Abdi, R (on the application of) v SSHD

Where an appeal concerning immigration detention raises an asserted general rule for measuring the reasonable period of detention, the issue should be considered with any alternative ground that may independently justify release. An appellate court should not determine the point in isolation where the interaction between the relevant Hardial Singh principles has not been fully argued and the point may be academic.

The court therefore made no ruling on whether time spent pursuing underlying appeals must generally be ignored. The appeal was adjourned for a fresh hearing before a different constitution, with costs reserved.

The Secretary of State appealed from Davis J’s decision of 22 May 2009. That decision ordered Mr Abdi’s release from administrative detention and dismissed his claim for damages for unlawful detention. Mr Abdi cross-appealed in relation to damages.

The appeal was argued principally on whether, under paragraph 2 of Schedule 3 to the Immigration Act 1991, time spent resolving underlying appeals against deportation should generally be left out of account when assessing the reasonable period of detention. During the hearing, the court identified a further issue: whether release was independently required because deportation could not be effected within a reasonable period. The central question became whether the appeal could properly be determined without full argument on both issues and their interaction.

The appeal was adjourned. The Court of Appeal made no determination on the merits of the proposed inflexible rule concerning time spent pursuing underlying appeals, and the cross-appeal was not decided.

1. Applicable framework. The court adopted as its starting point the four limits on detention pending deportation stated in R v the Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 and summarised in R(I) v Secretary of State for the Home Department [2003] INLR 196 at paragraph [46]. These include detention for the purpose of deportation only, detention for no longer than a reasonable period, release where deportation cannot be effected within that period, and reasonable diligence and expedition in pursuing removal.
2. Need to consider the issues together. The Secretary of State’s appeal focused on principle (ii). However, paragraph 76 of Davis J’s judgment arguably also rested on principle (iii). The court noted that R(I) itself turned on principle (iii), rather than the issue concerning time spent on underlying appeals. The relationship between the two principles and the effect of the authorities therefore required full argument.
3. Case management. It was unsatisfactory to decide an important point that had become academic in relation to the present decision, or to determine it on oral submissions directed to one issue and written submissions on another. The hearing estimate had been substantially inadequate, the present constitution could not reconvene, and the cross-appeal might also require argument. The case was accordingly adjourned for a three-day rehearing before a different constitution, to be listed as soon as possible in the next term. Costs were reserved.

• Court of Appeal (Civil Division): adjourned the Secretary of State’s appeal for a fresh three-day hearing before a different constitution; the cross-appeal and costs were reserved.
• Queen’s Bench Division, Administrative Court (Davis J): ordered Mr Abdi’s release from administrative detention and dismissed his claim for damages for unlawful detention on 22 May 2009.