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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Anirah, R (on the application of) v Secretary of State for Home Department [2009] EWHC 2363 (Admin) (01 October 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2363.html Cite as: [2009] EWHC 2363 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
SITTING IN BIRMINGHAM

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/10/2009

Mr Justice Wyn Williams :

1. The Claimant is a national of Nigeria. His date of birth is 26 May 1960. He arrived in the United Kingdom as a visitor on 2 September 1988. He later applied, successfully, to remain in the United Kingdom as a student. On 13 August 1991 the Claimant married a British citizen. On 25 May 1994 he was granted indefinite leave to remain in the United Kingdom on the basis of that marriage. There are four children of the marriage. They are all British citizens.
2. On 2 March 2001 the Claimant was convicted of conspiring to import Class A drug into the United Kingdom. On the same date he was sentenced to a term of 10 years imprisonment.
3. The Claimant became eligible for parole on 21 May 2005. On 5 May 2005 a Panel of the Parole Board found that the Claimant was suitable for early release on licence. It issued a written decision to that effect. The penultimate paragraph of the decision of the Parole Board reads as follows:-

"He had expected to return to his wife and children in Liverpool, with whom he has maintained close contacts throughout the sentence. However, his wife is not agreeable to this. While he has no release address, his home probation officer, whom he has met once, is hopeful of a hostel place and has raised no concerns as to likely compliance. All reports support early release and his assessment as low risk of reconviction indicates that there is no indication Mr Anirah is likely to present a further risk of offending."

4. The Defendant alleges that a letter dated 20 May 2005 was issued in which a decision was conveyed to the Claimant that a Deportation Order would be made against him on the basis that his deportation would be conducive to the public good. The Defendant also alleges that a letter of the same date was sent or given to the Claimant which informed him that he was to be detained pursuant to Schedule 3 paragraph 2 of the Immigration Act 1971. In any event the Claimant was not released from prison on 21 May 2005.
5. On 26 May 2005 the Claimant appealed against the Defendant's decision to make a Deportation Order. That appeal was heard on 28 June 2005 by an Immigration Judge sitting in the Asylum and Immigration Tribunal. In a determination promulgated on 11 July 2005 the Immigration Judge dismissed the appeal against the decision of the Defendant to make a Deportation Order.
6. The Claimant applied to the Asylum and Immigration Tribunal to reconsider that decision. On 21 July 2005 a Senior Immigration Judge ordered that the Claimant's appeal should be reconsidered. For reasons which are completely unexplained, this reconsideration did not take place until 18 December 2006. Meanwhile the Claimant remained in prison.
7. In a Determination promulgated on 18 December 2006 a panel of the Asylum and Immigration Tribunal dismissed the Claimant's appeal against the decision to deport him. It ruled that there had been no error of law in the decision made in June 2005. As a consequence of this decision the Claimant's appeal rights were exhausted on or about 8 January 2007.
8. On 17 January 2007 the Defendant issued a letter which was addressed to the Claimant at HM Prison Garth. In summary the letter informed the Claimant that on 7 November 2007 the Defendant had served upon him a notice of intention to make a deportation order. It went on to notify him that the Defendant intended to keep the Claimant in detention pending his deportation. Detention was justified, according to the letter, because the conclusion had been reached that the Claimant would be likely to abscond if given temporary admission or release. Further the risks of absconding arose because the Defendant had concluded that the Claimant did not have enough close ties to make it likely that he would stay in one place.
9. On 18 January 2007 the Defendant generated two further documents authorising the Claimant's detention. On 19 January 2007 the contents of those documents were communicated to the Claimant (see page 229 of the Trial Bundle).
10. No travel document was issued to the Claimant until 14 June 2007. The Defendant has filed no evidence from a witness who explains what was occurring between 19 January 2007 and the date the travel document was issued. Documents produced by the Defendant entitled "Detention Review" and "Monthly Progress Report to Detainees" do not explain the steps which the Defendant was taking in order to bring to fruition the deportation of the Claimant.
11. Such information as exists about what was happening between January 2007 and June 2007 comes from internal minutes generated by the Defendant and disclosed late in these proceedings (see pages 298 to 301 of the Trial Bundle). The minutes show that between 9 January 2007 and about 19 January 2007 efforts were made to discover the whereabouts of the Claimant's original passport. Those efforts failed. Consequently on 19 January 2007 an application was made for an "ETD" (which I assume stands for Emergency Travel Document). The minute in which this information is set out was apparently made on 17 February 2007 (see Trial Bundle pages 298 and 299). The same minute shows that no travel document had been issued by 17 February. On 20 February 2007 the issue of an "ETD" was described as being a "barrier" in the case. That minute suggested that the Claimant had an expired passport which was available and which was apparently held at HMP Garth. The next entry in the sequence of minutes is in the following terms:-

"The subject has been interviewed on the 5^th March 2007 with regards to an ETD application. I now hold the bio data information and an application for an emergency travel certificate along with eight copied photos of the subject. I have checked with ISTU to see if they have been instructed to do an ETD by the IO who conducted the interview (Danny O'Neil). Unfortunately they have not received any documentation. I will check whether I have to do this or whether Mr O'Neil on Monday when he is in."

The date that follows this minute appears to be 17 February 2007 (see Trial Bundle page 300) but that cannot be correct.

12. The final minute is apparently dated 16 March 2007 and reads as follows:-

"Although an IS91 was originally served in June 2005, we have now established that Mr Anirah was serving a custodial sentence until January 2007. He has therefore been in detention under IS powers for eight weeks.

Current barriers to removal;

•    ETD

•    Signed DO

We now have a completed bio-data form and a Nigerian emergency travel certificate application. There are copies of recent photographs on file, although the originals will be required to allow an ETD application to be processed.

…………………..

Action Points;

Case owner to progress ETD application as a matter of urgency

DO submission and draft DO to be produced

………………………"

13. The Defendant has also produced case record sheets which relate to the period January 2007 to June 2007. They demonstrate that on or about 29 January 2007 Claimant's expired passport was taken to HM Prison Garth by the Claimant's ex-wife at his request (see Trial Bundle page 315). They also show that communications took place about the obtaining of an emergency travel document on 9 February 2007, 15 March 2007, 22 March 2007, 23 March 2007, 17 April 2007, 25 April 2007, 16 May 2007, 21 May 2007 and 25 May 2007. It is not entirely clear from the case record sheets when the application for an emergency travel document was first made to the Nigerian authorities but it seems very unlikely that this occurred until sometime in May 2007.
14. As I have said, a travel document was issued to the Claimant on 14 June 2007; removal directions were set for 5 July 2007. Shortly before the Claimant was due to be deported, he commenced proceedings for judicial review. In the light of the proceedings the Defendant cancelled the removal directions. The claim for judicial review was dismissed (at the permission stage) in November 2007.
15. Following the cancellation of removal directions the Claimant submitted further submissions to the Defendant as to why he should not be deported. These submissions were made on 8 August 2007. They were rejected by the Defendant on 19 November 2007 and removal directions were set for 29 December 2007.
16. On 28 December 2007 the Claimant brought a second claim for judicial review. Removal directions were again cancelled. On 20 February 2008 Mitting J granted permission to apply for judicial review at an oral hearing. On 23 May 2008 Blake J dismissed the Claimant's claim for judicial review. As I understand it, the point in the judicial review was whether or not the Claimant had an in-country right of appeal against the Defendant's decision to reject his further representations made on 8 August 2007 and rejected on 19 November 2007. Blake J determined that he did not.
17. The Claimant appealed, successfully, to the Court of Appeal against the decision of Blake J. The Court of Appeal handed down its decision on the appeal on 26 February 2009.
18. As I understand it the Defendant has appealed to the House of Lords against the decision of the Court of Appeal. Permission to appeal to the House of Lords has been granted and it may be that a hearing has taken place. However, the result of the appeal is not yet known.
19. Relying upon the judgment of the Court of Appeal the Claimant lodged an appeal with the Asylum and Immigration Tribunal which accepted that it had jurisdiction to determine it. That appeal was heard on 6 April 2009. On that date the Tribunal granted bail to the Claimant. He had, by then, been in custody allegedly pursuant to powers exercised under the Immigration Act 1971 for the better part of 4 years.
20. In a determination promulgated on 22 April 2009 the Asylum and Immigration Tribunal dismissed the Claimant's appeal. He made an application for reconsideration: this was refused on 17^th August 2009. Notwithstanding the dismissal of his appeal the Defendant has not detained the Claimant since 6 April 2009.
21. As things stand, there is an outstanding decision on the appeal to the House of Lords. To repeat, the Claimant has exercised his in-country right of appeal and it has been dismissed.
22. In these proceedings the Claimant alleges that he has been unlawfully detained by the Defendant. In essence, he alleges that his detention has been unlawful from the time that it began on 21 May 2005 to the date of his release in April 2009.
23. The Defendant denies unlawful detention. The Defendant maintains that the Claimant has been detained lawfully since 21 May 2005 by virtue of powers vested in and exercised by the Defendant under Schedule 3 paragraph 2 Immigration Act 1971.
24. The first point taken by the Claimant is that his detention from 21 May 2005 until 17/18 January 2007 was never lawfully authorised. He invites me to find, on balance of probability, that the Defendant did not make a decision to detain the Claimant on or about 20 May 2005 and he did not issue and serve the appropriate documentation authorising detention at that time.
25. I accept that the evidence adduced by the Defendant about this issue may be described as unsatisfactory. There is no witness statement from any person with first hand knowledge of what occurred. Nonetheless, I have reached the clear conclusion on balance of probabilities that the Defendant did reach a decision to detain the Defendant prior to 21 May 2005 and he did issue and serve the appropriate documentation. I reach this conclusion on the basis of various strands of evidences which, when taken together, seem to me to be compelling. First, there exist documents bearing the date 20 May 2005 which demonstrate that the Defendant had made a decision to detain the Claimant. I refer to the letter dated 20 May 2005 (Trial Bundle pages 220 and 221); the document entitled "Authority for Detention" (Trial Bundle page 216), which is a document intended for service upon the person to be detained and the Detention Authority (IS91) (Trial Bundle pages 217 to 219) which, as I understand it, is an internal document justifying detention. The second source of evidence is a letter dated 20 May 2005 from the Defendant to the Claimant in which the Defendant notified the Claimant of his intention to make a deportation order. The third source of evidence is hand written notes made by a person or persons employed at HMP Garth (Trial Bundle page 183). The notes relate to telephone conversations between an employee or employees at HMP Garth and employees of the Immigration Services. The notes demonstrate that both the Prison Service and the Defendant were fully aware that the Claimant was due to be released on parole, although it may be that they erroneously thought that the parole release date was 23 May 2005 as opposed to 21 May 2005. The relevant part of the notes end on 20 May 2005 with these words:-

"Deport paper work faxed through"

I accept that it is possible that the reference to "Deport paper work" is a reference only to the letter indicating to the Claimant that the Defendant intended to make a deportation order but, in my judgment, it is much more likely that this phrase relates to all the documentation which was generated on 20 May 2005. The fourth strand of evidence which supports the Defendant's position is the undisputed fact that the Claimant exercised his right to appeal against the Defendant's decision to make a deportation order. That appeal was heard on 30 June 2005. It is very unlikely, in my judgment, that the Defendant issued the relevant documentation to trigger an appeal against his decision to make a deportation order but did not issue or serve any documentation in relation to detention. At the appeal before the Immigration Judge the Claimant was represented by Counsel. It seems highly unlikely that Counsel would have failed to appreciate that there was a need for a decision letter justifying detention and a notice authorising detention.

26. To repeat, these strands of evidence convince me, on balance of probability, that the Defendant decided to detain the Claimant and issued and served the appropriate documentation. I appreciate that documentation generated in 2007 proceeded on the basis that the Claimant was in custody serving his sentence for drugs importation in 2005 and 2006 but, in my judgment, it is very likely that this later documentation is simply wrong. I also accept that a minute which may be dated 16 June 2005 seems to suggest that by this early date the original of part of the documentation generated on 20 May 2005 was missing (see Trial Bundle page 297). Apparently, a Mr Steven Jackson from UK Immigration Service could not find the original "detention document" but was able to retype the document since a copy version was on file.
27. This minute and the subsequent documentation which appears to proceed on the basis that the Claimant was not in immigration detention in 2005 and 2006 demonstrates that the Defendant's record keeping in this case has been much less than satisfactory. However I do not consider that the minute and the subsequent documentation should lead me to the view that the appropriate documentation did not exist at the relevant time (20 May 2005) or that the appropriate documentation was not served upon the Claimant.
28. In the light of the foregoing I accept that the Defendant properly authorised the Claimant's detention pursuant to schedule 3 of the Immigration Act 1971, at the latest, on 20 May 2005. It follows that the lawfulness of the Claimant's detention from 21 May 2005 must be judged against the principles laid down in a number of decisions of this Court and the Court of Appeal.
29. In R(I) v The Secretary of State for the Home Department [2002] EWCA Civ 888 Dyson LJ said:-

"46. There is no dispute as to the principles that fall to be applied in the present case………….

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 affect deportation within that reasonable period, he should not seek to exercise the power of detention;

iv)The Secretary of State should act with the reasonable diligence and expedition to effect removal.

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to affect the deportation within a reasonable period, the detention becomes unlawful, even if the reasonable period has not yet expired.

48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971 but in my view they include at least: the length of the period of detention, the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is kept; the effect of detention on him and his family; the risks that if he is released from detention he will abscond; and the danger that , if released, he will commit criminal offences."

30. In R (Abdi) v Secretary of State for the Home Department [2009] EWHC 1324 (Admin) the Secretary of State for Home Department submitted that the principle that a deportee should only be detained for a period that was reasonable in all the circumstances was subject to a particular restriction. He argued that in assessing whether a reasonable time had elapsed or whether deportation could be effective within a reasonable time it was an inflexible rule (subject to two exceptions irrelevant to the instant case) that a Judge should exclude, entirely, as a relevant consideration any period during which the individual in question was pursuing an asylum claim or a judicial remedy or appeal in respect of the asserted right not to be removed. Davis J rejected this submission. He did so for detailed reasons which are set out between paragraphs 25 and 29 of his judgment. It suffices for me to quote paragraph 36:-

"Accordingly, I do not think that there is any such general inflexible rule for which Mr Tam argues. I can certainly accept that a fact that a period of detention occurs whilst the Applicant is pursuing an appeal or comparable judicial process will always be a highly relevant factor: commonly, no doubt, in cases where there is also a risk of absconding and or re-offending, it may be a decisive one where the only operative bar to removal is pursuit of the very appeal process. Thus it is most certainly one of the matters, and a very important one, to be taken into account in deciding on the reasonableness of detention. But that is not the same as there being a rule of the kind Mr Tam advances."

31. One final point about the relevant legal principles. Both Mr Denholm for the Claimant and Mr Bourne for the Defendant were in agreement about my role in this case. In summary, my role is not to review the decision to detain the Claimant on 'Wednesbury' or rationality principles; rather my role is to decide for myself, whether the Claimant's detention was justified at the outset and, if so, whether its length was reasonable in all the circumstances.
32. In the letter of 20 May 2005 which, as I have found, was served upon the Claimant, the decision to detain the Claimant was justified in the following passage:-

"It has been decided that you should be detained because:

There is insufficient reliable information to decide whether to grant you temporary admission or release

At the time of preparing this letter there was no release address available for you.

The decision to detain you had been reached on the basis of the following factors:

At the time of preparing this letter there was no available release address for you."

33. As I understand it the Defendant was correct to assert as of 20 May 2005 that the Claimant had no available release address. Given that fact and the serious nature of the offence of which the Claimant had been convicted I do not consider that the decision made on 20 May 2005 to detain the Claimant pending deportation was unlawful. Clearly, the Defendant intended to deport the Claimant. The power of detention was being used to facilitate that purpose and, to repeat, the Claimant had no address at which to reside and he had been convicted of a very serious offence.
34. It seems to me, therefore, that the issue becomes whether the Defendant has detained the Claimant for a period beyond that which can be regarded as reasonable in all the circumstances. As I have said the Claimant was in detention between 21 May 2005 and 6 April 2009.
35. Although, ultimately, it is my view about whether such a lengthy period of detention was justified which will determine this challenge it is instructive to consider, first, the justification for detention (or lack of it) which has been advanced by the Defendant since 21 May 2005.
36. There is a complete dearth of information as to why the Claimant was detained between 21 May 2005 and January 2007. That is most regrettable. It appears very likely that no detention reviews were undertaken during this period; if that is correct it is conceded by the Defendant that such reviews should have taken place. If reviews did take place no documents evidencing the same have been retained or have come to light.
37. In the same period no monthly progress report was provided to the Claimant. Yet, as I understand it, it is common ground that progress reports should have been provided.
38. At the very least there is room to suspect that the Defendant was under the impression that the Claimant was still serving his sentence during this period (21 May 2005 to January 2007). That, if true, is a most unsatisfactory state of affairs.
39. It must be acknowledged, of course, that during this period the Claimant was pursuing an appeal against the Defendant's decision to deport him. There is simply no evidence which begins to explain why the appeal process took such a protracted length of time.
40. Between January 2007 and June 2007 the Defendant took steps to effect the Claimant's deportation. I have set out, above, what occurred in this period. I have considerable doubt about whether the Defendant was acting with due diligence in this period when the events of that period are looked at in isolation. Given that the Claimant had been in administrative detention for 18 months by January 2007, however, I find it even more difficult to conclude that the Defendant was acting as expeditiously as was reasonable in order to effect his deportation during the period January 2007 to June 2007.
41. As I have said, there is at least a strong suspicion that the Defendant believed that the Claimant was serving his sentence until January 2007. The documents about the Defendant's state of mind are contradictory. Between 15 February 2007 and 14 September 2007 a number of monthly progress reports were served upon the Claimant. Each of those reports was signed by Mr Steven Jackson. Each report began by reciting that the Claimant has been detained under powers contained in the Immigration Act 1971 as from 16 June 2005. In the same time scale, however, the Defendant undertook a number of detention reviews. Specifically, there were reviews on 5 April 2007, 30 April 2007 or 2 May 2007, 25 May 2007, 21 June 2007 and 17 August 2007. Each of the detention reviews specified that the Claimant's detention started on 20 January 2007. This stance is the one taken in the minute of 16 March 2007 (see paragraph 12 above). Further, there exist the documents referred to in paragraph 8 and 9 above.
42. Most of the detention reviews specified in the preceding paragraph explain why the Claimant was being kept in detention. I quote from the detention review dated 2 May 2007.

"All the known fact of this case have been considered, Mr Anirah has been convicted of conspiracy to contravene section 170(2) of the Customs and Excise Management Act 1979 contrary to section 1 of the Criminal Law 1977, namely the attempted importation of Class A drugs – cocaine. There are no known compassionate circumstances and although we are aware that he has close ties in the UK, namely his wife and four children we have reason to believe that this marriage no longer subsists and therefore have no release address for subject. It is unlikely that these ties will prove sufficient for Mr Anirah to remain in contact with the Immigration Authorities if he were to be released. He is well aware of the Home Office's intention to deport him. He has been served with a signed deportation order and has appealed, unsuccessfully, against deportation action. In view of all the information available, I propose that detention is maintained until RDs can be set."

43. In the same period the monthly progress report provided the following reason as to why detention was being maintained.

"Your case has been reviewed. It has been decided that you will remain in detention because:

There is reason to believe that you will fail to comply with any conditions attached to the grant of temporary permission or release.

This decision has been reached on the basis of the following factors

You do not have enough close ties (e.g. family or friend) to make it likely that you will stay in one place"

44. Detention Reviews and Monthly Progress Reports exist for the period from late 2007 to the date of the Claimant's release. Until October 2008 the justification for continued detention was in similar terms to that which was contained in the documents initiated between January 2007 and the autumn of 2007. The Detention Review dated 28 October 2008 marked a change. In that document Ms Hayley Johnstone proposed to justify detention for much the same reasons as had previously been provided. However a further justification was added by a superior officer. The justification is in the following terms:-

"Mr Anirah has clearly demonstrated that he has little regard for the immigration laws of the United Kingdom. He is making all attempts to avoid removal from the UK, having removal directions set twice now by UKBA. He was convicted of a serious criminal offence and sentenced to 10 years imprisonment. There is an unacceptably high risk of Mr Anirah re-offending and absconding. There is no known reliable address to which Mr Anirah can be released. He is separated from his wife and children and has provided no evidence of close ties to them or anyone else in the UK. The only barrier to removal is the Court of Appeal (JR). Once this has been concluded, removal directions can be set immediately as travel documentation has been secured for some time now. With the realistic possibility of imminent removal I believe that continued detention remains appropriate."

This theme remained in all subsequent Detention Reviews. The Monthly Progress Report dated 27 October 2008 provided similar reasoning as did subsequent reports.

45. It is very difficult to understand how this change of emphasis came about. Prior to his conviction the Claimant had complied with the immigration laws of the United Kingdom. The evidence is clear on that point. Following his conviction the Claimant was in custody and, of course, he remained in custody continuously until 6 April 2009. It is true that the Claimant was challenging the Defendant's decision to make a Deportation Order. That is his right. In my judgment no basis existed at any time or now exists to conclude that the Claimant has demonstrated little regard for the immigration laws of the United Kingdom.
46. It is as difficult to understand why a conclusion was reached in October 2008 (but not for the previous three years) that the Claimant presented an unacceptably high risk of re-offending. Such a conclusion was in complete contradiction to the conclusion of the Parole Board in May 2005. No evidence has been presented to me to suggest that there was any rational basis for the opposite conclusion being taken three and half years further down the line.
47. Mr Denholm points that the detention review undertaken in October 2008 occurred after the letter before action which was the precursor to these proceedings. He submits that the Defendant's expanded reasons for maintaining detention was an attempt to provide and/or bolster a defence to these proceedings. I regret to say that I agree.
48. I have reached the conclusion that the Claimant's detention in this case could be justified by two factors and two factors alone. The first was the fact that as of 21 May 2005 he had no settled address. The second was that there was a risk that the Claimant would abscond if released from detention.
49. The first factor was capable of resolution, no doubt, within weeks. I have little doubt that had the Claimant been released on parole, as intended by the Parole Board, satisfactory accommodation would have been provided to him and/or he would have obtained the same within a comparatively short period of time. His detention on the basis that he had no settled address could be justified for no more than a few weeks.
50. The risk that the Claimant would abscond is difficult to evaluate. The factors which point to a risk that the Claimant would have absconded had he been released are (a) the commission of a very serious criminal offence (b) his obvious reluctance to leave the United Kingdom set in the context that he had been in the United Kingdom for very many years and (c) the fact that he was estranged from his wife. The factors which point against there being any significant risk of absconding are (a) the terms of the decision of the Parole Board; (b) the close ties between the Claimant and his children; (c) his willingness to use appropriate legal processes to challenge the decisions relating to his deportation; (d) the fact that in January/February 2007 when the Claimant's appeal rights were exhausted he did what he could to facilitate his removal – he arranged for his out of date passport to be provided to the authorities; (e) the attitude of the Claimant whilst in detention and his achievements whilst in detention – as to which see pages 210-215 of the Trial Bundle.
51. I have reached the conclusion, not without some hesitation, that despite the features identified in the preceding paragraph there was a sufficient risk that the Claimant would abscond to justify his detention pending removal. In my judgment detention beyond a period of a few weeks whilst a fixed address was obtained was justified in this case.
52. I am wholly unconvinced, however, that detention for a period of very nearly four years or, indeed, anything like that period of time was justified in this case. I am prepared to accept that detention was justified during the period 21 May 2005 until shortly after the Claimant's appeal rights were exhausted in January 2007. The Defendant cannot be blamed for the unaccountable delay in the appeal processes between June 2005 and December 2006. During that period the Defendant was entitled to proceed on the basis that the appeal process would be resolved, shortly, and that thereafter removal could be effected expeditiously. I am conscious that the likelihood is that no detention reviews were undertaken in this period. Had such reviews taken place, however, the probability is that detention would have been justified on the basis that there was a risk that the Claimant would abscond. The absence of such reviews probably made no difference in this case and do not render unlawful the Claimant's detention in the period 21 May 2005 to some time in early 2007 (see SK Zimbabwe [2008] EWCA Civ.1204). From the beginning of February 2007, however, the Defendant did not act expeditiously to obtain appropriate travel documentation and given the length of time which the Claimant had already spent in administrative detention it was unreasonable in the circumstances to continue detention. There is no magic formula by which I can determine the precise date from which detention became unreasonable. I propose to determine that the detention of the Claimant as from 1 March 2007 was unreasonable in all the circumstances of this case. By that date the Claimant had been in administrative detention for over 22 months and even allowing for a risk of absconding which I acknowledge existed in this case detention beyond that period was not reasonable in all the circumstances.
53. As from the summer of 2007 the Claimant has been engaged, more or less continuously in legal proceedings against the Defendant. Assuming as I do that Abdi was correctly decided (I understand there is an extant appeal) it seems to me that the fact of the proceedings, in the particular circumstances of this case, although, in effect, a bar to the Claimant's removal, was not a reason why he should be detained. On the basis of the evidence in this case I have reached the clear conclusion that while the Claimant had a reasonable expectation that his legal proceedings would be pursued by his lawyers the risk of his absconding would be comparatively low. The Claimant is obviously intelligent and articulate and he would, no doubt, wish to participate as fully as he could in the proceedings instigated by him. Such conduct by him would militate against his absconding.
54. As the parties know I will hand down this judgment at 2.00pm on 1 October 2009. At the hearing the precise form of relief to be granted to the Claimant can be formulated. If, of course, the parties are able to reach agreement about an appropriate order consequent upon this judgment they are at liberty to file such an order and there need be no attendance at Court.