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R (on the application of Belkasim) v Secretary of State for the Home Department [2012] EWHC 3109 (Admin); (2012) PLLR 150

Immigration - Detention - Hardial Singh - Wednesbury unreasonable

The decision to detain the Claimant was not Wednesbury unreasonable and the Claimant's detention had been compliant with the Hardial Singh principles.

7 November 2012

Administrative Court

Haddon-Cave J

(1)        The Claimant, a Libyan national, challenged his detention from 13 March 2009 to 12 April 2011. The Defendant maintained that at all material times the Claimant's detention was lawful.

(2)        Seven issues were raised:

(a)        What was the standard of review to be applied when considering the Defendant's decision to detain? Is it a Wednesbury test?

(b)        Does a breach of the Immigration Rules immediately render detention unlawful; or is the detained person required to also demonstrate that had the rule been complied with, he or she would have been released?

(c)        Does an expert's report automatically amount to independent evidence of torture?

(d)        Can the knowledge of medical or nursing staff at the immigration removal centre be imputed to the Defendant, and if yes, to what degree?

(e)        What relevance is a detainee's refusal to comply with the process of the Emergency Travel Document?

(f)        ‘Does the omission of the word ‘very' from ‘very exceptional' in the UK Border Agency's internal intranet version of EIG 55.10 (the policy regarding the detention of persons with mental illness) render the policy unlawful?'

(3)        HELD: The Court followed the decision of Richards LJ in R (LE) (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 597 [29]. in which it was held that there were two strands of assessment when determining whether an appellant could be lawfully detained: the first, regarding the decision itself, depended upon Wednesbury grounds, whilst the lawfulness of the continuation of detention was to be assessed by referring to the Hardial Singh principles. In relation to the second question, the Court held that the authorities were clear that a detainee must prove causation as a breach of an immigration rule did not automatically give rise to a cause of action of false imprisonment.

(4)        The Court found there to be no ‘hard and fast' rule regarding whether expert reports are automatically independent evidence, and in any event, the Defendant could depart from a report where she could show good reason.

(5)        The Court considered that the immigration policy EIG 55.10 was not triggered as at no stage was the Claimant's mental condition unsuitable for management in detention. As such, it made no difference as to whether the Defendant had known of the mental condition of the Claimant. The Court further commented that at no point was the Defendant given advice that the mental condition of the Claimant engaged the policy EIG 55.10.

(6)        The Court considered Defendant had been entitled to prefer one doctor's report over another, which supported the position that there was no clinical basis to find the Claimant unfit for detention. The Defendant had also been entitled to maintain the view that the Claimant was not the victim of torture, in particular relying upon the First Tier Tribunal's adverse findings regarding the Claimant's credibility. As such, the policy regarding the detention of victims of torture was not applicable. 

(7)        The Defendant was entitled to draw a natural inference from the Claimant not engaging in the Emergency Travel process in so far as this meant the Claimant could be seen to pose a greater risk of frustrating the process.

(8)        The Court held that the submission regarding the omission of the word ‘very' from EIG 55.10 did not need to be considered as the policy was never applicable. It was stated that in any event, this matter would have fallen within the ‘very exceptional circumstances' justification contained in EIG 55.10, and as such the Claimant's detention would have been justified.

(9)        The Claimant's point in relation to his having an in-country right of appeal was held to be ‘manifestly ill-founded' and not the basis for there being no prospect of removal.

(10)     The Court found that at all material times, the Defendant had held a reasonable belief that the Claimant would be removed within a reasonable period. The delay in releasing the Claimant caused by the 26-day no-fly zone over Libya was not found to be unreasonable.

(11)     The Claimant was unable to show that he would have been released sooner had there been compliance with the Immigration Rules, and as such, any non-compliance with these rules did not render his detention unlawful

(12)     The Claimant's claim was thus dismissed, the Court finding that the decision to detain could not be considered Wednesbury unreasonable, and his detention compliant with the Hardial Singh principles.

Claim dismissed

Key Paragraphs

[112] - Two strands.

[122] - Causation.

[127] - [130] - Expert evidence.

[134] - [136] - Mental condition.

[140] - Inference not engage travel process.

[145] - Omission of word very.

[158] - No difference in wording applicable. 

[160] - Detention challenges.

[170] - Fit for detention.

[172] - [173] - Torture policy.

[181] - Very exceptional.

[182] - In-country right of appeal.

[184] - Removal reasonable period.

[189] - Nationality.

[191] - No-fly zone. 

[196] - Conclusion. 

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