LK (Somalia)), R (on the application of) v Secretary of State for the Home Department [2012] EWHC 1229 (Admin)

[2012] EWHC 1229 (Admin)Case No CO/2145/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 May 2012
Before
GERALDINE ANDREWS QC(Sitting as a Deputy Judge of the High Court)
Between
THE QUEENClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Mr Graham Denholm (instructed by Brent community Law Centre) for ClaimantMs Julie Anderson (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 30 th March 2012
Judgment

Geraldine Andrews QC :

[1]The Claimant, who was born on 1 February 1986, is a Somali national. On 8 March 2011 he made an application for permission to bring an urgent claim for judicial review of his past and continuing detention under Schedule 3, paragraph 2(2) of the Immigration Act 1971. By that time he had been detained for approximately 33 months, following the expiry on 9 June 2008 of the custodial part of a 12 months’ sentence of imprisonment for sexual assault. Permission to bring the claim for judicial review was granted by Silber J. on 6 May 2011.[2]An expedited bail and interim relief hearing was listed for 27 June 2011, but on 24 June that date was vacated and the matter stayed to fall behind the country guidance case of AM & AM(Somalia) in the Upper Tribunal, pending the decision of the European Court of Human Rights (“ECtHR”) in the test case of Sufi & Elmi v UK. In the event, that decision was handed down by the ECtHR only a few days later, on 28June 2011, [2011] ECHR 1045. The interim relief hearing was re-listed for 29 July 2011, but on that morning the Claimant withdrew his bail application by consent, upon confirmation by the Defendant that he was to be released from detention. He was released on 4 August 2011, after a total period in detention falling just short of 38 months.[3]The Claimant maintains his claim for a declaration that he was unlawfully detained and damages for false imprisonment. The Defendant denies that he is entitled to the relief sought and submits that at all times, the exercise of the power to detain remained lawful. Both parties rely upon the principles set out by Woolf J. in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 at 706D, as extrapolated by Dyson LJ in R(I) v Secretary of State for the Home Department [2003] INLR 196 at 46, and confirmed by the majority of Justices of the Supreme Court (including Lord Dyson himself) in the leading case of R(Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671. I shall refer to those principles in this judgment as “the Hardial Singh principles”[4]There are four Hardial Singh principles: 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, (s)he should not seek to exercise the power of detention; and iv) The Secretary of State should act with reasonable diligence and expedition to effect removal. The challenge to the Claimant’s detention in this case was largely based on principle (iii), although Mr Denholm also relied on principle (ii). Those principles are conceptually distinct.[5]It was accepted by both Counsel that in the event that I determine that there was a period of unlawful detention, I should direct that the assessment of damages be carried out by a Master of the Queen’s Bench Division.

THE BACKGROUND FACTS

[6]The Claimant entered the UK lawfully on 29 March 2007, on a family reunion visa, to join his wife, who is a recognized refugee. He was granted leave to enter until 16 February 2008. However upon entry he did not go to live with his wife, who was then living in a female hostel. Nor did he make any attempt at that stage to claim asylum. Within a short period, he committed a serious sexual assault on a young woman who was walking home late at night. The date of the offence is unknown, but the probation service indicated in one of its reports that it was committed around 4 months after his initial entry into the UK. He was charged with sexual assault under s.3 of the Sexual Offences Act on 8 December 2007, and remained in custody thereafter until he was sentenced at Bristol Crown Court on 12 March 2008. The only information that this Court has about the circumstances of the offence (apart from the Claimant’s own account, which, for reasons that will appear, is unreliable) appear in the judge’s sentencing remarks:
“a young woman, walking home in the dark, is accosted by you sexually. You pulled her trousers down and you frightened her, and I have no doubt at all that the experience will live with her for a very long time. It was inexcusable. You have pleaded guilty and I give you full credit for that…. Very importantly in this case, when the young woman told you to stop you kept your senses and did so. However, it is impossible to over-emphasise what an unpleasant experience you put this young woman through”
. The Claimant was sentenced to 12 months’ imprisonment and placed on the sex offenders’ register for 10 years. The Judge indicated that he would in all likelihood recommend him for deportation. In the event this did not happen, in consequence of an administrative error.[7]On 7 April 2008, before the custodial part of his sentence expired, the Claimant was served with a notice of liability to deportation. In response to this, on 16 April, he claimed asylum. Subsequently he also claimed that his removal would breach Article 3 of the ECHR. On 6 June 2008 he was served with a notice of decision to make a deportation order. The decision itself had been made on 3 June.[8]In the light of the time he had already spent in custody, the custodial period of the Claimant’s sentence expired on 9 June 2008, whereupon he was immediately placed in immigration detention with a view to deportation. Through no fault of his own, he has been unable to enter any treatment programme to address his offending behaviour. He therefore remains an untreated sex offender.[9]On 10 June 2008 the Claimant lodged an appeal against the decision to make a deportation order. Later that month, the probation service formally assessed his risk of re-offending as “medium” with the caveat that they were unable to establish whether there was any offending history prior to his arrival in the UK which might affect that assessment. They also assessed that he posed a high risk of causing sexual harm to females in the community if he did re-offend (see the letter from the Probation Service of 3 June 2011). On 3 September 2008 his claim for asylum was refused, and on 21 October 2008 his appeal against deportation was dismissed, with the Immigration Tribunal making adverse findings made about his credibility.[10]At the time of the hearing of the deportation appeal, the country guidance case on Somalia was HH and others (Mogadishu: armed conflict: risk) Somalia CG [2008] UKAIT 00022. At that time, one of the points often raised by Somalis resisting deportation/claiming asylum was that, as members of a minority clan, they were at risk of persecution by those who were members of a majority clan. The Claimant’s claim for asylum was based on his claim to be of the minority Reer Hamar sub-clan, Reer Manyo. He alleged that he had previously suffered persecution on that account and that he would be killed if he returned. He claimed, among other matters, that he had lived in the Hamar-Weyne district of Mogadishu, that members of his family were attacked and killed during the civil war in Somalia in 1991, and that he had fled the area and gone to Ethiopia with neighbours who had looked after him after the attacks on his family.[11]For reasons set out in considerable detail, the Tribunal rejected his claim to be of the minority clan or ethnic group Reer-Hamar or any minority clan, and held that there were no substantial grounds for believing that he would be subject to acts of persecution on his return to Somalia. Given the adverse findings it made about his credibility, (his evidence was described as “vague” and “evasive” and as containing numerous implausibilities and inconsistencies) the Tribunal was not even satisfied that he was from southern or central Somalia as he claimed to be. However, it found that even if he was originally from a district of Mogadishu as he claimed, there was no reason why he could not relocate to other parts of central or southern Somalia. In any event the Tribunal followed the guidance in HH and held that he would not be at risk of death or of inhumane or degrading treatment as a result of generalised violence in Mogadishu. In the course of considering whether Article 8 ECHR would be engaged, the Tribunal also expressed real doubts as to whether the Claimant and his wife enjoyed a genuine and subsisting relationship as man and wife. It referred to the fact that they had not lived together since his entry into the UK, and to evidence from both parties that suggested that financial problems caused them to argue immediately, and to separate before the Claimant committed the offence.[12]The Claimant’s appeal rights were exhausted on 6 November 2008, when he was refused permission for a High Court review, at which point all statutory barriers to his removal ceased to exist. Shortly before this, on 23 October 2008, the Registry of the ECtHR notified the UK Foreign & Commonwealth Office (“FCO”) that the ECtHR had decided to adjourn all applications concerning expulsions to Somalia until the question of risk of return had been considered fully by the domestic courts.[13]On 2 December 2008 a new country guidance case, AM&AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091 was published. Despite the escalation in the violence on the ground, the AIT was not persuaded that the situation in central and southern Somalia generally had reached the threshold where civilians (as such) or Somali civilian IDPs (as such) who were forcibly repatriated could be said to face a real risk of persecution or serious harm or any other treatment proscribed by Article 3 ECHR. However, this general observation was modified in relation to the situation in Mogadishu itself. The AIT considered that Mogadishu was no longer safe as a place to live for the great majority of its citizens – with the exception of those who had close connections with powerful actors in Mogadishu such as prominent businessmen or senior figures in the insurgency or in powerful criminal gangs. In the case of persons found to come from Mogadishu who were being repatriated from the UK, the AIT found that they would face a real risk of persecution or serious harm on return to live there. The question whether internal relocation would be reasonable would depend on a fair assessment of the relevant facts, on a case by case basis.[14]On 11 February 2009, removal directions were set for 4 March 2009. The Claimant was due to board a flight to Nairobi with two escorts, en route to Mogadishu. However when the time came, the Claimant refused to board the flight voluntarily and put up such a strenuous resistance that he had to be physically restrained by the use of leg irons. Such measures are only taken if someone is at risk of injury. Despite these precautionary measures, the airline refused to take him and he was returned to detention.[15]Meanwhile, the Claimant’s wife had written to the ECtHR seeking a Rule 39 indication preventing his removal. That application was granted on 5 March 2009 and the Defendant was notified on the same date. The effect of this was that the Defendant was precluded from removing the Claimant from the UK at least until such time as the ECtHR had determined the pending test case, Sufi & Elmi v United Kingdom, and then only assuming that the test case was resolved in a manner which determined that Article 3 ECHR would not be engaged if the Claimant were forcibly put on a plane to Mogadishu. From that point onwards in the history of this matter, the Rule 39 interim measure was the only barrier to the Claimant’s deportation. His case was subsequently reviewed at regular intervals, and the decision to detain him was maintained, on the basis that his release carried a high risk of public harm.[16]On 9 March 2009, fingerprints were taken from the Claimant. On 13 March 2009, the Defendant received a fingerprint match from the IFB showing a match between the Claimant’s prints and someone named Farah Haji Yusuf Cabdalla. However nothing is known about this other identity apparently adopted by the Claimant or about the circumstances in which the IFB came to have a set of prints in that name. Thus it is not known whether the other name is his true name, or whether both identities are false, or whether Farah Haji Yusuf Cabdalla was an alias and the name he gave to the UK Border Agency is his true name. The Claimant has given no explanation.[17]On 24 April 2009, the FCO obtained confirmation from the Registry that the ECtHR had been granting interim measures to all Rule 39 applicants who were subject to removal directions to Mogadishu. These orders were being made on a blanket, fact-insensitive basis. Mr Denholm submitted that there was nothing to gainsay that the ECtHR had properly taken the view that the situation on the ground in Mogadishu was such that there was an “imminent risk of irreparable harm” to anyone being sent there, whether or not they were simply passing through the airport there en route to another part of the country, or indeed en route to Somaliland in the North. That may be so, but there is no evidence that sheds any light on the reasoning behind the approach that was being adopted and it would be dangerous to speculate. However, there does seem to me to be considerable force in Ms Anderson’s submission that the Rule 39 procedure was not intended to operate in the manner in which it was being operated. This was subsequently underscored by the Council of Europe’s Declaration after its High Level conference on the Future of the European Court of Human Rights on 26-27 April 2011, cited in the Judgment of the Court of Appeal in R(AR) v Secretary of State for the Home Department [2011] EWCA Civ 857 at [19]:
“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 Appeal 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.”
[18]As is explained in more detail in the judgment in AR, both the country guidance cases, HH, and its successor, AM & AM, were the subject of appeals to the Court of Appeal but they were delayed pending determination of other relevant cases, including by the European Court of Justice. They were eventually considered in the same judgment on 23 April 2010. As the Court of Appeal recognized, the fluidity of the position in Somalia meant that the factual material on which the decisions were based was already out of date by the time the appeals were heard. The appeal in HH was allowed, whilst that in AM &AM was remitted to the Upper Tier Tribunal for consideration of the safety of the return that required transit through Mogadishu to another area of Somalia. The Upper Tribunal has since determined yet another country guidance case in the light of further changes to the circumstances in Mogadishu, AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC) – the remitted appeal in AM formed part of that case, and in the event AM’s appeal succeeded under Article 3. However, the new country guidance has no bearing on the issues in the present case.[19]Whilst the appeals to the Court of Appeal in the two country guidance cases were still pending, the ECtHR changed its mind about waiting for the outcome of the domestic litigation before it proceeded with the determination of the test case. In a number of cases in the Administrative Court decided in the summer of 2009, judges expressed pessimism about the prospects of resolution of the situation before the end of 2010: see e.g. R(Abdi) v SSHD [2009] EWHC 1324 (Admin) at [76]; R(Daq) v SSHD [2009] EWHC 1655 (Admin) at [30] and R(MM)(Somalia) v SSHD [2009] EWHC 2353(Admin) at [34]. In January 2010 the ECtHR gave an indication of when its judgment in Sufi & Elmi would be delivered, stating that it hoped to issue the judgment “later in the year.” However, in R(A) v SSHD [2010] EWHC 808 (Admin), a judgment of 9 February 2010, Sir Michael Harrison expressed the view at [32] that the suggestion by the Defendant (in a detention review carried out in December 2009) that the application by the Somali claimant in that case to the ECtHR could be an outstanding barrier to his removal for “a year or more” was “too conservative” and that the legal impediments to his removal were much more likely to last for a further 18 months, if not 2 years. It is not clear why Sir Michael Harrison took a view that was so different from the indication given by the ECtHR itself only a few weeks before he delivered his judgment, but it may have been that there were other factual matters besides the resolution of the test case that had a bearing on the likely timing of A’s removal.[20]On 18 October 2010, after the test cases had finally been heard by the ECtHR, an Assistant Director at the UKBA suggested that a decision was expected in 4-6 weeks. On 10 November 2010, the ECtHR itself gave a revised estimate, stating that the applications in Sufi & Elmi had been granted priority treatment and that the Court was hoping to deliver a judgment or decision in those two cases “early in 2011”. Unfortunately, that hope was not realised either, for reasons which have never been explained. By 7 February 2011, the best estimate was “mid-2011”. Finally, on 8 June 2011 the Registrar of the ECtHR wrote to the FCO stating that it was hoped that the Court would give judgment in the above cases before the summer break. That hope was realised, and as I have already mentioned, the judgment was delivered on 28 June 2011.[21]Meanwhile, on 15 April 2010, the Defendant specifically considered whether the Claimant should be released from detention, in the light of the fact that he had already been detained for 22 months and his removal could not in any way be said to be “imminent” because of his Rule 39 application (though of course the correct question is not whether removal is “imminent,” but whether it can be effected within a reasonable time). It was noted that no timescale for resolution of the Rule 39 application was available. The Defendant decided to refuse to release him, citing the risk of harm, re-offending and absconding, and stating that release would make his removal very difficult.[22]On 16 April 2010 the Defendant received the results of a Sprakab language analysis carried out on the Claimant on 31 March. It was found with certainty that he speaks a variety of Somali found in the Mogadishu area (c.f. the finding by the Tribunal in para 22 of its decision that, unlike his wife, who spoke the Hamari dialect, he spoke “standard Somali”). However, it was also found with certainty that he did not speak the variety of the language spoken by the ethnic group Reer-Hamar to which he had claimed to belong. He had no knowledge of the sub-clan of which he said he was a member. Nor did he have any correct knowledge of basic features of the Hamar-Weyne city district in Mogadishu that one might have expected someone who had lived in that district to have (this was consistent with the findings of the Tribunal). He was unable to mention any hospitals, hotels, markets, schools, cinemas or roads in Mogadishu, and his knowledge of that city appeared to be confined to mentioning the names of some of its districts. Thus although the evidence now tends to point towards his coming from the South of the country, the Claimant’s true history and where he really comes from remains a mystery that only he can solve by telling the whole truth, which to this day he has failed to do.[23]On 4 June 2010 the Claimant applied to the Tribunal for bail. This was opposed. The Defendant considered that if released he would pose an unacceptable risk to the public. The Defendant contended that the proposed sureties (the Claimant’s wife and sister-in-law) had no incentive to ensure that he would comply with the conditions of his release and maintain contact with the UKBA. Concern was also expressed about the arrangements being made by the Claimant’s sister-in-law to move out of her current address so that the Claimant and his wife could live there – it was not known how long the sister-in-law’s arrangement to live in a friend’s property “temporarily” would last. On 9 June 2010 the Tribunal refused bail on the basis that there was no reason to believe that the Claimant would abide by any of the conditions of his bail, and that there was a real risk that he would either abscond or otherwise fail to comply with any conditions that apply to him. Whilst that decision is not a ruling on the legality of the Claimant’s detention, and this Court is of course well placed to form its own view of the risk of absconding or further offending, I do not accept Mr Denholm’s submission that the assessment of those risks by the Tribunal is unlikely to be of any assistance to the Court. The Tribunal is extremely experienced in such matters, and it is extremely helpful to be able to use its decision as a cross-check of (though not in any way as a substitute for) my own assessment of the risks.[24]On 17 January 2011, the Claimant’s case was referred to an Assistant Director of the UKBA for consideration at Director level. The referral report noted the Claimant’s conviction and his immigration history, his vigorous resistance to removal and the absence of strong ties in the UK. It was noted that he had been assessed initially as posing a medium risk of serious harm but that this assessment had been revised to medium/high in the light of subsequent reports including his continued statements that the victim had initiated contact and that he had pleaded guilty only upon legal advice. I will return to this matter later. On 7 March 2011 the Assistant Director refused release on the basis that there was a significant risk of absconding given that the Claimant had reached the point of removal having exhausted his appeal rights, and had resisted removal. It was also noted that he posed a danger to the public with a medium risk of re-offending and causing serious harm, and that there were no barriers to removal other than his Rule 39 application.[25]The following day, the claim for judicial review was lodged with an application for urgent interim relief and bail. By that time, as I have said, the Claimant had been in immigration detention for 33 months. Nevertheless, Silber J. declined to consider bail until there was an up to date report assessing the risk of reoffending. As already noted in paragraph 2 above, by the time that the bail application was due to be heard, the decision in Sufi & Elmi had been handed down and the Secretary of State had agreed to release the Claimant on bail. Thus, in the event, there was no substantive decision on that application.[26]Since his release from detention, the Claimant has commendably kept out of trouble and the police have reported him as being “very compliant” with police restrictions. His relationship with his wife now appears to be an established commitment, and she accompanied him to court for the hearing of his claim for judicial review. She also provided witness statements in support of his unsuccessful claim for bail before the Tribunal, and his claim for interim relief in the context of this application for judicial review. I note (with some concern) that she appears to have accepted his wholly implausible account of his offending behaviour without question.

THE CLAIM FOR UNLAWFUL DETENTION

[27]The Claimant seeks to challenge the entirety of his detention, but for ease of reference Mr Denholm addressed the position as at different “milestones” within the overall period. I bear in mind that where the legality of detention is challenged, it is for the detaining authority to prove that the detention was lawful. The Court’s task is not to determine whether the Secretary of State’s assessment from time to time as to whether to continue to detain the Claimant was Wednesbury reasonable, but itself to assess the lawfulness of the detention in the light of the Hardial Singh principles. Whilst there is no hard and fast rule about any particular period being so long as to be unreasonable per se, in general terms the authorities show that the longer the period of detention, the more difficult it becomes to establish that it is justified by reference to other relevant factors. The Court must apply anxious scrutiny when determining whether the detention for that period of time was lawful. That is the way in which I have approached the assessment.[28]In Lumba, Lord Dyson said at [103] that a convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. If, though 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 the time that person has already spent in detention, then continued detention is unlawful. He went on to state that the factors to be taken into account in determining what is a reasonable period, include the length of the period of detention, the nature of the obstacles which stand in the path of the Secretary of State preventing 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. Lord Dyson went on to say at [121] that 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. Nevertheless he stressed at [144] “there must come a time when however grave the risk of absconding and however grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation.”[29]Despite the fact that in his skeleton argument Mr Denholm appeared to criticise the Defendant for taking no steps to set aside the Rule 39 indication, this was not in the pleaded grounds, and in the course of argument he very fairly accepted that the situation was not properly analysed as one of lack of administrative diligence. There was no complaint about the conditions in which the Claimant was kept or about the impact on his family, quite understandably in the light of the tenuous nature of his relationship with his wife prior to his commission of the offence for which he was imprisoned. Although reference was made in the skeleton argument (and chronology) to observations made by a doctor in August 2008 about the impact of detention on the Claimant, including his having suicidal ideation, again this was not a pleaded point. Ms Anderson, having objected to this matter being introduced, made the forceful submission in her skeleton argument that the doctor’s report is not backed by any proper clinical analysis, and that if there was a serious problem one might have expected that it would have been raised on an application for bail or in the contemporaneous application for judicial review of the Tribunal’s decision on the appeal against the decision to deport him. Again, this was not a point pressed by Mr Denholm in the course of oral argument, though he did not formally abandon it. Both Counsel rightly concentrated on the key factors of the risk of absconding and the risk of commission of further offences.[30]In R(MH) v SSHD [2010] EWCA (Civ) 1112 the Court of Appeal held that there was no 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. 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. Richards LJ pointed out that in R(A) (Somalia) v SSHD [2007] EWCA Civ 804 there was some prospect of enforced removal although there was no way of predicting with confidence when this might be, and this was held to be a sufficient prospect to justify detention for a period of some four years when regard was paid to other relevant factors, including in particular the high risk of absconding and serious re-offending if A were released. In MH itself, the Court of Appeal upheld the decision of Sales J. that a period of 38 months’ detention (coincidentally the same period as in the present case) was lawful despite the fact that it was (rightly) described as “a very long period indeed” and meriting “the most anxious scrutiny”. However, Richards LJ indicated at [68] that as the period of detention gets longer, the greater the degree of certainty and proximity of removal that is expected to be required in order to justify its continuation.[31]As for the time spent in detention pursuing challenges, “much 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”. Although the refusal of a detained person to leave the country voluntarily if it is open to him to do so may be a relevant factor in some circumstances, it is clear from Lord Dyson’s observations in Lumba that if the detained person has issued proceedings challenging his deportation, his refusal to accept an offer of voluntary return is irrelevant. In the present case, I regard the fact that the Claimant did not take up the offer to become involved in a facilitated repatriation scheme as insignificant, since he challenged his deportation before the ECtHR almost immediately after he had exhausted his domestic remedies. Although his initial appeal and the application for High Court review of the Tribunal’s decision had little or no merit, he was pursuing avenues that he was entitled to pursue, and that inevitably took up some time – and the Defendant did not set removal directions immediately after his appeal rights were exhausted.[32]The Rule 39 application, which was the sole impediment to his deportation for the major period of his detention, always had some prospect of success, though it was by no means inevitable that the test case in Sufi & Elmi would be determined in a manner that favoured the Claimant. For that reason I have given full weight to the whole of the period that the Claimant spent in detention after 9 March 2009.[33]It is of vital importance when considering what is a reasonable period, and whether there is a realistic prospect that detention will take place within that reasonable period, to be careful not to allow that assessment to be tainted by hindsight. One can only approach the exercise on the basis of what was known to the Secretary of State, or anticipated, at the relevant time. I was shown various authorities by Mr Denholm in which Somali detainees who had committed repeated or serious criminal offences and/or who posed a very high risk of absconding were either held to have been unlawfully detained, or released from detention after shorter periods than the 38 months of detention in the present case. However, as the authorities make clear, each case has to be determined on its own particular facts. I agree with the approach adopted by John Howell QC in R(Sino) v SSHD [2011] EWHC 2249. He said at [61]:
“.. the type of period after which it is increasingly difficult to justify any continuing detention will depend not merely on the risks 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.”
Whilst other decisions on other facts may provide a useful cross-check, they cannot be regarded as laying down a general principle that a Somali national who had obtained a Rule 39 indication on or before May 2009 was unlikely to be removed within a reasonable time, and Mr Denholm did not suggest that they did.

Risk of re-offending and risk of absconding

[34]I will start by considering the risk of re-offending and the risk of absconding, since those factors have the most significant bearing upon the question of how long the Claimant in the present case could reasonably be detained pending deportation. There is of course a link between the two types of risk, since there is a greater risk of absconding to avoid detection if re-offending occurs, and a greater risk of re-offending if absconding occurs given the inability to enforce restraints once the offender has absconded.[35]There are a number of disturbing features about the assault: it took place in the dark, late at night, in a public place. The victim was a stranger, and the Claimant pulled her trousers down. Although there is no information about her age, the judge referred to the victim as a young woman and to the severe trauma that the assault had caused her. This was the Claimant’s first, or at least his first known offence (since nothing is known of his offending history or lack of it prior to his entry into the UK), and this plus the fact that he was only 22 would have been two of the mitigating factors that contributed to a reduction in the length of his sentence, as well as the full credit given for his plea of guilty, which usually equates to a reduction of one third of the sentence that would have been passed on conviction after trial.[36]However those two factors also give real cause for concern, in that the nature of the offence was very serious for a first known offence and the Claimant was still relatively young when he committed it. Its features are not easily explicable on the basis of immaturity, in the same way that an offence committed in the context of an established social relationship might be, for example where an immature offender misreads the signals given by his girlfriend. With sex offenders, particularly those who remain untreated, repeat offences tend to escalate in gravity rather than vice versa, and this particular offence could well have become a rape had the victim not somehow managed to persuade the Claimant to stop. In general terms, the younger that an offender commits a crime of this nature, the greater the risk will be that he will go on to commit offences of the same or greater seriousness. Conversely, the older an offender is at the time when he commits a serious sexual offence the less likely he is to repeat it.[37]A further matter for concern is that the sentencing judge may have sentenced on a mistaken basis. A plea of guilty normally carries with it an implication that the offender has accepted the responsibility for committing the offence. However in June 2008, when a formal risk assessment was carried out by the Probation Service (now the National Offender Management Service or “NOMS”), the Claimant was assessed as posing a high risk of causing sexual harm to females in the community. He was also assessed as posing a medium risk of committing further offences causing serious harm. It was intended that he should reside in Probation Approved Premises on his release from the custodial part of his sentence, so as to provide a level of monitoring of his movements and behaviour. The probation officer who carried out the assessment said this, in his letter of 26 June 2008:
“[the Claimant] continues to state that the victim initiated sexual contact, which is contrary to the victim statements and is at odds with his guilty plea. [The Claimant] states that he pleaded guilty on legal advice.”
[38]That version of events (which it will be seen the Claimant continues to maintain) suggests a complete lack of insight into his offending behaviour. As I have already mentioned, on 6 May 2011, when the Claimant’s application for interim relief and bail came before Silber J., the judge understandably adjourned the application to enable an updated risk assessment to be obtained. It transpired that the NOMS had no power to make a further official report because the Claimant’s licence period and sentence had by then expired, but they gave an informal indication, in a letter dated 3 June 2011, that there was no reason to downgrade the risk as previously assessed by them, since the Claimant would not have undertaken any offence-focused work which might have reduced the risk. He has also shown no contrition for putting his victim through what must have been a highly traumatic experience and was so described by the sentencing judge.[39]Significantly, a report of a Chartered Clinical Psychologist, Dr Tim Green, commissioned by the Claimant’s own legal team, and dated 24 July 2011, provides no reassurance. The Claimant’s account of the offence to Dr Green, as recorded in his report, appears to be consistent with what he said to the probation officer in 2008. On that account the offence took place in a park, after he had had an argument with his wife and was returning after dark to the place where he was then living. The Claimant told Dr Green that the victim approached him and asked him for a light for her cigarette. He said that he believed she had been drinking but was not drunk; that she initiated the sexual contact with him by touching and kissing him, and that she had begun to remove her clothes and he had helped, but stopped when she asked him to. He also said he had lost his wallet at the scene and that this had assisted the police in locating him; and that when he was told by those with whom he was staying that the police were looking for him, he was frightened and handed himself in at the police station. He said that he pleaded guilty as he felt he would get a lighter sentence, and that this was also the advice he had received from his legal representative.[40]Whilst the impact on his sentence may well be one reason why he pleaded guilty, it is incumbent on a legal adviser to impress on the client that he should not plead guilty unless he is guilty, and to advise the clients on the merits of the defence as well as on sentence. It is clear from the judge’s sentencing remarks and from what the probation officer said, that the victim’s account of what happened was very different in nature. The Claimant was and is clearly unprepared to accept that he was responsible, even though the circumstances described by the sentencing judge make it perfectly plain that the victim cannot have initiated sexual contact. Indeed, the Claimant’s story is inherently implausible. A competent legal adviser would have recognised this and given advice accordingly. Although Dr Green appears to regard the fact that the Claimant handed himself in to the police as a potentially positive factor, I attach more weight to the fact that when he did so, he knew that the police had identified him by finding his wallet at the scene of the crime, and had discovered where he was living.[41]It is also telling that despite being pressed by Dr Green the Claimant was unable to explain his motivations for his behaviour other than describing himself as “very stressed”. The Claimant’s own account suggests that whilst he may not have been planning all along to assault a stranger, there must nevertheless have been some degree of premeditation about what he did. It would appear that in the aftermath of the argument, he was taking out his frustration and anger with his wife on a lone female who was unfortunate enough to be in the wrong place at the wrong time. If a domestic argument with a spouse with whom he had had little contact and was not then living could trigger that kind of response, and he was both unwilling to accept responsibility and transferring blame to the victim, it was entirely fair to assess the Claimant as posing a significant risk of re-offending and a high risk of causing serious harm if he did so, particularly if he had received no treatment to address his offending behaviour.[42]Dr Green says that ultimately he is in no position to suggest that the Claimant either does or does not represent a risk of future offending. It appears that what he means by this is that there is information pointing both ways and it appears to be too unclear for him to express a view, or else that he has insufficient data to form a reliable conclusion. However, Dr Green does not expressly gainsay the earlier risk assessments. He says that it is “interesting” that the Claimant appears to be capable of engaging in behaviour that is either deceptive or disinhibited, in his decision to engage in sexual activity with the victim, commenting “It may be that he has either been selective in his account or to have very poor insight into his behaviour” [sic]. These comments are consistent with the conclusions drawn by the probation officer following his interview with the Claimant in June 2008 and (in terms of the possible selective and unreliable nature of the Claimant’s account) consistent with the adverse findings made by the Immigration Tribunal about his credibility. Dr Green also very candidly states that he does not believe the Claimant’s self-report is trustworthy. He has understandable difficulty in trying to reconcile the Claimant’s alleged attitude of commitment to his wife with his decision to engage in sexual behaviour with the victim. He also points to the absence of any collateral information about the Claimant’s life before coming to the UK.[43]Dr Green found that the Claimant is of well below average intellectual capacity, that he has difficulties in managing his affective state and that he is heavily reliant on others for support, inter alia in managing his moods and in dealing with complex situations and challenges in life. All these factors suggest he is more likely, rather than less likely, to re-offend. Whilst Dr Green appears to draw some comfort from the fact that the Claimant did not get into any trouble during his period in prison, suggesting that this indicates that he does not have a tendency to behave in impulsive or volatile ways, I am not convinced that the offence was “impulsive” (it was not an attack on his wife in the course of, or as an immediate consequence of, their argument). If an argument with his wife is indeed what triggered the offence, that is very different from the sort of matters that might cause a prisoner to become embroiled in a fight with another prisoner. The Defendant would have expected that on the Claimant’s release from detention at any time, the Claimant and his wife would either continue their pre-existing living arrangements or else find somewhere to embark upon living together for the first time. Either way, there could well be tensions in the relationship from time to time of a similar character to those that preceded the offence. In such a scenario, without the support of his wife, the risk that the Claimant would be unable to cope and behave in an inappropriate way must be regarded as serious.[44]Read in the round, although he has not felt able to express an expert opinion on risk or lack of risk, I consider that the findings in Dr Green’s report support the risk assessment made in the summer of 2008. Those findings accord also with the common sense view expressed by NOMS in 2011 that, as the Claimant had received no treatment in the interim that might have helped to reduce the risk of re-offending, he posed exactly the same level of risk until his release from custody as he did when he was first detained. Thus in my judgment, at all material times throughout his detention there was a genuine and serious risk that if released, he would commit another sexual assault, and if he did re-offend in that way, there was a high prospect that serious harm would be caused to one or more young females. Although I have taken into account the lack of offending since his release, the fact that the anticipated risk has not materialised does not mean that it did not exist.[45]Turning to the risk of absconding, there was a high risk that the Claimant would abscond. Although this is not a case of someone with a known history of absconding, it is important to bear in mind that he was remanded in custody from the moment he was charged, and the offence was committed very shortly after he arrived in the UK. Having considered the evidence carefully (and independently) I concur with the views expressed by the Tribunal when bail was refused. The Tribunal was right to express scepticism about the ability of his wife and sister-in-law to ensure that he adhered to the conditions of his bail, particularly in the light of the fact that he had not been living with his wife since his arrival in the UK, their relationship appeared far from the normal relationship of husband and wife, and it was already under stress immediately before he was remanded in custody for the offence. These were matters that the Immigration Tribunal had pointed out previously, when considering Article 8 ECHR in the context of his unsuccessful appeal.[46]Indeed when he was arrested and at the time of the appeal he had given his wife’s sister’s name as his next of kin and not that of his wife. The Tribunal found this very odd, even if there had been some mix-up with the interpreter at the police station, and so do I. He had also given a different address from his wife’s address as his bail address. There is a more plausible explanation for this (she was living in a female hostel) but that explanation does not answer the point that, as they were not living together, she was not well placed to influence his behaviour. The probation service was obviously worried about the risk of his absconding (as well as the risk of his committing further offences) in the summer of 2008, because they planned that he should stay in Probation Approved Premises for his period on licence so that they could monitor his movements and keep an eye on his behaviour. The fact that he was obliged to sign on to the sexual offenders’ register does not provide an answer to the risk of his absconding. Even though, by the time of the unsuccessful bail application, the proposed bail address had changed to that of his sister-in-law, who had offered to move out of her home so that the Claimant and his wife could live there, and his wife’s name was given as his next of kin, there were still sufficient grounds for concern, articulated in the objections raised by the Secretary of State, to justify the refusal of bail on the grounds that there was a high risk he would abscond.[47]Whether the Claimant’s motivation for the strenuous physical resistance he offered to being put on the plane to Somalia was fear of being subjected to violence when he arrived there, or fear of being left to fend for himself, it is clear from what happened on that occasion that when faced with the prospect of imminent removal to Somalia he would do anything in his power to avoid it. This conclusion is reinforced by the timing of his claim for asylum, his false statements to the Immigration Tribunal about his background, and the fact that, as the Sprakab report indicates, he is still not being truthful about his history or background. The most that has been gleaned about him is that he is Somali, and that he speaks a dialect that is spoken in an area around Mogadishu. However, there may be various explanations for that, apart from his having lived there, particularly since he has no basic knowledge of the district where he claims to have lived. The fingerprint match suggests that he may have adopted another identity at some point, or that the name by which he is now known is not his real name. Mr Denholm submitted that the risk of absconding could be obviated by detaining the Claimant nearer the time that it was planned to remove him. However that submission assumes that he would not already have absconded prior to the receipt of fresh removal directions. In a case such as this, where the Claimant had exhausted all domestic rights and was actually at the point of removal when the Rule 39 indication was given, it is unrealistic to suggest that the risk of absconding could be adequately addressed by releasing him on bail and then detaining him again prior to setting fresh removal directions.[48]Whilst there was both a serious (expressed as “medium”) risk of further offending (and the nature of that offending, if it took place, was likely to cause very serious harm to a sector of the public) and a high risk of absconding, neither of these factors taken either independently or cumulatively can be regarded as a “trump card”. However, in R(A) v SSHD Toulson LJ said at [54]-[55] that the risk of absconding was bound to be a very important factor and likely often to be decisive in determining the reasonableness of a person’s detention, and that the risk of offending is an additional relevant factor, the strength of which would depend on the magnitude of the risk, (i.e. both the likelihood of it occurring and the potential gravity of the consequences). In the present case, the nature of these risks, and the particular circumstances relating to the Claimant and his offending which I have adumbrated above, make it easier for the Defendant to justify a longer period of detention than might be regarded as reasonable in other cases. Nevertheless, it is incumbent on this Court to apply anxious scrutiny to each period of detention of which complaint is made, and to consider whether in all the circumstances the Defendant was justified in maintaining the Claimant’s detention for as long as she did. Period 1 - June 2008 –9 September 2008.[49]Before turning to consider the various times within the 38 months at which Mr Denholm submitted the Claimant’s detention ceased to be lawful on the application of the Hardial Singh principles, I will deal briefly with his discrete submission that the Claimant’s detention from the outset until 9 September 2008 was unlawful because he was detained pursuant to an unlawful and unpublished “blanket detention” policy. That policy, applying to foreign nationals who committed criminal offences, was described in the case of Lumba at [16]-[18]. It admitted of exceptions only on compassionate grounds. By the time the case of Lumba reached the Supreme Court it had become common ground that it was applied to two of the appellants in that case. However, they were detained much earlier than the Claimant. According to the judgment in Lumba, the existence of the practice came to light on 22 May 2008 (i.e. before this Claimant was detained). The only significance of 9 September 2008 is that this was the date on which the Secretary of State published new guidance on the factors that would make continued detention unlawful – but there continued to be a presumption in favour of detention in cases of sexual offenders. Mr Denholm accepted that on the authority of OM (Nigeria) [2011] EWCA Civ 909, applying Lumba, if the Claimant would have been lawfully detained during the same period by reference to the published policy (as in my judgment he plainly could and would have been), he would only be entitled to nominal damages.[50]It appears clear from the ICD.3079 that those responsible for considering the Claimant’s position when the initial decision to detain him was taken did exercise their discretion properly, by reference to the correct criteria and to the facts and circumstances of his particular case. The published policy concerning the detention of Foreign National sex offenders was then set in favour of detention, and that did not change in September 2008. There is nothing in the evidence that I have seen to indicate that the basis given in the ICD.3079 was not the true basis for the decision. It does not appear that in this particular case the discretion of the caseworker was fettered by the application of the unlawful “blanket” policy. Therefore the Claimant’s detention for this period was not unlawful. Period 2 – 2 December 2008 onwards.[51]Mr Denholm submitted that when the decision in the new country guidance case of AM & AM was published on 2 December 2008, it was incumbent on the Defendant to reconsider the Claimant’s position before removal directions were set, and that the decision in AM & AM pointed strongly to a conclusion that he could not be removed without a breach of his Article 3 rights. Even if Mr Denholm was right, that would not mean that the Claimant’s detention ceased to be lawful on Hardial Singh principles immediately on 2 December 2008, because the kind of fact-based reassessment of the Claimant’s position that he suggests should have taken place would have taken some time. Principle (ii) would not be engaged, since the Claimant had been detained for slightly less than six months, much of which had been spent in pursuing a completely unmeritorious domestic challenge to the decision to deport him, based on false information as to his background and history, so the thrust of this argument depends on principle (iii). I reject that argument, as the Court of Appeal did in AR. As at 2 December 2008 the Claimant had exhausted his domestic rights of appeal, there was no other obstacle to his removal, and no reason for the Secretary of State to believe that he could not be removed within a reasonable time. The Claimant’s representatives had made no fresh claim for asylum or further representations to the Defendant in the light of the decision in AM& AM and there was then no application pending to the ECtHR in his case. In the event, the only thing that prevented his deportation after removal directions were set was his physical resistance to it.[52]In any event, the decision in AM &AM made no material difference to the Claimant’s position. The Tribunal had not accepted the Claimant’s claim to come from where he said he did in Somalia, and made adverse findings as to his credibility (most of which were subsequently vindicated by the findings of the Sprakab analysis). At the time of the appeal against the decision to deport him, there was no independent evidence to assist the Tribunal as to where in Somalia he came from, and the Claimant himself was not being truthful. The Tribunal appeared in its reasoning to favour the Respondent’s view that he probably came from Somaliland or Puntland, because he gave evidence of being taunted in Ethiopia as being “from the North”, but there was no evidence that he could not be transferred to either location from Mogadishu. Moreover, the Tribunal decided that even if he did come from the South, there was a reasonable prospect of internal relocation. Thus, if the decision in AM &AM had been the country guidance case at the time of the appeal (or the time of the subsequent unsuccessful application for judicial review) it would not have affected any of those conclusions, or the view taken by the Tribunal that Article 3 ECHR was not engaged in the Claimant’s case. AM & AM did not amount to a blanket prohibition on removal to Mogadishu, and the Claimant had not identified himself as falling into any defined risk category. In those circumstances, as the Court of Appeal held in AR (Somalia) [2011] EWCA Civ 857, the Defendant was entitled to proceed with his removal without initiating a further fact-sensitive assessment. The decision in AM & AM did not prevent there being a realistic prospect of deporting the Claimant within a reasonable time either on 2 December 2008 or at each of the successive monthly reviews of his detention.

Period 3 – 5 March 2009 onwards

[53]The fact that a Rule 39 indication was granted by the ECtHR in the Claimant’s case on 5 March 2009 did not, in and of itself, lead to the conclusion that his deportation could not be effected within a reasonable time. The key question is whether, at any given monthly review during the Claimant’s continued detention after the Rule 39 indication was granted, on the information then available to the Secretary of State, there had ceased to be a realistic prospect of that happening (taking into account the length of the period already spent in detention). On 5 March 2009, the Claimant had only been in detention for just under 9 months. In the light of the serious risks of absconding and re-offending, and bearing in mind the time wasted on the pursuit of the specious appeal and original claim for judicial review, a reasonable period of detention had not yet elapsed and would not elapse for some considerable time thereafter. It is true that the ECtHR had not given any indication of a time frame for its ruling in the test case, and there was uncertainty as to when it would take place: but such uncertainty is inherent in any litigation. The proceedings in Sufi & Elmi had commenced two years earlier, in 2007. Even though, in the summer of 2009, when the Claimant had been in detention for a year, a number of judges of this Court anticipated that the test case was unlikely to be determined before the end of 2010, on the information available to the Defendant there was still a realistic prospect of the Claimant being deported within a reasonable time.

Period 4 – April 2010 onwards

[54]It was submitted by Mr Denholm that the results of the Sprakab analysis confirmed that the Claimant was from Mogadishu, therefore also confirming that he was entitled to protection under the terms of AM &AM. In fact the Sprakab analysis did no more than to confirm that the Claimant spoke a form of Somali that is spoken in an area of Mogadishu. It also provided independent corroboration of the Tribunal’s findings that most of his account to them about his background was untruthful – and it cast considerable doubt on his claim to have come from the Hamar-Weyne district of Mogadishu. As a result of the Sprakab analysis, the Defendant’s officials were none the wiser as to where he really came from within Somalia (though it pointed towards his being from the South), and the Claimant did not then enlighten them. The Tribunal had held that even if he came from the South of Somalia, internal relocation was possible, and AM &AM made it clear that this was a matter for determination on the facts of each case. Therefore, the Sprakab analysis made no material difference to the position that the Claimant was in after the judgment in AM&AM was handed down.[55]By April 2010, the Claimant had been in detention for 22 months. A reasonable period had not elapsed. As the Court of Appeal makes clear in MH, the Defendant was not required to estimate precisely when the Claimant would be removed. The only question at that stage was whether, taking into account the period already spent in custody, it was realistic to expect that removal to be effected within a reasonable time. The ECtHR had stated in January 2010 that it was hoping to issue judgment in Sufi & Elmi by the end of the year. It was not known when the ECtHR would give its judgment, but even if matters were not resolved until early 2011 the Claimant would by then have been in detention for around 30 months. In the light of the risks of absconding and re-offending, and the nature of the harm that such re-offending was likely to cause, his detention for that length of time would be (and was) patently justified. Although the scepticism expressed by Sir Michael Harrison in the summer of 2010 turned out to be justified, the test case was heard in October 2010 and ECtHR itself was indicating in November 2010 that the case had been afforded priority and its judgment would be handed down in early 2011. It is important to bear in mind that the delay after that was entirely unforeseen, and the reasons for it have never been explained. The Defendant cannot have been expected to anticipate that further delay at any point up to the early part of 2011 when the judgment did not materialise as expected.[56]There is a further complication in this case in that in September 2010 the Claimant’s legal advisors had sent further representations on his behalf to the Defendant in support of his claim for international protection. I am satisfied on the evidence that they were posted by recorded delivery, but what happened to them thereafter is a mystery. The Defendant never considered them, but whether they arrived and were mislaid, or never arrived, is unclear. Strangely, the Claimant’s representatives never sent any chasing letters inquiring when a decision would be made on those additional representations. Although a detainee cannot be deported until all outstanding representations on his behalf have been considered and ruled upon, the failure by the Defendant to consider those additional representations is unlikely to have made a material difference to the timescale in the present case. The real impediment to his deportation was the Rule 39 interim measure, and that would have remained the position whether the Secretary of State made a determination on further representations in the interim or not. Any such determination, applying the guidance in AM&AM is likely to have gone against the Claimant. In my judgment, this development, though regrettable, adds nothing on the question of whether it was realistic at any juncture to expect that he could be deported within a reasonable time. A determination of the outstanding representations is unlikely to have added much time, if any, to the overall period he spent in detention.

Period 5 – 7 March 2011 onwards

[57]By early 2011, however, it became clear that the judgment in Sufi & Elmi was not going to be handed down for some months. The claim for judicial review was issued on 6 March 2011. Coincidentally, the Defendant reviewed his case the following day, and made the decision to continue to detain him. Mr Denholm did not identify this as one of his specific “milestones,” but because of the 33 months that the Claimant had already spent in detention, the position from 7 March 2011 onwards merits very careful scrutiny. In my judgment, despite the length of time he had already spent in detention, a reasonable time had still not elapsed for the purposes of principle (ii) of Hardial Singh. However, this is the point in time from which the argument on principle (iii) became much more finely balanced. Given the length of the detention thus far, it is incumbent on the Defendant to show a greater degree of certainty and a greater degree of proximity of removal in order to establish that principle (iii) was not infringed. On the information then available, the best estimate of when the ECtHR would hand down judgment was “mid-2011” – meaning somewhere in the period from June-August. This was an estimate that, in the event, turned out to be accurate. So the question is whether, in March 2011, given the anticipation that judgment in Sufi & Elmi would be handed down sometime in the summer, and allowing for a reasonable period to digest it and consider how it impacted on the Claimant’s personal position, there was a realistic prospect that the Claimant would be deported before a reasonable time expired. Looking at matters from the perspective of the Secretary of State, on the assumption that there was a reasonable prospect that Sufi & Elmi would be decided in the same way as AM&AM, the Claimant was likely to be spending a minimum of 36 months in detention, but probably not much longer than that. The majority of the time already spent in detention was due to the pursuit of a Rule 39 application that could not be castigated as unmeritorious, even though his earlier domestic legal challenges were.[58]It is true that in the case of Abdi [2011] EWCA Civ 22, the Court of Appeal held that a prolific offender whose convictions included convictions for robbery and other violent offences, and who had been addicted to crack cocaine, had been unlawfully detained as from December 2008, after about 25 months in detention, inter alia because in the light of uncertainty at that time about when the Somalia test case would be determined, it could not have been said that he was likely to be removed within a reasonable time. In that case, Mr Abdi did not even have the specific protection of a Rule 39 indication. However, as was pointed out in Muqtaar v SSHD [2011] EWHC 2707 (Admin) the judge in that case, Davis J., was told that Mr Abdi had broken himself of his drug addiction, which may have had a significant bearing on the risk of his re-offending. The finding that there was no realistic prospect of removal of Mr Abdi within a reasonable time was also based, in part, on expert evidence that demonstrated that he could not be transferred from Mogadishu to Puntland because the Puntland authorities would not accept him. Even if the test case was resolved in favour of the Secretary of State it was unlikely that this specific problem would be speedily resolved. By contrast, the issue in the present case, as it was in Muqtaar, was whether the Claimant could be expected to go elsewhere in Somalia proper, and the Tribunal had held that internal relocation was possible. Moreover, by the time that the Claimant had spent 25 months in detention (July 2010) matters had moved on considerably from the uncertain position in Abdi, and it was expected to have a decision in the test case by early 2011 at the latest.[59]In MH, by contrast with Abdi, detention for 38 out of 40 months was held by Sales J. to have been lawful and that decision was upheld by the Court of Appeal. In Muqtaar, the Claimant was detained from 7 February 2008 until 12 July 2011, (41 months) and the Judge, Timothy Corner QC, decided that neither principle (ii) nor principle (iii) of Hardial Singh had been infringed. Mr Muqtaar was assessed as posing a high risk of re-offending and absconding. He was a more prolific offender than the Claimant, and had six convictions for absconding; but his offences became less serious and more intermittent as time went on. The most serious offence that he committed was his first. In 2001 he was convicted on two counts of robbery, attracting a prison sentence of 2 years. Thereafter, most of his offences were theft or driving offences, (with isolated public order offences). Alcohol and drugs appear to have played a part in his offending history, though he appears to have made some effort to address his dependency upon them whilst in prison.[60]I agree with Mr Corner QC when he said at [119] that 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. Mr Denholm submitted that whatever view one takes of the Claimant’s offending in this case it is less serious than that of Mr Muqtaar. I disagree. Robbery is an offence involving violence or the threat of violence, but it can cover a wide range of situations, and there is nothing in the judgment to indicate the circumstances in which the offences were committed. It also appears that he was convicted after a trial, which would affect the length of his sentence. The offence committed by the Claimant, an offence of violence and of a sexual nature, committed against a lone female stranger late at night in a public park, was undoubtedly a serious one, and the Claimant’s attitude towards it still gives rise to considerable cause for concern. I am not surprised that on 6 May 2011, Silber J. adjourned the bail application to obtain an up to date risk assessment.[61]In this case, for reasons I have already stated, there was a high risk that the Claimant would abscond, coupled with a significant risk that he would also re-offend in a manner that was likely to cause serious harm to female victims. His refusal to engage with his offending behaviour, his denial of responsibility, and his lack of treatment throughout his detention, coupled with the fact that the nature of any re-offending could cause serious harm to a vulnerable class of the public, all justified a lengthy period of detention. Even though by March 2011 he had already been in detention for 33 months, the prospect at that time that he would be spending up to 6 months more in detention before he could be deported still meant that there was a realistic prospect that he would be deported within a reasonable time.[62]However, as at 28 June 2011, when judgment was given in Sufi &Elmi, matters had moved on, and it was incumbent on the Defendant to take stock of the position. The Claimant had then been in detention for just over 3 years, which was getting closer to the limits of a reasonable time under Hardial Singh principle (ii). I agree with the judge in Muqtaar that the Defendant was entitled to take some time to digest the implications of the judgment of the ECtHR and to consider the impact that it had on the Claimant’s personal position, but that would not have taken very long, and it should not have taken as long as it did. I also accept that it was necessary for the Defendant to ensure that appropriate stringent conditions were put in place for his release, given the nature of his offending. However, the Defendant had known for some time where the proposed bail address was; there was ample opportunity in the course of these proceedings for the Defendant to check on its acceptability, and I would have expected some steps to have been taken to prepare for the Claimant’s release and the terms of any necessary restrictions in anticipation of the forthcoming bail hearing, in case the Judge granted him bail. All this should have been done in advance of the original date scheduled for the bail hearing which was 27June 2011.[63]On consideration of the judgment of the ECtHR and its application to the facts of the Claimant’s case, even though the evidence upon which it was based was now out of date, it must have been apparent to the Defendant that the Claimant could not be deported within a reasonable time as he would have had to travel via Mogadishu. Even though there was another country guidance case then about to be considered by the Upper Tribunal, which would take into account changes on the ground in Somalia, the hearing did not take place until mid-July and judgment was not expected until after the summer vacation. The Rule 39 indication was still in place and although the ECtHR has since given an indication that it plans to lift those Rule 39 interim measures in Somali cases that were given under the “fact-insensitive” approach, it appears to be still in place even now, almost a year later. The decision to release him was taken in principle on 21 July 2011, just over a week before his bail application was due to be considered, but before Dr Green’s report was made available. It then took until 4 August to implement that decision.[64]In my judgment, the Claimant should have been released from detention earlier than he was, and his continued detention after a reasonable period to digest the implications of Sufi & Elmi on his case had expired, infringed Hardial Singh principle (iii). The period up to and including 21 July 2011 was sufficient to enable the Defendant to consider the Claimant’s personal position, reach the inevitable conclusion that he could no longer be deported within a reasonable time, and put in place the monitoring and other stringent conditions for his release. I therefore consider that he should have been released on Friday 22 July 2011, which means that he was unlawfully detained for just under 2 weeks.[65]I shall therefore grant a declaration in those terms and direct that the question of what loss and damage (if any) has been suffered by the Claimant be determined by a Master of the Queen’s Bench Division.

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