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

Detention pending removal is lawful only while removal remains achievable within a reasonable period. A publicly announced practice that the European Court of Human Rights will grant interim protection to a class of applicants does not itself prevent removal. Until a case-specific indication is made under Rule 39, the Secretary of State need not anticipate that the individual will apply for and obtain one.

A fact-sensitive removal policy does not invariably require a fresh inquiry into an individual's place of origin and route of return. Where the person's account has been rejected, no further representations have been made and current country guidance permits removal, the Secretary of State may proceed on the existing information.

The appellant was a Somali national whose asylum claim and subsequent appeals had failed. In July 2009 the Secretary of State detained him and set directions for removal to Mogadishu. The European Court of Human Rights subsequently issued a case-specific indication under Rule 39, after which the removal directions were cancelled and the appellant was released.

Beatson J dismissed the appellant's claim for judicial review. The appellant appealed on two grounds. He submitted that detention was unlawful because the Secretary of State knew that the European Court was routinely granting Rule 39 protection against removal to Mogadishu. He also submitted that officials had failed to undertake the fact-sensitive risk assessment required by the Secretary of State's policy.

1. Appeal dismissed unanimously. The principles in R v Governor of Durham, ex parte Hardial Singh [1984] 1 WLR 704 limit detention to a period reasonably necessary to carry out removal. Detention is impermissible where it is apparent that removal cannot be achieved within a reasonable period.
2. When the appellant was detained, no legal impediment prevented removal. Neither legislation nor a domestic court order prohibited it, and the European Court of Human Rights had not yet made an interim indication under Rule 39. The Secretary of State was not legally obliged to anticipate that the appellant would seek and obtain such protection.
3. A general practice announced through the Registry of the European Court did not have the juridical status of a case-specific order made by the Court in the exercise of its jurisdiction. Knowledge that Rule 39 indications were routinely being granted to persons facing removal to Mogadishu therefore did not invalidate either the removal directions or the decision to detain.
4. The challenge based on the absence of a fact-sensitive risk assessment also failed. The appellant's account of his clan membership and place of origin had been comprehensively rejected, and no further representations had been made after his appeal rights were exhausted. Officials were entitled to assess removability by reference to the absence of outstanding proceedings, representations and known medical risks, the availability of travel arrangements and the prevailing position concerning removal to Mogadishu.
5. The applicable country guidance, AM and AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091, imposed no blanket prohibition on removal to Mogadishu. The appellant had not established that he fell within a defined risk category. In those circumstances, the Secretary of State was entitled to proceed without initiating a new fact-finding inquiry.

1. Court of Appeal (Civil Division): Dismissed the appeal on both grounds and upheld the dismissal of the judicial review claim.
2. High Court, Queen's Bench Division, Administrative Court: Beatson J dismissed the claim for judicial review. He held that the Secretary of State was entitled to set removal directions and that officials acted with reasonable dispatch after receiving the Rule 39 indication. No neutral citation is stated in the judgment.