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New UK-Somalia ‘Memorandum of Understanding’ justifies ongoing detention of Somalian national after 3 years 9 months

DATE: 24 Mar 2017

The High Court has dismissed a claim of unlawful detention brought by a national of Somalia who has been detained since 7 July 2013 awaiting his deportation.

In R (Botan v Secretary of State for the Home Department [2017] EWHC 550 (Admin), Lang J accepted the Secretary of State’s case that the Claimant posed a high risk of causing serious harm to the public. The Claimant had been convicted of rape and false imprisonment and sentenced to 12 years’ imprisonment folllowing an incident involving an American tourist in London.

Lang J also agreed with the Secretary of State that the Claimant posed a high risk of absconding, having previously failed to surrender to custody and breached a conditional discharge.

Of wider significance are the observations of the court on a 'Memorandum of Understanding' ("MoU") recently agreed between the UK and Somalia in an attempt to facilitate deportations. The enforced removal of individuals to Somalia has been very problematic in recent years due to instability in and around the capital, Mogadishu: see, for example, R (Ishmail) v SSHD [2013] EWHC 3921 (Admin); R (AG) v SSHD [2015] EWHC 1309 (Admin). The MoU is an attempt to overcome those difficulties, in part by supporting the immigration authorities in Somalia with training, recruitment and facilities.

The MoU was originally intended to be effective from 1 November 2016, but its implementation was delayed by several adjournments of the Presidential elections in Somalia until they were successfully held on 8 February 2017. Lang J held that these delays had not rendered the Claimant’s ongoing detention unlawful, observing that the Secretary of State and the Foreign and Commonwealth Office "were impressively active and persistent in pressing for a resolution with the Somali authorities throughout this period" [96] .

Gwion Lewis acted for the Secretary of State for the Home Department.