09 OCT 2014
Abdi v Secretary of State for the Home Department  EWHC 2641 (Admin); (2014) PLLR 086
Queen’s Bench Division, Administrative Court, Warby J
30 July 2014
Detention of a Somalian national became unreasonable after four years and the Sufi & Elmi decision, despite the high risk posed by the detainee.
(1) The claimant, a Somalian national, lodged a judicial review to challenge the defendant’s decision to detain him pending deportation. The claimant was in immigration detention between 2 April 2008 and 24 January 2013, at which time he was granted bail.
(2) The claimant entered the country unlawfully in the 1990s, and was convicted of rape and indecency with a child and sentenced to 8 years imprisonment in 1998. Since that time, he has spent the majority of his time in custody either serving his sentence or in detention on the orders of the defendant. A deportation order was made against the claimant on 21 May 2002, and on 27 May 2002, the defendant ordered his detention pending deportation.
(3) The claimant previously challenged the lawfulness of his detention between 3 September 2003, the date of release from his prison sentence, and 13 April 2007, when he was granted bail. That case was considered in R(A) (Somalia) v Secretary of State for the Home Department  EWCA Civ 804. The Court of Appeal held that this period of detention was lawful throughout and the deportation order remained in effect.
(4) The claimant was re-detained in 2008 on the grounds of abusive behaviour and breach of bail conditions (namely reporting and curfew), and remained in custody until 2013. The claimant pursued various legal challenges to avoid removal, which proved very complex. After proceedings which reached the Supreme Court, the claimant’s domestic appeal rights were exhausted on 24 November 2010 and the defendant set directions for the claimant’s removal to Mogadishu.
(5) These directions did not take effect due to the claimant’s application to the European Court of Human Rights in relation to the lawfulness of his first period of detention. A day prior to his scheduled removal, the ECtHR granted the claimant a Rule 39 indication stating that it was desirable in the interests of the parties and the proper conduct of the proceedings that the applicant should not be expelled pending the Court’s decision. This indication remained throughout the claimant’s detention, until the court delivered its decision on 9 April 2013.
(6) On 28 June 2011, the European Court of Human Rights gave judgment in Sufi & Elmi v United Kingdom  54 EHRR 9, in which it gave detailed guidance on the removal of Somalian nationals to Mogadishu. The Asylum and Immigration Tribunal promulgated a new Somalia Country Guidance case on 28 November 2011 and the Grand Chamber refused a request by the UK for reconsideration of Sufi & Elmi in December 2011.
(7) On 6 February 2012, the claimant asserted that these developments provided new support for a contention that his removal to Somalia would breach his Article 3 rights. The defendant did not respond to these contentions until after the claimant’s release from custody.
(8) The defendant periodically reviewed the claimant’s case during his detention, assessing his risk of absconding and the legal challenges that might block his removal. In the review of 27 March 2012, an authorising official expressed ‘grave concerns’ that the claimant’s detention might be unlawful.
(9) The claimant advanced two broad grounds of challenge:
(1) his detention was in breach of the Hardial Singh principles, specifically that the power to detain with a view to deportation be used only for so long as is reasonable in all the circumstances; and
(2) the decision to re-detain him on 2 April 2008, and subsequent decisions to maintain his detention up to 24 January 2013, were marred by material public law errors, and he would not as a matter of fact and could not as a matter of law have been detained had those errors not been made.
(10) The claimant argued that between 3 April 2008 and 9 September 2008, his detention was authorised by reference to the unlawful unpublished blanket detention policy the Supreme Court recognized in Lumba. The defendant conceded that the detention was unlawful during that period, but that this claimant was entitled to only nominal damages.
(11) The claimant further submitted that the overall length of detention was extraordinary and clearly excessive. The defendant submitted that the detention never became unlawful prior to his release.
(12) HELD: The court held that the final 9 months of the claimant’s detention were unlawful.
(13) In assessing the claimant’s behaviour and risk, the court did not regard the claimant’s legal challenges as abusive, and his unwillingness to cooperate with orders factored only into the risk that he might abscond. His risk of re-offending was rightly assessed as high throughout, and given the nature of his 1998 offense, the risk was of offending which would cause serious harm to members of the public.
(14) In assessing the effects of the claimant’s legal challenges to the length of his detention, the court declined to find his earlier challenges to his removal to be unmeritorious, particularly given his successful appeal in 2010.
(15) The court considered the lawfulness of the claimant’s detention by reference to circumstances at different points in time. The court found the initial detention decision was lawful based on the claimant’s high risk of absconding and serious harm to members of the public. He had not been compliant with bail conditions and his failings were of concern given his history.
(16) The court did not find that a decision to grant permission to appeal had any weighty bearing on the lawfulness of continued detention where it was not obvious the appeal would succeed.
(17) The claimant’s success in the court of appeal made it reasonable to view a successful appeal as a real possibility, though given the expectation of quick action by the Supreme Court and the continued risk posed by the defendant, his detention was still lawful.
(18) The Supreme Court’s overturning of the court of appeal caused there to be a sufficient prospect of removal, despite the likelihood of further submissions by the claimant, the pending Sufi & Elmi case, and the claimant’s having been in detention for 2 ½ years.
(19) The granting of Rule 39 indication by the European Court of Human Rights did not require the claimant’s release, as it was given on a fact-insensitive basis. At the time, giving the indication was the general practice of the ECtHR in relation to cases concerning Somalia, which does not seem to be the way in which the procedure was intended to be operated. Further, the Article 3 aspect of the claimant’s application had not been communicated to the UK. It would have been reasonable to anticipate that judgment would be given in the Sufi & Elmi case within 2011, and that once that judgment would be given, the Rule 39 indication would be lifted.
(20) The court did not accept that it was inevitable after Sufi & Elmi that it would be impossible to remove the claimant. In that case, it was found that the violence in Mogadishu was such that anyone not connected to powerful actors was at risk of violations of their Article 3 rights. The UK planned to seek a hearing before the Grand Chamber. Further, it had not been established that the claimant was unconnected to powerful actors in Modgadishu. Sufi & Elmi would also need to be considered and applied in light of domestic guidance and it was not inevitable the Tribunal’s conclusions would be identical to Strasbourg’s. The defendant had achieved some forced removals to Somalia in the previous years, though not many.
(21) The court concluded that the claimant's detention had become unlawful by early April 2012. He remained an absconding risk, but on the SSHD’s own assessment the risk was lower than it had been before. The claimant still posed a high risk of serious harm to the public, but as Lord Dyson observed in Lumba there has eventually to come a time when such risks cease to justify precautionary or preventive detention. By April 2012 the Claimant's second period of detention had 4 years. It would have been reasonable between February and April 2012 to foresee that the ECtHR would discharge the Rule 39 indication in respect of the Claimant within a few weeks or months. Instead, the SSHD decided to re-examine the evidence and look for new evidence elsewhere, rather than accepting that his imminent removal was no longer likely.
(22) The court concluded that the unlawful blanket policy had no material impact on the claimant’s case, as there was lawful justification for detaining him. The claimant is entitled to nominal damages for that period.
Claim partially succeeded.
 – Challenges to removal
 – Lawfulness of initial detention
 – Lawfulness of detention on grant of appeal
 – Lawfulness of detention after successful appeal
 – Lawfulness of detention after unsuccessful appeal
- – Lawfulness of detention after Rule 39 indication
- – Lawfulness of detention after Sufi & Elmi
- – Lawfulness of detention
 – Blanket policy of detention
 – Anonymity