A convicted Somali child rapist detained for years pending deportation applied to the High Court in Britain to be set free immediately
Failed asylum seeker "A", who cannot be named for legal reasons, also sought damages on the grounds that his lengthy period in detention has long been "unreasonable and unlawful".
The Somali national completed his eight-year prison sentence for the rape of a 13-year-old girl more than three years ago, but continues to be detained under immigration laws as the Government attempts to arrange for his removal back to Somalia.
The 30-year-old arrived in the UK in May 1995 and was convicted three years later. The court heard the Home Office takes the view he will now soon be removed. There was also a high risk of him absconding if released into the community, and that he would be a danger to the public if he did abscond.
Probation reports put before the High Court said A continued to deny the rape offence, failed to show remorse and posed "a high risk" of sexual reoffending and a "medium" risk of using violent behaviour if set free.
But today a QC representing A said he was legally entitled to be set free. Richard Drabble QC said A had been held "for a period unprecedented in the UK" under 1971 Immigration Act powers only intended to apply when deportation was "imminent".
Mr Drabble said: "Despite a very recent flurry of activity, the secretary of state cannot sensibly be alleging that his removal is imminent. "We say, in those circumstances, your lordship should order his immediate release, subject to whatever conditions are appropriate."
Mr Drabble submitted to Mr Justice Calvert Smith that A had been detained at least three years and three months since what would otherwise have been his release date after completing his prison sentence.
The period of unlawful detention might also be longer as there was a dispute over whether A should have been released on parole some four-and-a-half years ago.
Under the immigration rules, he could only be held for a "reasonable period" to facilitate his removal, but he had now been detained "way past a reasonable period".
Nigel Giffin QC, appearing for the Home Secretary, argued that the application should be rejected as A's detention did not amount to "an unreasonable exercise of power".
The Somali national was being properly detained until he could be removed to Somalia. Mr Giffin said an important feature of the case was that A could long ago have brought his detention to an end if he had been willing to return to Somalia voluntarily.
The then Home Secretary decided to make a deportation order in May 2002, but A claimed removal would be contrary to his rights under the European Convention on Human Rights.
His appeals against both the deportation order and the refusal of his application for asylum were not finally exhausted until September 2005. Compulsory removals to Somalia had not been possible in the recent past because of the absence of airlines willing to undertake such operations.
But the Home Secretary had never given up his attempts and the position had now changed. Removal directions for A were set for last November, but did not take place following the application A made for judicial review which was now before the court.
Mr Drabble rejected the suggestion that A had become "his own jailer" and could have returned to Somalia voluntarily. He said: "That is a hopelessly unrealistic allegation. Somalia has been a country in a state of dangerous chaos throughout this period."
He also questioned whether the Home Office was even now capable of enforcing A's removal in the near future.
Anonymous Somali rapist in legal bid for freedom