Botan, R (on the application of) v Secretary of State for the Home Department [2017] EWHC 550 (Admin)

Case No CO/6117/2016[2017] EWHC 550 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24 March 2017
Before
MRS JUSTICE LANG DBE
Between
THE QUEENClaimanton the application ofClaimantISSE MURSAL BOTANClaimantSECRETARY OF STATEDefendantFOR THE HOME DEPARTMENTDefendant
Chris Buttler and Eleanor Mitchell (instructed by Duncan Lewis) for ClaimantGwion Lewis (instructed by the Government Legal Department) for DefendantHearing Hearing date: 14 March 2017
JudgmentMrs Justice Lang :
[1]The Claimant, who is a national of Somalia, seeks judicial review of his immigration detention by the Defendant, following his release from prison on 7 June 2013, pending deportation as a foreign criminal. At the date of the hearing on 14 March 2017, he had been in detention for three years nine months and one week.[2]The judicial review claim form issued on 2 December 2016 identified the decision under challenge as the Claimant’s continuing detention from 7 June 2013, though the grounds only alleged unlawful detention from 8 June 2014 onwards.[3]In the week before the substantive hearing, the Claimant abandoned his challenge to the lawfulness of his continuing detention from 2 March 2017 onwards.[4]The sole ground of challenge to the detention in the remaining period, between 8 June 2014 and 2 March 2017, was that there was no realistic prospect of an enforced removal to Somalia, because of lack of co-operation by the Somalian authorities. Therefore continued detention was contrary to the third Hardial Singh principle because he should not have been detained once it became apparent that there was no realistic prospect of deporting him within a reasonable period.[5]At an oral hearing on 21 December 2016, bail was refused. Permission to apply for judicial review was granted and directions were given for the substantive judicial review hearing in respect of his ongoing detention, listed for 13 and 14 March 2017, but the lawfulness of the past detention was excluded from the scope of the hearing. Since the lawfulness of the past and ongoing detention raised the same factual and legal issues, which were narrow in scope, I consider that this separation involved an unnecessary duplication of scarce court resources and legal costs (both parties were funded from the public purse). It also caused undesirable delay. No directions were sought or made to progress the claim for past detention either on 21 December 2016 or thereafter. Therefore there would inevitably be a delay of many months following the hearing in March 2017 before the past detention claim could be determined. If liability was established, the quantum of damages would then have to be determined or agreed. In considering the question of delay, it was significant that the Defendant had stated that she would not deport him while the claim was ongoing.[6]In a series of communications between the end of February and 8 March 2017, the Defendant informed the Claimant that the United Kingdom’s Memorandum of Understanding with Somalia (“the MOU”) had been implemented and two enforced removals to Somalia were to resume. On 7 March 2017, the Defendant disclosed the MOU to the Claimant in response to his application dated 30 January 2017, due to be heard on 9 March 2017. On 8 March 2017 the Defendant stated that she intended to remove the Claimant on 26 March 2017, subject to the judicial review. At the hearing on 9 March 2017, the Claimant applied unsuccessfully for further disclosure relating to the enforced removals and also to adjourn the hearing on 13 and 14 March 2017. On 9 March 2017, the Claimant objected to my proposal that liability for past detention should also be heard on those dates, on the ground that counsel had not prepared the past detention aspect of the case. On 10 March 2017, the Claimant abandoned his challenge to the Claimant’s ongoing detention, on the basis that the legal aid merits test was no longer met, and applied for the hearing on 13 and 14 March 2017 to be vacated in advance. I declined to vacate the date at such short notice. I asked the Claimant to provide an explanation for what had occurred, and for both parties to assist the court in giving further directions for the future conduct of the claim. I invited the Claimant to consider using the court time set aside on 14 March to hear the claim for past detention, in which case the Claimant’s counsel could use 13 March as preparation time. I am grateful to the Claimant’s counsel for agreeing to this proposal.

Facts

[7]The Claimant is now aged 52 (DOB 1 July 1964). He arrived in the UK, aged 26, on 20 April 1990 and claimed asylum. On 4 July 1992 the Defendant granted the Claimant exceptional leave to remain (“ELR”) for 12 months. On 20 February 1993 the Defendant refused the Claimant’s asylum claim and granted him 12 months ELR. On 8 March 1994 the Defendant extended the Claimant’s ELR for a further 3 years. On 23 December 1997 the Defendant extended the Claimant’s ELR until 20 January 2000. On 20 January 2000 the Defendant granted the Claimant indefinite leave to remain in the UK.[8]The Claimant has a history of criminal offending: a) On 23 March 1993 the Claimant was sentenced to a 12 month conditional discharge for an offence of using threatening, abusive, insulting words or behaviour with intent to cause fear or provocation of violence. b) On 28 June 1994 the Claimant was sentenced to pay £150 compensation and £50 costs after being convicted of two charges of damaging property. c) On 20 January 1995 the Claimant was sentenced to a total of 4 months imprisonment and was disqualified from driving for 12 months for the following offences:(i) taking a conveyance without authority,(ii) using a vehicle while uninsured,(iii) failing to stop after an accident and(iv) driving a mechanically propelled vehicle while unfit through drink or drugs. d) On 30 May 1996 the Claimant was sentenced to pay a £150 fine and £75 compensation for an offence of criminal damage. e) On 12 June 1996 the Claimant was sentenced to pay a £100 fine, £20 compensation and £50 costs for an offence of obtaining a service by deception. f) On 10 February 1997 the Claimant was sentenced to 30 days imprisonment in relation to two offences, namely, common assault and assaulting a constable. g) On 4 August 1997 the Claimant was sentenced to 7 days conditional discharge relating to two offences of failing to surrender and 30 days imprisonment relating to an affray charge. h) On 27 July 1998 the Claimant was sentenced to a £75 fine or 1 day imprisonment (deemed as served) regarding a theft. i) On 21 October 1998 the Claimant was sentenced to a 12 month conditional discharge and ordered to pay £20 costs arising out of a conviction for being drunk and disorderly. j) On 30 November 1998 the Claimant was sentenced to 1 week imprisonment for destroying or damaging property. k) On 7 December 1998 for an offence of assault occasioning actual bodily harm the Claimant was sentenced to 3 months imprisonment. l) On 13 August 2001 the Claimant was sentenced to an 18 month community rehabilitation order, 100 hours community order, £150 fine and £50 compensation for an offence of assault occasioning actual bodily harm. m) On 17 September 2001 the Claimant was fined £30 in relation to an offence of being drunk and disorderly. n) On 13 March 2003 the Claimant was fined £100 and ordered to pay £55 costs for an offence of being drunk and disorderly. o) On 19 April 2004 the Claimant was fined £60 for an offence of being drunk and disorderly. p) On 11 October 2004, for an offence of disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress, the Claimant was sentenced to a 6 month conditional discharge. q) On 8 February 2005 the Claimant was fined £75 for an offence of disorderly behaviour or threatening/abusive/insulting words likely to cause harassment alarm or distress. In addition he was fined £25 for a breach of conditional discharge. r) On 17 November 2005 the Claimant was convicted of rape and false imprisonment and sentenced to 12 years imprisonment. He was required to be registered on the Sex Offenders Register for an indefinite period. The sentence expiry date was 7 June 2017.[9]On 19 May 2009 the Defendant served a notice on the Claimant informing him of his liability to automatic deportation because of his convictions for rape and false imprisonment, and the sentence of 12 years imprisonment.[10]The Claimant was refused parole, and released from prison at the two-thirds point of his sentence, on 7 June 2013. He was then placed in immigration detention.[11]On 5 November 2013 the Defendant served a deportation order on the Claimant.[12]On 13 February 2014 the First-tier Tribunal (“FTT”) dismissed the Claimant’s appeal against the deportation order. The Claimant’s appeal rights were exhausted by 25 March 2014.

Legal framework

[13]A person who is not a British citizen is liable to deportation from the United Kingdom if “the Secretary of State deems his deportation to be conducive to the public good”: s.3(5)(a) Immigration Act 1971 (“IA 1971”).[14]For the purposes of s.3(5)(a) IA 1971, “the deportation of a foreign criminal is conducive to the public good”: s.32(4) UK Borders Act 2007 (“UKBA 2007”).[15]By s.32(1) UKBA 2007, “foreign criminal” means a person who is not a British citizen and has been convicted in the UK of a criminal offence for which he has been sentenced to 12 months imprisonment or more.[16]Under s.32(5) UKBA 2007, the Secretary of State “must make a deportation order in respect of a foreign criminal” subject to the exceptions in s.33 UKBA 2007.[17]S.33 UKBA 2007 sets out exceptions to the requirement to deport, which include cases in which removal under a deportation order would breach a person’s rights under the European Convention on Human Rights (ECHR) or the Refugee Convention or under EU law.[18]Paragraph 2(3) of Schedule 3 to the IA 1971 sets out the Secretary of State’s powers to detain a person where a deportation order has been made:
“(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.)”
[19]S.36(1) and (2) UKBA 2007 provide:
“36(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State – (a) while the Secretary of State considers whether section 32(5) applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order. (2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 …. unless in the circumstances the Secretary of State thinks it inappropriate.”
[20]It is apparent from the wording of section 36(1) and (2) UKBA 2007 that the broad discretion to detain pending a decision on deportation is replaced by an obligation to detain once a deportation order has been made, unless the Secretary of State thinks it inappropriate. But in both instances the detention must comply with the limitations implied by domestic case law (in particular, the Hardial Singh principles) and the ECHR.[21]By virtue of the Human Rights Act 1998, s.6(1), it is unlawful for the Defendant to act in a way which is incompatible with a Convention right.[22]Article 5 ECHR provides that everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the circumstances specified in Article 5(1)(a) – (f) and in accordance with a procedure prescribed by law. Article 5(1)(f) states that a person may be arrested or detained to prevent his effecting an unauthorised entry into the country, or where action is being taken against him with a view to deportation or extradition.[23]The burden is on the Defendant to justify the legality of the detention (R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, per Lord Dyson at [44]). It follows that the Defendant bears an evidential burden and, where the Defendant’s evidence is lacking, adverse inferences may be drawn. See R (Das) v Secretary of State for the Home Department [2014] 1 WLR 3538, per Beatson LJ at [80].[24]The power to detain is subject to the limitations set out in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), [1984] 1 WLR 704. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196, Dyson LJ described the Hardial Singh principles in the following terms:
“46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in re Hardial Singh [1984] 1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Le Tam v Tai A Chau Detention Centre [1997] AC 97, 111A-D …. In my judgment, Mr Robb correctly submitted that the following four principles emerge: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within 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. 47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person ‘pending removal’ for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.”
[25]In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, Lord Dyson said:
“22. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 correctly encapsulates the principles …” “…..” “24. As to the second principle, in my view this too is properly derived from Hardial Singh. Woolf J. said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases when it is apparent that deportation will not be possible “within a reasonable period”
. It is clear at least from (iii) that Woolf J. was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation.” “…..” “103. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in I’s case, there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention.” “104. How long is a reasonable period? At para 48 of my judgment in I’s case, I said:
“48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of 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.”” “48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of 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.””
[26]In Lumba, at [122] to [128], Lord Dyson rejected the submission that a refusal to return voluntarily both rendered the detention reasonable, and indicated an intention to abscond if released. The Secretary of State had to satisfy the court that, in the circumstances of the particular case, it was right to infer from a detainee’s refusal to return voluntarily that he was likely to abscond. If he wished to challenge his deportation on ECHR or Refugee Convention grounds, it was reasonable for him to refuse the offer of repatriation pending the determination of those proceedings. Where there were no outstanding legal challenges, refusal to return voluntarily was not a trump card enabling the Secretary of State to continue to detain indefinitely; it was of limited relevance.[27]In R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Toulson LJ said:
“45. ….a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle.” “55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”
[28]In R (JS (Sudan)) v Secretary of State for the Home Department [2013] EWCA Civ 1378, the Court of Appeal approved the modifications to the Hardial Singh principles made by Nicol J. in Hussein v Secretary of State for the Home Department [2009] EWHC 2492 (Admin) at [44]. The essence of the modification was that the Secretary of State must act with reasonable diligence and expedition to determine whether any of the exceptions to deportation in section 33 apply, and detention should not be continued if resolution of the section 33 issues, or any subsequent deportation, or both together, will take more than a reasonable time.[29]McFarlane LJ, giving the judgment of the court, rejected the submission that a 6 month yardstick should be “the norm” (at [51]) and gave guidance on the assessment of a reasonable period:
“52. The focus of this case is upon the period of detention and the administrative activity, or inactivity, that took place during this time. It is, however, necessary to stress that the assessment of what is a “reasonable” time needs to reflect the overall context. That context is of a foreign national, who has no right to remain in this jurisdiction, who has been convicted of serious criminal offences, in relation to whom the criminal court has made a recommendation for deportation and in respect of whom, as a matter of law, the Secretary of State is required to implement deportation unless the individual is seen to fall within one of the narrow statutory exceptions. Moreover the determination by the Secretary of State of whether, despite the strong policy and statutory impetus favouring deportation, such an individual should, exceptionally, be given leave to remain is a serious and important matter requiring proper and careful evaluation which, of necessity, will occupy a period of time. Any evaluation of that period of time, must, therefore, reflect the gravity of the decision that is to be taken. 53. Again, looking at aspects of reasonableness in this context, it will be the case that the individual has committed a serious criminal offence. The individual will however, only be in criminal detention because he has already served the full term of the sentence imposed by the criminal court. His past criminal offending, of itself, cannot be any justification for implementing or extending his time in immigration detention.”
[30]In R (ZA Iraq) v Secretary of State for the Home Department [2015] EWCA Civ 168, which concerned the inability to enforce a return to Iraq because of country conditions, Sullivan LJ said:
“21….What is a “reasonable period” for effecting return in any particular case will depend on all the circumstances, but one of the factors which will be highly relevant will be the length of time that the detainee has already spent in detention. A belief that it may be possible to effect removal within a reasonable time of someone who has just been detained may be justified even if it is based on little more than a hope that a security situation in the receiving country may improve, …. but it does not follow that the position will be the same if the person whose removal must be effected within a “reasonable time” has already been in detention for a long time: see paragraph 52 of MI and AO.”
[31]In R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, Richards LJ observed (at [68]) that the Judge had been right to give proper weight to the very long period of detention of 38 months and “rightly treated it as a factor of considerable and increasing importance as the situation dragged on. As the period of detention gets longer, the greater the degree of certainty and proximity of removal I would expect to be required in order to justify continued detention.”[32]Richards LJ also accepted (at [68]) that a detainee’s failure to co-operate may cause delay for which he, not the Secretary of State, is responsible. Lack of co-operation may also be relevant to the overall assessment of the risk of absconding.[33]In Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, the Lord Chief Justice emphasised, at [44] to [46], that the risk of absconding was of critical and paramount importance as absconding would defeat the primary purpose for which Parliament conferred the power to detain. However, it was not a trump card which could sanction indefinite detention, though it could justify a very long period of detention.[34]Finally, in assessing the lawfulness of detention, the Court is the primary decision-maker; its task is not limited to assessing the rationality of the Secretary of State’s decision: see R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, per Keene LJ at [71] – [75]. In Fardous, the Lord Chief

Justice said:

“The objective review by the court 42. In determining the lawfulness of the decision made by the Secretary of State, the court examines the decision on the basis of the evidence as known to the Secretary of State when she made the decision. Although the decision is necessarily ex post facto, the court does not take into account matters that subsequently occurred. As Sales J. explained in R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin), at paragraph 105: “In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.”
His decision was upheld by this court: [2010] EWCA Civ 1112.” “In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State. The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is. Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of the circumstances known to him, without fear of being caught out by later circumstances of which he could have no knowledge.”

The Defendant’s detention policy

[35]The statutory powers to detain have to be exercised in accordance with the Defendant’s published policies on detention, in Chapter 55 of the Enforcement Instructions and Guidance (“EIG”), unless there is good reason to depart from them.[36]Chapter 55 of the EIG sets out the Defendant’s policy with regard to ‘Detention and Temporary Release’. The material parts of Chapter 55 have not altered in the various editions published during the course of the Claimant’s detention. According to 55.1.1, there is a presumption in favour of release rather than detention. 55.1.2 provides that cases concerning foreign national prisoners are subject to the general policy in 55.1.1 and that the starting point in such cases “remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention”.[37]However, 55.1.2 goes on to say that the nature of foreign national prisoner cases means that special attention must be paid to their individual circumstances and provides that in any case in which the criteria for considering deportation action are met:
“… the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.”
[38]At 55.1.3 it states:
“Substantial weight must be given to the risk of further offending or harm to the public indicated by the subject's criminality. Both the likelihood of the person re-offending and the seriousness of the harm if the person does re-offend must be considered. Where the offence which has triggered deportation is included in the list at page 63, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences.”
[39]The offence of rape which triggered the deportation in this case is included in the list of serious offences at page 63.

Decisions to detain

[40]The Claimant did not challenge the lawfulness of his initial detention upon release from prison on 7 June 2013 until after the first failed attempt at removal to Somalia on 7 June 2014. However, he contended that detention became unlawful thereafter, until 2 March 2017 when there was evidence that enforced removals had been resumed, pursuant to the MOU between the UK and Somalia Governments.

Factors other than removal to Somalia

[41]Prior to the Claimant’s release from prison, the GCID General Case Information Database records showed that between April and June 2013, immigration officers considered his case, and formed the view that he met the criteria for automatic deportation under the UKBA 2007, and the exceptions under s.33 did not apply. His family circumstances and private life were considered. It was found that he had no subsisting relationship with his ex-partner, nor with his 11 year old son who was in care.[42]Immigration officers also considered EIG Chapter 55, and the presumption in favour of release but concluded it was outweighed by the high risk of re-offending and serious harm to the public, and absconding if he was released.[43]The Claimant rightly conceded that the Defendant was justified in concluding that there was a high risk of re-offending, based on his offending history, which was significant and which had escalated in seriousness over the years. The nature and seriousness of his offending (assault, affray, rape, false imprisonment) meant that re-offending would represent a risk to the public. Because of the seriousness of the index offence of rape, in accordance with the policy in 55.1.3 of Chapter 55 EIG, the immigration officers were required to give these factors substantial weight. Although he would be subject to supervision and recall until the end of his sentence, and as a registered sex offender, he would be subject to multi-agency public protection arrangements (“MAPPA”), there remained a significant risk to the public.[44]The Defendant had regard to the nature of the index offences, as set out in the sentencing remarks:
“When she met you she was clearly lost. It was late night, you offered to show her the way home. You pushed her into a dark alley, you threatened her, as she recalls with a knife, although it is fair to say none was produced or found. You held her down forcibly, you caused her injury, you ripped her tights off and you raped her on the ground. It was brutal, it was squalid and it was every women’s nightmare…. She went on to say: “I became a victim almost overnight. I went from a girl who did not worry about things, to somebody who would burst into tears all the time.””
[45]The OASys assessment recorded that the victim was a 21 year old American tourist on holiday in London. She said that she was “scared to death” and she suffered physical injuries for which she needed hospital treatment and remained in hospital for three days.[46]According to the OASys assessment, the Claimant denied his guilt, even after conviction on the basis of DNA evidence, and displayed disdain towards the victim and discriminatory attitudes towards Caucasian women. He refused to participate in the sex offenders and victim awareness programmes, which could have significantly reduced his risk of re-offending. In response to the question “how much is the offender motivated to address offending”, the assessment entry was “Not at all”. Overall he was assessed as posing a high risk of causing serious harm to members of the public.[47]The Defendant found that there was a high risk of absconding, since the Claimant was aware of the intention to deport him, against his wishes, and so would have little incentive to remain in touch with the immigration authorities if he were freed. His extensive past history of offending evidenced lack of respect for immigration controls and the law of the UK, making it more likely that he would fail to surrender when required to do so. He had convictions for failing to surrender to custody in 1997, and he was in breach of a conditional discharge. In my judgment, the Defendant was justified in concluding from these factors taken together that there was a high risk of absconding, and I do not accept the Claimant’s submission that the risk was over-stated.[48]In light of the factors set out above, I consider that detention of the Claimant upon his release from prison and pending deportation was justified and lawful, under the terms of the relevant statutory provisions and Chapter 55 EIG, provided that the detention was for a period reasonable in all the circumstances and that it had not become apparent to the Defendant that she would not be able to effect deportation within a reasonable period (Hardial Singh principles (2) and (3)). Removal to Somalia i) Conditions in Somalia[49]In the absence of witness evidence on barriers to removals to Somalia, I considered some previous cases in which conditions in Somalia had previously been addressed.[50]The Upper Tribunal (Immigration and Asylum Chamber) gave country guidance in AMM & Ors v Secretary of State for the Home Department [2011] UKUT 00445 (IAC), holding that there were Article 15(c) Qualification Directive and Article 3 ECHR risks for most returnees to Mogadishu because of the civil war. The position subsequently improved, and in MOJ & Ors v Secretary of State for the Home Department [2014] UKUT 00445 (IAC), the Upper Tribunal (Immigration and Asylum Chamber) gave updated country guidance to the effect that relocation to Mogadishu would not expose a person to Article 15(c) Qualification Directive or Article 3 ECHR risks, unless they had no clan or family support and no means of support.[51]In R (AG) v Secretary of State for the Home Department [2015] EWHC 1309 (Admin), the court was considering the prospects of enforced removal to Somalia between December 2010 and February 2013. The court accepted the Claimant’s submission that because of the dangerous conditions in Mogadishu, there was no real prospect of removal, and this was borne out by the tiny number of Somalis who had been forcibly removed in 2010 to 2012, out of some 884 who were liable to be removed from the UK.[52]In R (Mohammed) v Secretary of State for the Home Department [2016] EWHC 447 (Admin), the court accepted the Claimant’s submission that it was doubtful he would ever be removed to Somalia because he had no surviving family and came from a minority clan, and so he was at risk of Article 3 ECHR harm. The court cited AG as authority for the proposition that “only miniscule” numbers of Somalians were being returned and accepted the Claimant’s submission that the numbers of enforced removals were not materially higher in 2015.[53]In R (Ishmail) v Secretary of State for the Home Department [2013] EWHC 3921 (Admin), in addition to evidence of security concerns for returnees, there was evidence before the court that in 2012 and 2013 there had been logistical difficulties in obtaining airplane flights for those being forcibly removed. Enforced removals to Mogadishu were expected to re-commence in 2014.[54]The difficulty with this material from the Claimant’s perspective was that the primary reason for the inability to carry out enforced removals appears to have been the unsafe conditions in Somalia, which gave rise to Article 15(c) Qualification Directive and Article 3 ECHR risks for potential returnees. This factor was not relied upon by the Claimant in this case, following the decision of the FTT which upheld the Defendant’s decision that the Claimant would not be at risk in Mogadishu as he had previously lived and worked there and he was a member of a majority clan. In Ishmail there was also a logistical problem in obtaining flights for escorted returns which was expected to be resolved by 2014. This argument was not relied upon by the Claimant in this case either. Indeed, the evidence in this case was that the Defendant was able to book flights with Turkish Airlines to Mogadishu via Istanbul throughout the relevant period. None of these cases refer to the Somalian authorities refusing to accept enforced returnees, which is the issue in this case. So the case law does not support the Claimant’s submission that this was a longstanding problem of which the Defendant must have been aware. ii) The period from 7 June 2013 to 7 June 2014[55]In this case, the prospects of deporting the Claimant within a reasonable time were taken into account in deciding whether detention was appropriate. In a ‘Minute of a Decision to Detain’, dated 22 May 2013, an immigration officer concluded that there was no current reason why he could not be removed within a reasonable time scale, subject to his right of appeal against deportation. This was confirmed in Detention Reviews once he was in detention.[56]In the Monthly Progress Report to Detainees dated 5 July 2013, immigration officers recorded that the Claimant refused to co-operate with the proposed removal by completing an emergency travel document application, which would have facilitated his removal. However, there was no suggestion in the Defendant’s contemporaneous records that only voluntary removals were possible at that time. Arrangements were being made to book escorts and flights, apparently on the assumption that an enforced removal would be possible.[57]The GCID records in November 2013 evidence more detailed consideration of the prospects of returning him to Somalia. They considered that the current situation in Mogadishu meant that there was a “reasonable expectation” that he could be returned there, bearing in mind that he was residing in Mogadishu before coming to the UK, had family ties there, and was a member of the Darood majority clan.[58]The Claimant was served with a deportation order on 5 November 2013. The decision letter gave careful consideration to the Claimant’s Article 8 rights, as codified in the Immigration Rules, paragraph 398, and to his ability to re-settle in Mogadishu, in the light of improved conditions there, and taking into account that he had previously lived there before coming to the UK and was a member of a majority clan. There was nothing in that letter to suggest that enforced returnees were not being accepted by the Somalian authorities.[59]The Claimant appealed to the FTT which considered the up-to-date country information concerning Mogadishu and concluded that the improvement in security was sufficiently durable to conclude that there was no Article 15(c) Qualification Directive or Article 3 ECHR risk to this particular Claimant. His appeal was dismissed on 13 February 2014 and his appeal rights were exhausted by 25 March 2014. Thereafter, the Defendant was entitled to rely on the finding of the independent tribunal that there was no impediment to the Claimant’s return to Somalia, and that there were no further legal barriers to deportation.[60]According to the Detention Review dated 8 May 2014, Bio Data and the Somalia Referral were completed and emailed to Country Returns, Operations and Strategy on 11 March 2014. As at 1 May 2014, the Executive Officer completing the Detention Review stated that it was “now likely that the subject will be allocated a removal date in June. The exact date is not yet known as it will be dependent on the escorts rota and also flight times/days”.[61]Removal directions had been set for 7 June 2014 and the Claimant was duly flown to Mogadishu with escorts. However, the Somalian immigration authorities refused to allow him entry when he told them that the removal was enforced, rather than voluntary and required his return to the UK. Form IS.91RA Part C, dated 8 June 2014, stated:
“On arrival into Mogadishu, the subject was interviewed by the authorities. He was asked did he want to come here, to which he answered NO, are you Voluntary, to which he answered NO, do you have anyone meeting you, to which he answered NO. The team were told that the British government do NOT have permission to return any NON voluntary detainees to this Country.”
[62]I agree with the Claimant that the statement in the Detention Review that he was returned because of faulty paperwork did not really reflect the reality of what occurred. However, the episode was accurately noted in the GCID. iii) Conclusions on the period 7 June 2013 to 7 June 2014[63]In my judgment, detention during the period from 7 June 2013 to 7 June 2014 was lawful, as in addition to the risk factors set out above, the Defendant was entitled to conclude, on the material available to her, that there was a realistic prospect of removing the Claimant within a reasonable time, once he became appeal rights exhausted. The refusal by the Somali authorities to admit the Claimant when he arrived on 7 June 2014 was not foreseen by the Defendant, and there was no evidence that she was aware of a bar on enforced returns by the Somali authorities. In all other respects, the Claimant was eligible for removal to Somalia as he was accepted as a Somali national and had the requisite travel documents. iv) The period from 8 June 2014 to 2 March 2017[64]The Defendant set further removal directions to Mogadishu on 10 July 2014 (the second removal). However, this was cancelled as no return flights were available if the Claimant was refused entry again. It seemed as if the Defendant was over-optimistic in setting removal directions again without any indication that the Somali authorities would accept him. On 30 July 2014, in the Detention Review, the Authorising Officer, who held the grade of Deputy Director, stated “we are awaiting confirmation that they will accept Mr Botan before we can reset RDs”.[65]On 28 August 2014, the Detention Review recorded that enforced returns had re-started and removal directions for the Claimant would be set soon. On 26 September 2014, the Detention Review recorded that the Country Specialist Team confirmed that they were in the process of liaising with the Somalian authorities to resolve the issues. On 24 October 2014, the Authorising Officer noted that approval for the Claimant’s enforced removal was “expected imminently”.[66]Removal directions were set for 11 November 2014 (the third removal). This did not take place mainly because the Claimant refused to leave the detention centre. His luggage, including some cash, was still missing from the abortive removal on 7 June 2014 and he refused to leave until it was returned to him. There were GCID records showing that immigration officers were liaising with Turkish Airlines regarding the lost luggage. It appears from the GCID records and Detention Reviews that the removal was also ineffective on that occasion because there were insufficient escorts.[67]On 21 November 2014, the Authorising Officer recorded in the Detention Review that “enforced removals to Somalia are ongoing and Mr Botan will be removed soon”.[68]However the Detention Review dated 19 December 2014 was couched in less confident terms, stating that removal directions would be set once arrangements for enforced removals had been made. This was repeated in the Detention Reviews for January and February 2015.[69]By 13 March 2015, the Detention Review stated that enforced removals were “currently paused”, voluntary returns were still operating, there was now a new Somali minister in place and the FCO were in regular contact with the new minister with a view to agreeing a process for enforced returns to recommence. Progress with this process was being monitored on a weekly basis.[70]By May 2015, the GCID recorded that there was still little progress in moving forward on enforced returns and the Executive Officer completing the Detention Review said that the Country Specialist Investigation Team had confirmed that enforced removals were still paused. However, the Authorising Officer for the Detention Review on 8 May 2015, who held the grade of SEO Ops, noted that “we now have agreement from the Somalia head of security to carry out a number of enforced returns while we wait for the Somali ministerial decision. Mr Botan will be amongst the first to be removed.” I cannot accept the Claimant’s suggestion that the Authorising Officer must have been mistaken because it appeared to contradict the comments made by the other officers; he may simply have had access to information which was not available to the immigration officers at a lower grade.[71]Similarly in the Detention Review of 5 June 2015, the Executive Officer stated that he had contacted the Country Specialist Investigation Team who confirmed that there had been little progress on moving forward on enforced returns, but the Authorising Officer, at grade AD, was aware that:
“General Gafow, the Head of Immigration at Mogadishu Airport, visited the UK at the end of April and met with officials from a number of government departments, including the Home Office and FCO. Senior government officials have set up a ‘task force’ (comprising of representatives from the offices of the President, the Attorney General and Director of Immigration) with the purpose of reviewing all enforced removals identified for return to Mogadishu. The criteria that the ‘task force’ will use to make its decision and the planned frequency of those meetings has not yet been made known but enforced removals to Mogadishu are due to recommence shortly (9th June). Voluntary removals to Mogadishu (supported by a signed disclaimer) can proceed as normal.”
[72]In the Detention Review of 31 July 2015, the Authorising Officer recorded that, following General Gafow’s visit to the UK, “enforced removals to Somalia are being undertaken, albeit at a slower pace than we would like” and “progress is being made”.[73]On 4 August 2015 the FTT refused the Claimant’s application for bail because of the risk of re-offending and absconding. The FTT was informed that enforced removals to Somalia had been resumed.[74]In the Detention Review on 28 August 2015, the Authorising Officer (grade AD) stated:
“The Somali Director of Immigration and Naturalisation has notified the Home Office that while the Somali Council of Ministers has approved the principle of enforced returns, this now needs to be formally ratified by them. The impact of this development is that enforced removals to Mogadishu will be deferred for a period of 3 - 4 weeks to enable the Council of Ministers to formally agree and sanction the returns process. Voluntary returns to Mogadishu are not affected by this. Removal is therefore still a realistic prospect within a reasonable period of time…”
[75]In the Detention Review on 25 September 2015, the Executive Officer stated that he had been informed by the Country Specialist Team that enforced removals to Mogadishu had been deferred for a further period of 1-2 weeks.[76]By the time of the Detention Review on 23 October 2015, it appeared that enforced removals were being arranged. The Authorising Officer noted that “we are in the process of arranging for his enforced removal to Somalia and are arranging for RD’s to be set at the appropriate time” and he requested that Removal Logistics be pushed to move this removal along.[77]Removal Logistics duly arranged for his removal to Mogadishu on 16 November 2015 (the fourth removal), thus confirming that enforced removals were now underway. Unfortunately the Claimant’s removal was cancelled after one of his intended escorts fell ill and was admitted to hospital.[78]Removal directions were again set for the Claimant on 5 December 2015 (the fifth removal) but were cancelled. However, the GCID recorded that the Claimant refused to leave the UK without his luggage, which had been lost the previous year, and he claimed he had a court hearing, of which the Defendant was unaware. Furthermore, the escort service expressed concerns that the Claimant would be disruptive at Mogadishu, thus causing a strain in the relations which had been built with the Somali authorities.[79]On 8 January 2016 the Independent Detention Panel (“IDP”) reviewed the Claimant’s detention and recommended that it was maintained. I note that some of the detention reviews incorrectly stated that the IDP recommended release.[80]On 15 January 2016, the Executive Officer recorded in the Detention Review:
“On 13 January 2016, an update received from the CST stating that “the situation with enforced returns remains very fluid and the current position is that we are unable to enforce returns to Mogadishu. Any enforced returns that were due to take place will now be cancelled.”” “A meeting is planned to take place in Mogadishu between HM Ambassador, the Somalia head of immigration and others later this week to discuss the resumption of returns. No timescales have been given for the resumption of enforced removals to Mogadishu.”
The Authorising Officer added:
“I am aware enforced removals are currently paused, and that a meeting is being held to resolve this issue. It is hoped that removals will resume in the next week or so. It is therefore considered Mr Botan’s removal will still take place in a reasonable time frame.”
[81]On 4 February 2016, immigration officers referred the Claimant’s case to an Assistant Director within the Home Office to consider releasing him with electronic tagging and reporting restrictions (known as a “release referral”). The basis of the referral was that removal was not imminent because, although the Somali immigration department had previously agreed to allow the UK to conduct some enforced returns to Mogadishu, it had advised on 11 January 2016 that enforced returns should be temporarily suspended, due to the political climate in Somalia. However, the referral wrongly stated that the IDP had recommended release, when in fact it recommended that detention be maintained.[82]The Assistant Director rejected the release referral, on 15 February 2016, stating:
“A removal to Somalia is scheduled for 27 Feb and if that goes according to plan then we can expect further removal to take place. Those further removals will be prioritised by length of IS Detention and risk and I would expect Mr B to be near the top of the list. In the light of that, the seriousness of his offence and his offending history I do not feel it appropriate to submit a release referral at present as I still consider Mr B’s removal to be likely within a reasonable period of time.”
[83]The proposed removals were confirmed in the Detention Review of 12 February 2016 where the Authorising Officer said:
“Two removals are scheduled for later in the month (20th and 27th February) and if these take place and the MoU with Somalia is signed then we can expect further enforced removals to take place. Based on his length of detention and obvious risk of harm, I would expect Mr B to be one of the first to be removed so in the light of this I agree with the assessment and proposal.”
[84]The Detention Review on 6 April 2016 indicated that enforced returns were once again “paused”. I infer that the planned February removals did not take place. However, the Authorising Officer stated that in March 2016 Somali ministers visited the UK to negotiate the Returns MOU and progress was being made towards enforced removals taking place.[85]The May and June 2016 Detention Reviews showed that consideration was given to a further release referral if enforced removals did not resume. A general problem with flights and escorts was resolved in June/July 2016. In August 2016 (before the Claimant was aware that the MOU had been signed), the Authorising Officer agreed that he was “not a strong candidate for contact management” i.e. tagging and supervision.[86]On 2 August 2016, the MOU was signed between the UK and Somali Governments, although this was not communicated to the immigration officers until September 2016. It stated that it would be effective from 1 November 2016. The MOU provided for the return of Somali nationals from the UK to Somalia on both a voluntary and an enforced basis. In an Addendum, the UK agreed to support the immigration authorities in Somalia with training, recruitment, English language teaching, and to contribute financially to an immigration facility. It may reasonably be inferred from the terms of the Addendum that the immigration authorities in Somalia had previously been under-resourced and inexperienced, and these factors were likely to have contributed to the unpredictability and fluidity of their response to returnees from the UK arriving at Mogadishu airport.[87]The Detention Review dated 22 September 2016 stated that the MOU had been signed in August 2016, and would come into effect in November 2016. The Claimant was number one on the priority list and “it is anticipated that his removal to Mogadishu will be tested in November”.[88]In the Detention Review dated 21 October 2016, further updating information was recorded:
“On 23 September 2016 CST informed me that: “RL (Removal Logistics) believe that this case is too contentious at this moment in time to attempt to return to Mogadishu. They have therefore decided to put this on hold for the time being until the process is embedded. Sorry! Another case has now been put forward.”
On 5 October 2016 CSR informed me that:
“the MOU that the UK signed with the Somali Government is due to be effected in November. However, the FCO has advised that due to forthcoming government elections in Somalia (the date is yet to be formally confirmed – early/mid-November), enforced returns will not be attempted due to the political and public sensitivity in country. We’ll await the input and advice from the FCO before such returns can proceed.””
[89]In the November and December 2016 Detention Reviews, immigration officers concluded that there was a realistic prospect of removal within a reasonable period because of the MOU. In the Detention Review dated 15 December 2016, the Authorising Officer said:
“I am aware enforced removals are to resume in early 2017 and Mr Botan is on the priority list of cases to be targeted for removal at that time.”
[90]In the Detention Reviews in January and February 2017, immigration officers noted that enforced returns had been delayed due to the re-scheduling of the presidential elections but were due to re-commence in January. The Claimant was top of the list, subject to his judicial review claim.[91]Mr Mark Griffiths, Assistant Director of the Country Liaison and Documentation: Middle East and Africa Team within the Returns Logistics section of Immigration Enforcement at the Home Office, made five witness statements explaining the terms of the MOU and its implementation. It was an essential part of the agreement between the two countries that the MOU would only be disclosed and implemented after the presidential elections. These were expected to be concluded by November 2016 but owing to unforeseen circumstances they were delayed until February 2017. It was therefore necessary to defer the implementation of the MOU until February 2017.[92]Voluntary returns were planned initially, to be followed by enforced returns from late February onwards, planned for 24 February 2017, 2 March 2017 and 8 March 2017, 21 March 2017 and 26 March 2017. In his most recent witness statements, Mr Griffiths confirmed that enforced removals had successfully occurred on 2 and 8 March, and that removal directions would be set for the Claimant for 26 March 2017. v) Conclusions on the period from 8 June 2014 to 2 March 2017[93]In my judgment, the contemporaneous records showed that, throughout this period, the Defendant was conscientiously reviewing the lawfulness of the Claimant’s detention at regular intervals. Due to the concern about the length of detention, his case was reviewed by the IRP and a release referral was sent to the Home Office. The reasonableness of his continuing detention was assessed having regard to all the relevant circumstances, including the high risk of reoffending, harm to the public and absconding, and set against that, the ever-increasing length of his detention. Read fairly, it is apparent that the immigration officers had well in mind the unusually long period of his detention, and anxiously considered whether it could properly be maintained. At each stage, the Defendant’s officers applied the correct legal test, asking themselves whether there was a realistic prospect of deporting the Claimant within a period that was reasonable in all the circumstances. That question now has to be considered by this court upon the basis of what was known to the Defendant’s officers at the relevant time, not with the benefit of hindsight: see Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931, at [42], cited at paragraph 34 above.[94]In my view, it was reasonable for the Defendant to continue to try to remove the Claimant despite the refusal by the Somalian authorities to accept him as an enforced returnee on 7 June 2014, as there was a realistic prospect that agreement could be reached with the Somalian authorities. The Somalian immigration service appeared to lack training and resources and its responses to returnees were unpredictable and fluid. The refusal to accept the return of its own nationals was at odds with established practice between the UK and other friendly nations and that was legitimately a matter for negotiation between the UK and the Somali authorities.[95]Thereafter, based on the information available, there were times when the Defendant’s officers reasonably believed that enforced removals were feasible, and indeed removals were duly arranged for the Claimant. In November 2014, November 2015 and December 2015, the removals which had been arranged for the Claimant failed for unforeseen reasons which were unconnected with the willingness of the Somalis to accepted enforced returns. Those reasons, which were logistical and/or related to the Claimant’s concern about his lost luggage and pending court hearing, were either unlikely to recur or could be overcome.[96]At other times during this period, enforced returns were “paused”, but on the evidence available, there were active negotiations going on between the UK and Somali authorities, which the Defendant reasonably believed were likely to achieve resumption of enforced returns within the near future: see e.g. August to September 2014 (paragraph 65 above); March 2015 (paragraph 69 above); May to August 2015 (paragraphs 70 to 74 above), January to February 2016 (paragraphs 80, 82 and 83 above); August to December 2016 (paragraphs 86 to 90 above). The Defendant and the FCO were impressively active and persistent in pressing for a resolution with the Somali authorities throughout this period. The lawfulness of the Defendant’s actions cannot be judged retrospectively in light of the fact that she was not in fact able to remove the Claimant within the timescales envisaged.[97]Once the MOU was signed in August 2016, there was a realistic prospect that the removal of the Claimant could and would take place within a reasonable period of time, despite the unexpected delay in the date of implementation because of the deferred date of the presidential elections.[98]The successful implementation of the MOU, the commencement of enforced removals on 2 March 2017, and the proposed removal date of 26 March 2017 for the Claimant, meant that detention after 2 March 2017 could not be impugned, as the Claimant recognised.

Final conclusion

[99]For the reasons set out above, the immigration detention of the Claimant has been lawful since 7 June 2013, and continues to be lawful. The claim is dismissed.

Cited in 4 later judgments