Jeremy Johnson, acting as junior for Robin Tam QC, appeared for the Secretary of State in Secretary of State for the Home Department v Abdi [2011] EWCA Civ 242. The case concerned the ambit of the power of detention pending deportation. Hardial Singh establishes that a deportee may only be detained for a period that is reasonable in all the circumstances. The issue in Abdi was whether time spent pursuing statutory appeals falls to be taken into account for these purposes.

The Court held that there was no definite rule counting or discounting time spent in raising legal challenges; instead, the courts ought to recognise that everything depended on the particular circumstances. There is a meaningful difference, all other factors being equal, between an appellant who is largely successful in his appeals and one who has just wasted the courts’ time.

The Court concluded that appeals will generally be of little relevance to determining the reasonable period; however, that is a issue for the judge to consider on the facts of the case in front of him. Furthermore, the Secretary of State ought to factor the issue of appeals into the determination of whether it is apparent that deportation will not be effected within the reasonable time period.