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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 OCT 2014

Lemtelsi v Secretary of State for the Home Department [2014] EWHC 2750 (Admin); (2014) PLLR 105

Lemtelsi v Secretary of State for the Home Department [2014] EWHC 2750 (Admin); (2014) PLLR 105
Queen’s Bench Division, Administrative Court, His Honour Judge Heaton QC
 4 August 2014


Detention of between 12 and 24 months was reasonable under Hardial Singh where the detainee was at risk of reoffending or absconding.


(1) The claimant, a Moroccan national, sought judicial review of his detention from 15 September 2012 until 7 January 2014 when he was released on bail. He claimed his detention was in breach of the Hardial Singh principles 2-4.

 (2) The claimant entered the UK clandestinely on 22 August 2010. When he was discovered, he claimed asylum and claimed to be Iraqi. His asylum claim was rejected by the SSHD on 13 September 2010, and again on appeal to the FTT on 3 November 2010. The FTT found that his account had been fabricated, and his appeal rights were exhausted on 16 November 2010.

 (3) On 20 September 2011, the claimant was sentenced to 30 months imprisonment for robbery. On 23 October 2011, the claimant was notified of his liability to deportation.

 (4) On 19 December 2011, the claimant disclosed that he was from Morocco; he has yet to provide any documentation of this claim. On 22 December 2011, the SSHD obtained information for a Moroccan Emergency Travel Document for the claimant, which was sent to the appropriate unit.

 (5) On 28 January 2012, the claimant stated that he wished to return to Morocco, but lacked a passport. On 28 April 2012, an Early Removal Scheme authorisation form was completed. In July 2012, the claimant signed a waiver of appeal rights against the decision, stating that he wished to leave for Morocco, and the SSHD submitted an application for an Emergency Travel Document. A deportation order was signed on 23 August 2012.

 (6) On 15 September 2012, the custodial part of the claimant’s sentence ended and he was continued to be held pending his deportation.

 (7) There were various efforts made with Moroccan authorities to expedite the processing of the claimant’s case, but with no result through March 2013. At this time, the SSHD wrote to the claimant again to ask for documented evidence of his identity. The claimant stated, as he had previously, that he left Morocco as a minor and had no identity documents.

 (8) On 8 April 2013, the claimant was informed that he had been withdrawn from the facilitated return scheme. The claimant’s solicitors asked the SSHD to arrange for a face-to-face interview with Moroccan authorities, which they had been requesting since October 2012. The SSHD agreed that action should be taken to arrange such an interview.

 (9) The claimant was interviewed on 7 June 2013. Between 17 June 2013 and 4 July 2013, he went on hunger strike, refusing food but not liquid.

 (10) The present proceedings were issued on 12 July 2013. The SSHD made repeated attempts to chase Moroccan officials for the documents.

 (11) On 7 January 2014, the claimant was granted bail by an Immigration judge, with weekly reporting.

 (12) The claimant argued that his detention was in breach of Hardial Singh principles 2-4 (numbered as grounds 2-4 here):

(2) his detention was not reasonable due to its length, the claimant’s low risk of absconding or reoffending, the nature of the obstacles to his removal, the lack of diligence of the SSHD in effecting his removal, and the poor conditions in detention;

 (3) it was apparent at the start of the claimant’s immigration detention the SSHD would not be able to effect deportation in a reasonable period, as it was estimated that an ETD would take a year to obtain without supporting documentation, the SSHD never provided a timescale for removal, and removal could not be effected within a reasonable period from 29 October 2012 or 6 months from the date of submission of the ETD; and

 (4) the SSHD failed to act with reasonable diligence and expedition to effect removal due to periods of inactivity and failure to make her own inquiries about arranging a face to face interview with Moroccan authorities.

 (13) HELD: The court found against the claimant on all grounds. It structured its judgment on the key threads of the arguments, as there was overlap between the grounds.

 (14) The court found the claimant was entitled to credit for his cooperation with efforts to remove him.

 (15) The court found that the SSHD exercised diligence to obtain an ETD and to effect removal. The court considered the delay between the claimant’s supplying his bio-data to the SSHD and the application for the ETD, finding that the failure to seek an ETD earlier was likely to lead to a longer period of immigration detention. The court found that the SSHD took action quickly after learning of the claimant’s change in statements about his identity, though there was a period of inactivity between February 2012 and July 2012 in seeking the document. The court found this period was administrative failure but did not cross the line into unreasonableness amounting to illegality.

 (16) The court considered the claimant’s risk of re-offending or absconding. The offences committed by the claimant show that he was a risk to the public and at risk of absconding, and that bail conditions of reporting or tagging would not have reduced the risk of re-offending or absconding.

 (17) The court found that the prospective period of between 1 and 2 years to obtain an ETD was a reasonable period for detention, based on the risks of re-offending or absconding.

 (18) The court found that the estimate of 12 months to obtain an ETD did not change or put the overall timescale into question.

 (19) The court refused permission to appeal.

 Claim failed. Permission to appeal refused.

 Key Paragraphs

[78] – Credit for cooperation
[81] – Diligence in expediting removal
[84] – Diligence
[86] – Taking delays into account
[90]-[91] – Delays and diligence
[94]–[97]– Risk of reoffending
[99] – Reasonable period of detention
[102]-[103] – Change in timescale
[106]-[107] – Conclusion
[108] – Costs reserved
[109] – Permission to appeal
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