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

This case is the aftermath of a decision which I handed down on 19 December 2008 [2008] EWHC 3166 (Admin). By that decision I decided that a policy introduced by the Secretary of State for the Home Department in April 2006 with regard to the detention of foreign national prisoners was unlawful, but that such unlawful policy had not been causative of the detention or continued detention of the various claimants: whose detention I decided had been lawful. There is an appeal and proposed cross-appeal with regard to my previous decision. Having reaching my conclusion as to that policy, I dealt with the individual cases then before me on the facts. However the case of the claimant, Mr Abdi, was expressly adjourned for further argument on the facts and I heard the matter on 6^th and 7^th May 2009, an earlier substantive hearing date for various reasons not having proved practicable.

As before, Mr Tam QC and Mr Johnson appeared on behalf of the Secretary of State for the Home Department. Ms Dubinsky appeared for Mr Abdi.

In the interim period certain matters had come to light which caused Ms Dubinsky to seek to add to her grounds of claim, as I will come on to mention, and I gave her leave to do so. Further, in the light of my previous decision, the Secretary of State has since revised her policy as set out in Chapter 55 of the current Enforcement Instructions and Guidance, in order to meet the criticisms which I had made in my previous judgment. Ms Dubinsky claims that the new revised policy is still unlawful.

I will not repeat the background facts and matters to this case, as they are set out in my previous judgment.

The principal issues arising for decision now are these:

It is I think convenient to deal first with the validity of the revised policy. A description of the policies previously in place can be found in my earlier judgment, to which reference can be made.

At first sight, and indeed at second sight, the revised policy (which was revised on 22nd January 2009 and again on 9th March 2009) meets the criticisms which I had made of the policy as stated at 9th September 2008. I had found it objectionable in law that that policy in places stated with regard to foreign national prisoners that the starting presumption in favour of temporary admission or temporary release did not apply: see in particular paragraphs 117 and 210 of my previous judgment. Those offending passages are now all removed. Paragraph 55.1.1 and paragraph 55.1.2 and other places of the revised Enforcement Instructions Guidance expressly refer to the presumption in favour of early admission or release as applicable. The need for individual consideration and the essential elements of the Hardial Singh criteria are also all fully set out in substance and repeated at various stages in the revised Enforcement and Instructions Guidance.

Ms Dubinsky nevertheless submits that the latest revised policy still remains objectionable. She draws attention, for example, to paragraph 55.3.A which says that conviction for one or more of the more serious offences is:

I can see no valid basis for these criticisms of the revised policy. It is not illegitimate by way of guidance contained in the Enforcement and Instructions Guidance to give a steer towards a particular outcome in certain specified circumstances, and to advise on the weight to be given to certain factors. Indeed, to do so can promote consistency in decision-making. The point remains that the revised Enforcement and Instructions Guidance repeatedly stress the starting presumption in favour of early release, and that all reasonable alternatives to detention must be considered and that each case must be considered on its own merits: see, by way of example paragraphs 55.3.2.1, 55.3.2.6. I therefore reject this particular argument, which in fairness to Ms Dubinsky, was by no means at the forefront of her overall argument. I reject her submission that in reality the revised Enforcement and Instructions Guidance has the effect of precluding individual consideration in individual cases or that it is unduly prescriptive so as in effect to reintroduce a rebuttable presumption in favour of detention.

Ms Dubinsky also submitted that the revised chapter 55 of the Enforcement and Instructions Guidance was, in her words "an extraordinarily convoluted document", which was so unclear, she said, as not to have the quality of law. I can accept that it is perhaps over detailed and repetitious in places and no doubt could, with profit, be more concise and more precise. But it is, in my view, of sufficient clarity to be valid and effective.

I should in any event add that the continuing detention reviews relating to Mr Abdi and made after the revised Enforcement and Instructions Guidance was introduced in 2009 clearly show that a presumption in favour of release was applied to him and that careful individual consideration was given to his case before the decisions to continue detention were made. So in causative terms the revised policy did not dictate the outcome.

The next question is whether the detention of Mr Abdi from November 2006 and continuing to the present-day was and is unlawful. That period is now some 30 months: on any view, a very long time indeed to be held in immigration detention.

The overall background is, as set out in my previous judgment, that Mr Abdi has a long history of criminal offending. His convictions variously include two counts of indecent assault, robbery, burglary, assault on a police officer and a drugs offence. A number of his offences were committed whilst he was on bail or on licence. It seems that for at least part of the time he had become addicted to crack cocaine. In the circumstances he was, as it seems to me, properly assessed both as posing a high risk of offending and also as posing a high risk of absconding. Further, bail applications in the interim had been refused by immigration judges.

Ms Dubinsky, for the purposes of her argument divided the detention into five separate periods: although obviously I also have to consider the totality. But her essential submissions were these:

The first period identified by Ms Dubinsky was 30th November 2006, the date of initial detention, to 31st March 2007, when a second and valid notice of intention to deport was served. The second period of detention was 1st April 2007 to 14th November 2007, when an application for reconsideration was granted. The third period was 15th November 2007 to 20th April 2008, when it was established that return to Somaliland within Somalia, which up until then the Home Office had been proposing, was not feasible. The fourth period was 21st April 2008 to 22nd January 2009, when the new revised policy was introduced. The final period was 23rd January 2009 to the present.

It is important for the purposes of aspects of the overall argument to note the litigation history. Notice of intention to deport (expressly referring to a court recommendation for deportation on, as it transpired, an incorrect date and purportedly made pursuant to section 3(6) of the Immigration Act 1971) was given on 29th November 2006. The claimant, Mr Abdi, was then detained on completing the custodial element of his then prison sentence on 30th November 2006. He appealed against the decision to deport on 18th January 2007. An immigration judge allowed that appeal on 13th March 2007, on the grounds of the invalidity of the notice. A fresh notice of intention to deport was given on 20th April 2007 and Mr Abdi immediately appealed.

On 30th October 2007 a determination of an immigration judge was promulgated dismissing that appeal. There was then an application by Mr Abdi for reconsideration and reconsideration was ordered on 14th November 2007. An application for bail was refused on 6th March 2008. These proceedings for judicial review were issued on 12th March 2008 and permission was granted on 16th April 2008. An application in these proceedings for interim relief, in the form of seeking an order for release from detention, was refused by Wyn Williams J on 1st May 2008.

On 12th May 2008 at a hearing in the Asylum and Immigration Tribunal, it was conceded on behalf of the Home Office that there had indeed been an error of law in the previous determination and that full reconsideration was needed. A further hearing took place, after various requests for adjournments in the interim, on 23rd October 2008 and that was adjourned part-heard. The hearing was eventually concluded in December 2008.

On 30th March 2009 the determination of the Asylum and Immigration Tribunal was promulgated, dismissing Mr Abdi's appeal. I was told that an application for permission to appeal to the Court of Appeal has been made, but I have not been informed of the outcome of that. Overall, it can be seen that for almost the entire period of Mr Abdi's detention there have been extant appeals or legal proceedings instituted by him with regard to whether or not he could lawfully be removed to Somalia.

The applicable relevant principles, as first formulated by Woolf J in the Hardial Singh case, are helpfully restated by Dyson LJ in the case of R (ex parte I) v Secretary of State for the Home Department [2002] EWCA Civ.888 in these terms:

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 reasonable diligence and expedition to effect removal.

By reference to those principles, Ms Dubinsky submitted that Mr Abdi had been detained for a period that was longer than was reasonable in all the circumstances. At all events, she said, it has been and is now apparent that the defendant would not be able to effect removal within a reasonable period of time.

The Hardial Singh principles are clearly stated. The overarching element in the relevant respects is an assessment of what is reasonable in all the circumstances. That therefore involves a judgment to be made by reference to the facts of each case. That may or may not be a difficult evaluation in some cases but the principles themselves to be applied are clear enough. Mr Tam, however, sought to introduce a restriction, which he says is applicable in all such cases, to the stated principles of Hardial Singh. He submitted that, in assessing whether a reasonable time has elapsed or whether deportation can be effected within a reasonable time, the rule is that one entirely excludes as a relevant consideration any period where the individual is pursuing an asylum claim or a judicial remedy or appeal in respected of the asserted right not to be removed. I had not understood Mr Tam to make such a submission to me in the earlier stages of the proceedings before me in relation to the other claimants involved. Nor does it seem that in the past counsel appearing for the Home Office in other cases have always sought to advance so fixed a viewpoint. But that, at all events, is the submission now made.

Mr Tam acknowledged only two exceptions to such a rule as he advances. The first is that the state must, of course, act with due diligence and the court hearings must be provided within a reasonable time, as required by Article 6 of the European Convention on Human Rights. The second is where, in causative terms, the individual remains in detention not because of any legal or appellate process which he is pursuing but because of some extraneous factor which would itself cause removal to be impossible: as illustrated by the case of I itself.

Mr Tam submitted that there are sound policy reasons why that should be so. First, he said the pursuit of such proceedings, whether by way of appeal or otherwise, shows that the applicant in question is refusing to return voluntarily. Second, if it were otherwise a person, who might be a dangerous person, might be able to increase his chances of release by pursuing every conceivable point and every avenue of appellate or legal process. Third, it is not desirable for judges in assessing whether the Hardial Singh principles have been correctly applied potentially to have to form a view on the merits of the legal challenges raised. For example, he said the High Court should not be seeking to second-guess any decision of the Asylum and Immigration Tribunal.

I must say that as a starting point I am somewhat wary of this particular submission. It seems to me to be undesirable, where the core question is an assessment of what is reasonable in all the circumstances, to be astute to look for mandatory restrictions or rules in what ought, one would have thought, to be a fact-specific exercise with an evaluation tailored to the circumstances of each case. Moreover, Article 5(4) of the European Convention on Human Rights provides that everyone who is deprived of his liberty by detention is entitled to take proceedings to challenge the lawfulness of his detention. I do not suggest that the argument of Mr Tam would involve an infringement of Article 5(4). But if he is right it would appear that potentially there will be a restricted application for persons in the position of Mr Abdi himself, and moreover, as I will come on to say, in circumstances where the ability to apply for bail is not to be taken as coterminous with a challenge to whether or not detention is lawful. Further, Mr Tam's argument seems to me to be writing into the operation of the Hardial Singh principles a restriction which has thus far not obviously been invariably applied in other cases.

Mr Tam, however, submitted that his approach was indeed supported by authority. First, he relied on the observations of Auld LJ in the case of Q [2006] EWHC 2690 (Admin). At paragraph 20 of his judgment, Auld LJ said this:

Mr Tam further relied on the case of Chahal v United Kingdom [1996] 23 EHRR 413. That of course is a very well-known case for other reasons. But Mr Tam's main purpose in citing it was to draw attention to the judgment of the court at paragraphs 113 to 115, and in particular its stated distinction between the time spent by Mr Chahal in custody until the domestic proceedings came to an end and the time spent in custody thereafter. There is no doubt all that such a distinction can, and perhaps should, properly and relevantly be made. But Chahal is not in any way authority for the general proposition by way of rule that Mr Tam now seeks to advance. Indeed, it is noticeable that in that case the court did in fact, as made clear in paragraph 117, look at the overall period of delay as a matter of totality in assessing the position as to whether or not there had been unlawful detention.

Then, Mr Tam sought to rely on the case of I itself as supporting his submission. I do not think it does. The point Mr Tam now argues for simply was not a point falling for decision in that case. Mr Tam relied upon parts of the judgment of Simon Brown LJ, in particular at paragraphs 35 and 36:

I can accept that those passages can possibly be read as indicating an assumption that the actual length of period of detention, if occasioned by pursuit of an appeal by Mr I, would not in itself have been regarded as unreasonable. But that was so in the context of the circumstances of that case. There is at all events no statement of principle by the Court of Appeal to the effect that a period of detention occurring by reason of pursuit of an appeal is always to be ignored when assessing whether or not a reasonable period of time has elapsed or whether removal is possible within a reasonable period of time. Indeed, in referring to the case of Chahal at paragraph 34 of his judgment Simon Brown LJ said:

Finally, Mr Tam relied on two unreported decisions of Mitting J. The first is the case of R (Bashir) v Secretary of State for the Home Department [2007] EWHC 3017 (Admin). There, in the context of a total period of detention of 32 months, Mitting J said this at paragraph 13 of his judgment:

As I have indicated, I do not think that Q is to be regarded as an authority for any such general proposition. Moreover, by use of the word "generally" Mitting J may well only have been indicating what the position is as it very often is in many cases and no doubt properly considered so to be; but nevertheless in a way admitting of exceptions. If so, then I would not disagree. But if Mitting J was intending to go further and is to be taken as indicating a fixed rule of invariable application then I am afraid I must respectfully disagree.

There are, I think, other difficulties in Mr Tam's approach. What, he was asked in argument, was the applicant's effective remedy, on Mr Tam's approach, if seeking to be released from detention whilst pursuing an appeal? His answer was that he could apply for bail under the provisions of the Immigration Act 1971. That is true. In most cases, no doubt, that would be the obvious route to take, at least initially. But it is not a complete answer. For one thing, an immigration judge is, I am inclined to think, in considering whether or not to grant bail, not necessarily required to go through the Hardial Singh reasoning process. Indeed, as Ms Dubinsky pointed out, in paragraph 30 of Schedule 2 to the Immigration Act 1971, the length of time in detention is not even a matter statutorily required to be taken account if the matters there specified are made out. For another thing, it is well established that an application for the grant of bail is to be distinguished from a challenge to the lawfulness of detention: see R (Konan) v Secretary of State for the Home Department [2004] EWHC 22 (Admin).

Yet further again, Mr Tam's approach would seem to require the exclusion in all circumstances (assuming due diligence in the court process) of consideration of the individual circumstances of an applicant pending what may be the very lengthy business of completing the appellate process. Suppose, for example, the case of an applicant who poses some, but not the highest, risk of absconding and some risk of offending, albeit not of very serious criminality. Suppose that applicant appeals to the Asylum and Immigration Tribunal and then from the Asylum and Immigration Tribunal to the Court of Appeal, and then again from the Court of Appeal to the House of Lords: at each stage having obtained permission to appeal, thereby connoting that there was what was assessed to be a properly arguable case. That could take up to 2 to 3 years, leaving aside any possible reference to the European Court. He might not get bail under paragraphs 29 and 30 of the Schedule 2 to the 1971 Act; and if Mr Tam is right he cannot be ordered to be released by the Administrative Court on Hardial Singh principles, qualified in the way Mr Tam suggests. That applicant therefore is in no better a position than someone appealing in the like manner who poses the very highest risk of absconding and the very highest risk of reoffending involving the most serious kinds of criminality.

In this regard, another difficulty, as it seems to me, in Mr Tam's argument can be identified. His approach, if right, would seem to involve the exclusion from consideration of release of any delays arising within the appeal process itself (which is not the same thing as assessing whether the court process is being pursued with due expedition). Take the present case. Mr Abdi's first appeal succeeded. The initial deportation notice was found to be invalid. It took Mr Abdi some three months to establish that. Yet if Mr Tam is right, that is irrelevant for Hardial Singh purposes because the delay arose by reason of the applicant having pursued the appeal proceedings in the first place.

I also do not agree with Mr Tam that the Administrative Court in principle should never, as he was proposing, have regard to the merits of the collateral court process. For proceedings which are still to be launched or are not yet decided, it will very often be inappropriate, I would agree, and often not practicable, for the Administrative Court to make a prima facie assessment of the likely merits or lack of them: although sometimes the Administrative Court may be in a position to do so. But for proceedings that have already occurred, it may be entirely in order to do so. Again, take the present case. On two occasions reconsideration has been ordered. At the most recent stage of reconsideration the Secretary of State ultimately conceded that there had been an error of law in the first determination. That at least shows that Mr Abdi had properly arguable grounds and that those Asylum and Immigration Tribunal proceedings were not to be dismissed as a mere abusive stalling tactic: albeit true it is that Mr Abdi is plainly, and to my mind not altogether surprisingly, doing all in his power to avoid removal to Somalia.

Accordingly, I do not think that there is any such general and inflexible rule for which Mr Tam argues. I can certainly accept that the fact that a period of detention occurs whilst the applicant is pursuing an appeal or comparable judicial process will always be a highly relevant factor: commonly, no doubt, in cases where there is also a risk of absconding and/or of reoffending, it may be a decisive one where the only operative bar to removal is pursuit of the very appeal process. Thus it is most certainly one of the matters, and a very important one, to be taken into account in deciding on the reasonableness of detention. But that is not the same as there being a rule of the kind Mr Tam advances.

That I think accords with the approach of Munby J at first instance on this issue in the case of R (SK) v Secretary of State for the Home Department [2008] EWHC 98 (Admin) at paragraphs 108 and 109 of his judgment. Some aspects of the actual decision were reversed by the Court of Appeal on other grounds, but not in any way controverting Munby J’s approach on this point. What Munby J said is this:

It is to be noted that Munby J was there declining to take any view (nor was counsel then appearing for the Home Office advancing the view) that there was an inflexible rule or that the period in detention whilst SK was pursuing his appeal was wholly irrelevant. Rather Munby J was regarding it as a matter which was certainly to be taken into account and assessing the weight to be given to it accordingly. I agree with that approach.

I conclude, therefore, that the principles of Hardial Singh are not to be glossed or subjected to a fixed exception in the way for which it is contended on behalf of the Secretary of State.

Against that conclusion I revert to the circumstances of this particular case. Mr Abdi, as I have said, has now been detained pending proposed removal for some 30 months. On any view, as I have said, that is a very long time indeed. It is, however, in my view an important factor that he has entirely properly, as I conclude having considered the evidence, been assessed as posing a high risk of reoffending in circumstances where there are antecedents of serious, even if not the most grave, continued criminality. In addition, he has been properly assessed as posing a high risk of absconding.

It is to be borne in mind that immigration detention of foreign national prisoners is not to be used as a disguised form of preventative detention for the public safety. Nevertheless, as pointed out by Toulson LJ in the case of A [2007] EWCA Civ 304, public safety remains a relevant factor in assessing the reasonableness of detention.

I reject Ms Dubinsky's complaint that lack of co-operation on the part of Mr Abdi had been wrongly assessed by the authorities or had had too much weight given to it. It is not necessary for me to go into details. The evidence and the reviews show that there was, on occasion, a lack of co-operation on the part of Mr Abdi, even allowing for the fact that he had not been in a position to provide all relevant papers to the Home Office to facilitate his removal. At all events, in the initial periods of detention, there was properly assessed a degree of obstructiveness and that was then, and thereafter, properly taken into account. I accept that in recent times there has been identified no relevant lack of co-operation. But that does not render past obstructiveness of itself irrelevant.

I also reject the criticism that other alternatives, particularly tagging, were not properly considered. Again, I find on the evidence that they were and the authorities were at all relevant times alive to competing alternatives. The position, in particular so far as tagging is concerned, is summarised in paragraph 4 of the second witness statement of Hannah Honeyman dated 15th April 2008, which I accept.

Ms Dubinsky also submitted that in causational terms the Secretary of State had not shown that Mr Abdi was lawfully detained on Hardial Singh principles, as opposed to being detained by reason of the previous unlawful policy: a point which of course occupied much of the time and argument in the other four cases which I decided in December 2008.

I intend no disrespect to Ms Dubinsky's submissions if I take this point also quite shortly. It is quite true that some case workers initially had been recommending release, albeit in a way not accepted by their superiors. Nevertheless, as I read the papers and detention reviews, individual consideration was throughout given to Mr Abdi's case and the Hardial Singh approach was correctly applied. I can see nothing of substance to show that the (unlawful, as I have held) former policy relating to foreign national prisoners was either ostensibly or in actuality applied to him, so as to cause his continued detention. His detention was, I conclude, authorised in line with principles presuming in favour of release.

There is, however, one feature in this case pointed out by Ms Dubinsky which does distinguish it from the other four cases I previously decided: although I stress the other four cases were decided on their own facts in any event. Included in the documents are reviews which indicate that, at all events from January 2008 to March 2008, Mr Abdi on four occasions was excluded from consideration from release "under the current detention policy". That clearly is a reference to the Cullen criteria, which I mention in my earlier judgment and which are themselves an application of the unlawful policy. Thus, in this particular case of Mr Abdi it can be said that regard was had to the unlawful policy in deciding at that time to detain Mr Abdi.

That may be so. But looking at the matter overall it is, I think, reasonably clear, and I find, that the Secretary of State - properly relying, in particular, on the high risk of absconding and the high risk of reoffending – would, and properly so, have detained Mr Abdi anyway, irrespective of the unlawful policy and Cullen criteria.

I do not think it necessary to assess the position in detail by reference to each of the five periods identified by Ms Dubinsky. Considering them individually and in totality I do not think that it appears that, all events judging matters solely by length of time elapsed, the period of detention was too long to be reasonable. In all the circumstances, and in particular the high risk of absconding, the high risk of `reoffending and the fact that Mr Abdi had been pursuing appeals for much of that time, I would conclude that, in terms of length (and long though the period of detention has been), such detention would have been and was reasonable. In reaching that conclusion I was not much impressed by Mr Tam's reliance on the case of A, to which I have already referred, where the detention there of the foreign national prisoner concerned was in excess of 3 years in that case and was held reasonable: although I should add that that case does, if I may say so, provide most valuable guidance as to the applicable principles. I should, however, just add that it seems to me, in so far as the counsel for the Secretary of State places reliance on A as almost indicating a norm as to the permissible length of detention, it does nothing of the kind. Indeed it may be regarded as a rather special case on its facts. Neither was I much impressed by Ms Dubinsky's reliance on cases where periods of detention for less than 30 months were held unreasonable. They just illustrate the obvious: which is that all cases depend on their own facts.

I should say something, however, about the first period of detention, between 30th November 2006 and 13th March 2007. Ms Dubinsky submitted that the deportation notice was, and was held to be, defective, in that it relied upon a purported court recommendation of deportation on a date when that recommendation had not been made. That is true: although it is to be noted that a court recommendation in fact had been made on another date. She also observed that the notice wrongly relied on section 3(6) of the Immigration Act 1971, rather than section 3(5)(a), as conferring the relevant power to deport. The invalidity of the notice was established by decision of the Asylum and Immigration Tribunal on 13th March 2007. Thus Ms Dubinsky says that for at least that period Mr Abdi was unlawfully detained and entitled to damages.

I do not agree. The notice may have been defective, but it was still a notice of intention to deport. It is not to be regarded as a nullity by reason of the errors it contained. It is clear that the Secretary of State was lawfully empowered to serve a notice of intention to deport, intended to do so and had grounds for doing so; and as subsequent events have shown, the Secretary of State would have decided and did decide to do so irrespective of the matters erroneously stated in the initial notice.

But that is not the end of the matter. The second principle of Hardial Singh overlaps with the third principle. An assessment of whether detention has been for a period which is reasonable in all the circumstances has to include an assessment whether removal could be affected within a reasonable period. It is clear (and perhaps unsurprising given that Somalia was the country involved) that, as the papers show, some of the case workers involved at various stages thought that there was no realistic prospect of returning Mr Abdi in the near future. But the matter was continuously appraised and the determination was made at various stages during the detention that removal within a reasonable time was foreseeable. It was appreciated that documentation was also needed to achieve removal to Somalia (Somaliland, as I have said, at that time being considered as the actual place of destination for removal) and it also took some time to collate the bio data form and other information needed.

On 20th April 2008, however, and after some prompting to the Home Office to ascertain the position, the Somaliland authorities indicated that they would refuse to accept the claimant for return to Somaliland, as he was not considered to be a Somalilander, by reason of his father's clan not being from there.

Thereafter the defendant proceeded on the footing that the claimant would be returned instead to Mogadishu in south Somalia. It then became common ground, at least by 12th December 2008 and in the light of the country guidance case of AM and AM [2008] UKIAT 0091, that the claimant, Mr Abdi, could not safely be returned to live in Mogadishu. In fact, it was in the course of those proceedings in 2008 that the suggestion was then made, and adopted by the Secretary of State, that Mr Abdi might be returned via Mogadishu to Puntland, where his father's clan was.

Notwithstanding the various hesitations and reservations on the part of officials expressed on occasion within the documents and reviews relating to Mr Abdi, I conclude on the evidence that the overall assessment was properly made throughout this time that the claimant, Mr Abdi, was capable of being returned to Somalia within a reasonable time.

Further, by witness statement of Hannah Honeyman on behalf of the UK Borders Agency dated 12th April 2008, the following is said:

She also said this:

She then dealt fully with the reviews of detention with regard to the claimant, reviewed the history of events and concluded in this way:

In addition, a witness statement of Ms Massie dated 11th May 2008 confirmed that in the last 6 months there had been at least ten enforced removals to Mogadishu. Mr Wools explained in his witness statement of 20th November 2008, in terms I accept, that notwithstanding that at one stage arrangements for a new memorandum of understanding concerning returns to Somaliland were being negotiated, returns were indeed still possible throughout the period.

If matters rested there, that would indicate that, notwithstanding there were difficulties and notwithstanding the delays, at no stage was there a complete impasse on returns to Somalia, including Somaliland, and that returns were capable of being effected, albeit not without difficulty. Moreover, that would support the proposition that in causative terms the only reason why Mr Abdi could not promptly be removed was his pursuit of his appeal.

However, since the hearing before me at the end of last year there have been two major developments. The first is that the Asylum and Immigration Tribunal promulgated on 30th March 2009 its decision on the reconsidered appeal of the claimant, Mr Abdi. (Indeed, the proceedings before me relating to Mr Abdi were partly deferred in order to enable that decision to be obtained and considered.) The Tribunal dismissed the appeal of Mr Abdi. It did so on the footing that the area within Somalia to which Mr Abdi was to be returned was Puntland, via Mogadishu to which city he would be flown. The Tribunal ruled that Puntland was to be deemed Mr Abdi's home area and found that:

In the light of the country guidance case of AM and AM, the Tribunal accepted that it would not be safe for the claimant to return to Mogadishu to live there. An obvious question then arose, and was argued before the Tribunal on behalf of the claimant Mr Abdi, and was this. If the claimant could not be returned safely to Mogadishu to live there and given that, as was accepted, there was no direct route of return from the United Kingdom to Puntland itself, by what safe route was the claimant, Mr Abdi, to get to Puntland from Mogadishu? Expert evidence from a Dr Hohne was placed before the Tribunal on behalf of Mr Abdi with a view to showing that there were no safe routes of return to Puntland from Mogadishu. Further, it was common ground that the claimant would need to travel on an EU travel document. Dr Hohne's evidence was that Puntland did not accept such documents and that the claimant would not be admitted to Puntland on such a document, and so would remain at risk in Somalia.

The Tribunal decided that, given there was a degree of uncertainty as to the method and route of return, such matters could not be decided on a statutory appeal to the Asylum and Immigration Tribunal. As I read their decision, they reached that conclusion in the light of authorities such as GH [2005] EWCA Civ 1182 and MS [2009] EWCA Civ 17. The implication is that such ground of challenge had to be raised by way of judicial review proceedings when removal directions were eventually set. I express no view on that. Indeed, the authorities were not cited to me. The point remains that the Tribunal reached no conclusion one way or another on the safety of the en route arrangements, whatever they might be.

Furthermore, the Home Office put in no evidence before the Tribunal, or me for that matter, to rebut Dr Hohne's evidence that Puntland would not accept for entry a person travelling on an EU travel document. The Tribunal made no finding on that point either.

The second major development is this. During the early part of 2009 the legal advisers to Mr Abdi were notified of the position being adopted by the European Court of Human Rights since 7th October 2008 (if not earlier) with regard to cases of forced removal to Somalia, or at all events to Mogadishu. Thus, on 21st October 2008, in a separate United Kingdom case relating to the proposed removal of an individual to Somalia, the European Court of Human Rights wrote to the advisers there involved to indicate that the court was proposing to wait for proceedings in the domestic courts to be concluded in the test case of HH Somalia [2008] UK AIT 0022 before considering applications by persons facing expulsion to Somalia. The letter, amongst other things, said this:

When Mr Abdi's advisors became aware of this, they participated in further requests for information from the European Court of Human Rights and liaised with other lawyers involved in similar such cases.

A letter was sent by the European Court of Human Rights dated 2nd March 2009 to another lawyer who was concerning himself in the point concerning forced removal to Somalia. That letter says this among other things:

In a letter sent to Mr Abdi's own solicitors dated 8th April 2009 this was said on behalf of the European Court of Human Rights:

Ms Dubinsky was thus entitled to say that it appears that the European Court of Human Rights is currently granting such interim measures across the board with regard to all expulsions to Mogadishu, which are before the court, on what she styled a "fact insensitive basis".

Ms Dubinsky pointed out further that Mr Abdi is only himself not in a position to apply to the European Court of Human Rights because he has not yet exhausted his domestic remedies. Otherwise, she assured me, he certainly would apply to the European Court of Human Rights. She further told me, and I have no reason not to accept, that, were a stage to be reached where the Home Office set removal directions for Mr Abdi, he would immediately issue a further judicial review claim seeking to set those directions aside and to stay removal on the footing of the points thus far not decided by the Asylum and Immigration Tribunal: that is to say the safety of en route travel from Mogadishu to Puntland and the issue of whether Puntland would even admit entry of a person travelling on an EU travel document. At present, however, Mr Abdi's intention is to attempt to seek to challenge the Tribunal's approach on those points, as well as other points, before the Court of Appeal.

Furthermore, as it seems to me, Ms Dubinsky was entitled to say that, in the light of the European Court of Human Rights' approach and pending final disposal of the relevant test case, if in judicial proceedings an application were made to stay removal to Mogadishu on removal directions which had been set that application might well result in an injunction being granted by the domestic courts.

For his part, Mr Tam told me that it is policy for the Home Office to abide by a Rule 39 measure given in a particular case. Here, however, he said no such Rule 39 measure had been made with regard to Mr Abdi by the European Court of Human Rights. He accepted that the Home Office knew by October 2008 of the stance being adopted by the European Court of Human Rights, with regard to forced returns to Mogadishu, in cases before the European Court of Human Rights.

In a letter from the Treasury Solicitor to Mr Abdi's solicitors dated 15th April 2009, it is said that, currently, there is no policy to preclude returns to Somalia/Mogadishu. All cases are considered on their individual merits. That letter also dealt with a question which had been posed in these terms by Mr Abdi's solicitors. The question is:

All this shows a nice (or perhaps, changing the mean of the word, not so nice) regard on the part of the Home Office to the letter of the law. It shows, in my view, an almost total disregard to the spirit behind the European Court of Human Rights' stance. It also, and most unattractively, places at a serious and potentially irreversible disadvantage those Somalis facing forced return to Mogadishu who do not have the legal assistance or resources or knowledge to enable them to seek to apply to the European Court of Human Rights.

Moreover, the whole legal position with regard to forced removal to Somalia, or at all events Mogadishu, awaits in legal terms a definitive decision. The European Court of Human Rights has stated that it is awaiting upon the domestic proceedings in HH to be resolved. I was told during the hearing before me that HH in turn has now been directed to wait upon another pending appeal in the Court of Appeal called QD. So these cases are all stacking up, one after the other. Lawyers involved in those cases have been contacted and have written to indicate that whatever the outcome in the Court of Appeal, an appeal to the House of Lords is a very realistic possibility, quite apart from the matter being referred to the European Court of Human Rights.

The course of progress of such decisions, over which Mr Abdi himself has no involvement or control, clearly could potentially impact upon his own case. In the meantime, as I have said, the European Court of Human Rights is granting interim measures under Rule 39 to restrain removal to Mogadishu in all comparable cases before it.

Given all these circumstances, I think that the time has come in this particular case to say that enough is enough here. The relevant legal proceedings are likely to go on for a long time, so far as concerns Mr Abdi, potentially even running into years. It is time now, in my view, that Mr Abdi be released from detention and I so order. Rejecting, as I do, Mr Tam's argument that the court should ignore any period of time, whether in the past or hereafter to be spent in detention, whilst Mr Abdi is pursuing his appeal and any other related litigation, I do not think that it can now be said that Mr Abdi will be or is likely to be removed within a reasonable time; and I think that by now a reasonable period of time for detaining him has elapsed.

I am entitled, in reaching that conclusion, to have at least some regard to the already very long period of time he has already spent in detention: that is, the 30 months. As I have said, I have also borne in mind, in deciding this matter, the fact of his ongoing appeals, the risk of absconding and the risk of re-offending. All the same, as to this last point it should at least be borne in mind that the gravity of his criminality is of a lesser order than that in the Court of Appeal case of A. Ms Dubinsky also told me that not only is Mr Abdi of course now older but also he has, in the light of his long detention, broken himself of his drug addiction.

I should add that if Mr Abdi is released - and I am directing that he be released – then, as I am told, he has secured section 4 NASS support and that accommodation will be provided to him.

In conclusion therefore, I find on the evidence that thus far Mr Abdi has not been unlawfully detained so as to entitle him to damages. But in all the circumstances he should now be released, as I conclude, on the application of Hardial Singh principles. Clearly I would impose conditions as to the terms of his release, and I will hear counsel on that. Mr Abdi will understand that if he reoffends, or otherwise breaches the terms of the conditions, he will not be saved from prospective further detention.