Secretary of State for the Home Department v Abdi

Under the Hardial Singh principles, detention pending deportation must remain tied to the statutory purpose and last no longer than is reasonable in all the circumstances. Time spent pursuing an appeal or other legal challenge is neither automatically counted nor discounted. It is a relevant, fact-sensitive circumstance. Its weight may depend on causation, the stage and likely duration of proceedings, and their apparent merits and outcome. Courts should not ordinarily anticipate an unknown result. The critical question is whether removal was, or had become, possible within a reasonable time, viewed against the whole period and all material circumstances. Even a past period of unreasonable detention does not necessarily require release if removal will occur within a reasonable time when the case is decided.

These conjoined appeals concerned detention pending deportation under the Immigration Act 1971. In Abdi, the Home Secretary appealed Davis J’s decision, reported at [2009] EWHC 1324 (Admin), which dismissed a damages claim but ordered release under the Hardial Singh principles. In Khalaf, the detainee appealed Mitting J’s dismissal of his unlawful-detention claim, reported at [2010] EWHC 3083 (Admin).

The central issue was whether time spent pursuing statutory appeals, judicial review and related challenges should be excluded, included automatically, or treated as a relevant circumstance when assessing the legality and duration of detention.

The court dismissed the Home Secretary’s appeal in Abdi and allowed Abdi’s cross-appeal. It granted a declaration that his detention from 19 December 2008 until his release by order of Davis J was unlawful. The judgment records no final disposal of Khalaf’s appeal; the court invited submissions on the appropriate order.

1. The detention powers in Schedule 3, paragraph 2 of the Immigration Act 1971 contain no express duration limit. The common law nevertheless imposes the Hardial Singh limits. The Secretary of State must intend to deport, detention must be for that purpose, it must last only for a reasonable period, removal must be pursued with reasonable diligence and expedition, and detention should cease when removal cannot be achieved within that period. The court applied the principles stated in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 and R (I) v Home Secretary [2002] EWCA Civ 888.
2. Time spent pursuing appeals or other legal challenges is neither automatically counted nor discounted. The court must examine what occurred since detention began and why, give each factor its proper weight, and assess the total period in context. The apparent merits and outcome of proceedings may matter. A clear and certain outcome may be considered, but an unknown outcome should not ordinarily be anticipated. Appeals generally carry little weight by themselves.
3. The related question is whether it was apparent at any point that removal would not be possible within a reasonable time. A Rule 39 indication from the European Court of Human Rights does not necessarily make continued detention unreasonable. Conversely, previous unreasonable detention does not necessarily require release if the detainee will be removed within a reasonable time when the case is heard.
4. By December 2008, Abdi could not reasonably be expected to remain in Mogadishu, while the safety and feasibility of relocation to Puntland remained unresolved. There was no realistic prospect of removal in the foreseeable future. Allowing a reasonable period for officials to appreciate the significance of the tribunal hearing, detention became unlawful on 19 December 2008.
5. Appellate intervention in this evaluative area is justified only where the decision is inconsistent with primary facts, based on an incorrect legal understanding, or not sensibly open on the evidence.

• Court of Appeal (Civil Division): in [2011] EWCA Civ 242, the Home Secretary’s appeal in Abdi was dismissed and Abdi’s cross-appeal was allowed. The court declared detention unlawful from 19 December 2008 until release. The judgment records that Khalaf’s appeal remained to be disposed of.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Davis J, in [2009] EWHC 1324 (Admin), rejected the claim for damages but ordered Abdi’s release under the Hardial Singh principles. Mitting J, in [2010] EWHC 3083 (Admin), dismissed Khalaf’s unlawful-detention claim.