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

Immigration detention must remain directed to removal and must be justified by a realistic prospect of removal within a reasonable period. The assessment is fact-sensitive and requires a continuing balance between the likely period to removal, the period already detained, risks of absconding and reoffending, vulnerability, and whether those risks can be managed in the community. Serious public-safety risks cannot displace the need to address removability. A detention review is unlawful where it materially fails to engage with that question or with the published detention policies, even if lawful application of the correct principles would have produced the same detention. The detention may therefore be unlawful in public law without breaching the Hardial Singh principles.

The claimant challenged his immigration detention between 10 August 2018 and 25 April 2019. He had made representations seeking revocation of a deportation order, relying in part on his brother’s pending appeal in MS (Art 1C(5) – Mogadishu) Somalia [2018] UKUT 196. The Secretary of State deferred consideration of those representations pending the appeal and continued detention because of the claimant’s serious risks of absconding and violent reoffending.

Permission was granted only on the challenge to detention after the representations. The central issues were whether detention breached the second, third or fourth Hardial Singh principles, public law duties and Article 5 of the European Convention on Human Rights.

1. The claim succeeded in part. The detention was unlawful on public law grounds from 12 September 2018 to release on 25 April 2019. The claim based on breach of the Hardial Singh principles was dismissed.

2. The second and third Hardial Singh principles overlap but require distinct perspectives: the second looks back at the period already detained, while the third looks ahead to whether removal can be achieved within a reasonable period. The question is fact-sensitive and requires a sufficient prospect of removal, assessed by balancing all relevant circumstances.

3. The assessment included the likely timescale for removal, uncertainty arising from the pending appeal, the claimant’s history of absconding and persistent offending, the very high risk of violent reoffending, conduct in custody, vulnerability under the Adults at Risk policy, and whether approved accommodation could manage the risks. A fixed or imminent removal date was unnecessary. A lengthy period, potentially approaching two years, was not necessarily unreasonable in the circumstances.

4. The Secretary of State was entitled to defer substantive consideration of the representations pending the appeal in MS (Art 1C(5) – Mogadishu) Somalia. Any delay in communicating that position did not prolong detention and therefore did not independently breach the fourth principle.

5. From the September 2018 reviews, decision-makers focused on offending and absconding risks without properly addressing removability within a reasonable time. That was a material public law error, also contrary to the relevant published policies. The error was capable of affecting the decision to detain, although the claimant could and would have been detained lawfully had the correct approach been followed.

6. Article 5 added no separate basis beyond the common-law and public-law analysis. Damages, including whether more than nominal damages were payable, were left for later determination.

This was a first-instance judicial review. Permission to appeal was refused by Mrs Justice Yip.