The High Court has in the case of R (On the Application Of Mohammed) v Secretary of State for the Home Department [2016] EWHC 447 (Admin) ordered the release of a Somali national with a number of very serious convictions on the basis that there was no prospect of his being removed and therefore that the Home Office had no legal power to detain him. The case is unusual for the honesty with which the Home Office put its case, in essence accepting that the detention was political in nature.

It was impossible to remove Mr Mohammed in the foreseeable future because he had a pending asylum claim. There was also strong evidence he was not suitable for detention anyway, given there was independent evidence he was a victim of torture and he had already been detained for a very long time during which the Home Office had essentially sat on its hands.

In a letter dated 1 October 2015 the Home Office wrote to Mr Mohammed and revealed:

If you are released from detention, our actions can lead to an negative view of the Home Office by the general public who may see the Department in failing in its duty to protect them from criminals and therefore there is a high risk of harm to the public.

The case is an unusually clear example of the Home Office electing to act unlawfully for political reasons and in effect delegating politically unpopular decisions to the judiciary. If the case is reported in the mainstream media, it will be the judge who is criticised rather than civil servants or ministers, who must have known they had no legal power to maintain detention on the facts of this case.