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

The power to detain a person pending deportation is limited by statute, policy and the Hardial Singh principles. Where there is independent evidence that a detainee has been tortured, continued detention is permitted only in very exceptional circumstances. Ordinary risks of absconding and serious criminal offending do not necessarily meet that threshold. Detention must also remain directed to removal which is realistically achievable within a reasonable period, and the Secretary of State must act with reasonable diligence and expedition. Where removal within a reasonable period is remote, continued detention is unlawful and release should follow, subject to appropriate conditions.

The claimant, a Somali national subject to a deportation order, sought judicial review of his continued immigration detention and brought a claim for false imprisonment. He also sought interim relief pending determination of the claim. The challenge relied on independent medical evidence of torture, the Secretary of State’s policy requiring very exceptional circumstances for detention in such cases, the absence of a realistic prospect of removal to Somalia within a reasonable period, and delay in determining his outstanding asylum claim. The central issues were whether the policy applied and whether continued detention complied with the statutory limits identified in the Hardial Singh principles.

1. Independent evidence of torture. The medical evidence, including examination of scars and reports from doctors, constituted independent evidence of torture. The policy did not require proof that torture had occurred. It required evidence beyond the detainee’s own account.
2. Very exceptional circumstances. Where the policy applies, continued detention requires very exceptional circumstances. The assessment of that question permits legitimate differences of view, but ordinary detention considerations are not sufficient without more. A routine risk of absconding did not amount to a very high risk. The claimant’s offending history did not establish the exceptional circumstances required by the policy.
3. Statutory limits on detention. The Secretary of State could detain only for the purpose of removal, for a reasonable period, and while removal within a reasonable period remained achievable. She was also required to act with reasonable diligence and expedition. The prospect of deporting the claimant to Somalia within a reasonable period was remote, particularly in light of the outstanding asylum process, appeal rights, the limited number of returns, and evidence concerning vulnerability in Mogadishu.
4. The judgment identified a strong argument that each of the Hardial Singh limits had been breached. Continued detention was therefore unlawful, and interim relief was required because of the strength of the claim for unlawful deprivation of liberty.
5. The claimant was to be released subject to residence, electronic tagging, overnight curfew, and weekly reporting conditions. The defendant was required to notify the police and arrange electronic monitoring before release.

The claimant issued judicial review proceedings and sought interim relief. Wyn Williams J directed on 11 February 2016 that the matter be listed to determine whether he should be released pending further order. The Administrative Court granted interim relief and ordered release subject to bail conditions.