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13 MAR 2014

R (on the application of Ismail) v Secretary of State for the Home Department

Excessive delays in investigating the prospect of removing the Claimant to Somalia resulted in his detention being unlawful.

13 December 2013

Administrative Court

Lang J

(1)       The Claimant, a Somali national, sought judicial review of the decision to detain him pending deportation under section 32 of the UK Borders Act 2007, pending his conviction for assault.

(2)       His grounds of challenge were:

(a)       his detention breached the Hardial Singh principles;

(b)       the Defendant filed to consider the interests of his children;

(c)       his detention breached Article 5 ECHR.

            Permission was granted for grounds (a) and (c).

(3)       The Claimant was 33 and has been in the UK since he was 12. In 2007, he married a Dutch citizen, but they were divorced in February 2011. Whilst married they had two children. At the date of this hearing, the Claimant had been detained for 1 year, 6 months and 11 days. He would be likely to remain detained for another year whilst his appeal against deportation was decided. The Claimant could not be removed until his appeal rights were exhausted. The authorities in Somaliland had not yet indicated whether they would allow the Claimant entry. The Defendant's evaluation of the situation in Mogadishu led her to conclude that the Claimant's removal there would not breach Article 3 ECHR. He spoke the language and would be able to undertake unskilled work. There was held to be no realistic prospect of removal to Mogadishu because of the logistical problems in implementing enforced removals. Removal to Somaliland would pose fewer risks, because it was more stable and secure than Mogadishu.

(4)       HELD: The Court held that the evidence, including Country Guidance, indicated that the Claimant would not be likely to be deported for at least another year. On the basis of reports addressing the likelihood of Somaliland granting citizenship to the Claimant, that there was a realistic prospect of deportation to Somaliland, and this remained the case, although when is less certain.

(5)       The Court noted that there had been a delay of 15 months from the start of detention until the UK Border Agency (‘UKBA') was properly handling the issues of deportation. The UKBA had also failed to identify that the Claimant had claimed asylum and also indicated that he could not return to Somalia. The Defendant's failure to identify that the Claimant had made an asylum claim was that which caused the delay in deportation investigations. The Court found that it was only the threat of legal proceedings that caused the Defendant to perform its legal duties. Prior to that threat, the case had been left to languish. Had the Defendant acted with due diligence, the immigration files would have been examined much earlier, and a deportation decision made at a much earlier stage.

(6)       The Court held that had there not been delay, a decision would have been made by the end of February 2013. The Defendant's investigation of the Claimant's family life was also subject to many delays, and was held to be incompetent. There had been a failure to consider obvious lines of enquiry until very late in the investigation, and a failure to identify the nationality of the children.

(7)       The initial decision to detain the Claimant was held to be justified on the basis of the risks of him absconding or re-offending. However, detention was no longer lawful when it was unduly prolonged due to the Defendant's ‘incompetence, neglect and failure to show due diligence'. The Court found that investigations should have been completed by the end of February 2013. The risks of re-offending or absconding were not so high that detention remained lawful.

(8)       The Court did not consider that detention could be justified, and thus ordered the Claimant's release.

Claim succeeded

Key paragraphs

[48] - Another year to deport.

[58] - No removal to Mogadishu.

[67] - Deportation Somaliland.

[69] - Delay. 

[99] - Case left to languish.

[102] - February 2013.

[115] - Investigation family life.

[117] - Initial detention justified.

[119] - No longer lawful.

[123] - Release.

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