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The Defendant failed to demonstrate any real progress with the obtaining of an emergency travel document for the Claimant. Given the negative impact upon the Claimant's mental health, his continued detention would not be lawful.
17 May 2013
Robin Purchas QC
(1) The Claimant, a 43 year old Algerian national, sought judicial review of his detention pursuant to paragraph 2 of Schedule 3 to the Immigration Act 1971. His challenge comprised of two grounds:
(a) his detention was unlawful pursuant to the Hardial Singh principles; and
(b) his detention constituted a violation of his Article 5 ECHR rights.
The Claimant sought a declaration and damages for unlawful detention.
(2) Whilst in detention, the Claimant suffered epileptic fits and episodes of self-harm. A medical report dated 22 April 2013 highlighted that continued detention would result in a deterioration of the Claimant's mental health, with a risk of suicide.
(3) The Claimant submitted that for the purposes of Article 5 ECHR, the limit on acceptable detention was 18 months. This submission was linked to Returns Directive 2008/115/EC, to which the UK is not a signatory, but which allowed a period of 6 months, extendable to 18 months for detention. The Claimant alleged that he had been detained for total of between 21 and 27 months, but within that period there was no real prospect of deportation being secured.
(4) HELD: The Court did not accept the submission that a limit of 18 months should apply, finding that the authorities did not establish that Article 5 ECHR was bound by the Returns Directive. Rather, the ECtHR's approach has consistently been in line with the domestic courts application of the Hardial Singh principles.
(5) The Court considered that the total period required to secure an Emergency Travel Document (‘ETD') would be 21-27 months. The substantial length of this detention required the Court to exercise anxious scrutiny in determining whether the period was reasonable for the purposes of effecting deportation.
(6) There was a real risk of the Claimant absconding given his history of drug and alcohol addiction and his having previously provided false identify information. The risk of absconding carried with it a risk of re-offending, which was paramount in the overall balance.
(7) The Court stated that there was a no evidence of steps taken by the Defendant in attempting to obtain the ETD, and this lack of urgency and real commitment would be weighed in the balance.
(8) The Court found, bearing in mind the severe impact upon the Claimant's health that continued detention would be unreasonable despite the risks of absconding and reoffending. Nonetheless, the Claimant's detention had not become unlawful at an earlier stage.
(9) The Claimant was thus entitled to a declaration that his continued detention would be unlawful.
 - No 18 month limit.
 - Lack of information.
 - No urgency.
 - Not self-induced.
 - Low risk.
 - Balancing of factors.
 - Total period.
 - Risk absconding.
 - Reoffending paramount.
 - No evidence steps taken.
 - Conclusion.
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