The Outer Limit
The Court of Appeal recently gave judgment in the case of R (on the application of Muqtaar) v Secretary of State for the Home Department  EWCA Civ 1270, a challenge by a Somali national to his detention under administrative immigration powers for the extraordinary period of 41 months, or three and a half years.
The first line of the judgment is striking:
This is yet another case concerning the lawfulness of immigration detention.
It is capable of being read as a lament that so much court time is being wasted with such trivial guff. As Nick Armstrong of Matrix Chambers commented, there would not be so many such cases if there was not so much unlawful detention going on.
The Claimant was convicted of a serious offence of robbery in 2001 but then afterwards committed offences of less gravity, leading to his description as a ‘chaotic recidivist’ by Richards LJ in the judgment. He was detained under immigration powers from 8 February 2008, his appeal rights were fairly rapidly exhausted on 8 July 2008 and his removal was belatedly scheduled for 17 June 2009. However, removal was cancelled the day before due to a Rule 39 indication from Strasbourg pending the outcome of a test case on Somalia. The Claimant was eventually released on bail on 13 July 2011, some two weeks after the Strasbourg case of Sufi and Elmi was handed down on 28 June 2011.
Sufi and Elmi took far longer to decide than had been hoped by all concerned, as described in R (AR) v Secretary of State for the Home Department  EWCA Civ 857.
On behalf of the Claimant it was argued that detention from the time of the Rule 39 indication was unlawful because from that time detention was in breach of Hardial Singh lawfulness principles. This submission was rejected:
At the time of receipt of the rule 39 indication there was a realistic prospect that the ECtHR proceedings concerning removal to Somalia would be resolved within a reasonable period: it was possible but was not apparent that they would drag on as in practice they did.
Thus the novel finesse on Hardial Singh of a ‘realistic prospect of reasonableness’ is introduced into the sorry cannon of case law upholding obscene lengths of administrative detention.
Richards LJ goes on to reject the proposition that for a removal to be reasonable there must be an identifiable timescale within which removal can take place.
There follows a classic piece of judicial hand wringing:
In any event, I can see no reason for differing from the overall conclusion reached by the deputy judge after careful consideration of all the relevant factors. The period of detention in question was very long – by the time of the ECtHR’s judgment in Sufi and Elmi it was approaching 41 months. Immigration detention of that length is a matter of great concern and it seems to me that the period was near the outer limit of what could be justified in the circumstances of this case. But I do not think that the deputy judge was wrong to conclude that the outer limit had not been exceeded.
Regular readers of unlawful detention cases will be aware that this outer limit is a mirage, forever fading away just before it is reached. Judges seem increasingly unwilling to say ‘enough is enough’, perhaps because of the volume of these claims and for fear of the precedent it would set. The effect is that periods of unlawful detention just get longer and longer and will continue to do so. The argument against having a statutory limit on detention has always been that the authorities would routinely detain up to that limit. The situation can hardly get worse than it is, though.
Returning to the judgment, on the question of whether the 15 days between Sufi and Elmi being handed down and the claimant being granted bail was lawful and reasonable, Richards LJ comes perilously close to holding that there is no need to review detention between monthly detention reviews. Thankfully, this is not a view endorsed in Elias LJ’s short dissenting judgment and even Lloyd LJ’s assenting judgment does not go so far. It is also noteworthy that the fact that the Secretary of State would plainly have continued to detain for a longer period given that release was only secured through a contested bail hearing was apparently irrelevant.
Richards LJ also rejected the arguably bold contention that the failure to make enquiries of Strasbourg to ascertain a potential end date to Sufi and Elmi amounted to a public law error and rejected the submission that detention was rendered unlawful by being justified with reference to the possibility of ‘self deportation’ to Somalia. Although the latter would amount to an error, it was not proven in the current case, it was merely that ‘some of the passages in the detention reviews are not very happily expressed’.
Lastly of note is the comment by Richards LJ at para 41 that
‘comparison with the particular outcome in other cases is unlikely to be a useful exercise in this highly fact-sensitive area’
and then at para 76, when seeking to distinguish a case, that anyway
‘the case itself is factually far removed from the present’.
Some sort of award for intellectual gymnastics is surely due.
The judgment is a disaster for those opposed to the extreme lengths of administrative detention that routinely exceed criminal sentences for serious crimes. The ultimate deterrent in our society, the deprivation of liberty, is cheaper by the day.