Abdi v Secretary of State for the Home Department

The Claimant, Mr Ali Mahamed Abdi, is a Somali national. On 22 November 2011, he was detained at port on entering the UK under powers contained in paragraph 16(2) to Schedule 2 of the Immigration Act 1971 (“the 1971 Act”). As a result of the Claimant’s earlier conviction in the UK, he was subject to the automatic deportation provisions under the UK Borders Act 2007 (“the 2007 Act”). From 19 January 2012 until his release on bail on 24 September 2012, the Claimant was detained pursuant to powers in s.36(1) of the 2007 Act. The Claimant was so detained in order to determine whether he should be deported under the 2007 Act or that he could not because one of the exceptions in s.33 applied such that he could not be deported.

In this claim he seeks a declaration and damages in the tort of false imprisonment and for breach of Article 5 of the European Convention of Human Rights (“ECHR”) on the basis that he was unlawfully detained by the Defendant for some or all of the period following his detention on 22 November 2011 until he was released on bail on 24 September 2012. On 12 December 2012, permission to bring these proceedings was granted by Walker J on the papers.

I draw together the factual background from the documents contained within the Claimant’s bundle of documents (“CB”) and Supplementary Bundle (“CSB”), the Defendant’s Supplementary Bundle (“DSB”), a helpful chronology prepared by Ms Harriet Short, who represented the Claimant, the skeleton arguments of both Ms Short and Ms Julie Anderson who represented the Defendant and a reply to that latter skeleton argument by Ms Short.

I set out the factual background: (1) between 2003 when the Claimant first arrived in the UK and 22 November 2011 when the Claimant returned to the UK and was detained; and (2) from 22 November 2011 until his release on bail on 24 September 2012.

The Claimant is a citizen of Somalia. It is not known when the Claimant first entered the UK as he did so clandestinely using a false passport. The Claimant says that he entered on 17 September 2003. In any event, on 19 September 2003 he claimed asylum. On 25 September 2003, the Claimant was served with papers notifying him of his liability to be removed as an illegal entrant. On 7 November 2003, his asylum application was refused and on 13 November 2003 a decision was made to remove him. The Claimant had a right of appeal against that decision but he did not appeal within the time allowed. On 15 January 2004, the Claimant was formally recorded as an absconder.

On 26 May 2006, the Claimant lodged an out of time appeal against the decision to remove him. On 5 December 2006, an Immigration Judge dismissed his appeal on asylum and humanitarian protection grounds but allowed his appeal under Article 8 of the ECHR.

On 11 December 2006, the Claimant applied for a reconsideration of that decision. On 21 December 2006, a Senior Immigration Judge of the Asylum and Immigration Tribunal refused the Claimant’s application for reconsideration but, on renewal to the High Court, the Claimant’s application was granted on 13 March 2007. On 30 March 2007, a Senior Immigration Judge also ordered reconsideration on the Secretary of State’s application against the decision to allow the Claimant’s appeal under Article 8.

On 6 September 2007, the Asylum and Immigration Tribunal found an error of law in the Immigration Judge’s decision. The Claimant’s appeal was reconsidered in the Asylum and Immigration Tribunal by Immigration Judge Hart TD at a hearing on 23 October 2007. Judge Hart, in a determination dated 31 October 2007, dismissed the Claimant’s appeal on asylum grounds and under Article 8 of the ECHR. However, he allowed the Claimant’s appeal on the basis that he was entitled to humanitarian protection and that his return to Somalia would breach Articles 2 and 3 of the ECHR.

Notwithstanding Judge Hart’s dismissal of the Claimant’s appeal on asylum grounds, on 19 March 2008 the Claimant was granted leave to remain as a refugee until 18 March 2013. It appears that that was a mistake.

On 19 January 2009, the Claimant was arrested on charges of possession with intent to supply Class A drugs. On 1 June 2009 he was convicted at the Bristol Crown Court on 4 counts of supplying a Class A drug (heroin), 2 counts of supplying a Class A drug (crack cocaine) and 1 count of possession with intent to supply a Class A drug (crack cocaine). He was sentenced to a term of 3 years imprisonment in respect of each count with the sentences to run concurrently.

On 24 June 2009, the Claimant was notified of his liability to be deported and provided with a questionnaire inviting him to give reasons why he should not be deported. That was returned on 22 July 2009 and indicated that the Claimant believed that his removal would breach “his human rights under the Refugee Convention”. Meanwhile, on 15 July 2009, the Claimant’s continued detention after his custodial sentence was due to be completed on 24 July 2010 was approved under immigration powers.

On 15 June 2010, the Claimant was notified of his liability to be deported under the automatic deportation provisions in the 2007 Act. On 13 July 2010, the Claimant declined to complete the forms but indicated orally that he considered that an exception to the automatic deportation provisions applied to him.

On 24 July 2010, the Claimant completed his custodial sentence and was detained under the 1971 Act.

On 12 August 2010, the Claimant lodged a bail application but this was withdrawn on 18 August 2010. A further bail application was lodged on 25 August 2010 but bail was refused on 1 September 2010.

On 4 October 2010, the Defendant wrote to the Claimant notifying him of the intention to cancel his refugee status. The notice was served on the Claimant on 14 October 2010.

On 5 October 2010, the Claimant was granted bail by an Immigration Judge on conditions including reporting and that the Claimant consented to electronic monitoring.

On 14 December 2010, the Claimant failed to report to the Probation Service as required and he continued to fail to report thereafter. Following a number of warning letters, action was taken to recall him to prison for breach of the licence upon which he was released.

At some point the Claimant left the United Kingdom (he says on 31 December 2010) having removed his electronic tag and travelled to Amsterdam in the Netherlands where he claimed asylum.

Nothing further is known about the Claimant until around 14 or 15 June 2011 when the Dutch authorities notified the UKBA that the Claimant was in the Netherlands.

Around 18 November 2011, the Claimant was detained in the Netherlands.

On 22 November 2011, pursuant to the Dublin II Regulations, the Claimant was returned to the UK by the Dutch authorities and was detained on arrival under powers in paragraph 16(2) to Schedule 2 of the 1971 Act. At his port interview, the Claimant indicated that he did not wish to claim asylum. He indicated that he had a UK travel document which he had left in the Netherlands and he was aware that his refugee status was to be curtailed. He was detained overnight at port.

On 23 November 2011 a 24 hour review of his detention was completed and he was transferred to Colnbrook IRC.

On 25 November 2011 an induction interview was completed.

On 29 November 2011 subject to the return of the port file, it was considered that the Claimant should be re-detained under s.36(1) of the 2007 Act. The Criminal Casework Division (“CCD”) also indicated that they would consider pursuing the cessation of the Claimant’s refugee status on the basis that the situation in Somalia had changed since it was granted. On 29 November 2011, a 7 day detention review was also completed.

On 4 or 5 December 2011, the Claimant’s case was transferred to the CCD at Croyden which had responsibility for cases involving Foreign National Offenders (“FNOs”) such as the Claimant.

On 17 January 2012, consideration was given to the Claimant’s continued detention which was considered reasonable and proportionate to reduce the risk of reoffending, absconding and harm to the public.

On 18 January 2012, an Immigration Officer agreed with the case worker’s proposal to detain the Claimant.

On 19 January 2012, the Claimant was detained under the powers in s.36(1) of the 2007 Act whilst the Secretary of State considered whether the automatic deportation provisions of the 2007 Act applied. The Claimant was informed of this by letter on that date.

On 15 February 2012, the 3^rd (28 day) detention review was completed. (There does not appear to have been a “2^nd” 28 day review.) The Claimant was assessed as having a significant risk of absconding and of re-offending and his detention should be maintained.

On 9 March 2012, an ETD interview was requested by a case worker, Ms G Howells in the CCD.

On 12 March 2012, the Claimant was interviewed in respect of obtaining an ETD but he failed to cooperate and provide any information.

Also on 13 March 2012 the 4^th (28 day) detention review was completed. Reference was made to the Strasbourg Court’s decision in Sufi & Elmi v. UK ([2011] ECHR 1045 which had been decided on 28 June 2011) but (wrongly) it was noted that it was being challenged by the UK in the Grand Chamber. It was also noted that the Claimant was from Mogadishu and is a member of the Reer Faqi minority clan and that it was considered there was a realistic prospect of removal within a reasonable time. It was concluded that, in the light of specific risks of his reoffending and non-compliance including with his conditions of release, the Claimant’s detention should be maintained.

On 2 April 2012 the 5^th (28 day) detention review was completed. The background facts were again noted and reference again made to Sufi & Elmi in much the same terms as the previous detention review. The Claimant’s non-compliance at his ETD interview was noted and that it was planned to refer his case to the asylum casework team to clarify the issue of the revocation or cessation of his refugee status. On 4 April 2012, the Claimant’s continued detention was authorised in the light of the risk of risk of the Claimant re-offending and absconding. It was noted that clarification of his asylum status was needed but that his removal was considered to be within a reasonable timescale.

On 11 April 2012, a caseworker (Ms Howells) passed the Claimant’s file to the asylum casework team in the CCR for consideration.

On 8 May 2012 the 6^th (28 day) detention review was completed and the Claimant’s detention maintained. There was considered to be a realistic prospect of removal within a reasonable time and in the light of the significant risk of the Claimant re-offending and absconding, continued detention was appropriate. This review, whilst noting the Claimant was from Mogadishu, only states - unlike previous reviews - that he “claims” to be a member of the Reer Faqi minority clan. The review also notes that whilst the Claimant now said his deportation would breach his Convention rights, he had stated that he did not wish to claim asylum on arrival in November 2011 and was aware that he status would be revoked. It was noted that the Claimant’s case had been referred to the asylum casework team to consider revocation or cessation of his refugee status. The action plan included continued liaison with that team to monitor his refugee status.

On 30 May 2012, the 7^th (28 day) detention review was completed. The Claimant’s background was again noted in the same terms as the previous review. Following enquiries, it was noted that the Claimant’s refugee status was still under consideration by the asylum casework team. The action plan again included continued liaison with that team to monitor his refugee status. On 1 June 2012, again in the light of the risks of the Claimant re-offending and absconding, his continued detention was maintained. It was noted that the Claimant’s case needed to be “chased up” with the asylum team.

On 21 June 2012 a case worker in the asylum team in the CCR noted that the Claimant had been granted refugee status in error and had been informed by a letter dated 4 October 2010 that it was UKBA’s intention to cancel his refugee status although no action had since been taken. The case worker proposed that the Claimant’s refugee status, granted in error following his appeal on 1 November 2007, should be cancelled. The file was then passed to a Senior Case Worker (“SCW”) in the asylum team for consideration of that proposal.

On 3 July 2012, the 8^th (28 day) detention review was completed. It was noted that a proposal to cancel his status had been referred to a SCW for approval. That review maintained the Claimant’s detention in the light, in particular, of the specific risk of his reoffending and/or non-compliance with conditions of release, detention for the purposes of deportation is reasonable. Again the need to “chase up” the asylum team for a decision on the Claimant’s status was noted.

On 5 July 2012, a SCW in the asylum team, having noted the grant of the Claimant’s refugee status in error, concluded that his refugee status could not be cancelled nor could he be excluded from the Refugee Convention or his status revoked. The SCW noted that the Claimant’s indefinite leave to remain could be revoked and he could be granted six months’ discretionary leave. However, in the light of the fact that his current leave expired on 18 March 2013, it was not practical to revoke his leave and it was recommended on expiry of his leave that he should be granted the usual leave given to a person who could not be removed immediately due to Articles 2 and 3 of the ECHR, which was to grant a period of six months’ leave to remain at a time. The file was reallocated back to a caseworker, it would appear, who then submitted an amended proposal to the SCW in the asylum team.

On 20 July 2012, the SCW in the relevant minute recorded (page 54, SSB):

The SCW went on to note that some changes had been made to the draft submissions which had then been sent on via email to the SEO SCW for further consideration.

On 27 July 2012, the Claimant’s solicitors requested temporary admission and enquired whether a decision had been taken on whether to deport the Claimant, stating that he was not removable being a minority clan member from Mogadishu.

On 31 July 2012 (the document is clearly wrongly dated 3 July), the 9^th (28 day) detention review was completed. The review noted the Claimant’s background including his “claim” to be from a minority clan. It also noted that a proposal to cancel his status had been considered within the asylum team and had not been approved by the SCW and a further proposal had been submitted to the SEO SCW. It was again noted that the action plan will “continue to liaise and monitor the submissions relating to [the Claimant’s] refugee status”. The Claimant’s detention was again confirmed for a further 28 days in order for a decision on the submission currently with the SEO SCW not to revoke his status but to determine whether Articles 2 and 3 of the ECHR would be breached if he were returned to Somalia.

In her witness statement dated 24 January 2014 (pages 57-63 of DSB) at paragraph 13, Ms G Howells (a caseworker in the CCD), having noted that the SCW in the asylum team had sent the proposal to the SCW in the SEO team for further consideration, sets out the process thereafter as follows:

Ms Howells notes (at para 14) that while the proposal was under consideration, on 1 August 2012 she received a bail application from the Claimant which was scheduled for hearing on 3 August 2012. She states that:

On 17 August 2012, the Claimant’s solicitors requested a response to their letter of 27 July 2012 asking for temporary admission and requesting a copy of the file.

On 20 August 2012, Ms Howells received a further bail application dated 16 August 2012 with a hearing scheduled for 21 August 2012. On 22 August 2012, Ms Howells was notified that the bail application had again been withdrawn.

On 22 August 2012, the 10^th (28 day) detention review was completed. Again it was noted that a proposal was with the SEO SCW not to revoke the Claimant’s status but to determine whether his return would breach the ECHR. Again, the action plan includes “continu[ing] to liaise and monitor the submissions relating to [the Claimant’s] refugee status”. Again the Claimant’s background is noted including the continued risk of him re-offending and absconding. On 28 August 2012, the Claimant’s continued detention was authorised noting that the submission will determine whether there is a realistic prospect of removal and the risk of absconding he poses justifies his continued detention.

On 28 August 2012 the Claimant’s representative sent a Pre-Action Protocol (“PAP”) letter to the UKBA which was received by Ms Howells on 3 September 2012. She emailed the asylum team advising them that a PAP letter had been received and requested an update on the referral. Thereafter, the files were sent to the legal team to deal with the PAP letter.

On 5 September 2012, a bail application was refused.

On 11 September 2012, the final response of the UKBA to the PAP letter was faxed to the Claimant’s representatives.

On 13 September 2012, the Claimant was placed on Rule 40 measures in the detention centre on the basis of having received concealed contraband during a social visit and to have resisted staff and to have been non-compliant.

On 20 September 2012, Ms Howells was informed by the Office of the Director acting on behalf of the Chief Executive that the proposal not to deport the Claimant had been approved. Ms Howells then contacted the asylum team regarding the revocation letter and it was confirmed that the process would be commenced. Ms Howells received confirmation from the SCW that there were no objections to the Claimant being released.

On 21 September 2012 Ms Howells faxed the Claimant’s legal representatives requesting a release address for the Claimant and she also contacted the Probation Service.

On 24 September 2012, having not received a response from the Claimant’s representatives, Ms Howells wrote to the Claimant at Colnbrook IRC requesting a release address and she states that she received a fax dated 21 and 24 September 2012 from the Claimant’s representatives confirming his release address. She completed an IS106 authority to release the Claimant and the Claimant was released on that date unconditionally.

In his amended grounds, the Claimant relied on six grounds:

Ground 1: there was no authority to detain him between 22 November 2011 and 19 January 2012;

Ground 2: his detention exceeded a reasonable period;

Ground 3: his detention will become unlawful;

Ground 4: there was a want of reasonable diligence in making the s.32(5) decision under the 2007 Act;

Ground 5: failures in disclosure;

Ground 6: failure to detain in accordance with the defendant’s policy and to provide reviews of disclosure.

The Claimant’s position was, however, modified before the hearing. Ms Short who represented the Claimant now only relies upon grounds 2 and 4. As a result of disclosure of a number of documents including the relevant authority to detain the Claimant (Form IS91) on 22 November 2011, Ground 1 is no longer relied upon. At to Ground 2, as a result of the Claimant’s release on bail on 24 September 2012 the issue of his continued detention being unlawful also was not pursued. As regards Ground 5, the Claimant no longer relies upon the defendant’s failure to make full disclosure. Finally, as regards Ground 6, although it was accepted that one review (the “2^nd” 28 day review) of the Claimant’s detention in accordance with the defendant’s policy had not been carried out, Ms Short no longer places any reliance upon that in these proceedings.

Before me, the Claimant’s case came down, in essence, to two issues.

First, the contention that the Claimant’s detention from 22 November 2011 (or at least a short period thereafter) until 24 September 2012 was for an unreasonable period and, therefore, is unlawful.

Secondly, during that almost 10 month period of detention there were two periods between 22 November 2011 and 21 June 2012 and then between 5 July 2012 (or 20 July 2012) and 24 September 2012 when the Defendant failed to act with reasonable diligence and expedition in determining whether an exception in s.33 of the 2007 Act applied and whether, therefore, the Claimant would be deported under the automatic deportation provisions of the 2007 Act. As regards the latter period, Ms Short primarily relied upon it as relevant to the reasonableness of the total period of detention.

The Claimant relied upon the second and fourth principle set out in the well-known case of R v Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (“Hardial Singh”) and Article 5 of the ECHR. The submissions focussed on the application of the Hardial Singh principles and no argument was advanced before me that the outcome of this case might be different applying Article 5.

The legal framework applicable to this case was, in large measure, a matter of common ground between the parties.

Schedules 2 and 3 of the Immigration Act 1971 (as amended) contain wide powers of detention, including of a person arriving in the UK subject to examination by an Immigration Officer and pending a decision whether to grant or refuse that person leave to enter (see para 16(1)) or where there are reasonable grounds for suspecting that the person maybe subject to removal directions pending a decision whether to give such directions or pending that person’s removal in pursuance of such directions (see para 16(2)). Paragraph 2(2) and (3) contain powers to detain a person subject to a decision to make a deportation order or a person subject to a deportation order pending his removal or departure from the UK.

It is common ground that the Claimant’s detention on arrival in the UK on 22 November 2011 was pursuant to the powers contained in the 1971 Act.

In addition, the UK Borders Act 2007 contains powers of detention where a person is subject to the automatic deportation provisions of that Act. The 2007 Act applies to a “foreign criminal” (see s.32(1)). A “foreign criminal” is a person who is not a British Citizen and who has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months (see s.32(1) and (2)). In respect of such a person, the Secretary of State must make a deportation order unless one of the exceptions in section 33 applies (see s.32(5)). For the purposes of this case, the relevant exception is Exception 1 set out in section 33(2), namely that the foreign criminal’s deportation would either breach his rights under the European Convention on Human Rights or under the Refugee Convention.

Section 36 of the 2007 Act sets out powers of detention whilst the Secretary of State considers whether an exception applies or, where she thinks it does not, pending the making of a deportation order. Section 36 so far as relevant provides as follows:

It was pursuant to the power in section 36(1)(a) that the Claimant was detained from 19 January 2012 whilst consideration was given to whether he should be deported under the 2007 Act.

It is well recognised that there are limitations on the relevant powers to detain set out in the legislation. Those limitations were originally set out by Woolf J (as he then was) in Hardial Singh. The four so-called Hardial Singh principles were set out by Dyson LJ (as he then was) in R(I) v SSHD [2003] INLR 196 at [46] as follows:

Those principles were approved by the Supreme Court in R (Lumba) v SSHD [2011] UKSC 12 at [22].

In this case, Ms Short relies upon the second and fourth Hardial Singh principles.

In the context of automatic deportation under the 2007 Act, Nicoll J in R(Hussein) v SSHD [2009] EWHC 2492 (Admin) recognised that the Hardial Singh principles might require modification. At [44] he said this:

In R (JS) (Sudan) v SSHD [2013] EWCA Civ 1378, the Court of Appeal at [16] endorsed Nicoll J’s adaption of the Hardial Singh principles.

As Nicoll J made clear, no adaption is required to the second Hardial Singh principle that the detainee should only be detained for a reasonable period in all the circumstances. However, in relation to the fourth Hardial Singh principle, which is also relied upon in this case, the duty to act with reasonable diligence is related to the purpose underlined in the power of s.36(1)(a), namely in determining whether any of the exceptions in s.33 of the 2007 Act apply.

In R(I), Dyson LJ at [48] set out an non-exhaustive list of factors relevant to determining whether a period of detention was “reasonable” as follows:

The relevance of those factors was approved in Lumba at [105].

The risks of absconding and reoffending are relevant considerations and are of paramount important (see Lumba at [121]) but the risk of absconding should not be overstated otherwise it would become a trump card (see Dyson LJ in R(I) at [53]).

Further, a person who will not comply with the ETD (emergency travel document) process or other requirements of detention and is doing everything he can to hinder the deportation process may (but not necessarily) be regarded as likely to abscond (see Lumba at [123]).

There is no maximum period after which detention becomes unlawful and cases are “highly dependent on their own facts” (see R (Belkasim) v SSHD [2012] EWHC 3109 (Admin) at [105]-[106] per Haddon-Cave J).

In R(JS) the Court of Appeal was concerned with the application of the fourth Hardial principle, namely the duty to use reasonable diligence, in the context of a person detained under s.36 of the 2007 Act. The Court of Appeal emphasised the importance and significance of the decision to be made by the Secretary of State whether a statutory exception applied preventing deportation. At [52], McFarlane LJ said this:

At [60], McFarlane LJ returned to the issue of “reasonableness” again:

In R (Krasniqi) v SSHD [2011] EWCA Civ 1549, Carnwath LJ (as he then was) drew an important distinction between “mere administrative failing” and “unreasonableness amounting to illegality”. At [12] he said this:

Ms Short submitted that there were two periods of unlawful detention between 22 November 2011 and 24 September 2012. In her oral submissions Ms Short identified the first period as being between 22 November 2011 and 21 June 2012. The latter date is the date upon which a caseworker in the asylum team passed to a SCW in the asylum team a proposal that the Claimant’s refugee status should be cancelled. In her skeleton argument Ms Short relied on a period not beginning on 22 November 2011 but rather on 5 December 2011 when the Claimant’s case was transferred from port to the CCD in Croydon which had responsibility for FNOs. It maybe that the slightly later date reflected Ms Short’s acknowledgement that no complaint could be made about short delays whilst files were being passed between offices in the light of JS (Sudan) at [60] that the Secretary of State was not required to “account for every single day or every single week”. That may well also lead to a discount of, at least, a short period after the transfer of the file to the CCD on 4 or 5 December 2011.

Ms Short also accepted that it was permissible to detain the Claimant for a short period once the s.32(5) exemption decision had been made on 21 June 2012. Therefore, she submitted that from 5 July 2012 (in her skeleton argument) or 20 July 2012 (in her oral submissions) until 24 September 2012 the Claimant’s detention was again unlawful. In her skeleton argument, Ms Short relied upon this second period only in relation to the application of the second Hardial Singh principle and the reasonableness of the overall period of the Claimant’s detention.

Ms Short’s submissions ranged over the application of both the second and fourth Hardial Singh principles. Ms Short submitted that all the relevant facts concerning the Claimant were known when he was first detained in November 2011. He was a Somali national from Mogadishu and a member of a minority clan. The Strasbourg’s court’s decision in Sufi and Elmi v UK [2011] ECHR 1045 became final on 28 November 2011 and the Upper Tribunal (Immigration and Asylum Chamber)’s decision in AMM and Others (Conflict; Humanitarian Crisis; Returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) was also reported on 28 November 2011. In the light of that case law, it was clear, Ms Short submitted, that the Claimant could not be returned to Somalia. Ms Short submitted that, after the Claimant’s case was transferred to the CCD on 4 December 2011, nothing was done about his refugee status and no further investigations were made until 12 March 2012 when he was interviewed in respect of obtaining an ETD. Ms Short submitted that once the Claimant’s file was allocated to the SCW on 21 June 2012, the decision taken by SCW on 20 July 2012 resolved the issue of whether the Claimant was to be deported. That had only taken around a month which demonstrated that had the process been pursued more quickly, the decision could have been reached sooner. Ms Short submitted, relying upon JS (Sudan), that there were periods of unexplained inactivity by the Defendant which demonstrated a lack of reasonable diligence between January and June 2012.

Ms Anderson on behalf of the Defendant submitted that the total period of the Claimant’s detention was not unreasonable having regard to the readily apparent risk of him absconding and reoffending.

Secondly, Ms Anderson submitted that the position of the Claimant and his deportation was not straightforward. There was, she submitted, a complex legal issue of whether his refugee status granted by mistake could be revoked. Despite the case law, there was a need to enquire into the Claimant’s particular circumstances and whether he would be at risk on return. She submitted that there was an “evidential vacuum” (referring to R (AR) v SSHD [2011] EWCA Civ 857) as a result of the appeal decision of Judge Hart.

Thirdly, Ms Anderson relied upon JS (Sudan) at [52] which emphasised the seriousness of the decision to be made by the Secretary of State in deciding whether an exception to deportation arose under s.33 of the 2007 Act. She submitted that in JS (Sudan) the Court of Appeal had been dealing with a case where there was no documentary material to support any activity by the Secretary of State in a 12 month period during a total period of 15 months’ detention pursuant to s.36 of the 2007 Act. Here, Ms Anderson submitted there was evidence of activity set out in the GCID minutes, the detention reviews and recorded in Ms Howells’ witness statement. She submitted that, even if there were some delays, applying what was said by Carnwath LJ in Krasniqi at [55], those periods were properly characterised as “mere administrative failings” and not “unreasonableness amounting to illegality”.

Fourthly, Ms Anderson relied upon the detailed chronological activity set out in the GCID minutes and Ms Howells’ witness statement. Ms Anderson submitted that the Claimant’s submissions failed to take into account the required approval from the highest level as set out in para 13 of Ms Howells witness statement. Ms Anderson submitted that there was no lack of “reasonable diligence” prior to June 2012 and no lack of reasonable diligence thereafter with the final decision only being made on 20 September 2012, four days before the Claimant’s release.

Ms Anderson submitted that the Claimant failed in establishing his case under both the second and fourth Hardial Singh principles.

A further issue argued by both parties was that of causation. Ms Short submitted that the Claimant’s unlawful detention had caused him to be detained for period for which he would not otherwise have been detained and thus sounded in damages. Ms Anderson submitted that, even if the unlawfulness was established, causation not been established.

It is important to consider all the circumstances and the situation of the Claimant on his return to the UK on 22 November 2011.

First, the Claimant had a significant history of absconding. It will be clear from the Claimant’s previous immigration history that he had a demonstrable record of absconding when he was detained on returning to the UK from the Netherlands on 22 November 2011. Following the completion of his custodial sentence in July 2010, the Claimant was detained under immigration powers until granted bail by an Immigration Judge on 5 October 2010 on conditions which included reporting and electronic monitoring. However, two months later in December 2010 the Claimant failed to report to the Probation Service and later that month removed his electronic tag and left the UK to travel to Amsterdam. He was subsequently returned to the UK under the Dublin II Regulations on 22 November 2011 having claimed asylum in the Netherlands. Consequently, there was a clear risk if he were not detained on his return to the UK that he would again abscond and thereby frustrate any deportation or other enforcement action against him. The risk of his absconding is an important factor in assessing the reasonableness of the 10 month period of the Claimant’s detention although it is not a “trump card” and its relevance should not be overstated (see R(I) at [53] approved in Lumba at [123]).

Secondly, the Claimant’s circumstances and whether he could be returned to Somalia were not straightforward. He had been granted refugee status on 19 March 2008 clearly in error. Judge Hart in determining the Claimant’s appeal on 31 October 2007 had dismissed his appeal on asylum grounds. Judge Hart had not accepted the Claimant’s evidence that he was at risk on return to Mogadishu as a member of the minority Reer Faqi clan. Indeed, Judge Hart did not accept that the Claimant was from Mogadishu or that he had lived in Somalia since the civil war began (see para 145 of his determination). Also, he did not accept that the Claimant had established that he was a member of the minority clan to which he claimed to belong (see para 146 of the determination). The position was, therefore, at the time of the Claimant’s return that although he had been found to be a Somali national, his claim to be from a minority clan and to have lived in Mogadishu had not been established.

Ms Short pointed to the Claimant’s passport (at page 172, CB) as stating that the Claimant came from Mogadishu. That cannot assist the Claimant because it was, like the grant of leave as a refugee, no doubt based upon an erroneous or mistaken view of the Claimant’s circumstances as found by Judge Hart in his very thorough determination in October 2007.

By the time of the 4^th 28 day detention review on 13 March 2012, despite the adverse judicial findings against the Claimant, the Secretary of State appears to have accepted the Claimant’s account in that review. Having referred to the Strasbourg Court’s decision is Sufi and Elmi v UK, it is stated that:

It is not clear from the documentation why the Defendant changed her position on the Claimant’s origin but, at least until that point, the judicial finding was adverse to the Claimant’s case that he came from Mogadishu and was a member of a minority clan. I do not, therefore, accept Ms Short’s submission that all the relevant facts about the Claimant were known when he returned to the UK on 22 November 2011. Given the rejection of the Claimant’s evidence and account of his background by the Immigration Judge, there was, at least, a partial ‘evidential vacuum’ which required investigation and resolution in order to determine the returnability of the Claimant to Somalia.

Thirdly, I do not accept that the returnability of the Claimant was, as Ms Short submitted, clear from the outset of the Claimant’s detention. She relied first upon the Strasbourg Court’s decision in Sufi and Elmi which had become final on 28 November 2011, 6 days after the Claimant was initially detained. Also, she relied upon the Upper Tribunal’s decision in AMM and Others which was reported on that same date. She submitted that there could be no question, in the light of these decisions, that the Claimant could be returned to Somalia. The relevant country guidance is set out in the head note of the Upper Tribunal’s decision under the heading “Mogadishu” as follows:

Further, Ms Short placed reliance upon the Defendant’s Operational Guidance Note on Somalia (dated 15 December 2011). In her chronology, Ms Short quotes the OGN as stating:

Likewise, Ms Short relied upon [293] of the Strasbourg Court’s decision in Sufi and Elmi as follows:

In my judgment, however, these passages do not establish that every returnee to Mogadishu is necessarily at risk of Article 15(c) ill-treatment arising from indiscriminate violence or, as the Upper Tribunal put it, “regardless of circumstances” there is a real risk of Article 3 harm. Even for an individual from Mogadishu, that individual’s circumstances would need to be assessed in order to determine whether they were in fact at real risk of Article 15(c) or serious ill-treatment contrary to Article 3.

As I have said, Judge Hart’s findings resulted in there being a partial “evidential vacuum” in respect of the Claimant’s circumstances. Was he from Mogadishu and, if not, where was his home area? What was his clan status and what would be his personal circumstances if returned to Mogadishu? On these, at least until the detention review on 13 March 2012, the position was adverse to the Claimant as a result of Judge Hart’s findings in the Claimant’s appeal or at least unresolved.

It is far from clear that the detention decision resolved the matter for the asylum team within the UKBA who were required to make the decision on status and returnability to Somalia. As AMM illustrates, the situation in Somalia, and its implications for the returnability of any individual, was fluctuating and fluid. The mere fact that Judge Hart had in October 2007 concluded that the Claimant could not be returned to Somalia because that would breach Article 15(c) of the Qualification Directive and Article 3 of the ECHR, did not resolve the Claimant’s position on return after 22 November 2011 – 4 years after Judge Hart’s decision. It was entirely proper, and indeed essential, for the Secretary of State to consider in the light of the up-to-date material on Somalia whether the Claimant could now be returned.

Fourthly, this is not a case where there were, in my judgment, substantial periods of inactivity within UKBA in dealing with the application of the 2007 Act to the Claimant.

Leaving aside the detention reviews, following the Claimant’s re-detention under s.36(1) of the 2007 Act on 19 January 2012, an ETD interview was requested around 7 weeks later on 9 March 2012 and it took place on 12 March 2012. The Claimant failed to cooperate. On 13 March 2012 the 4^th detention review appears to accept that, despite Judge Hart’s findings, the Claimant is from Mogadishu and a member of the minority clan. Just under a month later on 11 April 2012, the Claimant’s file was passed to the asylum team for consideration.

On 11 April 2012, Ms Howells passed the file to the asylum team for consideration. On 21 June 2012, a caseworker in the asylum team noted that the Claimant’s refugee status had been granted in error and should be cancelled. The file was passed to a SCW in the asylum team for consideration and on 5 July 2012 the SCW noted that the Claimant’s refugee status could not be cancelled and that it was not practical to revoke his leave and that he could not be removed immediately due to Articles 2 and 3 of the ECHR. The file was then reallocated back to a caseworker who then submitted an amended proposal to the SCW in the asylum team. On 20 July 2012, the SCW amended that proposal and sent the draft submission to the SEO SCW for further consideration. Whilst that proposal was being considered, two bail applications were received on 1 August 2012 and on 20 August 2012: both were withdrawn. Then, on 28 August 2012, a PAP letter was received which entailed consideration of the Claimant’s file. It was only on 20 September 2012 that Ms Howells was informed by the Office of the Director acting on behalf of the Chief Executive that the proposal not to deport the Claimant had been approved. The Claimant was released four days later following correspondence between Ms Howells and the Claimant’s legal representative and the Claimant himself requesting a release address.

The Court of Appeal in JS (Sudan) recognised that in determining the application of a statutory exception and whether to grant an individual leave was a:

That approach applies both to the determination of the relevant circumstances of an individual and the country circumstances and relevant country guidance case law concerning any risk on return. In this case, it also includes the question of whether the grant of asylum or refugee status to the Claimant could be cancelled or revoked as it had been granted in error.

The Secretary of State was, in my judgment, entitled to have in place a system for considering such “serious” issues that reflect the structure of decision making which was applied to the Claimant. This involved specialist advice and decision making being made within the asylum team working alongside the SEO team concerned with the practical enforcement of UK law in deporting FNOs. In her witness statement, Ms Howells states that a decision not to deport a foreign FNO under the automatic deportation provisions required approval by or on behalf of the Chief Executive of UKBA. She says this (at para 13):

That is precisely what occurred in the Claimant’s case with the proposal being formulated at the case worker level within the asylum team, referred up to the SCW which was then passed back down to the caseworker with amendments and again sent up to the SCW before being approved and sent to the SCW in the SEO for further consideration. This occurred between 11 April 2012 when Ms Howells passed the Claimant’s file to the asylum team and 20 July 2012 when the SCW passed the final proposal that deportation should not be pursued on 20 July 2012. The final decision was then taken, on or before 20 September 2012 by the Director acting on behalf of the Chief Executive to approve the proposal not to deport the Claimant. While Ms Short submitted that the relevant decision was taken either on 21 June 2012 or 5 July 2012 that, in my judgment, is a misapprehension of the decision making process within the UKBA which the Secretary of State was entitled to adopt when making a decision whether to deport a FNO. The final decision was, in fact, only taken on or around 20 September 2012.

The fourth Hardial Singh principle requires that the Secretary of State should demonstrate reasonable diligence in making a decision whether an Exception to the automatic deportation provisions applied top the Claimant. The Secretary of State is required to act with “reasonable diligence”. In doing so, as the Court of Appeal pointed out in JS (Sudan) at [60]:

Further, as Carnwath LJ pointed out in Krasniqi at [12]:

In relation to the first period relied upon by Ms Short up to 21 June 2012, I do not accept Ms Short’s submission based upon the Court of Appeal’s decision in JS (Sudan) that, in the absence of explanation, any periods of inactivity demonstrate a lack of reasonable diligence. Each case must, necessarily, be fact sensitive as the Court of Appeal itself acknowledged at [60]. In JS (Sudan), there had been three periods of “little or no administrative activity” measuring 3 months, 5 months and 4½ months making a total of over 12 months in all during a period of 15 months’ detention. In this case, however, the total period of detention was just short of 10 months. In relation to the first period of the Claimant’s detention which Ms Short submitted was unlawful, the total period of detention from 22 November 2011 until 21 June 2012 was 7 months in total. The relied upon periods of inactivity are commensurately significantly shorter.

Whilst Ms Short pointed to inaccurate recording in the detention review that (wrongly) the UK was challenging the decision in Sufi and Elmi in the Grand Chamber, the fact nevertheless remained, for the reasons I have given above, that there was a need to determine the Claimant’s personal circumstances and to consider those in the light of the up-to-date country situation in Somalia together with the relevant country guidance (in particular in AMM) together with the issue of the legality of revoking the Claimant’s refugee status which presented a complex and challenging scenario to UKBA.

Ms Short pointed to the fact that the UKBA had in June and July been able to take a decision in relation to the Claimant in one month. She submitted that there was no explanation why that could not have been done sooner. The answer to that submission is twofold. First, the decision did not, in fact, take one month to process through the UKBA. As is now clear from the chronology the final decision (taken at the highest level) was not reached until 20 September 2012. Secondly, in any event, even if Ms Short had been correct in the timescale taken, the fact that a decision can be reached at the end of a process in one month does not mean that it was unreasonable not to have reached it in that period of time at some earlier point in the period of the Claimant’s detention. I am satisfied that the lapses of time and absence of recorded inactivity did not, in the circumstances of the Claimant show a lack of reasonable diligence. Whilst it may always be possible to do something sooner than it was actually done, that does not in itself demonstrate a lack of reasonable diligence amounting to illegality. There were no doubt a number of cases being dealt with within the CCD and the enforcement and asylum teams.

Looking at the circumstances as a whole, I satisfied that the first period upon which Ms Short relies did not breach the fourth Hardial Singh principle.

Turning to the second period which begins either on 5 July 2012 or 20 July 2012 (as put by Ms Short in her skeleton and oral submissions respectively) I have already set out the internal processes that eventually led to a decision being made on or around 20 September 2012 by a Director acting on behalf of the Chief Executive. In her witness statement, Ms Howells described events that occurred after the SCW in the asylum team to the SCW in the SEO team at paras 14-20 as follows:

Although Ms Short relied upon this period only as relevant to the Hardial Singh second principle, it is nevertheless helpful to consider whether this period failed to meet the reasonable diligence requirements of the fourth Hardial Singh principle. In my judgment, it does not. As the evidence demonstrates, a number of events including bail applications and the JR proceedings intervened whilst the proposal was being considered first by the SCW in the CEO team and then subsequently at the highest level by the Director acting on behalf of the Chief Executive. The period from 20 July 2012 is one of a maximum of 2 months. Ms Howells’ witness statement explains what was happening during this period including that the proposal was being taken through the internal decision making structure that entirely properly required a decision of this seriousness to be taken at the highest level. After taking into account the necessarily interruptions to the process brought about by the bail and judicial review proceedings, I am not persuaded that there was a lack of reasonable diligence in reaching a decision at the appropriate level whether the Claimant fell within one of the exceptions and was not to be deported under the automatic deportation provisions in the 2007 Act.

In addition, I see no basis for finding that the four days that it took to release the Claimant once a decision had been communicated to Ms Howells demonstrates a lack of reasonable diligence. Ms Howells sets out in her statement (at paras 19-20) the attempts that were made to contact the Claimant’s representatives to obtain a release address for the Claimant which was not forthcoming until 24 September 2012.

For these reasons, I am satisfied that the second period of the Claimant’s detention relied upon by Ms Short did not breach the fourth Hardial Singh principle.

I turn now to consider the Claimant’s reliance on the second Hardial Singh principle, namely whether the overall period of his detention of just under 10 months was unreasonable.

In assessing the reasonableness of the period, I remind myself of the factors set out in Dyson LJ’s judgment in R(I) at [48] approved in Lumba at [105] (set out above at para 74).

First, the length of the period of detention was relatively short, namely 10 months. Secondly, there were complex issues of the Claimant’s personal circumstances and, whether in the light of the country evidence and case law he could be returned to Mogadishu. There was also the legal issue of whether his refugee status could be revoked as it had been granted in error. Thirdly, I have already concluded that the UKBA acted with reasonable diligence in detaining the Claimant and then re-detaining him under s.36(1) of the 2007 Act and in reaching its decision on or around 20 September 2012 that he would not be deported pursuant to the automatic deportation provisions under the 2007 Act. Fourthly, no matters were put before me in relation to the conditions in which the Claimant was detained. Fifthly, no material was put before me on the effect of the detention upon the Claimant or any of his family. Sixthly, given the Claimant’s history there was a clear risk that he would abscond if not detained. Finally, there was a risk that if released he might commit further criminal offences of the type for which he was convicted on 1 June 2009 involving the supply of Class A drugs. Such offences are serious and pose a significant risk to the public.

In addition, the appellant’s non-cooperation in the ETD process only enhanced the risk of his absconding given his lack of willingness to provide information to assist in the deportation process.

Taking these factors into account, I am satisfied that the period of the Claimant’s detention (almost 10 months) was reasonable in all the circumstances. Consequently, I am satisfied that the Claimant’s detention did not breach the second Hardial Singh principle.

In the light of my conclusion that the Claimant’s detention was lawful, it is not necessary to reach any decision on the issue of causation.

For these reasons, I am satisfied that the Claimant’s detention between 22 November 2011 and 24 September 2012 did not breach the Hardial Singh principles or Article 5 of the ECHR and was lawful.

Consequently, the claim is dismissed.