Abdi v Secretary of State for the Home Department

Immigration detention pending automatic deportation must remain within the Hardial Singh limits. Detention must last no longer than is reasonable in all the circumstances, and the Secretary of State must act with reasonable diligence and expedition in deciding whether a statutory exception to deportation applies.

Reasonableness is fact-sensitive. Relevant considerations include the length of detention, obstacles to removal, administrative diligence, detention conditions, its effects, the risk of absconding and the risk of further offending. Absconding risk is important but cannot operate as a trump card. A serious decision requiring specialist and hierarchical consideration may properly occupy a period of time. Mere administrative failing is not necessarily unlawful detention.

The claimant, a Somali national and foreign criminal, was detained on arrival in the United Kingdom and subsequently under section 36(1)(a) of the UK Borders Act 2007 while the Secretary of State considered automatic deportation and the statutory exceptions.

He sought a declaration and damages for false imprisonment and breach of article 5 of the European Convention on Human Rights. By the hearing, the issues were whether detention lasting almost ten months was unreasonable and whether the Secretary of State had failed to act with reasonable diligence in deciding whether the claimant could be deported.

1. Claim dismissed. The detention from 22 November 2011 to 24 September 2012 was lawful and did not breach the Hardial Singh principles or article 5 of the European Convention on Human Rights.
2. Under section 36(1)(a) of the UK Borders Act 2007, detention was permitted while the Secretary of State considered whether section 32(5) applied. In the automatic deportation context, the Secretary of State must have a conditional intention to deport unless an exception in section 33 applies. The detainee may be held only for a reasonable period, and the Secretary of State must act with reasonable diligence and expedition to decide whether an exception applies. This adaptation of the principles in R (Hussein) v SSHD was endorsed in [2013] EWCA Civ 1378.
3. The overall period was reasonable. The claimant had a substantial history of absconding, had failed to co-operate with the emergency travel document process, and presented a risk of reoffending. Those matters were important, but the absconding risk was not a trump card. The relevant factors identified in R (I) v SSHD and approved in [2011] UKSC 12 were applied.
4. The claimant’s returnability was not clear from the outset. His personal circumstances and claimed clan identity had not been accepted in the earlier determination, creating a partial evidential vacuum. The country guidance did not establish that every returnee to Mogadishu was necessarily at risk. Individual circumstances and current country material had to be assessed.
5. There was no unlawful lack of diligence. The Secretary of State undertook enquiries, referred the case through the asylum and enforcement teams, dealt with bail applications and judicial review correspondence, and obtained approval at the appropriate senior level. The periods relied upon were materially shorter than those in R (JS) (Sudan) v SSHD. They amounted, at most, to administrative delay and not unreasonableness amounting to illegality, applying R (Krasniqi) v SSHD.
6. The four days between approval not to deport and release did not demonstrate a failure of reasonable diligence because the Secretary of State was awaiting a release address.