Mr Justice Garnham accepting Andre Babbage has no right to remain in the UK but says there is no realistic prospect of sending him back

A high court judge has ordered the release of a convicted Zimbabwean criminal who has spent more than two years in immigration detention pending his deportation.

Mr Justice Garnham ordered the release of Andre Babbage, who has a series of convictions for robbery, assault and cocaine dealing, despite accepting Home Office claims that he has no right to remain in Britain and is likely to abscond and commit further crimes.

The judge said the refusal of the Zimbabwean authorities to accept him back without a current passport meant that the home secretary, Theresa May, could no longer justify his continued detention in Britain as there was no realistic prospect of sending him back.

“[Babbage] is a Zimbabwean national with no right to remain in the UK, who has committed serious offences in this country and whose home country will only accept returning nationals if they have a passport or wish to return,” said Garnham.

“It is my judgment that [he] would be likely, if released, to abscond and to commit further offences. The question which arises here is whether the home secretary can justify [his] continued detention when he has made it clear he will not return home. My answer to that question is ‘no’.”

Babbage was born in Zimbabwe in 1986 and came to Britain with his mother in 2003. In 2008 he was convicted of supplying cocaine, and there followed a string of convictions over a three-year period for theft, assault, harassment and driving while drunk and uninsured.

In May 2011 he was sentenced to two and a half years in prison after being convicted of a “nasty robbery”, and in June 2013 a deportation order was made after he had served his time in prison. His period of immigration detention started in October 2013.

Home Office lawyers argued for Babbage’s continued detention on the grounds that he had consented to be sent back to Zimbabwe in December 2014 and might do so again, keeping alive the prospect that he could be deported.

But Garnham rejected that argument, pointing out that Babbage had repeatedly made clear he no longer consented to being returned to Zimbabwe and there was little prospect of that situation changing. He ruled that he had been detained unlawfully since at least August 2015 and should be released.

The decision to order Babbage’s release was made in December, but the ruling was only made public on Monday. Enforced removals to Zimbabwe have been suspended since 2005.