Ali Mahamed Abdi v Secretary of State for the Home Department

Hearing date: 29 th January 2014

The Deputy Judge:

Introduction

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.

Factual Background

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.

(1) 2003 – 22 November 2011

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.

(2) 22 November 2011 – 24 September 2012

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...