FOURTH SECTION
Application no. 19352/12
Mowleed Mohammed HUSSEIN
against the United Kingdom
lodged on 9 February 2006
STATEMENT OF FACTS

The applicant, Mr Mowleed Mohammed Hussein, is a Somali national who was born in 1979 and lives in West Drayton. He is represented before the Court by Ms Roopa Tanna of Islington Law Centre, a not-for-profit organisation based in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Somali national who was born in Hargeisa in the now semi-autonomous region of Somaliland. He arrived in the United Kingdom on 25 November 1994. In August 2003 he was convicted of burglary and theft and sentenced to a total of fifteen months’ imprisonment.
1.  Appeal against deportation
On 9 April 2004 the Secretary of State decided to deport the applicant.
The applicant appealed against that decision on 15 April 2004. On the same day the Home Office issued a Detention Authority notice for the applicant and notified him by letter that he would be detained under Immigration Act powers following completion of his custodial term on 16 April 2004.
On 16 August 2004 the applicant applied for leave to remain in the United Kingdom. In that application he asserted, incorrectly, that he was from Mogadishu.
On 31 August 2004 the applicant’s appeal against the deportation notice was adjourned because a statement from his mother was produced which gave his place of birth as Hargeisa in Somaliland.
The hearing resumed on 9 November 2004. Following its resumption, the Home Office undertook that if the applicant were to be removed, it would only be to Somaliland.
The applicant’s appeal was dismissed on 25 February 2005 as the Immigration Judge found that the applicant could safely return to Somaliland. She made no findings on the safety of return to Somalia. On 8 April 2005 a Senior Immigration Judge refused the applicant’s request for reconsideration of the decision and a further application for review by the High Court was refused on 31 Jan 2006.
On 15 July 2005 the applicant was served with a deportation order.
2.  The detention under challenge
Following completion of his custodial term on 16 April 2004, the applicant was administratively detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971.
Between February 2005 and July 2006 the applicant was interviewed on a number of occasions by immigration officers. Throughout this period they reported that the applicant did not co-operate with the documentation process and noted his unwillingness properly to complete the relevant “bio-data” form and his occasional refusal to sign these forms.
On 5 April 2006 the Assistant Director of the Home Office’s Criminal Casework Directorate requested further information on the applicant’s case noting that:
“This case has been ongoing for some time and the main barrier to removal appears to me to be the fact that he cannot be returned to Somalia, if he refuses to go.”
On 10 April 2006 the Assistant Director indicated that the applicant’s “release on tag” should be considered. A senior Home Office caseworker subsequently wrote on the applicant’s detention review that if he continued not to cooperate they should prepare for release on tag. On 3 August 2006 the Home Office detention review for the applicant again mentioned the option of electronic tagging as well as the possibility of prosecuting the applicant for “non-compliance with the documentation process”. There were no further mentions of electronic monitoring in the internal detention reviews and the applicant was not prosecuted.
On 15 January 2007 the Home Office issued a Detention Authority. This authority stated that the applicant was still detained “in pursuance of the sentence of order of a court”. On the same day a letter of reasons was issued which stated that the applicant was detained in accordance with the Secretary of State’s published policy that detention would only be used where there was no reasonable alternative available.
The applicant made repeated unsuccessful applications for bail to the Asylum and Immigration Tribunal on 20 January 2005, 15 February 2005, 8 March 2005, 28 June 2005, 13 February 2006, and 25 January 2007. The Home Office’s bail summaries alleged that he was not cooperating with the removal process.
At the hearing on 25 January 2007 the judge indicated that he would look favourably on any future application if no progress was made with regard to the applicant’s removal. In light of the judge’s comments, on 26 January 2007 a note in the Home Office files stated that fresh evidence would be required of non-cooperation.
From 2 February 2007 until 27 April 2007 the applicant’s file was mislaid by the Home Office.
On 21 August 2007 the applicant was released on bail by the Asylum and Immigration Tribunal.
In the course of the applicant’s detention, twenty-two monthly reviews were missed in May 2004, June 2004, July 2004, September 2004, October 2004, November 2004, December 2004, April 2005, August 2005, October 2005, November 2005, December 2005, January 2006, May 2006, June 2006, September  2006, October  2006, November  2006, December  2006, February 2007, March 2007 and April 2007.
3.  Proceedings in the Administrative Court
On 11 April 2007 the applicant lodged an application for judicial review challenging his ongoing detention as unlawful at common law and under Article 5 of the Convention.
In a witness statement dated 4 May 2007 a Senior Executive Officer of the United Kingdom’s Immigration and Nationality Directorate (“IND”) conceded that “little action seems to have been taken to progress the case within the past few months.”
On 8 May 2007 the Administrative Court refused to order the applicant’s release. As limited bio-data had been supplied by the applicant it was agreed that his solicitors would contact his family to obtain such bio-data information as he himself had been unable to give it.
On 29 May 2007 the Home Office conducted a further bio-data interview with the applicant and a further bio-data form was completed and signed by him.
On 3 June 2007 the United Kingdom concluded a fresh Memorandum of Understanding with the Somaliland authorities but its provisions, including the requirement for agreement by those authorities to the return of each applicant, were very similar to the earlier Memorandum. The Somaliland authorities continued to impose stringent requirements for the provision of travel documentation and, in fact, prior to September 2007 the United Kingdom lacked contact details for Somaliland officials who could authorise such travel documentation.
On 29 July 2007 a consultant psychiatrist provided a report on the applicant which stated that:
“[The applicant] is showing symptoms of depression with paranoid features. He has a sad mood, periods of intense irritability, disturbed sleep, poor concentration, feels like crying and he ruminates on his situation constantly. He has also begun to imagine that there is something serious that he is not being told about to account for his detention and not just immigration issues.”
On 17 November 2008 an Executive Officer within the Home Office provided a witness statement in the applicant’s judicial review proceedings which stated that “to date, the [applicant’s] case has not been referred to the Somaliland authorities for approval.” On 29 April 2009, in its pleadings in the domestic proceedings, the United Kingdom indicated that the Somaliland authorities had yet to be contacted.
In a judgment given on 14 October 2009, the Administrative Court Judge found that the applicant had been lawfully detained for the first thirty-eight months of his detention and unlawfully detained from 20 June 2007 until his release on bail on 21 August 2007.
The Administrative Court Judge found that there were objective grounds for believing that the Somaliland authorities would accept a return “in an appropriate case”. He therefore accepted that there had remained, up until 20 June 2007, a realistic possibility that the applicant’s removal to Somaliland could be arranged. However, the judge found that by 20 June 2007 the applicant had for the first time fully co-operated with the Home Office. In particular, his legal representatives had located his family and pieced together as much of the information required as they could. Nevertheless, even with the applicant’s cooperation, there was not enough detail to enable his transfer back to Somaliland. Consequently, the judge found that at this point the Secretary of State could no longer consider that there was a realistic prospect of deportation.
In reaching this conclusion the Administrative Court Judge noted that the applicant had failed to cooperate with the process of obtaining travel documentation and had not agreed to voluntary repatriation. He also accepted that the applicant posed a “high” risk of reoffending in potentially serious ways and posed a “high” risk of absconding.
4.  Proceedings in the Court of Appeal
On 14 October 2009 the Administrative Court Judge granted the applicant permission to appeal to the Court of Appeal. By a judgment of 14 October 2010 the Court of Appeal dismissed the applicant’s appeal. The court considered that:
“this is an anxious case. The period of 38 months’ detention held by Sales J to have been lawful is a very long period indeed for administrative detention pending deportation. Detention for that length of time merits the most anxious scrutiny.”
However, the court concluded that:
“There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all.”
On 8 July 2011 the applicant was refused permission to appeal to the Supreme Court.
5.  Presumption in favour of detention: April 2006 to December 2008
In April 2006 the Home Office introduced a “secret” policy creating a presumption in favour of the detention of Foreign National Prisoners pending their deportation. The policy, which was not disclosed until mid-2008 and was not formally published until September 2008, constituted a “near blanket ban” on release. During this period the Secretary of State’s published policy on the detention of Foreign National Prisoners (“FNP”) stated that there was a presumption in favour of release.
6.  The question of costs and damages
The applicant was awarded no costs for the pursuit of his claim in the domestic courts. Any damages that he might have recovered would therefore have been consumed by the statutory charge levied by the Legal Services Commission pursuant to section 10(7) of the Access to Justice Act 1999. Consequently the applicant did not seek to recover the damages for which he was in principle eligible.
B.  Relevant domestic law and practice
1.  Detention pending deportation
The power to detain a person against whom a decision has been taken to make a deportation order is contained in Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), which provides:
“Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”
The power to detain an individual in respect of whom a deportation order is in force is contained in Paragraph 2(3) of Schedule 3 to the 1971 Act. It provides:
“Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] the Secretary of State directs otherwise).”
There are, however, limitations on the power to detain. Four distinct principles emerge from the guidance given in R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704:
“i. 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.”
In the case of Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12, the Supreme Court briefly considered the Hardial Singh principles. In his leading judgment, which was accepted by the majority of the court, 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 this regard, he noted that if a person re-offended, there was a risk that he would abscond either to evade arrest or, if he was arrested and prosecuted, that he would receive a custodial sentence. Either way, his re-offending would impede his deportation. He also considered that the pursuit of legal challenges by the Foreign National Prisoner could be relevant. However, he considered the weight to be given to the time spent on appeals to be fact-sensitive. In this regard, he noted 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.
Lord Dyson further noted that while it was common ground that the refusal to return voluntarily was relevant to the assessment of the reasonableness of the period of detention because a risk of absconding could be inferred from the refusal, he warned against the danger of drawing such an inference in every case. On the contrary, he 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. If return was possible, but the detained person was not willing to go, it would be necessary to consider whether or not he had issued proceedings challenging his deportation. If he had done so, it would be entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings, unless they were an abuse of process, and his refusal to return voluntarily would be irrelevant. If there were no outstanding legal challenges, the refusal to return voluntarily should not be seen as a trump card which enabled the Secretary of State to continue to detain until deportation could be effected, otherwise the refusal would justify as reasonable any period of detention, however long.
2.  The lawfulness of the “secret” policy
In the case of Lumba and Mighty the Supreme Court was called upon to consider the lawfulness of detention which was effected pursuant to the unpublished policy which was inconsistent with the Secretary of State’s published policy. The applicants in that case were Foreign National Prisoners detained pursuant to the “secret” policy creating a presumption in favour of detention pending deportation, while at all material times the published policy indicated that there was a presumption in favour of release. The question of whether the applicants were lawfully detained divided the court, which concluded, by a narrow margin, that the unpublished policy applied to the applicants was unlawful. As a consequence, they were unlawfully detained and their claims in false imprisonment had to succeed. However, as the court found that the power to detain would have been exercised even if the lawful, published policy had been applied, it concluded – once again by a narrow majority – that the applicants should receive only nominal damages.
Lord Phillips, Lord Brown and Lord Roger dissented, preferring to find that the applicants’ detention was not unlawful because they would have been detained even if the published policy had been applied.
3.  Failure to conduct regular reviews
Chapter 38 of the document formerly referred to as the Home Office Operations Enforcement Manual provided that detention had to be reviewed each month and written reasons for maintaining detention had to be provided each month. In the case of Shepherd Masimba Kambadzi v. Secretary of State for the Home Department [2011] UKSC 23, the applicant had been detained pending the making of a deportation order for twenty-seven months. There was no question of a breach of the Hardial Singh principles but nevertheless the applicant alleged that his detention had been unlawful as it had not been subject to regular reviews as required by the Secretary of State’s published policy. The Supreme Court concluded by a majority that it was the Secretary of State’s duty to give effect to his published policy if that policy was sufficiently closely related to the authority to detain. In the present case, the court found that this test was met and that the applicant’s detention was unlawful. However, in view of the fact that the applicant would have remained in detention even if the reviews had taken place, the court considered it likely that he would only be entitled to nominal damages.
COMPLAINTS
The applicant complains that his detention did not fall within the exception in Article 5 § 1 (f) of the Convention because he was not being detained “with a view to deportation” as there was no realistic prospect of his deportation within a reasonable time or at all.
Alternatively, he complained that his detention was in breach of Article 5 § 1 because the lack of time limits and judicial oversight prevented the domestic legal regime governing administrative detention from being adequately accessible, precise and foreseeable; the United Kingdom did not act with due diligence in pursuing his deportation and the length of his detention was excessive; and his detention was not in accordance with a procedure prescribed by law as regular reviews were not conducted and for the latter part it was pursuant to an unpublished policy.
The applicant further complained under Article 5 § 2 of the Convention that the failure to conduct detention reviews and the operation of the secret detention policy deprived him of accurate reasons for his detention.
The applicant also complained under Article 5 § 4 of the Convention that his ability to challenge his detention was impeded as he did not know the true policy under which he was being detained or the true reasons for his detention.
Finally, the applicant complained that he has not been awarded the compensation to which he is entitled for his unlawful detention in breach of Article 5 § 5 of the Convention.
QUESTIONS TO THE PARTIES
1.  Was the applicant’s detention in accordance with a procedure prescribed by law?

2. Was the applicant lawfully detained throughout the period between 16 April 2004 and 21 August 2007 as “a person against whom action was being taken with a view to deportation”?

3.  Did the domestic legal regime of administrative detention lack the “quality of law” required by Article 5? In particular, did the lack of any time-limits on administrative detention, taken alone or in conjunction with the lack of any automatic judicial oversight of such detention, violate Article 5 in this sense?