelling indicators of a risk of either very serious further offending or a risk to national security. In relation to a case of lengthy detention cited by the Secretary of State, Chahal v United Kingdom (1997) EHHR 413, the Claimant said the petitioner was accused of criminal and terrorist activity, so that was a more serious case than this. In another case of lengthy detention cited by the Secretary of State, R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, the Claimant said that the appellant had been convicted of rape and indecency with a child for which he received 8 years imprisonment and was characterised by the court as being about as high a risk as there could be of further offending and harm. Again, said the Claimant, this was a more serious case than the present one.[71]In relation to these and other cases, I find helpful the approach taken by John Howell, QC sitting as a Deputy High Court Judge in R (Sino) v Secretary of State for the Home Department [2011] EWHC 2249 (Admin) at [59]- [61]. As he said, there is no outer limit to the period for which it may be reasonable to detain an individual pending removal. However, some general guidance can be obtained from the other cases on immigration detention about what a reasonable period of detention may be. I further agree with what Mr Howell said in the following passage at [61]:
“ ... the type of period after which it is increasingly difficult to justify any continuing detention will depend not merely on the risk of an individual absconding and the likelihood of his re-offending. It will also depend, for example, on the nature of any likely future offences and their consequences and how imminently any removal can confidently be predicted. It is unlikely, therefore, that there is any single period which is applicable to all cases with only certain specific exceptions. It is not for me to lay down any general guidelines. In approaching the application of the second Hardial Singh principle in this case, therefore, I have accordingly borne in mind what has been said in such other cases. But I have also borne in mind that the facts of the Claimant’s case are not identical to the facts of any other case and what may (or may not) constitute a reasonable period of detention pending deportation needs to be considered carefully by reference to the specific facts of his case.”
[72]What is the relevance of the risk of the detainee absconding and/or re-offending? I accept that as King J said in R (HY) v Secretary of State for the Home Department neither risk can be regarded as a “trump card” in all circumstances. Other factors may outweigh them.[73]However, the importance of these factors was confirmed in R (A) v Secretary of State for the Home Department per Toulson LJ at paragraphs 54-55:
“54. 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 is made. ……………. 55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”
[74]In R (Abdi) v Secretary of State for the Home Department Davis J considered at [36] that where the only bar to deportation was the pursuit of legal proceedings and there was also a risk of absconding then this would commonly be decisive of the legality of detention:
“I can certainly accept that the fact that a period of detention occurs whilst the applicant is pursuing an appeal or comparable judicial process will always be a highly relevant factor; commonly, no doubt, in cases where there is a risk of absconding and/or of reoffending, it may a decisive one where the only operative bar to removal is pursuit of the very appeal process. Thus it is most certainly one of the matters, and a very important one, to be taken into account in deciding on the reasonableness of detention.”
[75]In Lumba, Lord Dyson explicitly approved what Davis J said in Abdi and said at paragraph 121 that the risk of absconding and of reoffending are of paramount importance, because if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. That recent guidance of the Supreme Court encapsulates the approach I must follow.[76]I now turn to the Claimant’s submissions. Overall, it was said that the Secretary of State, in persisting with the Claimant’s detention, infringed Hardial Singh principles (ii) and (iii). I turn to the particular aspects of the Claimant’s case, and the factors relevant to a judgement about the lawfulness of his detention. Risk of absconding/re-offending[77]I think it is appropriate to start with the risk of absconding and reoffending, described by Lord Dyson as of paramount importance. In my view, the risk of the Claimant absconding was plainly substantial on the evidence available to the Secretary of State. The Claimant had six convictions for absconding. Until his release (after the Sufi and Elmi decision, which I suspect influenced the Judge to grant bail) Immigration Judges consistently concluded that he was a significant abscond risk (and, as was submitted for the Secretary of State, sufficiently significant to deny bail notwithstanding length of past detention and the likely length of future detention) and the same conclusion was reached by Hickinbottom J on 17 June 2011.[78]It was pointed out by the Claimant that the Secretary of State’s own assessments in the Detention Reviews characterised the Claimant’s risk of absconding as “medium.” I was provided with little information on the criteria used by the Secretary of State in making such assessments. Clearly, the fact that the Claimant’s risk of absconding was characterised as “medium” as opposed to “high” means in the Secretary of State’s view there might be people who pose an even greater risk of absconding than the Claimant. However, that does not detract from the risk posed by the Claimant himself.[79]The Claimant argues that whatever the risk of absconding beforehand, from June 2010, and the submission of his revocation application, the Secretary of State had evidence that contrary to what she had thought before, the Claimant had family ties in this country, of the sort identified by Blake J in MXL as a compelling counterpoint to an assertion that an individual represented a high risk of absconding. I do not find this submission convincing on the facts of this case. It is evident from MXL that family ties can be a compelling counterpoint to an assertion of a high risk of absconding. However, in this case the fact is that the Claimant did abscond, despite his family ties.[80]It is true that the Secretary of State does not appear to have considered this matter in the context of the risk of absconding. However, the fact is that as was agreed at the hearing before me, the Claimant committed six offences of absconding even though his family was in the country at the time, so I do not see how the risk of absconding was removed once he told the Secretary of State about the family.[81]I turn to the Claimant’s risk of re-offending. The Secretary of State’s Detention Reviews characterised this as high. It is true that the Claimant’s offences became less serious and more intermittent as time went on. However, the fact remains that while free he was committing offences, of such seriousness as to require him to be imprisoned, and including robbery and public order offences.[82]I note that Hickinbottom J when considering the bail application on 17 June 2011 decided that the risk of further offending was high, and that there was a risk of serious crime and consequent risk to the public.[83]I was told by the Claimant that Hickinbottom J did not hear full argument, and I bear in mind that he was dealing with bail rather than the issue of unlawful detention before me, and that he took account of the fact that the substantive hearing would take place in a few months. However, he had before him details of the Claimant’s record, and was in a position to assess him, in my view.[84]I have taken account of the Claimant’s lack of convictions or prosecutions since release, but his period of freedom has been relatively short. It was pointed out by the Claimant that in the Pre Sentence Report (“PSR”) of 2007 the probation officer characterised the risk of re-offending as “medium.” However, the only reference to that assessment in the papers before me was a partial quotation from the PSR in the decision of the Immigration Judge of 30 June 2008. I do not have enough information about that assessment to make an informed judgement about it.[85]Overall, although there might well be persons who pose a more serious risk of re-offending, the risk that the Claimant posed was in my view substantial, and I think the Secretary of State and Hickinbottom J were right to call it “high.”[86]I have borne in mind the fact that it appears the Claimant’s offending history was affected by his intake of alcohol and drugs, and that Mr Jones drew my attention at the hearing to what he suggested were indications that while in detention the Claimant had managed to control these issues. I was shown a certificate from the Voluntary Testing Unit at HMP Manchester, which shows that between 15 October and 16 November 2008 the Claimant provided eight samples which were free from illegal and unauthorised substances. I was told also that in the records made during his detention there was only one reference to intoxication, namely that in the Claimant’s monthly progress report dated 27 May 2011, it is reported that on 11 May 2011 the Claimant “appeared to be intoxicated while on a residential unit.”[87]I accept that this is indeed evidence of some progress while in detention. However, the evidence is limited, and being free from intoxicants and illegal substances when in detention is different from being free from them when free. I think that view receives some support from Hickinbottom J when refusing bail on 17 June 2011, when he said (according to Treasury Solicitor’s note) in relation to alcohol:
“Even if his offences were linked to alcohol, I am unconvinced that the C would not revert to old ways once in the community.”
[88]I have considered the issue of restrictive conditions, having regard in particular to R (Ahmed) v Secretary of State for the Home Department , and also the decision of King J in R (HY) v Secretary of State for the Home Department. Mr Jones for the Claimant suggested such conditions as electronic tagging, monitoring by telephone, regular reporting to an immigration officer and sureties from the family. It seems to me there is a feature of particular salience in this case, namely the Claimant’s persistent record of absconding. I remind myself that he has committed 6 offences of absconding. In those circumstances I have to say that I do not find in this case that restrictive conditions would have provided adequate assurance that the Claimant would surrender to custody. The Claimant says the Secretary of State failed to consider whether the risk of absconding could be displaced by the application of rigorous conditions. It seems to me the Secretary of State did consider that matter, and decided, reasonably, that the risk could not be so displaced. However, in any event, it is for me to decide whether restrictive conditions would have been sufficient. I find they would not.[89]Finally, it was argued for the Claimant that the rule 39 indication provided an incentive not to abscond. I am not convinced that the indication provided a sufficient incentive for the Claimant not to abscond for me to conclude that release with restrictive conditions was the appropriate course. First, although a rule 39 indication had been given, there was no guarantee of success before the ECtHR. Further, the prospects of the Claimant’s own ECtHR claim appear to have been in large part dependent on the outcome of Sufi and Elmi . There was no suggestion that the prosecution of that claim required the participation of the Claimant, and if that claim were successful it seems to me the Claimant might expect to benefit from that result even if he had absconded. Further, I cannot see the Claimant’s appeal against the refusal to revoke the deportation order as being independently a serious incentive for the Claimant not to abscond. The prospects of such an appeal seem to me to have been in no small part affected by the result of the Sufi and Elmi proceedings, whose outcome was not, so far as I am aware, dependent on the Claimant’s participation.[90]I turn to whether there was a realistic prospect of deportation in a reasonable time. The fact that removal was possible only for a short period[91]To begin with, I refer to the Claimant’s reliance on the fact that the removal was actually enforceable for no more than 20-30 days. As was submitted for the Secretary of State, this submission misses the point, because the issue is not whether the Claimant could be removed immediately, but whether, at each isolated point in time, there was no realistic prospect that he could be removed in a reasonable time. Relevance of detention before the rule 39 indication[92]Although the Claimant did not suggest that detention was unlawful before the issue of the rule 39 indication in June 2009, the fact that he was first detained in February 2008 is clearly a relevant part of the context for the submissions he makes. It is relevant because a judgement as to whether on the issue of the rule 39 indication it could be said there was a realistic prospect of deportation within a reasonable time must take into account the time spent in detention already. What would be a reasonable time going forward must depend to a degree on how much time has been spent in custody already. It is also relevant at the later stage, where the Claimant suggests that by the time of his June 2010 application for revocation of the deportation order Hardial Singh principle (ii) had been breached, because a period of detention reasonable in all the circumstances had expired.[93]During the period before the issue of the rule 39 indication there does seem to have been delay by the Secretary of State in making a deportation order and in securing the ETD necessary for deportation to be effected. I find this regrettable, to say the least. However, I do not think that that of itself has a material impact on the resolution of the issues before me. Mr Johnson for the Secretary of State submitted that had the Secretary of State proceeded with more speed, the Claimant would simply have acted earlier to seek, and would have obtained, a rule 39 indication. The net result would have been that the length of his detention would have been the same. Mr Jones did not dispute this in his reply. The rule 39 indication[94]I now turn to the rule 39 indication. It was suggested that this was an event which meant that there was not a realistic prospect of deportation of the Claimant within a reasonable period.[95]Before I consider the rule 39 indication in detail, I note that the mere fact of the submission by the Claimant of applications to the Secretary of State or appeals against her decisions was not suggested on his behalf to prevent there being a realistic prospect of removal in a time that was reasonable, having regard to the risk of absconding and reoffending. Further, there were times during the period of the Claimant’s detention when there were practical obstacles to removal other than legal proceedings. However, those times appear to have been of relatively short duration. In any event, they occurred during 2007 and 2008 and the Claimant did not argue that during those years detention was unlawful. It follows that the Claimant is not suggesting that either applications to or appeals against the Secretary of State, or the times during 2007 and 2008 when removal was not practically possible, were themselves “events” which meant there was no reasonable prospect of deporting the Claimant.[96]I now deal with the rule 39 indication.[97]It is said by the Claimant that in the absence of clarity as to when the ruling would come, the Secretary of State could not properly conclude that there was a realistic prospect of removal within a reasonable time. I do not accept that. There was, at the time the rule 39 indication was issued, uncertainty about when the lead litigation of Sufi and Elmi would be resolved. But it seems to me that such uncertainty is often inherent in litigation, including proceedings before the ECtHR.[98]Some indication of the timescales involved in ECtHR decisions is given in Chahal v UK (1997) 23 EHHR 414. In that case the applicant was first detained on 16th August 1990 ([114]). On 1st September 1994 a rule 39 indication was made by the ECtHR and the applicant continued to be detained until the time of judgement by the ECtHR in October 1996. So he had been detained for 4 years before the rule 39 indication was made, and was then detained for a further 2 years. The Court did not consider the duration of detention was excessive. The Claimant says this case is different from Chahal in that in that case the Claimant was alleged to have been involved in terrorism. The facts are indeed different, but the case is useful as illustrating how long ECtHR cases can and do take, and as showing that the commencement of proceedings and issue of rule 39 indications will not necessarily render detention unlawful.[99]There was no suggestion in this case that the ECtHR proceedings would take a longer time than usual to resolve or that there was more than usual uncertainty about when judgement would be delivered and I bear in mind that the proceedings in Sufi and Elmi had apparently been commenced two years before the issue of the rule 39 indication, in 2007. Overall, I do not accept that the commencement of the ECtHR proceedings and the issue of a rule 39 indication to the Claimant in respect of them had the effect that there was not a realistic prospect of deporting the Claimant within a reasonable time by reason of the time the proceedings were likely to take or the uncertainty as to that time.[100]The Claimant criticised the Secretary of State for not seeking an estimate as to the time that would elapse before the decision. I do not think the fact that the Secretary of State failed to ask for an indication of timescale made the detention unlawful. Any indication would have been an estimate only, and as I have said, uncertainty as to timescale is often inherent in litigation.[101]In support of his submission that the rule 39 indication meant there was no realistic prospect of deportation, the Claimant relied on the merits of the claim in the Sufi andElmi case.[102]Mr Johnson for the Secretary of State argued that the merits of the claim in Sufi and Elmi were irrelevant unless it was inevitable that the claim would fail or that it would succeed. In my view, the issue is whether there was a realistic prospect of the Claimant being deported in a reasonable time, and it is possible that the merits of the claim could affect that, even if success or failure could not be said to be “inevitable”. However, a precise calculation of the merits is likely to be difficult, particularly because one would be making the assessment with hindsight. Further, I am not convinced that a precise calculation is necessary in this case in order to make a judgement about whether there was a realistic prospect of success.[103]I was provided with little guidance from the parties about how likely it was that the Sufi and Elmi claim would succeed. The Claimant accepts that it was not inevitable that it would succeed.[104]The Claimant says it was the ECtHR decision in NA v United Kingdom that enabled the court in Sufi and Elmi to rule as it did. However, the Claimant accepts that the decision in NA v United Kingdom did not make the decision in Sufi and Elmi inevitable, and for a case to “enable” (the word used by the Claimant’s counsel) another decision does not show that the later decision will necessarily go a particular way.[105]The Claimant also relies on the UK country guidance case of AM and AM . It is said that AM and AM was in many respects a precursor of Sufi and Elmi, finding that Mogadishu is no longer safe for the great majority of its citizens. That is true, but Sufi and Elmi goes further, because in that case the ECtHR reached conclusions about the prospects for internal relocation which would make it more difficult for the Secretary of State to show that it would be possible for the Claimant to relocate internally from Mogadishu.[106]Further, the Claimant relies on the issue of the rule 39 indication as suggesting the ECtHR was disposed to take a favourable view of the case. It appears from Mamatkulov and Askarov v Turkey that indications are issued only if there is an imminent risk of irreparable damage. An example of such irreparable damage could of course be the deportation of a detainee. The issue of a rule 39 indication may indicate that the ECtHR considers a claim to have reasonable or good prospects of success (perhaps recognised by the Secretary of State when in November 2010 she did not certify the Claimant’s asylum claim, thus allowing for an appeal), but I have no evidence that it means more than that.[107]Overall, it seems to me that the claim in Sufi and Elmi had reasonable to good prospects of success. In essence, it seems to me that the Claimant accepts that assessment, by his recognition that the result of that case was not inevitable. However, I do not think the existence of reasonable to good prospects of success prevented there being a realistic prospect of the Secretary of State deporting the Claimant within a reasonable time. It follows further that even if as the Claimant says the Secretary of State failed to assess the merits of the ECtHR claim that does not mean the Claimant’s detention was unlawful. The country guidance case of AM and AM[108]Insofar as the Claimant relied on the country guidance case of AM and AM as itself meaning that after its appearance there was no realistic prospect of removal, I reach the same conclusion as I did in the preceding section in relation to Sufi and Elmi. In other words, AM and AM did not prevent there being a realistic prospect of deporting the Claimant within a reasonable time. Indeed, I note that the Secretary of State in her letter of 17 November 2010 refusing the Claimant’s application for revocation of the deportation order, took account of AM and AM and concluded (at page 8 of her letter) that it did not suffice to establish the Claimant’s Article 3 claim, because “It is considered that your client could safely be returned to Mogadishu airport from where he could safely continue onto the Gedo region or other central or southern regions of Somalia where he could resettle.”[109]That seems to me a conclusion open to the Secretary of State following AM and AM. The difference Sufi and Elmi makes is that such a conclusion is now less likely to be reached.[110]Given that I conclude that the country guidance case did not prevent there being a realistic prospect of deporting the Claimant within a reasonable time, it follows that even if the Claimant is right that the Secretary of State did not reconsider the Claimant’s case in the light of that case until the revocation decision of 17 November 2010, that is not sufficient to make the Claimant’s continued detention unlawful. The position by the time of the Claimant’s application for a revocation order[111]I turn next to the Claimant’s submission that even if neither the rule 39 indication nor the country guidance case of AM and AM was sufficient to prevent there being a realistic prospect of deporting the Claimant within a reasonable time, by the time of the Claimant’s application for revocation of the deportation order, there was no realistic prospect of deportation of the Claimant within a reasonable time. The Claimant makes that submission relying not only on the uncertainty as to when the issues affecting the Claimant would be resolved, but also on the time that had passed-well over 2 years- since deportation had begun. In essence, a reasonable time for detention had already passed, and even if it had not, there was not, having regard to the period of detention already served, a sufficiently clear and timely prospect of deportation for there to be a realistic prospect of deportation within a reasonable time.[112]In order to reach a judgement about this aspect of the Claimant’s submissions it is necessary to consider together all the aspects of the case. Those aspects include the prospect of the Claimant absconding/reoffending, as well as the time he had already spent in detention, and the prospects of his deportation.[113]I have borne these matters in mind, as well as the cases cited to me. By the time the Claimant submitted his application for revocation of the deportation order, he had already been in detention for a period which on the authorities requires the most anxious scrutiny, although there is clearly no finite time by which removal can reasonably be expected to be effected. In considering this issue I have borne in mind Lord Dyson’s guidance in Lumba at [121] about the weight to be given to periods of detention. Lord Dyson suggested that more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless case. In the immediately preceding section of this judgement I have dealt with the merits of the Claimant’s case based on Sufi and Elmi, and on AM and AM. In the circumstances it would not be right to characterise any of the legal remedies pursued by the Claimant as hopeless. I have accordingly given all of the time for which the Claimant was in detention full and substantial weight.[114]In relation to this matter my attention was drawn by Mr Jones to R(Abdi) v Secretary of State [2009] EWHC 1324 (Admin). In that case Mr Abdi, a Somalian, had a serious criminal record. The judgement in the earlier proceedings of R(Abdi and Others) v Secretary of State [2008] EWHC 3166 (Admin) sets that record out at [54]:
“Mr Abdi was convicted of affray in 1994 and of taking a vehicle without consent in 1995. He received further convictions for theft and handling in 1996, the year in which he was granted indefinite leave to remain. In 1997 he was convicted of two counts of robbery and other matters. In 1998 he was convicted of two counts of indecent assault, a count of robbery and two counts of burglary and theft. He was sentenced to a total of 41/2 years detention and recommended for deportation. In 2001, shortly after release, he was convicted of a drugs offence and affray and in November 2001 he was convicted of robbery (3 years detention). When released on licence, he committed further offences for which he was sentenced to 2 years’ imprisonment in 2004. In 2005, further serious offences were committed, involving also significant violence towards the police, for which he received a 3 year custodial sentence. It is said that Mr Abdi had long since become addicted to crack cocaine.”
[115]Mr Abdi was detained on his release from prison on November 2006. In May 2009, when he had been detained for 30 months, he came before Davis J for a second time. Davis J considered the application of the Hardial Singh principles. The judge considered the likelihood at that stage of deporting Mr Abdi within a reasonable time. Although there was no rule 39 indication in place for Mr Abdi because he was pursuing domestic remedies, Davis J referred to the Somalia litigation which was before the ECtHR. At [74] he said “ … the whole legal position with regard to forced removal to Somalia, or at all events Mogadishu, awaits in legal terms a definitive decision. The European Court of Human Rights has stated that it is waiting upon the domestic proceedings in HH to be resolved. I was told during the hearing before me that HH in turn has now been directed to wait upon another pending appeal in the Court of Appeal called QD. So these cases are all stacking up, one after the other. Lawyers involved in those cases have been contacted and have written to indicate that whatever the outcome in the Court of Appeal, an appeal to the House of Lords is a very realistic possibility, quite apart from the matter being referred to the European Court of Human Rights.”

The judge continued:

“[75] The course of progress of such decisions, over which Mr Abdi himself has no involvement or control, clearly could potentially impact upon his own case. In the meantime, as I have said, the European Court of Human Rights is granting interim measures under r 39 to restrain removal to Mogadishu in all comparable cases before it. [76] Given all these circumstances, I think that the time has come in this particular case to say that enough is enough here. The relevant legal proceedings are likely to go on for a long time, so far as concerns Mr Abdi, potentially even running into years. It is time now, in my view, that Mr Abdi should be released from detention and I so order….”
[117]Giving judgement on 22 May 2009, the judge declined (at [79]) to hold that the Claimant’s detention had been unlawful “thus far.” The Secretary of State appealed the decision of Davis J and Mr Abdi cross appealed on the basis that Davis J was wrong to decide that his detention had not been unlawful before judgement. The Court of Appeal ([2011] EWCA Civ 242) dismissed the Secretary of State’s appeal, but allowed Mr Abdi’s cross appeal, deciding that his detention had been unlawful from 19 December 2008, when on the facts of that case “[56] …It could not have been said…that Mr Abdi was likely to be removed within a reasonable time. After two years of immigration detention, there was still no end in sight”[118]Mr Jones for the Claimant argued that the decision in Abdi supported his contention that by the time of the Claimant’s application for revocation of the deportation order or at the latest by the time of submission of his appeal against the Secretary of State’s refusal to revoke the deportation order, the detention was unlawful.[119]Clearly, all cases are different, and it is hard to apply conclusions in one case as to the length of detention that was lawful over to another case.[120]So far as period of detention is concerned, by the time of the hearing before Davis J Mr Abdi had been in detention for about 30 months. The Claimant in the present case had by June 2010 been detained for a similar period, although the period for which Mr Abdi had been detained by 19 December 2008 was shorter.[121]As to the risk of absconding or reoffending, Davis J noted at [40] that Mr Abdi had been “entirely properly” assessed as posing a high risk of re-offending and absconding. Further, Mr Abdi’s criminal record was more serious than that of the Claimant in this case. Davis J noted at [77] that he had been told that Mr Abdi had “broken himself of his drug addiction”. However, the extent to which Mr Abdi’s previous offending had been caused by that addiction is not wholly clear.[122]I turn to the question when deportation might take place. Davis J was influenced by the legal proceedings he referred to in [74] and [76]. In the present case, it is true that in addition to the ECtHR proceedings-the Claimant’s claim and the lead cases of Sufi and Elmi -there was the Claimant’s application for revocation of the deportation order. Once in November 2010 the Secretary of State refused that application without certifying it, so as to allow an appeal to take place, and the Claimant did appeal, those proceedings added to the ECtHR proceedings a further uncertainty about when deportation might take place.[123]However, I have to say that I do not think there was in the present case a web of litigation of the complexity and uncertainty-as to outcome and timescale-that there was in Abdi.[124]In relation to the appeal against the Secretary of State’s refusal to revoke the deportation order, there was an appeal hearing in June 2011. I think that was within a reasonable time after the Claimant submitted his application for revocation and after the submission of his appeal, and it was not suggested to me that a June 2011 appeal hearing could not reasonably have been anticipated in advance of the date being fixed.[125]With respect to the ECtHR proceedings, by the time the Claimant applied for revocation of the deportation decision, the ECtHR had given an estimate for when its judgement in Sufi and Elmi would be delivered. In January 2010 it had said it hoped to issue a lead judgement “later in the year.” That hope was not realised, but it was not suggested to me that the Secretary of State, reviewing the lawfulness of the Claimant’s continuing detention in summer or autumn 2010, would or should have known that ECtHR would fail to meet its estimate. On 10 November 2010, the ECtHR gave another estimate, its Section Registrar saying in a letter of that date:
“(a) that the Court has granted the above applications [Sufi and Elmi] priority treatment under Rule 41 of the Rules of Court; (b) that the Court is hoping to deliver a judgement or decision in these two cases early in 2011; and (c) that the adjournment granted in respect of Sufi v the United Kingdom, Elmi v the United Kingdom and Hussain v the United Kingdom has effectively been lifted, although the remaining applications which concern removals to Somalia continue to be adjourned.”
[126]Again, the ECtHR did not give its judgement in early 2011. Finally, on 8 June 2011 the Section Registrar wrote to the United Kingdom Foreign Office stating that “It is hoped that the Court will give judgement in the above cases before the summer break.”[127]Those letters show that the ECtHR had provided estimates as to when it hoped to give its lead judgement, from early 2010 onwards. At the time when the Claimant made his application for revocation of the deportation order, in June 2010, it could have been anticipated that the ECtHR proceedings would be completed within a reasonable time, and in my judgement that remained the case thereafter until the lead ECtHR judgement was actually delivered.[128]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.[129]In his further written submissions, Mr Jones for the Claimant argued that the Court of Appeal decision on the cross appeal in Abdi supported his client’s case. However, I think that decision was, at least partly, based on facts quite different from those in the present case. I have said that the Court of Appeal decided that Mr Abdi’s detention was unlawful from 19 December 2008. That was a week after the tribunal hearing of 12 December 2008 at which the Secretary of State had accepted Mr Abdi could not be expected to remain in Mogadishu if flown there, and had put forward the case that he could be transferred from Mogadishu to Puntland. In response, Mr Abdi had called expert evidence to show that he could not in fact be removed there, and that the Puntland authorities would not accept him. In the light of that evidence the Court of Appeal held that it should by 19 December have been clear to the Secretary of State that there was no realistic prospect of removal of Mr Abdi from the United Kingdom within a reasonable time.[130]The facts of the present case are different. There was no question of the present Claimant’s removal to Puntland. The live issue was whether he could be expected to go elsewhere in Somalia proper. Removal to Puntland raised different issues which could themselves require time-consuming litigation to resolve. Such litigation would have been part of the complex and uncertain “web” of litigation to which I have already referred, and which was of such concern to Davis J and the Court of Appeal.[131]I should add that I have taken account of the fact that certain officers of the Secretary of State expressed the view in November 2010 that if after 28 days a right of appeal arose in respect of the revocation application and the rule 39 application remained outstanding, a release referral should be made as removal was not “imminent”. However, the Hardial Singh test, as explained in Lumba, is not whether removal is imminent, but whether there is a realistic prospect of deportation within a reasonable time. The period between Sufi and Elmi and the Claimant’s release[132]I next consider the Claimant’s submission that even if the principles in Hardial Singh were not breached before the issue of the decision in Sufi and Elmi on 28 June 2011, the Secretary of State breached those principles by not releasing the Claimant before 13 July 2011. In other words, for just over a fortnight, the Claimant was detained unlawfully. In relation to this submission the Secretary of State pointed out that the Sufi and Elmi decision on 28 June was provisional only, and that the decision did not become final until 28 September, in accordance with Article 44(2) ECHR. However, I give that argument little weight in the absence of any submission by the Secretary of State that there was any real prospect that the substance of the decision would be changed materially between 28 June and 28 September.[133]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 17June, 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.[134]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. Section 55, Borders Citizenship and Immigration Act 2009[135]Finally, I deal with the Claimant’s contention that the detention was unlawful by virtue of the Secretary of State’s failure to consider whether detention was compatible with the best interests of the Claimant’s son Y, by reference to section 55 of the Borders Citizenship and Immigration Act 2009 (“the 2009 Act”). I must reject that contention, because until July 2011 (I was not told when in July) there was insufficient evidence before the Secretary of State that Y was his son.[136]The history of this matter is that the Claimant originally claimed that he had no family. In the Secretary of State’s 17 November 2010 letter refusing the Claimant’s application for revocation of the deportation order the Secretary of State noted (at page 10 of her letter) that in the Immigration Judge’s letter dated 30June 2008 refusing the Claimant’s against the decision to make a deportation order, the Immigration

Judge had said (at paragraph 47):

“On his own admission, the Appellant is single and has no children of his own.”
[137]In her own letter of 17 November 2010 the Secretary of State said:
“Furthermore, your client has failed to provide any evidence that he is the biological father of his son, that his son is resident in the United Kingdom or of his level of contact with him. Consequently, as your client failed to mention his son at appeal and has provided no evidence to corroborate his claim to have a son, your son’s claim to have a son living in the United Kingdom is not accepted.”
[138]Mr Jones for the Claimant drew my attention to the fact that although biological evidence was not submitted until July 2011, other evidence was produced by the Claimant. In particular, in November 2010 there was submitted with the Claimant’s appeal against the Secretary of State’s refusal to revoke the deportation order a statement from Y, stating that he was the Claimant’s son.[139]In my judgement, given that the Claimant had told an Immigration Judge in 2008 that he was single and had no children, this was not enough to place a duty on the Secretary of State to consider the claim having regard to section 55 of the 2009 Act. It seems to me that a duty to reconsider the Claimant’s detention in the light of section 55 of the 2009 Act could have arisen, had the detention continued, after the Secretary of State received the biological evidence providing that Y was the Claimant’s son. However, in the circumstances of this case, I do not think it arose before.

OVERALL CONCLUSION

[140]It follows that I reject all the Claimant’s contentions, and therefore this claim must be dismissed.

Cited in 2 later judgments