Court of Appeal
Published March 11, 2022
Regina (Abdi) v Secretary of State for the Home Department
Regina (Khalaf) v Same
Before Lord Justice Sedley, Lord Justice Stanley Burnton and Lord Justice Sullivan
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Judgment March 9, 2011
In deciding whether a foreign national facing deportation had been detained for too long, the court had to consider what had happened since the start of the detention, to consider all the relevant factors in the context of the time so far spent in detention and to ask whether, in the circumstances, that was a reasonable time for effecting the statutory purpose.
The Court of Appeal so held in a reserved judgment when:
1 dismissing an appeal by the the Secretary of State for the Home Department from the decision of Mr Justice Davis ([2009] EWHC 1324 (Admin)) that Hassan Abdi had not been unlawfully detained so as to entitle him to damages but ordering his immediate release and allowing his cross-appeal by holding that his detention since December 19, 2008, until his released was unlawful; and
2 allowing the appeal of Afrah Khalaf against the dismissal by Mr Justice Mitting ([2010] EWHC 3083 (Admin)) of his application for judicial review.
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Mr Robin Tam, QC and Mr Jeremy Johnson for the Home Secretary in the first case; Mr Raza Husain, QC and Ms Laura Dubinsky for Mr Abdi.
Mr Raza Husain, QC and Mr Rory Dunlop for Mr Khalaf; Mr Robin Tam, QC and Ms Sarah Hannett for the Home Secretary in the second case.
LORD JUSTICE SEDLEY, delivering the judgment of the court, said that the approach of Mr Justice Davis was legally correct and that of Mr Justice Mitting flawed.
Just as Mr Justice Mitting was wrong to discount without more, the time spent by Mr Khalaf on appeals and legal challenges, Mr Justice Davis would have been wrong to count it without more.
In both cases the proper course was, on ordinary public law principles, to have regard to what had happened since the start of the detention and to why; to give each element the weight it merited; to look at those and any other material factors in the context of the period so far spent in detention; and to ask whether, in that light, more time had elapsed, or was about to elapse, than in all the circumstances was a reasonable time for effecting the statutory purpose.
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In general, appeals, including appeals by the Home Secretary, would be of little, if any, weight by themselves in deciding whether the period of detention was or had been unreasonable. But a crucial, and related question would be whether at any time it was apparent that removal would not be possible within a reasonable time.
Even a decision of the European Court of Human Rights to make a Rule 39 order [postponing deportation] would not necessarily render continuing detention unreasonable, since that Court might revoke its order on the basis of representations made by the Home Secretary or a decision of that Court or of domestic courts.
Even where the domestic court had concluded that the duration of detention had in the past been unreasonable, if, when the matter came before it, it appeared that the detainee would be removed within a reasonable time, it would not be appropriate to order his release, whatever his remedy might be in relation to his previous detention. In such a case, when the matter came before the court, the detainee was being detained for the statutory purpose.
In some cases it might be very difficult, applying principles in R v Governor of Durham Prison, Ex parte Hardial Singh (The Times December 15, 1983; [1984] 1 WLR 704) to identify any particular date on which detention had ceased to be lawful. Any date would inevitably be arbitrary to some extent.
Solicitors: Treasury Solicitor; Birnbeg Peirce & Partners, Camden Town.
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Duncan Lewis & Co, Hackney; Treasury Solicitor.