Abdi, R (on the application of) v SSHD

This is an appeal from a decision of Davis J dated 22 May 2009, whereby he ordered that Mr Abdi, the respondent, be released from the administrative custody in which he had been held by the Secretary of State for the Home Department (“the Secretary of State”) since 29 December 2006, a period of 30 months.

The judge dismissed the respondent's claim for damages for his detention during that period, which he claimed to have been unlawful. The Secretary of State appealed against the respondent's release and the respondent cross-appealed to claim damages for unlawful detention.

The appeal came before the court as presently constituted yesterday morning, with a time estimate of one-and-a-half days. In opening, Mr Tam QC for the Secretary of State stated that the court was invited to deal with a "nice little point of principle". It was a point of law which had been "floating around for some time". Mr Tam said that the cross-appeal was more fact-specific, but told the court, with the apparent assent of Mr Husain QC, who appears for the respondent, that if the appeal succeeded, the respondent’s appeal would fall away.

The point of principle was stated. The Secretary of State claimed an inflexible rule, though subject to certain exceptions, that when a court is considering the lawfulness of detention under paragraph 2 of Schedule 3 to the Immigration Act 1991, and deciding whether the time limit had been reached, the court should ignore the time spent pursuing underlying appeals. By “underlying appeals” is meant appeals against the deportation order, or the notice of a decision to make a deportation order, the prerequisite of the power to detain coming into operation.

The court has heard detailed submissions from Mr Tam and from Mr Husain on that point. They have been wide-ranging and have considered domestic and Strasbourg jurisprudence. It has of necessity been wide-ranging because this is an issue which -- and we express only a provisional view -- does not appear to have been confronted specifically by this court when dealing with cases under the Schedule.

The factor of delay has undoubtedly been considered in cases. There is an issue as to whether there is a fixed principle as Mr Tam contends. Mr Justice Mitting in one case appeared to have found in favour of the Secretary of State on this point.

We do not propose to go into the merits of the case, but the starting point, as agreed by the parties, are the limits of the power defined by Woolf J in R v the Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704. These were summarised by Dyson LJ in the R(I) v Secretary of State for the Home Department [2003] INLR 196 at paragraph [46] and it is as well to recite this summary in this short judgment:

“i.

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

ii.

The deportee may only be detained for a period that is reasonable in all the circumstances;
iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv.

The Secretary of State should act with the reasonable diligence and expedition to effect removal.”

The notice of appeal served by the Secretary of State challenged paragraph 2 of the order of Davis J that the claimant must be released by 4.00pm on 22 May 2009. The grounds of appeal supporting that application stated:

The skeleton arguments on both sides accepted those terms of reference and, especially having regard to the indication given by Mr Tam at the beginning of the appeal, the court has concentrated, as have the submissions, on principle (ii) of the principles summarised by Dyson LJ. What emerged, however, on the second day of the hearing, and emerged at the initiation of the court, was that arguably paragraph 76 of Davis J's judgment, in addition to making a finding on principle (ii), also found that by reason of the application of principle (iii) the respondent was entitled to his release.

While we have been referred to cases, notably the case of R(I) v SSHD, in which the two principles have been considered in the same case, argument has been concentrated upon principle (ii) and the inflexible principle which the Secretary of State wishes to have applied when considering the extent of that principle. Indeed, in I itself, on which the Secretary of State strongly relies as supporting his proposition, the case turned not on that issue at all, but on the issue in principle (iii), which has been referred to as “the deportation issue”.

I will not recite paragraph 76 in full, but it is plainly arguable, though it has not been argued on behalf of the respondent, that, quite apart from the point of principle on which the Secretary of State requires a ruling (and is the entire basis of the Secretary of State's appeal) there is a potential for dismissing the appeal on the basis, as in I, that the detention could not be justified under principle (iii). Mr Tam has indicated that he wishes to argue a number of points in relation to principle (iii). One is the rule 39 indication given by the European Court of Human Rights in other cases, and another is the question whether all a respondent has to do (or detained person has to do) is to point to a moment in time at which (iii) is not satisfied during the appeal process to entitle him to release.

The issue is not straightforward, and in our judgment has to be considered along with the point raised by the Secretary of State in his notice of appeal. In our judgment, unfortunately that point becomes an academic point in relation to the decision of this case, not only because of the need to consider the cross-appeal in the event of a finding adverse to the Secretary of State, but also because argument will be required on the inter-relationship of the two principles and the impact of the authorities in that context.

Mr Tam put various possibilities to the court before the short adjournment. The court is most conscious of the court time already invested in this appeal and the advantage, having regard to that, of at least some progress being made in resolving the issues which have arisen. It was suggested that, following short oral submissions this afternoon, further written submissions should be made on the principle (iii)s question and the court would hand down a judgment on the basis of those written submissions.

The points raised, including that initially raised by the Secretary of State, are important points and a considered decision of this court would be appropriate. The case is all about delay and the court, because of the scrutiny which it is argued may be given to the efficiency of the judicial process, was intending to give judgment orally on Friday afternoon -- that is, less than two days away -- notwithstanding that the court has other commitments in the meantime.

We are not able to accede to Mr Tam's submission, having regard to the importance of the points involved and to the open-endedness of what he suggests. It would not be satisfactory, in our view, to decide the case on the basis of a combination of oral submissions which we heard on point (ii) and written submissions, which I have no doubt would be devised as helpfully as possible by the parties, on principle (iii). There would in any event remain the question of cross-appeal, which, depending on the outcome of the appeal, would arise, and that is estimated by the parties as half a day. That in itself would be too limited a suggestion. The estimate of one-and-a-half days was in our judgment, and having regard to the points which have arisen, a considerable underestimate. It is important the case re-listing is arranged this term. It was listed soon after Easter but unfortunately, due to climatic difficulties, which were the fault of no-one involved in the case, that hearing had to be vacated.

The present constitution is unable to reconstitute next term. We have considered our commitments and that would be impossible. What will therefore be necessary if we adjourn the case is that the case has to be started afresh before a different constitution, unattractive though that is, particularly in view of the importance of court time but also costs for the parties. It is unfortunate that this course has to be taken, but in our judgment it is the only sensible course in these circumstances. As against the complexity and, as is submitted by the parties, the inconsistency between existing authorities, it would not be appropriate for the court to give a judgment on a point which of itself is academic and which can only properly be considered in the context of the facts of the case and the full issues which arise.

It is tempting to refer, at any rate in summary form, to the alleged inconsistencies to which we have referred, but we will refrain from that. We have been referred to a number of cases, both of this court and at first instance and, as we said at the beginning of this judgment, it does appear that this point has not been confronted expressly in some of the cases, which have gone off on other points. A consideration of the effect of those authorities is a somewhat complex question. That in itself would not have deterred the court but in the context we have described it would not be satisfactory for this court, and certainly not within the timescale involved, to give judgments appropriate to the situation.

The case will be adjourned on that basis. I have spoken to the listing officer, who will be available during the two days now before the end of term to consider representations from counsel and counsel's clerks as to when the case should be re-listed. It is important that it should be re-listed as soon as possible and certainly next term. We have come to the conclusion that three days should be set aside for the hearing of this appeal and we direct accordingly.