In R (Mohamed) v Secretary of State for the Home Department [2018] EWHC 3547 (Admin), the High Court found that the Home Office had unlawfully delayed making a decision on an indefinite leave to remain application made by the claimant as a child. Frustratingly, though, the court also ruled that there was no entitlement to damages and that Mr Mohamed’s ongoing detention is lawful.

Mr Mohamed had applied for ILR in 2005 as a dependent of his father, and for asylum in 2015. The Home Office has not yet made a decision on either application. In the meantime Mr Mohamed committed some serious criminal offences and the Home Office began deportation action in 2016, detaining him in January 2018 after the expiry of his criminal sentence. He challenged the delay and claimed that the decision to detain was unlawful.

Andrew Henshaw QC, sitting as a deputy High Court judge, ruled that the delay in making a decision on the two applications was unlawful. That is an unusual outcome, but not surprising in this case: the ILR application had been outstanding for 13 years and the asylum claim for 3½ years, despite the Home Office target to make a decision in six months.

The judge refused to award any damages for the 13-year delay, basically because ILR would have been cancelled anyway as a result of the impending deportation order.

Although the judge cited a wealth of authority on the Hardial Singh principles he failed to connect his finding of unlawful delay to his analysis of the lawfulness of detention. He was not helped by Mr Mohamed’s failure to argue that there was no realistic prospect of removal within a reasonable time. Instead, Mr Mohamed challenged the rationality of detention reviews conducted by the Home Office. Andrew Henshaw QC rejected all of his arguments:

The Claimant has been assessed, rightly in my judgment, as presenting a high risk of reoffending and high risk of harm to the public. Those are significant matters to be taken into account pursuant to the case law and policy documents to which I have referred. I am also satisfied that the Claimant has been told, at the outset and more recently, the legal basis for his detention notwithstanding errors in some of the monthly progress reports, and that the requisite monthly reports have been sent to him. I do not consider that the points the Claimant has made about family ties or the Emergency Travel Document render his detention unlawful. The Claimant has not argued that there is no realistic prospect of his removal in what would, in the circumstances, be a reasonable time.

Unfortunately, this result means that Mr Mohamed remains in detention awaiting a decision on his asylum claim without any compensation. The unlawful delay in making a decision on that claim has prolonged his time in detention. It is deeply concerning that the High Court did not undertake a full Hardial Singh analysis of Mr Mohamed’s ongoing incarceration.