Public Law Solicitors

By Nicola Burgess, Solicitor for the appellant in Afrah Khalaf v Secretary of State for the Home Department [2011] EWCA Civ 242.

The question before the Court of Appeal in the conjoined appeals of Secretary of State for the Home Department v Hassan Abdi and Afrah Khalaf v Secretary of State for the Home Department [2011] EWCA Civ 242 was “in deciding whether a foreign national (prisoner) facing deportation has been detained for too long, does time which he has spent appealing against deportation count?”

The natural answer to this question for most Claimant friendly practitioners has to be yes. A Claimant should not be prevented from pursuing a meritorious appeal on the basis that as a result he may not complain of the period spent in detention fighting such an appeal. It is unfair for this period of time to be discounted as to the length of what may ultimately become a period of unlawful detention.

Unfortunately most Judicial Review practitioners within an immigration context are aware of, and no doubt acting for, clients who for some reason languish in immigration detention but for one reason or another cannot be removed to their country of origin. During their time in detention an appeal is likely to arise against deportation.

For those who do wish to appeal against such a decision, where removal breaches a fundamental human right, the Secretary of State takes the contentious approach that any time in which the Foreign National Prisoner (a somewhat burdensome handle within itself) takes to resolve the appeal should be left out of account so as to guard against abuse and to work towards certainty. Khalaf and Abdi argued the opposite, in that everything capable of having a rational bearing comes into account when the court has to consider what is "reasonable in all the circumstances", in accordance with the Hardial Singh principles.

In Abdi at first instance Davis J formulated a middle way. In his judgment he ruled that the time spent on legal challenges may be relevant to the length of detention, and hence to the question whether it has been excessive, without making it a rule that it is to be either counted or discounted.

In Khalaf, despite having the benefit of the Abdi judgement, Mitting J held at first instance that time spent in detention whilst appealing must be discounted.

Before the Court of Appeal neither party was prepared to adopt the middle way, the Secretary of State on the basis that all time should be discounted and the Appellant in Khalaf and Respondent in Abdi on the basis that all time should be counted.

The Court of Appeal endorsed the conclusions of Davis J and so adopted the middle way as the solution to this trilemma. The question for the Court is therefore “on ordinary public law principles, to have regard to what had happened since the start of detention and to why; to give each element the weight it merited; to look at these and any other material factors in the context of the period so far spent in detention; and to ask whether in this light more time had now elapsed, or was about to elapse, than in all the circumstances was a reasonable time for effecting the statutory purpose” (paragraph 58). In other words, all relevant factors must be taken into account, and this may or may not include any time spent exercising a right of appeal.

The author of this article had hoped for the Court of Appeal judgment to go further,¹ but it is anticipated that the Supreme Court will address this issue in the long awaited judgment in R (WL (Congo) and KM (Jamaica)) v Home Secretary, which will also encompass the judgment in SK. This is likely to be groundbreaking for this area of law, providing a coherent set of principles to assess whether detention is unlawful so as to avoid the often arbitrary results at first instance.

Given the Secretary of State’s general position in this case and others of this nature, it is no surprise that the United Kingdom has opted out of the Returns Directive (2008/115/EC) which would limit immigration detention to a 6 month period, extendable to 12 months. She clearly wishes to maintain her ability to detain for longer periods. It is interesting to note that Ireland opted out on the basis that their current maximum period of detention under domestic law is 8 weeks.


Given the creeping extension to the time considered ‘reasonable’ for immigration detention over the last few years, the Supreme Court, and indeed the judiciary as a whole, needs to hold executive power in check and so it is hoped that this long awaited judgment reflects this, to guard against the abuse of power.

Reference:
¹ The Secretary of State has applied for permission to appeal to the Supreme Court in both of the appeals