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28 AUG 2013

Alsaadon v Secretary of State for the Home Department [2013] EWHC 2184 (Admin); (2013) PLLR 098

Immigration - Detention - Hardial Singh - Damages

The Claimant was entitled to nominal damages for his detention pursuant to an unlawful policy. He failed to show that the detention breached the Hardial Singh principles and was therefore not entitled to substantial damages.

26 July 2013

Administrative Court

CMG Ockelton

(1)        The sole issue raised by this claim concerned the legality of the detention of the Claimant between 4 July 2007 and 4 August 2009 pursuant to the Immigration Acts. The Claimant, an Iraq national, entered the UK on a student's visa in March 1973. At the time of the hearing, the Claimant had twenty criminal convictions for thirty-five offences, including threats to kill, drug offences, fraud, theft and forgery.

(2)        Whilst serving a prison sentence in 2006, the Claimant claimed asylum. This claim was refused, and a deportation order was issued. On 8 September 2008, the Defendant revoked the deportation order, having been convinced that perhaps it should not have been made. Further correspondence as to the merits of the Claimant's claim resulted in a new deportation order being issued on 10 November 2008.

(3)        On appeal, it was held that a deportation order would not be proportionate and would amount to a breach of the Claimant's Article 8 right to a private life, which had been established over many years in the UK.

(4)        The Claimant thus contended that the decisions to detain him would not have been reached had there been proper consideration of all of the available material. In this regard, the Claimant contended that he had had indefinite leave to remain and so ought not to have been detained.

(5)        In relation to the Hardial Singh principles, the Claimant alleged that the Defendant should have realised that removal to Iraq within a reasonable time was not possible.

(6)        HELD: The Court found that the detention of the Claimant from 4 July 2007 to 9 September 2008 had been a result of the unlawful policy identified in Lumba v SSHD [2011] UKSC 12. Further, there had been a three month period during which his detention had not been reviewed.

(7)        The Court held that the Claimant had not produced evidence that he had had indefinite leave to remain and, even if he had, this would not have prevented a deportation order being issued against him. There was no statutory provision that provided for reinstatement of leave to remain after the revocation of a deportation order. It thus followed that the Clamant did not have leave to remain after 5 March 2008. The reports prepared during the Claimant's imprisonment indicated that the Defendant had been aware of his family circumstances.

(8)        The Court stated that it was only with hindsight that the Claimant was able to argue that it should have been realised that removal to Iraq could not take place within a reasonable period of time, and there was nothing to indicate that this should have been realised at the time. The Claimant had an extensive criminal record, and the Defendant was entitled to consider that he still posed a risk of re-offending. The Defendant was entitled to consider that he would be removed within a reasonable period of time. As such, there was held to be no breach of the Hardial Singh principles.

(9)        None of the reasons given in the individual detention views were found to be defective and the Claimant failed to show that they had been unlawfully made. The only flaw in the Claimant's detention, aside from the operation of the unlawful policy, was that there had been a three month period when his continued detention had not been reviewed.

(10)     The Court thus held that the Claimant was entitled to nominal damages, but not substantial damages or a declaration that his detention had been unlawful.

Claim succeeded in part

Key Paragraphs

[17] - Lumba.

[22] - Effect indefinite leave to remain.

[23] - Leave following deportation order.

[38]-[39] - Viability removal Iraq.

[43] - Risk reoffending.

[44]-[45] - Hardial Singh.

[48] - Conclusion.

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