Scottish Human Rights Law Group

H, a Somali national who had been granted indefinite leave to remain in the UK, sought judicial review of his detention by the secretary of state pending determination of whether he should be deported following his imprisonment for criminal offences.   He submitted that he should not be automatically deported under section 32 of the UK Borders Act 2007, as he had been convicted before that section had been commenced, however the court held that section 32 read in the light of s.59(4)(d), must have been intended to apply to those whose convictions dated from before the commencement of the section.  Therefore, H was covered by the provisions.

H further submitted that his detention was in breach of Article 5(1)(f) of the ECHR, which allows for “the lawful arrest or detention….of a person against whom action is being taken with a view to deportation or extradition”, since he was detained prior to any determination of whether an exception under section 33 of the 2007 Act applied to his case, and so before action was underway to deport him.  The court determined that deportation was intended unless one of the exceptions applied, and that the secretary of state had shown a sufficiently firm intention to deport H.  The fact that there H had  an ongoing asylum application  did not alter the intention to deport.

H also submitted that his detention was unlawful as it infringed implied limits on the exercise of the power to detain.  The court held that the secretary of state  has to act with reasonable diligence and expedition to effect deportation. Reasonableness includes taking account of the length of time which H had spent in detention after the conclusion of the criminal sentence, pursuant to the immigration powers.   Taking into account delay’s at H’s own request to the asylum application process, the length of time was not so great as to infringe the implied limitation on the power to detain.  The secretary of state was also entitled to take into account the fact that H’s probation officer had noted that H was likely to reoffend if released.  Additionally, the court found that due diligence had been complied with, although it was suggested that determining whether an individual fell within any of the exceptions within section 33 of the 2007 Act prior to the conclusion of their criminal sentence may be sensible.

The full report can be viewed here.