Abdi v Secretary of State for the Home Department [2014] EWHC 2641 (Admin)

[2014] EWHC 2641 (Admin)

Case No CO/12901/2012

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 30/07/2014

Before

MR JUSTICE WARBY

Between

Mustafa Abdi (formerly known as MA (Somalia))Claimant

Secretary of State for the Home DepartmentDefendant

Richard Drabble QC and Graham Denholm (instructed by CLC Solicitors) for Claimant

Robin Tam QC (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing date: 18 June 2014

Judgment

Mr Justice Warby :

Introduction

[1]The Claimant in this judicial review claim is a national of Somalia who arrived in this country unlawfully at some unknown time, probably in or about May 1995. In 1998 he was convicted of serious offences and sentenced to 8 years imprisonment. For the majority of the time since then he has been in custody either serving his sentence or in detention on the orders of the Home Secretary. The Home Secretary has made detention orders against him under the Immigration Act 1971 on the footing that he should be detained pending, and with a view to, his deportation. The Claimant challenges the Home Secretary’s decision to detain him and to maintain his detention.

[2]In earlier proceedings (“the first judicial review claim”) the Claimant challenged the lawfulness of his detention between 3 September 2003, the date on which he was released from his prison sentence, and 13 April 2007, when he was granted bail. The Court of Appeal, reversing in part a decision of Calvert-Smith J, held that this period of detention was lawful throughout: R (A) (Somalia) v Secretary of State for the Home Department

[2007] EWCA Civ 804

. A petition by the Claimant for permission to appeal against that decision was dismissed on 17 October 2007.

[3]The Claimant was at liberty between 13 April 2007, the date he was released on bail, and 2 April 2008, when he was re-detained on the grounds of abusive behaviour and breach of his bail conditions. There followed a second period of immigration detention which lasted until 24 January 2013, when the Claimant was again granted bail. In the present claim the Claimant challenges the lawfulness of his detention by the Defendant during that second period. A third period of detention has followed, on and after 27 January 2014, but the lawfulness of that detention is not before me in these proceedings.

Issues

[4]In support of his claim the Claimant advanced two broad grounds of challenge, as follows: i) First, the Claimant alleged that his detention was in breach of the principles first identified by Woolf J in R v Governor of Durham Prison, ex parte Hardial Singh

[1984] 1 WLR 704

, and recently clarified by the Supreme Court in Lumba v Secretary of State for the Home Department

[2012] 1 AC 245

, (“the Hardial Singh principles”). At the heart of those principles, to which I will return, is the requirement that the power to detain with a view to deportation be used only for so long as is reasonable in all the circumstances. ii) Secondly, the Claimant has alleged that the decision to re-detain him on 2 April 2008, and subsequent decisions to maintain his detention up to 24 January 2013, were marred by material public law errors, and that the Claimant would not as a matter of fact and could not as a matter of law have been detained had those errors not been made.

[5]In support of the second of these grounds the Claimant advanced three contentions. First he argued that his detention on and between 3 April 2008 and 9 September 2008 was authorised by reference to the unlawful unpublished blanket detention policy which the Supreme Court in Lumba held to have existed, and to have been applied by the Secretary of State, during that period. Secondly, the Claimant maintained that his detention was unlawful due to a failure to carry out detention reviews in accordance with the Defendant’s policy. Thirdly, the Claimant asserted that the Defendant had acted unlawfully in authorising his detention on the basis of risk of absconding and offending whilst failing to carry out any or any adequate enquiries into the risk he posed.

[6]By the time of the hearing before me the issues in relation to the second ground had narrowed very considerably. The Defendant conceded that the Claimant’s detention between April and September 2008 was unlawful due to the application of the blanket policy, and that this could in principle result in an award of damages. The Defendant maintained, however, that at most nominal damages are recoverable, as the Claimant could and would have been detained if the decision had been taken by reference to the published policy. The Defendant maintained that the detention reviews were carried out in accordance with her policy, and produced documentary records of all but one of the reviews. The Defendant further submitted that even if this were not the case, again only nominal damages would be recoverable, for the same reasons as I have mentioned.

[7]As for the alleged failure to obtain up-to-date assessments of the risk posed by the Claimant, Counsel for the Claimant fairly conceded that this could not be material to the outcome of this claim in the light of a report commissioned by the Claimant’s advisors from a Consultant Forensic Psychiatrist, which had very properly been disclosed by them. That report, dated 23 October 2013, concluded that the Claimant “continues to pose a high risk of sexual offending and at least a moderate risk of future interpersonal violence”, that he was likely to reoffend within the next one to two years and that “given the nature of the offences that he is likely to commit, he poses a high risk of serious harm to the public as a result.” As Counsel accepted, this suggested that any updated assessment obtained by the Defendant would have been to similar effect.

[8]In these circumstances the main issue between the parties became whether the Claimant’s detention during the second period of immigration detention was unlawful by reference to the Hardial Singh principles.

Factual background

[9]A detailed account of the facts up to 2004 can be found in the judgment of Toulson LJ in the first judicial review claim, from which I take the following:

“2. A was born in Mogadishu in Somalia on 8 December 1975. He left the area at the age of 16 and lived in Kenya for 2 years. In 1995 he entered the UK on a false Kenyan passport. His claimed date of entry was 7 May 1995. 3. On 24 May 1995 A claimed asylum. His application was rejected but he was granted exceptional leave to remain for an initial period of 12 months, which was later extended to 14 February 2000. 4. In February 1998 A raped and indecently assaulted a 13 year old girl. He was then aged 22. On 23 July 1998 he was convicted at Southwark Crown Court of rape and indecency with a child, for which he was sentenced to a total of 8 years’ imprisonment. 5. The victim also came from the London Somalian community. The abuse happened at A’s flat. According to the victim’s statement, he told her that his friend downstairs had a gun and threatened to use it on her if she did not give him sex. He raped her anally. There was medical evidence of injuries which supported her account. He also forced her to perform oral sex on him by threatening her with a knife. It is some indication of the effect of A’s crime on his victim that in March 2002 she expressed fears to a police officer for her future safety because she had heard rumours in the Somalian community that A had been released. She said that if that were true, she felt that she would have to leave the country. In fact, the rumour was incorrect. 6. On 17 December 1998 the Home Office served on A a notice to show cause why he should not be deported under s 3(5)(a). Under that provision a person who has no right of abode within the UK is liable to deportation if the Home Secretary deems his deportation to be conducive to the public good. 7. Home Office officials erroneously thought that A was due to be released from prison on 28 May 2002. In fact, that was the earliest date on which he could become eligible for consideration by the parole board for release on parole. From subsequent parole assessment reports it is plain that he had no realistic prospect of early release on parole. 8. On 21 May 2002 A was given notice that the Home Secretary had decided to make a deportation order against him, and on 27 May 2002 the Home Secretary ordered his detention under schedule 3, paragraph 2(2) pending the making of a deportation order. 9. On 2 July 2002 A appealed against the decision to make a deportation order and also made a fresh asylum claim. 10. In early 2003 A was interviewed, separately, by a probation officer at Maidstone prison and by a field probation officer for the purpose of parole assessment reports. Neither probation officer considered him to be suitable for parole. The prison probation officer noted that during his time in prison he had received 14 adjudications, 6 of which were for fighting. According to the Home Office Risk Matrix 2000, he was assessed as of high risk of sexual offending on release. Because he was continuing to deny guilt, he had not been on a sex offender treatment programme. The field probation officer recorded that throughout interview he continued to display values and attitudes which were entrenched and arrogant towards women generally, suggesting that he viewed his behaviour as “normalised” and “that all women would want to have sex with him”

. He said that he did not know the victim’s age and it never occurred to him to ask. The probation officer concluded that the attitudes A presented to him suggested that he would continue to pose a risk to women. He also boasted about being involved in fights with enemies he had made within the Somalian community. The probation officer expressed the opinion that if he were released on parole with few concrete plans, he would present a high a risk of sexual offending, and at least a medium risk of general offending, with a concordant high risk of potential physical harm to the public. 11. On 26 June 2003 A’s outstanding asylum claim was refused. He appealed against the decision. 12. On 3 September 2003 A’s sentence reached the point at which he would have been automatically entitled to release. 13. On 25 November 2003 A’s appeals against the decision to make a deportation order and the refusal of his asylum and associated claims under Articles 2, 3 and 8 of the Human Rights Convention were dismissed by an Immigration Adjudicator. A’s time for any further appeal expired on 4 December 2003. 14. On 5 April 2004 the Home Secretary made a deportation order under s 5(1). The order included a paragraph authorising A’s detention under schedule 3, paragraph 2(3) until his removal. It was served on A on 19 April 2004. 15. Attempts were made to obtain from A the information necessary to obtain the travel documentation for arranging his removal, but those efforts were frustrated by A’s refusal to cooperate. In November 2004 he refused a formal request to sign a document to the effect that he was prepared to return to Somalia voluntarily.”

[10]On 3 December 2004 there was a departmental review of the Claimant’s case following his refusal to co-operate in his removal. His detention was continued. On 28 June 2006 he issued the first judicial review proceedings. On 7 December 2006 Calvert-Smith J found that the Claimant’s detention up to and including 3 December 2004 and after 20 July 2006 was lawful. He found however that the Claimant’s detention between those periods was unlawful. One reason for that conclusion was that throughout that middle period forced removal was not possible in practice, and the Claimant was unwilling to return voluntarily. A second reason why Calvert Smith J held the detention to be unlawful was that, as he held, misleading statements were made by Home Office officials.

[11]On 30 July 2007 the Court of Appeal reversed that decision of the Judge, holding the entire period of detention to have been lawful. The conclusions of Toulson LJ, giving the leading judgment, were these:

“58. The period of A’s detention after he would otherwise have been entitled to release at the end of his custodial sentence was lengthy. However, throughout that period it would have been possible for him to be transported to Somalia, if he had not refused to go, and there was moreover some prospect of the Home Secretary being able to carry out his enforced removal, although there was no way of predicting with confidence when this might be. In the meantime, on the judge’s findings, the risk of A absconding if he were at liberty was as high as it could be. There was also a high risk of him re-offending, and, given the nature of his previous offending, this would have been a very worrying prospect. For the reasons already given, it was in my view wrong in principle to offset against those factors A’s reasons for not wishing to return to Somalia. These were irrelevant to the lawfulness of his detention in circumstances where his return would not have involved a breach of the Refugee Convention or the European Convention. I accept also the argument on behalf of the Home Secretary that the misleading statements made by Home Office officials, to which I have referred, cannot be said to have made A’s detention unlawful. 59. I would hold that the period of A’s detention, despite its length, was in the circumstances reasonably necessary for the purposes of the deportation order and so lawful.”

[12]In the meantime, steps had been taken to deport the Claimant, which met with legal challenges. On 22 November 2006, directions were set for the Claimant’s removal to Mogadishu on 29 November 2006. Those directions were challenged by way of judicial review, and deferred in line with the Defendant’s policy. On 13 December 2006 removal directions were again set, this time for 10 January 2007, but in the light of a further challenge in the judicial review proceedings those too were deferred. The judicial review claim was in due course withdrawn upon the Defendant accepting that the Claimant’s submissions gave rise to a “fresh claim”, thus attracting an in-country right of appeal.

[13]On 2 February 2007, a second decision by the Defendant refusing to revoke the deportation order was served. The Claimant exercised his rights of appeal against it. On 13 April 2007 his appeal came before the Asylum and Immigration Tribunal (AIT), together with an application for bail. The Claimant was granted bail and released. The total duration of the first period of immigration detention, which began on 3 September 2003, was therefore 3 years 7 months.

A year on bail

[14]The Claimant’s bail conditions required him to report to Islington Police Station twice weekly, and to be electronically monitored by tag. He remained on bail for just under a year before he was re-detained, under the following circumstances.

[15]The bail reporting condition was varied on 16 October 2007 to allow the Claimant to report to Communications House, but on 13 December 2007 this was varied back to Islington Police Station following complaints that the Claimant had acted in a way that was volatile, aggressive and intimidating. This included an incident of rudeness to staff on 23 November 2007. The requirement was varied back to Communications House again on 17 January 2008 but then reverted to Islington Police Station on 14 February 2008 when the Judge was provided with a note of the November 2007 incident and a further incident of rudeness to Communications House staff, with angry shouting and swearing, on 15 January 2008.

[16]At the same bail hearing the Judge considered a letter from the police setting out suspicions that the Claimant had been breaching his curfew. Subsequently, according to police, the Claimant failed to report on 8 out of the 14 occasions he was required to do so between 14 February and 24 March 2008. It was this repeated non-compliance with his reporting condition, which was considered to be deliberate, that led to his re-detention on 2 April 2008.

The second period of immigration detention

[17]The Claimant was in due course granted bail again on 24 January 2013. The second period of immigration detention was therefore 4 years and 9 months.

Deportation proceedings

[18]Throughout the period of the Claimant’s bail, and throughout this second period of immigration detention, the original deportation order remained in force and substantive proceedings were on foot for deporting the Claimant, but the Claimant was pursuing legal challenges. These took a complex course.

[19]On 27 April 2007 the AIT allowed the Claimant’s appeal against the Defendant’s refusal to revoke the deportation order. It did so by reference to the Claimant’s rights under

Article 3 ECHR

. However, the Defendant applied for, and on 10 May 2007 the AIT ordered, a reconsideration of that decision. Upon reconsideration, a Senior Immigration Judge ruled on 26 February 2008 that the Tribunal’s decision of 27 April 2007 contained an error of law, and ordered that the appeal be re-heard. This, then, was the position in the deportation proceedings at the time of the Claimant’s re-detention.

[20]The Claimant’s appeal was re-heard by the AIT on 18 December 2008 and dismissed on 1 July 2009. As explained in paragraph 1 of the Determination the long delay in promulgating it was due to a fire that ravaged Field House on 18 March 2009 and caused major disruption in the process of preparing judgment. The AIT found that the Claimant had failed to discharge the onus of proving that upon a return to Mogadishu he would be at risk of suffering ill-treatment of such severity that his article 3 rights would breached. He had so failed, they held, because he had demonstrably lied about his links in Mogadishu. The Claimant appealed to the Court of Appeal. On 23 April 2010 the Court of Appeal gave judgment allowing the appeal (under the name HH (Somalia) v SSHD

[2010] EWCA Civ 426

; [2011] INLR 25). The Court held that the Tribunal’s conclusion was vitiated by a wrong approach to the Claimant’s lies and substituted a conclusion that it would be unlawful to give effect to the removal directions as the Claimant would be at risk of ill-treatment attaining article 3 severity if returned to Mogadishu. The Court of Appeal refused permission to appeal.

[21]The Defendant sought permission to appeal to the Supreme Court. The permission application was dealt with, and permission was granted, on 13 July 2010. The appeal hearing took place on 11 October 2010 and on 24 November 2010 the Supreme Court allowed the appeal and restored the AIT’s second determination. It did so on the basis that the Court of Appeal had impermissibly interfered with the assessment of the facts by the AIT, a specialist tribunal. The Supreme Court’s decision, which came some 3 years and 9 months after the Defendant’s initial decision upon the Claimant’s fresh representations, exhausted the Claimant’s domestic appeal rights against that decision. In those circumstances, on 2 December 2010 the Defendant again set directions for the Claimant’s removal to Mogadishu, on 8 December 2010.

[22]Those directions did not take effect, however, due to intervention by the European Court of Human Rights. On 10 June 2008 the Claimant had made an application to the European Court of Human Rights in relation to the lawfulness of the first period of detention, complaining of violation of his rights under

article 5 of the Convention

in respect of his first period of detention and under article 3 in relation to his deportation. The Claimant applied to the European Court for a “Rule 39 indication”, that is to say an indication that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled to Somalia pending the Court’s decision. On 7 December 2010 the Court granted such an indication. The removal directions set for the following day were accordingly cancelled.

[23]On 28 June 2011 the European Court of Human Rights gave judgment in Sufi & Elmi v United Kingdom

[2012] 54 EHRR 9

, in which it gave detailed guidance on the compatibility of the removal of Somali nationals to Mogadishu with the obligations under articles 2 and 3 of the Convention. Five months later, on 28 November 2011, the AIT promulgated a new Somalia Country Guidance Case: AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG

[2011] UKUT 445 (IAC)

. On 1 December 2011 the Grand Chamber refused a request by the United Kingdom for reconsideration of its decision in Sufi & Elmi. On 6 February 2012 the Claimant submitted further representations to the Defendant asserting that these developments overtook the conclusions of the AIT, which had been upheld by the Supreme Court, and provided new support for a contention that his removal to Somalia would breach his Article 3 rights. The Defendant’s response to those representations was still pending at the time the Claimant was released from detention on 24 January 2013. The response came some 2 weeks later, on 8 February 2013. Appeal proceedings against that decision are pending.

[24]The ECtHR’s Rule 39 indication in respect of the Claimant dated 7 December 2010 had remained in place throughout. On 10 February 2012 the United Kingdom government had proposed to the European Court that pending article 3 claims relating to removal to Somalia be struck out, upon the UK’s undertaking to consider whether the reasoning in Sufi & Elmi and AMM had any impact on the individual’s case. The government set out a proposed procedure and invited the Court to accept this and to lift Rule 39 indications in such cases. The proposal was accepted by the Court in a decision dated 10 April 2012. In the Claimant’s case, however, the Rule 39 indication remained in place for another year, until the European Court delivered its decision on the Claimant’s Article 5 claims and lifted the interim measures under Rule 39: see Abdi v United Kingdom Application 27770/08, Judgment of 9 April 2013 at [4], [81-87].

Reviews and assessments during the second period of detention

[25]The first detention review of the Claimant’s case was on 2 May 2008. It concluded that he posed a threat to the public if released due to his serious offence and that he had demonstrated, whilst on bail, that he could not be relied on to comply with any immigration restrictions. Continued detention was considered proportionate whilst the Claimant’s case was progressed. Those lines of reasoning infused subsequent monthly reviews.

[26]By the time of the review on 26 February 2009 the Defendant’s policy had changed so that there was a presumption in favour of release. The reasoning in favour of continued detention remained substantially the same, however. The evidence was considered to suggest a high risk of harm to the public and a high risk that the Claimant would abscond and re-offend. At this time the reconsideration of the Claimant’s case by the AIT was pending. The Deputy Director authorising continued detention considered that if the appeal was dismissed and assuming no other change of circumstances “removal should proceed fairly quickly”.

[27]The reasoning in favour of continued detention remained in substance the same in later monthly reviews, though it is fair to say that the approach was a structured one and that the records do not reveal a knee-jerk repetition of previous assessments. On 10 November 2009 the assessment was of a high risk of harm to the public and “a very high likelihood of him absconding and re-offending” (emphasis added). These considerations were held to outweigh the presumption to release. In subsequent reviews up to August 2011 the assessed risk of harm remained high whilst the risk of absconding was deemed high, rather than very high. Again, these risks were considered to outweigh the presumption to release. The perspective of the Home Office is illustrated by a review of 16 March 2011 which recorded that whilst the Rule 39 indication remained a barrier to removal, removal was nevertheless “a prospect, within a reasonable time frame”.

[28]In the review of 16 August 2011 the risk of absconding was re-assessed as “medium”, which is where it remained for the remainder of the Claimant’s second period of detention. The reasoning behind this re-assessment was based on the then state of his case, in its legal context. The review recorded that the Claimant had previously been bailed and did not abscond. “However, given the current state of his case, there is a medium risk that he would abscond especially if the UK Border Agency challenges the decision of the ECHR in the case of Elmi and Sufi v UK.”

[29]Following the refusal of that challenge by the European Court and receipt of the Claimant’s further submissions of 6 February 2012, however, officials began to question whether continued detention could be justified. The review of 27 February 2012 noted that the Claimant’s further representations would need to be considered, and might attract further in-country rights of appeal and observed that “in the light of this it seems likely that removal will be further delayed”. Whilst continued detention was authorised a recommendation was made that a release referral be drafted for consideration.

[30]Concerns that detention might become unlawful mounted over the following months. On 27 March 2012 “grave concerns” were expressed by the authorising official that “we may be drifting towards the boundary of unlawful detention”. A further 14 days’ detention was authorised. At the end of that period a further 14 days was authorised to allow time for a decision on how to move forward with the Claimant’s case. Consideration of whether to “concede the case” continued during May and June 2012. A draft submission to that end was prepared on 1 May. On 9 May the HEO Senior Caseworker forwarded the draft to an official in the Criminal Casework Directorate, recording the view that “this is a complex case, which has no realistic prospect of removal”. The essence of the reasoning given in the draft submission was contained in the following paragraphs: “41. Notwithstanding the fact that Mr Abdi has been untruthful about crucial issues upon which his case relies and has not provided credible evidence that deportation would breach his Article 3 rights; it has always been the intention that he should be returned to Mogadishu. The recent file search also included looking for Mr Abdi’s links to anyone in Somalia and it revealed no such information. There is no evidence, therefore, that he would be able to avail himself of the protection afforded by powerful actors or professional or middle class persons, should he be deported to Mogadishu. 42. Unless the country situation in Somalia radically changes, there remains no realistic prospect of removing Mr Abdi there; because of the provisions of AMM as well as the effects of Al-Shabaab, famine and warring clans. It is proposed that Mr Abdi be granted periods of 6 months’ Discretionary Leave at a time: thereby allowing for regular reviews of the case, until such time as there is a significant enough change in Somalia as would allow removal there to resume.

[31]It was not until 18 July 2012 that the issue was further addressed, in a lengthy file minute prepared by a member of the Criminal Casework Directorate. The recommendation was to refuse to revoke the deportation order and to pursue removal of the Claimant to Somalia. This was proposed on the basis of removal to Hargeisa, Somaliland, rather than to Mogadishu. The minute relied on, among other things, findings in the immigration proceedings that the Claimant’s parents are from Hargeisa and a conclusion in the AMM case that return by air to Hargeisa would not in general involve risks to human rights. It was recognised, however, that the Claimant would have an in-country right of appeal against refusal to revoke the deportation order, enabling him to claim that the route would be unsafe and expose him to risks of

Article 3 ECHR

ill-treatment.

[32]On 14 August 2012, however, a recommendation was made by email from the SEO Operational Manager to the Strategic Director that he should consider the Claimant’s release. The view was expressed that “we are unlikely to be able to deport him in the near future as we now have to consider his most recent application to revoke the deportation order which is going to attract an in-country right of appeal”. The proposal was to release the Claimant subject to electronic monitoring and conditions requiring him to report to a police station weekly. The Director declined to release. His view was that the Claimant had committed a very serious crime and posed a life long risk. Whilst removal was not imminent the case was moving slowly towards a conclusion. The Claimant had “most recently submitted more than 200 pages of additional grounds for us to work through” and time was needed to do this.

[33]There had been no material change in the Defendant’s position when the letter of claim in this matter was sent some 6 weeks later on 25 September 2012. The Claimant’s detention continued to be authorised until 24 January 2013, on grounds similar to those that had previously been relied on. On that date the Claimant was released on strict bail conditions set by the Home Office. These required him to report to a named police station at a specified hour three times a week, to reside at a bail hostel, and to observe curfew periods amounting in total to 12 hours a day. Subsequent events are, as explained above, immaterial for the purposes of this claim which is concerned only with this second period of immigration detention and, as Mr Tam QC submitted on behalf of the Defendant, should not involve any element of hindsight.

[34]It is however relevant to note that between 19 August 2008 and 9 September 2012 the Claimant was the subject of 12 adverse prison adjudications. Seven of these were for disobedience to a lawful order, two for destroying part of the prison and one for fighting.

Relevant legal principles

[35]Paragraphs 2(2) and 2(3) of Schedule 3 to the Immigration Act 1971 provide as follows:

“(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”

[36]The principles to be applied in assessing whether the exercise of these powers is lawful in any individual case have been examined and explained in a number of authorities, beginning with the decision of Woolf J in Hardial Singh (above), and including R (A)(Somalia) (the Court of Appeal decision in relation to this Claimant), R(I) v Secretary of State for the Home Department [2003] INLR 196, and Lumba v Secretary of State for the Home Department (above).

[37]It is well-established that it is for the judicial review court to decide for itself whether the individual’s detention has exceeded the limits set by these principles; the Court is not limited to a reviewing jurisdiction: see R (A) v Secretary of State for the Home Department

[2007] EWCA Civ 804

, [60-62] (Toulson LJ), [71-75] (Keene LJ). It was also common ground that the burden lies on the Defendant to show that detention is lawful.

[38]In Lumba at [22] Lord Dyson (with the agreement of the majority) identified the four distinct principles that emerge from the Hardial Singh line of authority: “(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal

[39]In the present case the Claimant does not question that the Home Secretary’s intention has been to deport, or that the power has been used for that purpose. Nor, save in a limited respect identified below, is there any allegation that the Defendant has failed to act with reasonable diligence. The focus is on principles (ii) and (iii). In respect of each of those principles the key consideration is what period of detention is reasonable in all the circumstances for the purpose of deporting a person. As Dyson LJ pointed out in I’s case at [47], however, the two principles are conceptually distinct. Detention may be unlawful pursuant to the third principle even if a reasonable period of detention has not yet elapsed, if it has become clear that the Secretary of State will not be able to remove the detained person within that period.

[40]In relation to each relevant stage of the individual’s detention the Court must ask itself whether there was at that stage a “sufficient prospect” of the Secretary of State being able to achieve removal to justify the detention, having regard to all the circumstances: R (A)(Somalia) v SSHD [45] (Toulson LJ).

[41]What is a sufficient prospect of removal to justify detention in any particular case will depend on the weight of the other circumstances that fall to be taken into consideration: R (MH) v SSHD

[2010] EWCA Civ 1112

[64] (Richards LJ). It is not necessary to identify a finite time or period within which removal can reasonably be expected. As Richards LJ went on to make clear in MH at [65]:- “…if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all.”

[42]These points are illustrated by the Court of Appeal’s decision in relation to the present Claimant’s first period of detention, which I have cited above and in particular paragraph [58] of Toulson LJ’s judgment, which makes clear that at that stage of this Claimant’s history it could not be predicted with confidence when he might be removed.

[43]In Lumba at [46] Lord Dyson gave guidance on the circumstances that may be relevant in an individual case, citing what he had earlier said in R (I) v SSHD:

“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 State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by 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.”

[44]The following points about these factors emerge from the authorities. Taking the factors in the order they are mentioned by Lord Dyson in the passage above: i) When considering the length of the detention, a period of detention before the one in question before the Court may fall to be taken into account: MC (Algeria) v SSHD

[2010] EWCA Civ 347

[34], [37]. ii) An obstacle to deportation in the shape of a legal challenge, and delay consequent on that, is not to be left out of account when considering whether a period of detention is unreasonable in duration. The weight to be given to the delay will vary according to whether the challenge is hopeless or has some merit, but even a meritorious challenge can to some extent prolong the period for which it is reasonable to detain an individual, As Lord Dyson JSC said in Lumba at [121] “If a 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 a 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 reoffending, which would compel an appellants release if the appeals process lasted a very long time through no fault of the appellant. He submits 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 and I agree with it. The risks of absconding and reoffending 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, 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.” iii) A refusal to return voluntarily is relevant to what is a reasonable period of detention if and to the extent that it supports an inference that there is a risk of absconding: Lumba [123]. iv) Otherwise, however, a refusal of voluntary return whilst proceedings challenging deportation are pending is an irrelevant consideration, provided the proceedings are not an abuse: Lumba [127], [144]. v) The risk of absconding and the risk of reoffending are always of paramount importance in the assessment: see Lumba [121], above. vi) The reason why those risks are of such importance is that the protection of the public from the risk of re-offending “is the purpose of the deportation and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure”: R (A) v Secretary of State for the Home Department, [55]. It is self-evident that the gravity of the harm from which the public is to be protected is a factor of importance here.

[45]It is relevant also, however, to refer to an observation made by Lord Dyson JSC 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”

. That observation was made in the context of a discussion of the particular facts of Mr Lumba’s case, but it would seem to be a conclusion which flows inevitably from the established principles. What may be difficult in an individual case is to determine whether and if so when the time has come at which the risks of absconding and offending, and the gravity of the offending that is liable to occur, are outweighed by other considerations such as the length of time that detention has lasted, the extent to which there appears to be a real prospect of deportation, and the time at which deportation appears likely to occur if at all.

Submissions

[46]For the Claimant, Mr Drabble QC submitted that the overall length of the Claimant’s detention was extraordinary and clearly excessive. Applying the principles identified above, the second period of detention was unlawful from the outset, he said. In the alternative, he identified a number of points in the timeline at which, it was submitted, the Defendant could not in all the circumstances reasonably have continued to detain the Claimant, either because the period of detention was already unreasonably long by that point in time or because it had become apparent by then that it would not be possible to deport the Claimant within a reasonable time. In the Statement of Facts and Grounds there were three such milestones. In Mr Drabble’s Skeleton Argument for the hearing this had expanded to seven. The last of those points in time was, in each list, the submission of the Claimant’s fresh representations on 6 February 2012. In relation to this aspect of his case Mr Drabble submitted that the Defendant was also guilty of a lack of diligence and expedition in dealing with those fresh representations, contrary to the fourth Hardial Singh principle.

[47]For the Secretary of State, Mr Tam QC submitted that at no time prior to his release on 24 January 2013 had the Claimant’s continued detention become unlawful. The main factors in favour of continued detention were self-evident, he said. By this he meant of course the risks of absconding and serious offending which had informed the detention reviews and thereby caused the Defendant to detain the Claimant for so long. Mr Tam identified five aspects of these risks which were significant: the grave nature of the offences; the effect on the victim; the Claimant’s attitude towards the offences; the level of risk of re-offending were the Claimant at liberty; the level of risk of harm to the public; and the level of risk of absconding. The Claimant’s behaviour whilst on bail prior to 2 April 2008 was relied on as supportive of the risk of absconding. Mr Tam identified three further factors supporting the Claimant’s continued detention:(1) the Claimant’s lack of co-operation with the removals process;

(2) his continued pursuit of “unmeritorious challenges” to his deportation; and

(3) the prospects of his removal within a reasonable period which were, submitted Mr Tam, reasonable at all material times. He warned against treating the existence of a bar to removal, such as a domestic legal challenge or Rule 39 indication as in itself a bar to continued detention. He pointed out, also, that the fact that some within the Home Office took the view in 2012 that the Claimant’s continued detention could not be justified was not determinative. It merely showed the existence of an internal debate, he submitted.

Discussion

[48]I start with some general observations. Here, the main factors that contribute to a conclusion on whether detention was or remained reasonable at any given point in time are(a) the risk of absconding and offending;

(b) the elapsed period of detention;

(d) the nature of the obstacles in the way of removal; and

(e) the likely timescale to removal. I do not regard the Claimant’s challenges to his removal as an abuse, and therefore treat his continued unwillingness to co-operate with his return as a factor relevant only to the risk of his absconding. That risk appears to me to have been rightly evaluated over the months and years as being high or, latterly, medium. The risk of offending was also rightly assessed as high throughout. Further, the nature of the Claimant’s offending of 1998 justifies the view that the risk was of offending which would cause serious harm to members of the public.

[49]When looking at the elapsed duration of detention at any point in the second period it is right to take account of the first period of detention, though the fact that this first period was lawful throughout affects the weight to be given to it. More significant in my view is the duration of the second period itself. As to that, I should give weight to the existence of the legal obstacles to removal that existed at various points in the history. I do not believe it would be right to categorise these challenges as “unmeritorious”, as Mr Tam invited me to do. That would be a strong thing to do in relation, for instance, to the Claimant’s successful appeal to the Court of Appeal in 2010. The right approach is to give the legal challenges and obstacles appropriate weight according to their nature and the surrounding circumstances at the relevant time. Against the background of those general points I turn to consider the eight moments in the timeline relied on by Mr Drabble.

(i) The initial detention of the Claimant 2 April 2008

[50]It seems to me impossible to say that it was unlawful to re-detain the Claimant at this point. This was an individual who posed a high risk of absconding and a high risk of serious harm to members of the public. His willingness and ability to abide by bail conditions set in order to allow him his liberty had been tested and found wanting. His failings in that regard, although not grave, were of serious concern given his offending background. The position in the immigration proceedings was that the first AIT appeal decision had been set aside and the re-hearing of the Claimant’s appeal was pending before the AIT. It was not to be expected that the appeal would take as long to be determined as it did in the event. The hearing was in December 2008. The fire at Field House which led to a delay until July 2009 in the promulgation of the fresh appeal decision was of course entirely unpredictable, as the Claimant accepts. Despite the volatility of the situation in Somalia at the time, the prospect of further appeals to the Court of Appeal let alone the Supreme Court was a relatively remote and improbable one. There was therefore a sufficient prospect of the Claimant’s removal to justify his detention. (ii). The grant of permission to appeal to the Court of Appeal 18 December 2009

[51]A decision to grant permission to appeal cannot be said to have had any weighty bearing on the lawfulness of continued detention. The outcome of any appeal for which permission is granted remains uncertain until judgment is given. In this instance it was far from obvious that the appeal was likely to succeed. There was no apparent reason to believe that the appeal hearing would be long delayed. There was at least a reasonable prospect that the appeal would be dismissed, and the grant of permission for a further appeal was improbable. There was therefore a substantial prospect that the Claimant’s appeal rights would be exhausted by the spring or summer of 2010, when steps to deport him could be undertaken. The risks of absconding and consequent serious offending remained high and sufficient to justify the continued detention. (iii). Appeal allowed by the Court of Appeal 23 April 2010

[52]By this time the second period of immigration detention had lasted for 2 years, on top of the first period of detention of 3 years 7 months. The success of the Claimant’s appeal meant that, absent a further appeal by the Defendant, his removal would be impossible. The refusal of permission to appeal by the Court of Appeal was a further reason for the Defendant anxiously to question whether there was a real prospect of removal sufficient to make it reasonable to continue detention. However, it was reasonable to view a successful appeal as a real possibility, at least until the Supreme Court had decided whether to grant permission as it did on 13 July 2010. Having granted permission, the Supreme Court could be expected to act quickly in the case of an individual in detention, and did so, such that the appeal hearing took place less than 3 months after the grant of permission and judgment was handed down 6 weeks after that. Throughout this period the Claimant was still assessed, and rightly so, as a serious danger to the public. Success for the Defendant on the appeal would mean that there was no remaining barrier to the Claimant’s removal and directions could be set for that to occur. (iv). Supreme Court judgment 24 November 2010

[53]The Supreme Court restored the AIT’s decision of July 2009 that the Claimant had failed to establish a risk of ill-treatment contrary to Article 3 if he was returned to Mogadishu. Mr Drabble submitted, rightly, that it did not follow that removal of the Claimant as at November 2010 would not engage the United Kingdom’s obligations under the Refugee Convention or the ECtHR, and that the Defendant could reasonably expect to receive fresh submissions. It is clear that the Defendant did anticipate receipt of such submissions, as demonstrated by an internal email of 26 November 2010 recording that removal directions were being set “but we can expect further representations”. Mr Drabble pointed out, in addition, that fresh guidance in relation to removals to Somalia was in prospect both from the domestic tribunal (in AMM) and from the European Court (in Sufi & Elmi). All of these points however beg the question of what the outcome was likely to be of the Claimant’s fresh submissions and the pending cases in the UK and Europe. There was some prospect that these would have an impact on the prospects of removal, but a reasonable starting point was that the AIT had held that the Claimant had failed to prove a risk of Article 3 ill-treatment if removed to Somalia, and the Supreme Court had upheld that decision. There remained a sufficient prospect of removal to justify the continued detention of an individual with the Claimant’s offending history and risk profile, despite the elapsed time of some 2 ½ years.

(v) Rule 39 Indication of 7 December 2010

[54]In my judgment the giving of this indication did not require the Claimant’s release. The striking feature of the indication is that it was given on a fact-insensitive basis or, put another way, that it imposed a stay on removal without examination of the individual facts and circumstances of the Claimant’s case. At the time this seems to have been the general practice of the ECtHR in relation to cases concerning Somalia. This does not seem to be the way in which the procedure was intended to be operated. On 27 April 2011, at the conclusion of a High Level Conference on the Future of the European Court of Human Rights a declaration (“the Izmir Declaration”) was made which recalled that the Court is not an Immigration Appeal Tribunal or a Court of fourth instance and emphasised:

“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, following by a speedy examination of and ruling on, the merits of the case or of a lead case.”

[55]Moreover, the Article 3 aspect of the Claimant’s application to the ECtHR had not been communicated to the United Kingdom which was not asked to submit any observations on it. Mr Tam was right to say, therefore, that for the purposes of assessing the reasonableness of continued detention the Rule 39 indication did not have the same significance as a domestic injunction would have had; it should not be accorded as much weight as a considered decision to stay removal on the individual facts of his case. The Sufi & Elmi cases had been pending before the European Court since 2007 and at the time of the Rule 39 indication it was, on the evidence before me, reasonable to anticipate that judgment would be given within 2011. It was reasonable also to anticipate that once that judgment was given the Rule 39 indication would be lifted, subject to consideration of the individual facts of the Claimant’s case. There remained a realistic and sufficient prospect of being able to deport the Claimant within a reasonable time frame and, in the meantime, the Claimant continued to present a high risk of absconding and a high risk of serious harm to the public. (vi). Judgment in Sufi on 28 June 2011 and (vii). Judgment in the country guidance case, AMM, 28 November 2011

[56]At the time the Sufi judgment was given, the second period of immigration detention had lasted for 38 months. The Court in Sufi concluded at [250] that “the violence in Mogadishu is of such a level of intensity that anyone in the city, except possibly those who are exceptionally well-connected to ‘powerful actors’, would be at real risk of treatment prohibited by

article 3 of the Convention

”. This was a more restrictive approach to removal than had been taken in the existing domestic country guidance, on which the AIT had relied in its decision of July 2009. It was all but inevitable that the Claimant would make fresh representations that would need to be examined. I do not, however, accept Mr Drabble’s submission that it was clear once Sufi had been decided that it would be impossible for the Defendant to remove the Claimant.

[57]First, the United Kingdom had resolved to challenge Sufi, in the sense of seeking a hearing before the Grand Chamber. That was a reasonable step and one that would inevitably take some months to resolve. Secondly, failing reconsideration by the Grand Chamber the guidance contained in Sufi would need to be applied to the Claimant’s individual case. He had failed to establish before the AIT that he was unconnected to powerful actors in Mogadishu. Thirdly, the decision in Sufi would need to be considered and applied in the light of domestic guidance. Fresh country guidance was expected from the Upper Tribunal in the case of AMM. It was not inevitable that the Tribunal’s conclusions would be identical to those of the Strasbourg court. The Tribunal is bound to take account of the Strasbourg court’s decisions but not to adopt or follow them. The guidance that would have to be applied to the Claimant’s case was therefore in a state of uncertainty until after the Upper Tribunal’s decision in AMM had been promulgated on 28 November 2011 and the Grand Chamber’s decision on whether to take Sufi which was announced 3 days later on 1 December 2011. Fourth, it was the case that the Defendant had achieved some forced removals to Somalia over the previous years, albeit not many. The figures given in evidence were 9 in 2009, 9 in 2010, 3 in 2011. Given the grave risks he posed to the public, the period of detention to which the Claimant had been subjected remained lawful in my judgment until a reasonable period had elapsed in which to consider the Claimant’s case in the light of the Sufi and AMM decisions and any submissions he wished to make about them. (viii). Claimant’s further representations 6 February 2012

[58]By the time these were submitted the second period of detention had lasted 46 months. The total period of immigration detention undergone by the Claimant was therefore 89 months. The Claimant’s submissions were not unusually elaborate. The 200 pages to which the Strategy Director referred in August 2012 consisted largely of supporting materials rather than submissions. By 27 March 2012 a case meeting had been held from which the Senior Caseworker concluded that “unless the country situation radically changes I doubt there would be a realistic prospect of removal” to Somalia because of the guidance in AMM as well as the effects of Al-Shabab, famine and warring clans. Options were being explored as to how removal might be justified, including the possibility of establishing that his parents were from Somaliland. Little or no evidence had been identified, however, to support such lines of argument. A proposal was made that the file be combed for evidence. It is on 27 March 2012 that “grave concerns” were, in a separate document, expressed about the continued lawfulness of the Claimant’s detention.

[59]Bearing in mind what had gone before, and examining the future as it appeared or should have appeared to the Defendant at this time, my conclusion is that the Claimant’s detention had become unlawful by early April 2012. He remained an absconding risk, but on the Defendant’s own assessment a lower risk than before. He still posed a high risk of serious harm to the public, but as Lord Dyson observed in Lumba there has eventually to come a time when such risks cease to justify what is, after all, precautionary or preventive detention. By April 2012 the Claimant’s second period of detention had lasted nigh on 4 years, some 5 months longer than the first period. The prospects of his removal had diminished considerably in the light of Sufi and AMM, and this had been recognised.It would have been reasonable between February and April 2012 to foresee that the ECtHR would discharge the Rule 39 indication in respect of the Claimant within a few months or, as time went on, weeks. Its continuation until April 2013 was not reasonably foreseeable on the evidence I have seen. However, given the Defendant’s decision to re-examine the files and to look for new evidence elsewhere that would support a decision to remove him despite the Sufi and AMM decisions, the likely timescale to a decision on his new submissions was a long one and had no clear end point.

[60]I acquit the Defendant of a lack of diligence in dealing with the Claimant’s new representations over the 2 months that followed their submission. However, given the starting point I have outlined it is not surprising that it took until July 2012 to assemble a case in support of removal to Hargeisa. It was not submitted and I do not find that the conclusion of July 2012 that there was a route by which the Claimant might perhaps be lawfully removed was an irrational or impossible one. However, I do conclude that it was far from obvious during this period that any such conclusion would be reached. It must or should have been clear before that time that if the Claimant could ever be removed the process of achieving it was going to take many, many additional months. A decision to reject the Claimant’s submissions was going to take time and if made would inevitably lead to an appeal and yet further delay.

[61]Against that background it is not surprising that in the meantime some officials took the view that it was no longer lawful, or would soon cease to be lawful, to detain the Claimant. My finding is that the views they expressed were unduly conservative and that in all the circumstances it was not lawful to continue the Claimant’s detention for more than two months after receipt of his further submissions. To put a date on it, detention ceased to be lawful on 6 April 2012 and there was unlawful detention between that date and the Claimant’s release on 24 January 2013.

Public law error

[62]It follows from the conclusions I have arrived at that the Defendant’s application of the admittedly unlawful blanket detention policy that was in place until September 2008 has no material impact on the Claimant’s case. His detention could and would have been maintained if the lawful policy with its presumption of release had been applied. He is however entitled to nominal damages on that account, in addition to damages to be assessed for the 9 months of detention that I have identified as unlawful. The Claimant’s contention that there was an unlawful failure to carry out regular reviews in breach of policy was not pressed in the light of the Defendant’s further evidence about the reviews and on the evidence I accept the Defendant’s submission that the policy was adhered to.

Anonymity

[63]As a footnote to this judgment I record that at the outset of the hearing I discharged an anonymity order that had been sought and granted until further order at the start of the present proceedings in December 2012. That order was made pursuant to CPR 39.2(4), which provides that “The court may order that the identity of a party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.”

[64]The Claimant had been anonymised in the previous proceedings, as will be obvious from what I have said above. By the time the matter came before me, however, the ECtHR had not only heard the Claimant’s case without granting anonymity, it had given its decision which is public under the name Abdi v United Kingdom. Against this background I invited the Claimant’s representatives to consider whether he wished to seek the continuation of the anonymity order. I was told that he did not and I decided to discharge the order as being unnecessary for the protection of the Claimant’s interests or for any other reason.