Cente Sheikh Noor Mohammed, R (on the application of) v Secretary of State for the Home Department

Immigration detention remains lawful only while removal is intended and can be achieved within a period that is reasonable in all the circumstances. The longer detention continues, the greater the required likelihood and proximity of removal. A Rule 39 indication, an in-country right of appeal, or unanswered representations does not automatically establish that removal cannot occur within a reasonable time. Risk of absconding and risk of reoffending are relevant. Where detention was imposed under an unlawful unpublished policy, but lawful application of the published policy and governing principles would inevitably have led to continued detention, recovery is limited to nominal damages.

The claimant, a Somali national subject to deportation proceedings, challenged two periods of immigration detention under the Immigration Act 1971. The first ran from 23 October 2007 to 14 November 2008; the second ran from 11 February 2009 to 17 February 2010. The Secretary of State accepted that detention from 23 October 2007 to 9 September 2008 was imposed under an unlawful unpublished blanket-detention policy, following Lumba v SSHD, [2011] UKSC 12. The remaining issues concerned the Hardial Singh principles, a Rule 39 indication concerning Somalia, the effect of BA (Nigeria) v SSHD, [2009] UKSC 7, and unanswered representations.

1. Detention from 23 October 2007 to 9 September 2008 was unlawful because it was imposed pursuant to the unpublished blanket-detention policy. Under Lumba v SSHD, [2011] UKSC 12, the relevant question for damages was whether lawful application of the published policy and the Hardial Singh principles would inevitably have resulted in continued detention.

2. The second Hardial Singh principle was satisfied. The claimant’s serious and repeated offending demonstrated a significant risk of serious reoffending. His offending history, together with the assessed risks of reoffending and failure to surrender recorded in bail decisions, made the length of each period reasonable.

3. The third principle was also satisfied. Following R (Muqtaar) v Secretary of State for the Home Department, [2012] EWCA Civ 1270, uncertainty about the outcome or timing of proceedings was insufficient. The Rule 39 indication did not itself make it apparent that removal could not occur within a reasonable time. Nor did the in-country appeal right which should have been available under BA (Nigeria) v SSHD, [2009] UKSC 7. Unanswered representations required identification of a determinable point at which it became apparent that they would not be answered within a reasonable time; that point had not been established before release.

4. The claimant was entitled to nominal damages of £5 for the unlawful detention, with no compensable loss. The challenge to the remainder of the first period and the whole of the second period was dismissed. Costs were reserved for written submissions if not agreed.