Detention pending deportation without regular review breaches Article 5 of the Convention
10 April 2013
Abdi v United Kingdom (application no. 27770/08) 9 April 2013 – read judgment
The Strasbourg Court has ruled that a Somali national’s detention pending deportation was not lawful under domestic law.
The following summary is based on the Court’s press release:
The applicant, Mustafa Abdi, is a Somali national who is currently detained in HMP Brixton. Mr Abdi arrived in the United Kingdom on 7 May 1995 and, although refused asylum, was granted exceptional leave to remain in the United Kingdom until February 2000. On 23 July 1998 he was convicted of a number of offences, including rape, and sentenced to eight years’ imprisonment. On 20 May 2002 the Secretary of State for the Home Department ordered Mr Abdi’s deportation and on 27 May 2002 he issued an authority for detention until the making of a deportation order. On 3 September 2003 Mr Abdi’s release became automatic; however he remained in detention on the basis of the authority issued on 27 May 2002. On 5 April 2004 the Secretary of State for the Home Department authorised Mr Abdi’s detention until his deportation.
From August 2004 until July 2006 it was not possible for the Government to remove Mr Abdi from the United Kingdom to Somalia. This was because in August 2004 the last carrier willing to take ‘‘enforced returns’’ to Somalia withdrew, and because in November 2004 Mr Abdi refused a formal request to sign a disclaimer confirming that he was willing to return voluntarily. In July 2006 the Government concluded an agreement with African Express Airlines which made enforced removals to Somalia possible again. In September 2006 Mr Abdi was granted permission to apply for judicial review of the decision to detain him. He was successful in obtaining a finding from the Administrative Court held that part of his detention was unlawful but the Court of Appeal reversed that ruling on 30 July 2007. On 13 December 2007 Mr Abdi was refused permission to appeal to the House of Lords. Mr Abdi was released in April 2007 but re-detained in April 2008 after breaching his bail conditions
The Court’s decision
Article 3: The Court considered that Mr Abdi would benefit from the UK Government’s undertakings, set out in a letter addressed to the Court on 10 February 2012, to not return applicants to Mogadishu without a full examination of their claims, giving them the opportunity to lodge new applications with the European Court of Human Rights should the need arise. Accordingly, it decided to strike Mr Abdi’s complaint under Article 3 out of its list of cases and to lift its indication to the United Kingdom Government (made under Rule 39 of the Rules of Court – interim measures) that Mr Abdi should not be expelled until further notice.
Article 5: The Court held that where the lawfulness of detention is in issue, including whether ‘‘a procedure prescribed by law’’ has been followed, the European Convention refers essentially to national law and lays down the obligation to conform to rules of national law. The Court noted that following a Supreme Court judgment in another case, Mr Abdi’s detention from 3 September 2003 to 13 April 2007 could not be said to have been lawful under domestic law because the regular reviews required by the Secretary of State’s published policy were not carried out.
Accordingly the Court held that there had been a violation of Article 5 for the period from 3 December 2004 until mid April 2007, the period of detention before December 2004 having been found inadmissible for non-exhaustion of domestic remedies. Given that conclusion, the Court did not consider it necessary to examine Mr Abdi’s complaints under Article 5 (1) of the Convention concerning the length of his detention.
The Court held under Article 41 that the United Kingdom was to pay Mr Abdi 1,500 Euros in respect of non-pecuniary damage. It also awarded 7,000 Euros for his lawyers’ costs and expenses.
It is surprising that the Court of Appeal held the applicant’s period of detention to be valid. The judge who granted the judicial review at first instance did so by applying the Hardial Singh principles to the case, in other words, that the Secretary of State for the Home Department could only detain a person that he intended to deport for what amounted to a reasonable period in all the circumstances, and if, before the expiry of a reasonable period, it became apparent that the Secretary of State would not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention. He therefore found the period of detention from 3 December 2004, which was the date of the applicant’s first review following his refusal to return voluntarily, to 30 June 2006 was found to be unlawful because of its length, the impossibility during that period of achieving removal, and the misleading statements which had misled decision-makers both inside and outside the Home Department. But he was overturned by the Court of Appeal which found the period of detention between 3 December 2004 and 30 June 2006 was lawful because the applicant could have returned to Somalia voluntarily.
But at the time of the Court of Appeal’s ruling against Abdi the Hardial Singh principles had not yet received their refinement by the Supreme Court in Lumba (March 2011). There, Lord Dyson found that in assessing the reasonableness of the length of the period of detention, the risk of re-offending would be a relevant factor. In relation to legal challenges by the Foreign National Prisoner, he thought that much more weight should be given to detention during a period when the detained person was pursuing a meritorious appeal than to detention during a period when he was pursuing a hopeless one. As for the prisoner’s refusal to return voluntarily , whilst this was relevant to the assessment of the reasonableness of the period of detention because a risk of absconding could be inferred from the refusal, there was a danger in drawing such an inference in every case. On the contrary, Lord Dyson considered it necessary to distinguish between cases where the return to the country of origin was possible and cases where it was not. Where return was not possible for reasons extraneous to the person detained, the fact that he was not willing to return voluntarily could not be held against him since his refusal had no causal effect.
Since these Lumba considerations are now part of the common law, at least until they are overtaken by a future Supreme Court decision, it was inevitable that the applicant should have succeeded in convincing the Strasbourg Court that during this period he was falsely imprisoned in terms of domestic law.
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