Abdi, R (on the application of) v Secretary of State for the Home Department

Under the Hardial Singh principles, immigration detention pending deportation requires a fact-sensitive assessment of reasonableness in all the circumstances. Time spent pursuing an appeal or other judicial process is highly relevant and may be decisive, but it cannot be excluded by a fixed rule. The total period, obstacles to removal, diligence, risks of absconding and reoffending, and alternatives to detention must be considered. Guidance may steer decision-makers towards particular outcomes and advise on the weight of factors, provided it preserves the presumption of release, individual consideration and consideration of reasonable alternatives. Detention may become unlawful when continuing litigation means removal is unlikely within a reasonable time, even where earlier detention was lawful. Public safety is relevant, but detention cannot be used as disguised preventative detention.

This was the continuation of judicial review proceedings concerning the detention of Mr Abdi, a foreign national prisoner facing deportation to Somalia. In an earlier judgment, the court held the former detention policy unlawful but found that it had not caused the detention of the claimants then considered: [2008] EWHC 3166 (Admin). Mr Abdi’s factual case was adjourned. The Secretary of State subsequently revised the policy.

The issues were whether the revised policy remained unlawful, whether the former or revised policy caused Mr Abdi’s detention, whether an initially defective deportation notice invalidated detention, and whether detention lasting about 30 months remained lawful under Hardial Singh while appeals and removal arrangements continued.

1. Revised policy. The revised guidance was lawful. It removed the former statement excluding the presumption in favour of release and repeatedly required individual assessment, consideration of reasonable alternatives and application of the Hardial Singh criteria. Guidance may steer decision-makers towards a particular outcome and indicate the weight of factors without creating a de facto presumption in favour of detention. Its detail and repetition did not make it insufficiently clear.
2. Applicable principles. The four principles stated in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 governed the case. The Secretary of State must intend to deport, detention must last only for a reasonable period, detention must end when removal within a reasonable period is no longer apparent, and reasonable diligence and expedition are required. Reasonableness is assessed by reference to all the circumstances.
3. Appeals and judicial remedies. There was no inflexible rule excluding periods spent pursuing asylum claims, appeals or other judicial processes. Such periods are highly relevant and may be decisive, but their weight depends on the facts and the totality of the detention. The merits of completed collateral proceedings may be considered. The approaches in Q [2006] EWHC 2690 (Admin), Chahal v United Kingdom [1996] 23 EHRR 413, Bashir [2007] EWHC 3017 (Admin) and R (SK) v Secretary of State for the Home Department [2008] EWHC 98 (Admin) were understood accordingly. Bail remained distinct from a challenge to the lawfulness of detention, as explained in R (Konan) v Secretary of State for the Home Department [2004] EWHC 22 (Admin).
4. Application before the final stage. Mr Abdi presented a high risk of absconding and reoffending. Public safety was relevant to reasonableness, following A [2007] EWCA Civ 304, although detention could not be used as preventive detention. Cooperation, alternatives including tagging, and the former unlawful policy had been considered. References to the Cullen criteria did not cause the detention, since the Secretary of State would have detained Mr Abdi on the individualized risks in any event.
5. Deportation notice. The first notice contained errors concerning the date of the court recommendation and reliance on section 3(6), rather than section 3(5)(a), of the Immigration Act 1971. It was defective but not a nullity. The Secretary of State had lawful power, intended to deport and had grounds to do so. No damages arose from the initial period.
6. Final outcome. Although detention had not previously been unlawful, the total period had reached about 30 months. The unresolved safety and route issues concerning return to Puntland, continuing appeals and the interim-measure practice under Rule 39 of the European Court of Human Rights meant that removal was no longer likely within a reasonable time. A reasonable period had elapsed. Release was ordered, subject to conditions, and the court would hear counsel on those conditions.

• High Court (Administrative Court): In the earlier judgment [2008] EWHC 3166 (Admin), the former foreign-national prisoner detention policy was held unlawful, but its causative effect was rejected in the cases then decided. Mr Abdi’s factual issues were adjourned.
• Asylum and Immigration Tribunal: Mr Abdi’s first appeal succeeded because the deportation notice was invalid. A fresh appeal was dismissed, reconsideration was ordered, and the reconsidered appeal was dismissed on 30 March 2009. An application for permission to appeal to the Court of Appeal had been made; its outcome was not stated.
• High Court (Administrative Court): The present court rejected the claim for damages but ordered Mr Abdi’s release under the Hardial Singh principles.