AA (Somalia), R (On the Application Of) v Secretary of State for the Home Department

Detention under section 36(1)(a) of the UK Borders Act 2007 is not automatically unlawful after any fixed period. Its lawfulness depends on whether the period was reasonable in all the circumstances, applying the Hardial Singh principles. The assessment is fact-sensitive and includes the length of detention, obstacles to removal, diligence, detention conditions, effects on the detainee and family, and risks of absconding or further offending. In the automatic deportation context, the assessment must reflect the seriousness of deciding whether a statutory exception applies. Current country conditions, personal circumstances and immigration status may require careful investigation. An appellate court should not substitute its own view unless there is legal error, inconsistency with findings or a conclusion outside the permissible ambit.

The appellant, a Somali national and foreign criminal, challenged his detention pending consideration of automatic deportation. He had been detained under section 36(1)(a) of the UK Borders Act 2007 from 19 January 2012 until his release on 24 September 2012. He sought a declaration and damages for false imprisonment and breach of article 5 of the European Convention on Human Rights, contending that the length of detention was unreasonable.

Mr Andrew Grubb, sitting as a Deputy High Court Judge, dismissed the claim on 29 January 2014: [2014] EWHC 929 (Admin). The appellant argued that his returnability to Somalia was clear and that the Secretary of State had detained him for too long while resolving questions about his status. The central issue was whether ten months’ detention was reasonable in all the circumstances.

Appeal dismissed. The Court of Appeal upheld the Deputy High Court Judge’s conclusion that the appellant’s ten-month detention under section 36(1)(a) of the UK Borders Act 2007 was reasonable and lawful.

1. The statutory context was material. A foreign criminal within section 32(1) was subject to mandatory deportation under section 32(5), unless an exception under section 33 applied. Section 36(1)(a) authorised detention while the Secretary of State considered whether the automatic-deportation duty applied.
2. The detention power was subject to the Hardial Singh principles. There was no fixed maximum period after which detention became unlawful. Reasonableness depended on all the circumstances, including the length of detention, obstacles to removal, administrative diligence, detention conditions, its effects, the risk of absconding and the risk of further offending. These principles had been recognised in R (I) v SSHD [2003] INLR 196 and approved in R (Lumba) v SSHD [2011] UKSC 12.
3. The assessment also had to reflect the statutory context identified in R (JS) [2013] EWCA Civ 1378. Deciding whether a narrow exception to automatic deportation applied was serious and required proper investigation. The earlier findings and older country evidence did not resolve the appellant’s returnability in 2011. The situation in Somalia was complex and dynamic, and the appellant’s status, personal circumstances and background required investigation. The effect of article 33(2) of the Refugee Convention was not obvious without that assessment.
4. The Deputy Judge was entitled to find that the Secretary of State acted with reasonable diligence, that the case involved complex status and returnability issues, and that there were risks of absconding and further offending. No material evidence had been provided about detention conditions or its effects. The appellate court should not interfere merely because it might have reached a different view: Mustafa Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931. Neither ground disclosed irrationality, legal error or a conclusion outside the permissible ambit.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the finding that the period of detention was reasonable in all the circumstances.
2. High Court of Justice, Queen’s Bench and Administrative Division: Mr Andrew Grubb, sitting as a Deputy High Court Judge, dismissed the judicial review claim on 29 January 2014: [2014] EWHC 929 (Admin).