QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF ABDI
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Robin Tam QC and Mr Jeremy Johnson (instructed by The Treasury Solicitor) appeared on behalf of the Defendant
Hearing dates: 6 and 7 May 2009
Crown Copyright ©
Mr Justice Davis :
(1) Was the claimant, Mr Abdi, unlawfully detained by reason of the policy introduced in April 2006 and subsequently by reason of the revised policy introduced in 2009?
(2) Is the revised policy itself unlawful?
(3) In any event has the detention of the claimant, Mr Abdi, been (or alternatively is it at all events by now) unlawful, as contravening the principles set out in R v Governor of Durham Prison ex parte Hardial Singh  1 WLR 704?
The New Policy
"strongly indicative of the greatest risk of harm to the public and a high risk of absconding ... and that in practice it is likely the conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate."
Likewise, for example, in paragraph 220.127.116.11 it is stated:
"In cases involving serious offences on the list ... a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling."
The appended list itself (as revised) is now headed:
"Cases where release from immigration detention or at the end of custody would be unlikely."
The list is a long one, ranging from offences of murder, serious sexual offences, robbery and drug dealing, but also, for example, extending to cases of harassment and to cruelty to or neglect of children. She also referred to other passages in the revised chapter.
(1) That in reality Mr Abdi was never likely to be removed to Somalia within a reasonable time;
(2) That detention now amounting to some 30 months is too long to be justifiable;
(3) That the Secretary of State had wrongly misstated or overstated alleged lack of co-operation on the part of Mr Abdi with a view to his being removed to Somalia;
(4) That Mr Abdi's detention was caused by the unlawful former policy or alternatively by a failure to follow the correct policy; in particular, in that other alternatives, such as tagging, were not properly explored or in that the Secretary of State did not direct herself that it was necessary that the claimant be kept in detention for the shortest period necessary.
The Hardial Singh principles
"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  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 Te Lam v Tai A Chau Detention Centre  AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. 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. ii. The deportee may only be detained for a period that is reasonable in all the circumstances;
iii. 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. 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.
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."
"In the Court's view, despite the unfortunate legal history of this case since January 2003, the appropriate period for considering the delay for the purpose of these applications is from Q's withdrawal in March 2006 of his appeal against deportation, a period of six to seven months. Until then the Secretary could not know whether or when he would have power to deport him and, with it, a corresponding obligation to engage the Algerian authorities as to the details they required in his case as to his identity and family connections etc..."
But self-evidently there, as it seems to me, Auld LJ's comments were by reference to the facts of the case before the court: as indeed Auld LJ makes explicit by his reference to "for the purpose of these applications". Auld LJ was not, as I read this judgment, purporting to pronounce a general rule of the kind for which Mr Tam now contends.
"35. What Chahal illustrates is that a detained asylum seeker cannot invoke the delay necessarily occasioned by his own asylum claim (and any subsequent appeal(s)) to contend that his removal is clearly 'not going to be possible within a reasonable time', so that he must be released. That, however, is by no means to say that where, as here, a detainee, whom for reasons quite other than his asylum claim the Secretary of State is unable to remove, chooses during his detention to claim asylum, that claim, whilst unresolved, precludes his asserting that limitation 2 of the Hardial Singh principles is not satisfied. Nor, indeed, did Mr Robb for the Secretary of State put it that high. On the contrary, he made little of the point and suggested no more than that this appellant's asylum claim is a factor in the case.
36. What, then, should the approach be? For my part I found the following illustration (suggested by Mr Nicol) a useful one. Prior to September 11 there was no question of returning Afghanis to Afghanistan. Consider during that period the position of two prospective deportees, one of whom claims asylum, the other not. Could it seriously be argued that there was power to detain the first but not the second? Surely not. Consider, indeed, this very case. The Secretary of State, as it happens, was prepared to regard the appellant's invalid destination appeal in April 2001 as a fresh asylum application (see paragraph 3 above). Assume that he had not done so - or, indeed, assume that the fresh claim (and the subsequent appeal process) had been determined rather more expeditiously (as, perhaps, it should have been). It would then be clear that it was the political impossibility of removing the appellant which alone was responsible for his continuing detention. Should his position be worse because he can seek to take his asylum claim further still? And would it then improve if he chose not to? The answer to these questions is surely no. I am not saying that if, for whatever reason, whilst a properly detained asylum seeker's claim is being resolved, a short-term political difficulty arises which would in any event have delayed his return, he thereby necessarily become entitled to be released. I do, however, say that where, as here, there has been no lengthening whatever of the detention period as a result of the asylum claim, the relevant and substantial cause of the detainee's non-removal should be regarded as the political impossibility of returning him, rather than his claim for asylum."
Moreover, Mr Tam placed reliance on what Dyson LJ said at paragraphs 55 and 56:
"55. As regards the relevance of the appellant's asylum claim and appeal, I agree that for the reasons given by Simon Brown LJ, this is not material to the reasonableness of the length of detention. The reality in the present case is that the appellant has been detained 'pending removal' since 7 February 2001, and that, as a matter of fact, the reason why he has not been removed is not because he has been pursuing an asylum claim. It is because the Secretary of State is unable to remove persons to Afghanistan whom he wishes to deport to that country.
56. Taking account of all the circumstances of the case, I am of the opinion that by 29 May 2002, the appellant had been detained for a period that was longer than was reasonable. I take account of the difficulties facing the Secretary of State in effecting removals to Afghanistan and the fact that he has been conducting sensitive negotiations with neighbouring countries to enable removals to take place with their assistance. I also take account of the fact that the appellant has been convicted of criminal offences for which he was sentenced to three years' imprisonment and that he became liable to register as a sex offender. On the other hand, there is no evidence that he is liable to reoffend. I accept that there is a risk that he will abscond. I find it difficult to assess the seriousness of this risk, but I am not persuaded on the material that has been placed before this court that he will probably abscond. The nature of his detention and its effect on him have been summarised by Simon Brown LJ at paragraph 18 above. Taking account of all these circumstances, I am satisfied that 16 months detention is unreasonably long."
"... a prolonged period of detention pending the final resolution of an asylum claim is sometimes permissible..."
The use of the word "sometimes" is to be noted.
"The blunt facts are, therefore, that the claimant has been detained in administrative detention for two years and eight months. He cannot complain about the first nine months of his detention because it was occupied by his appeal against the deportation order and elongated by his own failure to engage with the original order promptly, thereby delaying the hearing of his appeal. So much is conceded by Mr Jones. He has, however, been detained for 23 months without there being, even now, any immediate prospect that he can be removed, unless he voluntarily decides to depart."
Those comments as to the 9 month period (and by concession) were made by reference to the facts of the case and do not purport to set out any kind of invariable rule of the kind Mr Tam advocates. The second decision of Mitting J is that of A  EWHC 142 (Admin). There, in circumstances where clearly the point was not fully argued, Mitting J, after citing from Hardial Singh, shortly said this at paragraph 5:
"Those principles have been applied in a variety of factual circumstances. It is now settled law that generally the date from which the lawfulness of detention falls to be considered is the date on which appeal rights were exhausted: see R (Q) v Secretary of State  EWHC 2690 at paragraph 20."
"108. In the present case the entire period from 24 March 2006 to 16 July 2007 was taken up with SK's application for asylum and his various appeals against the Secretary of State's decisions and orders. I do not say that the period before 16 July 2007 simply falls out of account – of course not: the period since 16 July 2007 has to be assessed in the light of and having regard to the fact that by 16 July 2007 SK had already been detained for some 16 months – but in the light of Mitting J's approach there is force in Mr Chamberlain's submission that the primary focus ought to be on the period since 16 July 2007 when, having reached the end of the road, SK became a failed asylum seeker.
109. Putting the same point rather differently, I think a weighty factor that has to be built into any evaluation of the reasonableness of the overall time that SK has spent in detention is the fact that during the greater part of that time he was vigorously pursuing through the appellate system both what in common with two Immigration Judges I agree was a transparently fabricated asylum claim and also an appeal against the deportation order which was probably always little short of hopeless."
The decision of Mitting J there referred to, I should add, was the decision in Bashir.
Application of Hardial Singh principles to facts of this case
"There are currently two barriers to effecting the Claimant's deportation. Firstly, he has an outstanding appeal to the AIT against the decision to deport. Secondly, it is necessary to obtain sufficient bio-data from the Claimant in order to effect his removal to Somaliland under the Memorandum of Understanding which the United Kingdom has with the Somaliland authorities."
Those comments in some ways were overtaken by events. Indeed, thereafter, as I have said, the Somaliland authorities indicated that they would not accept the claimant. On 16th July 2008, however, Ms Honeyman made a third witness statement. She referred to the Operational Guidance Note relating to returns to Somalia. She said this, in paragraph 9:
"I can confirm that a route has been available for enforced returns to Somalia (including both Mogadishu and Somaliland) since July 2006, following agreements with the relevant airlines and authorities in transit countries."
"16. Subject to that period, removals to Somaliland under the MOU have been possible throughout the period of the Claimant's detention. I am advised by ReSCU that they have effected 7 removals to Samaliland since September 2006.
Returns to South-Central Somalia
17. There have been various practical difficulties with the route of return for enforced removals to Mogadishu over the past few years. However, I can confirm that the route was re-opened from late July 2006 and has been in operation throughout the period of the Claimant's detention with the exception of a short period (approximately 3 weeks) in April/May 2007 when the airline asked for a hold on removals.
18. A policy decision was taken in 2006 that enforce removals should not recommence until the Court of Appeal had handed down judgment in AG (Somalia)  EWCA Civ 1342. Judgment in the Defendant's favour was handed down on 17th October 2006, and removals to Mogadishu have been proceeding since then. Kate Massie's statement of 1 May 2008 confirmed that there were at least 10 enforced removals to Mogadishu between November 2007 and April 2008. Further enquiries with ReSCU have confirmed that they have effected 22 removals to Mogadishu since December 2006, indicating that this has been possible throughout the period of the Claimant's detention.
19. There is no prior requirement (equivalent to that in the MOU with Somaliland) for South-Central Somalia to accept an individual and they can simply be returned to Mogadishu on an EU letter issued by the Home Office."
"62. The Claimant's continued detention was reviewed in light of these changes in circumstances and it was decided that detention remains appropriate. In essence, in circumstances where the Claimant is expected to be documented and able to be removed within a short time of his appeal rights being exhausted - should he fail at the second stage of his reconsideration hearing - the Claimant's detention is deemed to be necessary at this stage as he is very likely to abscond and has a history of failing to comply with licence conditions imposed by the Courts in the past. Whilst the hearing is not listed until mid-August, it is noted that this was at the request of the Claimant's representatives. The full reasons are set out in the detention reviews dated 15 May 2008, authorised 23 May 2008... and 19 June 2008 authorised 20 June 2008...
63. The only present barrier to effecting the Claimant's deportation is his outstanding appeal to the AIT against the decision to deport. Once the Claimant's appeal rights are exhausted, the only steps remaining are to obtain a signed Deportation Order, issue an EU letter and arrange a flight. It should be possible to obtain a Deportation Order within 10 days, issue an EU letter within a few days, and ReSCU have confirmed that it should be possible to remove the Claimant within 6 weeks of his appeal rights being exhausted."
"Although we accept that he would face some difficulties on return to Puntland, we do not consider those difficulties are such as to cross the relatively high Article 3 threshold."
The Tribunal further concluded that removal would not be disproportionate and rejected the appeal on Article 8 grounds also.
"The Court decided on 7th October to adjourn all applications that concern expulsions to Somalia until the question of risk of return has been considered fully by the domestic courts."
The letter indicated that interim measures granted under Rule 39 would remain in place.
"The Government has not suspended all removals and deportations to Somalia. The court, however, has been granting interim measures under Rule 39 of the Rules of Court to all applicants issued with removal directions to Mogadishu.
Although the Court continues to grant Rule 39 requests, all applications by Somalis... have been adjourned pending judgment by the Court of Appeal in HH & Others ... Interim measures granted under Rule 39 will not be lifted until this judgment is issued.
HH concerns the issue of risk of return to Mogadishu, which will be considered in relation to Article 3 of the Convention and Article 15(c) of the European Union Qualification Directive ..."
"1. The Court is currently granting interim measures under Rule 39 of the Rules of Court to all applicants with removal directions to Mogadishu pending the adoption of a lead judgment. Applications by applicants challenging expulsion to Somaliland or Puntland are currently considered on a case by case basis."
It then refers to the position with regard to interim measures, saying that thus far they have been granted to with regard to 134 Somali applicants, the vast majority of whom were challenging expulsion to Mogadishu.
The letter went on to say this:
"5. The Court's policy is always to ensure coherence and equitable treatment of States. To the best of my knowledge, however, no other Member State of the Council of Europe is currently returning Somalis to Mogadishu.
6. Neither the UK Government (nor the Government of any other Contracting State) were ever officially asked by the Court to suspend expulsion of Somalis pending the adoption of a lead judgment."
"What is the Home Office's policy in relation to the ECtHR indication that it is issuing Rule 39 interim measures in respect of all Somali applicants who have removal directions for Mogadishu?"
"It is the UK Border Agency's policy to defer enforced removal in cases where the European Court of Human Rights has made a Rule 39 indication prohibiting removal. The UK Border Agency continues to remove via Somalia/Mogadishu in cases where the European Court of Human Rights has not made a Rule 39 indication."