9 June 2009
by Mustafa ABDI
against the United Kingdom
STATEMENT OF FACTS
The applicant, Mr Mustafa Abdi, is a Somali national who was born in 1975 and lives in London. He is represented before the Court by Ms E. Norman of CLC Solicitors, a lawyer practising in London.
A. The circumstances of the case
1. The facts
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 7 May 1995 and claimed asylum. The asylum claim was refused but he was granted Exceptional Leave to Remain until February 2000.
On 23 July 1998 the applicant was convicted of offences of rape and indecency with a child and sentenced to eight years’ imprisonment. On 20 May 2002 the Secretary of State for the Home Department issued the applicant with a decision to make a deportation order and on 27 May 2002 he issued an Authority for Detention until the making of a deportation order.
On 2 July 2002 the applicant appealed against the decision to make a deportation order and made a fresh claim for asylum. The appeal was unsuccessful and his appeal rights were exhausted on 4 December 2003.
In early 2003 the applicant was interviewed by probation officers who found that he was not suitable for parole. During his time in prison he had received fourteen adjudications, six of which were for fighting. Moreover, he was assessed as presenting a high risk of sexual offending and a medium risk of general offending on release.
On 3 September 2003 the applicant’s sentence reached a point where release became automatic. He remained in detention pursuant to the authority issued on 27 May 2002.
On 5 April 2004 the Secretary of State for the Home Department issued a deportation order which included a paragraph authorising the applicant’s detention until his deportation. The order was served on the applicant on 19 April 2004.
As the applicant had claimed to be a member of the Isaaq tribe, which comes from Somaliland, the authorities initially sought to return him to Somaliland, but they were unable to obtain the bio-data required by the Somaliland authorities to satisfy them that he was entitled to settle there. While the applicant appears to have been less than co-operative, in practice it was virtually impossible to obtain the necessary data and there is no official record of any person successfully being removed to Somaliland at this time.
In June 2004 the last carrier willing to take “enforced returns” to Somalia withdrew, with the consequence that it was no longer possible for the Government to remove people without their consent. In November 2004 the applicant refused a formal request to sign a document stating that he was prepared to return to Somalia voluntarily.
On 20 December 2004 an application for bail was refused by the Chief Immigration Officer.
In March 2005 the applicant made further representations for asylum. In September 2005 the Secretary of State for the Home Department refused to treat those representations as a fresh claim.
On 11 October 2005 the applicant was again refused bail. In the course of the hearing, however, the immigration judge was wrongly informed that enforced removals to Somalia would be possible in the foreseeable future.
Monthly reviews of the applicant’s detention were carried out until the beginning of February 2006. From February 2006 to June 2006 no reviews were carried out due to the pressures of work.
In July 2006 the Government concluded an agreement with African Express Airlines which made enforced removals to Somalia possible.
On 25 September 2006 the applicant was granted permission to apply for judicial review of the decision to detain him but an application for interim relief in the form of an order that he be released from detention was refused.
The applicant was issued with removal directions set for 29 November 2006. He sought leave to apply for judicial review of the removal directions and the directions were cancelled pending a decision on that application.
2. Decision of the Administrative Court
The application for judicial review of the decision to detain the applicant was considered by Mr Justice Calvert-Smith in a judgment handed down on 7 December 2006. The judge reiterated the principles established by domestic case law: first, that the Secretary of State for the Home Department could only detain a person that he intended to deport for what amounted to a reasonable period in all the circumstances; secondly, that if, before the expiry of a reasonable period, it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention.
The judge first considered the lawfulness of the applicant’s detention up until August 2004. He was satisfied that prior to August 2004 the Secretary of State had exercised comparative diligence to overcome the obstacles and remove the applicant. In particular, he noted that the applicant could not have been removed between September 2003 and December 2003 because his asylum and deportation appeals were still pending, and between December 2003 and April 2004 he could not be removed because no deportation order had been served. When considered alongside the objections to bail (the risk of re-offending and the risk of absconding), he held that on balance the continued detention of the applicant up to August 2004 was lawful.
The period of detention from 3 December 2004, which was the date of the applicant’s first review following his refusal to return voluntarily, to 30 June 2006 was found to be unlawful because of its length, the impossibility during that period of achieving removal, and the misleading statements which misled decision-makers both inside and outside the Home Department.
The judge held that the applicant’s detention after 30 June 2006 was lawful as once again there was a prospect of immediate removal. Both the applicant and the Secretary of State were granted leave to appeal to the Court of Appeal. The Secretary of State contended that the application for judicial review ought to have been dismissed, while the applicant submitted that his continued detention after 30 June 2006 should have been held to be unlawful.
3. Decision of the Court of Appeal
In a judgment handed down on 30 July 2007, the Court of Appeal allowed the appeal by the Secretary of State and dismissed the applicant’s appeal. The court held that the period of detention between 3 December 2004 and 30 June 2006 was lawful because the applicant could have returned to Somalia voluntarily. Moreover, the risk of the applicant reoffending was high, which was a worrying prospect in view of the nature of his previous offence. The court held that it was wrong in principle to offset those factors against the applicant’s concerns about returning to Somalia as his removal had already been held not to be in breach of the Refugee Convention or Article 3 of the European Convention on Human Rights. On 13 December 2007 the applicant was refused permission to appeal to the House of Lords.
4. Subsequent events
On 1 February 2007 the Secretary of State issued a decision refusing to revoke the deportation order. An Immigration Judge allowed the applicant’s appeal. On 10 May 2007 the Asylum and Immigration Tribunal ordered reconsideration of the Immigration Judge’s decision. The reconsideration hearing took place on 26 February 2008. The Tribunal held that the Immigration Judge had materially erred in law and ordered that the case be reheard. The rehearing took place on 18 December 2008 but as yet no decision has been handed down.
On 13 April 2007 the Asylum and Immigration Tribunal ordered that the applicant be released from detention on bail. He was released early the following week but was re-detained on 3 April 2008 after breaching his bail conditions.
5. Unlawful presumption in favour of detention: April 2006 to December 2008
In April 2006 the Home Office introduced a “secret” policy whereby there was a presumption in favour of detention pending deportation in cases handled by the Secretary of State for the Home Department’s Criminal Casework Directorate. The policy was not disclosed until mid-2008 and was not formally published until September 2008.
In Abdi & Ors v Secretary of State for the Home Department  EWHC 3166 (Admin) the Administrative Court held that the policy in itself was unlawful as it was contrary to the legislation giving rise to the detention power. It further held that the Secretary of State had acted unlawfully in operating the policy without disclosing it. The court concluded, however, that unless an individual detainee could show, on the balance of probabilities, that he or she would have been released but for the existence of the policy, the existence of the policy did not in itself lead to the conclusion that the detention was unlawful.
B. Relevant domestic law and practice
The power to detain a person against whom a decision has been taken to make a deportation order is contained in Paragraph 2 (2) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), which provides:
“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.”
The power to detain an individual in respect of whom a deportation order is in force is contained in Paragraph 2 (3) of Schedule 3 to the 1971 Act. It provides:
“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).”
There are, however, limitations on the power to detain. Four distinct principles emerge from the guidance given in R v Governor of Durham Prison, ex parte Hardial Singh  WLR 704:
“i. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii. The deportee may only be detained for a period that is reasonable in all the circumstances;
iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv. The Secretary of State should act with reasonable diligence and expedition to effect removal.”
The applicant complains under Article 5 of the Convention that his detention was unlawful. He complains first, that during the period when forced removals were unlawful, the exception to the general right to liberty permitted by Article 5 § 1(f) was not operative; secondly, that his detention, by its very length, was arbitrary and thus contrary to Article 5; and thirdly, that periods of his detention were not in accordance with a procedure prescribed by law as procedural safeguards in the Secretary of State for the Home Department’s published detention policies were not complied with, misleading statements were made to a bail court and to the applicant’s Member of Parliament by Home Office Officials, and during part of the applicant’s detention the Secretary of State operated an unlawful policy creating a presumption in favour of detention in criminal deportation cases.
QUESTIONS TO THE PARTIES
Was the applicant lawfully detained throughout the period between 3 September 2003 and April 2007 as “a person against whom action is being taken with a view to deportation” within the meaning of Article 5 § 1(f)? Did the length of the detention exceed that reasonably required for the purpose pursued under Article 5 § 1(f)?
What weight should be attributed to the fact that at any time the applicant could have put an end to the period of immigration detention by agreeing to return voluntarily to Mogadishu?