Abdi v Secretary of State for the Home Department

Detention pending deportation is lawful only while there is a sufficient prospect of removal within a reasonable period, assessed in all the circumstances. The court must consider the length of detention, obstacles to removal, the Secretary of State’s diligence, the likely timescale to removal, the risk of absconding and the risk and gravity of further offending.

Legal challenges to removal are relevant, with weight depending on their nature and merits. A refusal to return voluntarily is relevant only insofar as it bears on absconding risk. Even grave risks of absconding and serious offending cannot justify detention indefinitely. The court determines for itself whether detention has exceeded the lawful limits.

The claimant, a Somali national convicted of serious sexual offences, challenged his detention under the Immigration Act 1971 pending deportation. The claim concerned his second period of immigration detention, from 2 April 2008 to 24 January 2013.

The Secretary of State accepted that detention between April and September 2008 had been affected by an unlawful blanket policy, but disputed its substantive effect. The central issue was whether, applying the Hardial Singh principles, detention had become unreasonable or whether it had become apparent that removal could not be achieved within a reasonable period.

1. Outcome. The claim succeeded in part. Detention was lawful when the claimant was re-detained on 2 April 2008 and remained lawful through the successive stages of his domestic and Strasbourg litigation.
2. The court applied the four principles identified in Lumba v Secretary of State for the Home Department [2012] 1 AC 245. The central questions were whether detention remained reasonable in all the circumstances and whether it had become apparent that removal could not be achieved within a reasonable period. The judicial review court had to decide those questions for itself, and the Secretary of State bore the burden of showing that detention was lawful.
3. The relevant considerations included the risks of absconding and reoffending, the gravity of potential harm, the elapsed periods of detention, the obstacles to removal, the likelihood of removal and its likely timescale. The claimant’s earlier lawful detention was relevant, although the second period was more significant. His legal challenges were not to be treated as unmeritorious merely because they delayed removal. His refusal to cooperate was relevant only insofar as it supported an inference of absconding risk.
4. The claimant’s detention became unlawful on 6 April 2012. By then the second period had lasted almost four years, the prospects of removal had substantially diminished following Sufi & Elmi v United Kingdom [2012] 54 EHRR 9 and AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 445 (IAC), and the process of considering further representations and any possible route of removal had no clear endpoint. Grave risks of absconding and serious offending could not justify continued preventive detention indefinitely.
5. The unlawful blanket policy did not materially affect the substantive detention decision, because detention would have continued under the lawful policy. The claimant was nevertheless entitled to nominal damages for that public law error, together with damages to be assessed for detention from 6 April 2012 until release. The alleged failure to conduct policy-compliant reviews was not established.

The judgment describes earlier proceedings in the same dispute, including the Court of Appeal’s decision in R (A) (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 804, which held the claimant’s first period of detention lawful. The present judgment was a first-instance decision concerning the claimant’s second period of detention.