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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 OCT 2014

Qaza v Secretary of State for the Home Department [2014] EWHC 2851 (Admin); (2014) PLLR 104

Qaza v Secretary of State for the Home Department [2014] EWHC 2851 (Admin); (2014) PLLR 104
Queen’s Bench Division, Administrative Court, Timothy Brennan QC
 20 August 2014


Detention was considered reasonable under Hardial Singh for a claimant whose nationality was not known, as the key question was not the reasonable prospect of removal of the claimant to a particular country, but the reasonable prospect of his removal from the UK. The claimant contended that he was Iranian, and deportation to Iran was made extremely challenging due to the closure of the Iranian Embassy in London.


(1) The claimant sought judicial review of his detention from 16 July 2012 until 24 June 2013. He claimed his detention was in breach of the Hardial Singh principles because there was no prospect that he would be deported within a reasonable period.

 (2) The claimant arrived in the UK clandestinely, and was arrested in November 2010. He claimed to be 15 years old and from Albania, but an age assessment determined that he was over 18 years old. He claimed asylum and stated that he was Iranian and Kurdish, at which point he was released on a temporary admission.

 (3) The asylum claimed was refused on 1 December 2010 on the grounds that his story gave rise to a number of doubts about his national origin and age.

 (4) The claimant appealed to the First Tier Tribunal against the refusal of his asylum claim. On 23 June 2011, the FTT remitted his case for consideration of factors then set out in para 395C of the Immigration Rules.

 (5) The Iranian Embassy in London closed on 30 November 2011, eliminating a diplomatic channel for obtaining emergency travel documents.

 (6) The claimant was at liberty until 16 November 2011, when he was arrested on suspicion of arson. He was convicted on 8 March 2012 for arson and sentenced to 16 months imprisonment. He was served with notice of liability to automatic deportation on 1 April 2012.

 (7) The claimant was entitled to release on licence on 16 July 2012, and his continuing detention was due to his pending deportation order. The core reasons for his continued detention were risks of harm to the public and of absconding. It was advised in August 2013 that the claimant was at risk both of self-harm and harm to others, and that his detention should continue pending consideration of his liability for deportation.

 (8) It was known that ETDs were not available for Iranian nationals, but the SSHD had not accepted that the claimant was Iranian due to the claimant’s poor knowledge of Iran and other factors. It was suspected that the claimant was Iraqi; if this were the case, he could agree to be deported there.

 (9) In September 2012, the officer reviewing the claimant’s detention recommended that the question regarding deportation should be resolved prior to the next review, and the country specialist investigation team should address the nationality issues.

 (10) His asylum claim was reconsidered and refused, and he was denied bail by the FTT on 4 October 2012. On 15 November, the SSHD signed a deportation order for the claimant, and the claimant was notified of the order on 16 November 2012. The FTT refused bail again in April and May 2012.

 (11) The SSHD made various efforts to investigate deportation of the claimant to the Kurdistan Regional Government-controlled area of Iraq. The SSHD also took the view that the claimant was being deceptive regarding his nationality.

 (12) On 22 April 2013, the claimant produced a photocopy of an Iranian birth certificate that had not been established to be forged. His actual nationality remained unclear, as claims of being from Iran had not been entirely rejected.

 (13) By 17 May 2013, there was no prospect of removing the claimant in the short to medium term. He was suspected to be Iraqi, but could not be linked by bio-data to the Iraq or the Kurdistan Regional Government.

 (14) A further review by the FTT unconnected to this case in May 2013 noted that it seemed likely the claimant is from Iraq, but did not make findings on this issue.

 (15) On 27 May 2013, the claimant started a hunger strike. On 20 June 2013, a Medical Justice physician examined the claimant. She reported that he was unfit to fly due to being actively suicidal, in an unstable mental state due to his dehydration and weakness and was physically ill.

 (16) On 24 June 2013, an immigration judge granted bail and the current judicial review proceedings were commenced.

 (17) The claimant submitted three arguments about the legality of his detention:

(1) that it was illegal from 16 July 2012 because the SSHD intended to remove him to Iran, but the closure of the Iranian Embassy precluded obtaining emergency travel documents for him;

 (2) his detention was illegal from 16 May 2013 as the SSHD determined that he was from Iraq, but there was no reasonable prospect of his removal to Iraq; and

 (3) his detention was illegal from 21 July 2013 until his release on bail 3 days later due to the SSHD’s failure to force him to go to hospital against his will or persuade him to go.

 (18) HELD: The court found against the claimant on all grounds.

 (19) On ground (1), the court accepted the SSHD’s argument that the question was not whether there was a reasonable prospect of removal to Iran, but merely removal from the UK. There were strong reasons to believe the claimant was not actually from Iran, and the SSHD was entitled to detain him and see if the position changed while taking steps to document him. A deportation order was highly likely at the conclusion of the claimant’s sentence, though it had not been made, and the claimant presented a risk of causing further harm or absconding. Once the deportation order was made, detention would be required unless the SSHD thought it was inappropriate. The prospect of removal to Kurdistan strengthened arguments for detention.

 (20) On ground (2), the claimant’s primary contention was that not enough was done to establish his identity as a resident of Kurdistan, and the SSHD should have arranged for an interview with Kurdish officials, sought an identity card and sent his bio-data on. The court agreed that more could have been done to effect the claimant’s removal to Kurdistan, but it was ‘at most an example of administrative failing falling well short of illegality.’

 (21) On ground (3), the SSHD was supervising the claimant’s health in detention, and a failure to involuntarily take him to hospital or attempt to persuade him to go falls well short of unlawfulness.

 Claim failed.

 Key Paragraphs

[43] – Prospect of removal
[46] – Reasonableness of action to obtain travel documents
[47] – Transfer of hunger strikers to hospital
[48]-[49] – Conclusion
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