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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

29 MAY 2013

R (on the application of FH (Iran)) v Secretary of State for the Home Department [2013] EWHC 1092 (Admin); (2013) PLLR 057

Immigration - Hardial Singh - Detention

The Claimant's detention became unlawful only once the Defendant had been given the opportunity to make alternative deportation arrangements following the closure of the Iranian Embassy.

1 May 2013

Administrative Court

Frances Patterson QC

(1)        The Claimant, an Iranian national, sought a declaration that the Defendant had unlawfully detained him. The Defendant had been detained under immigration powers from 21 July 2009 until 5 July 2013. The Claimant was released from detention on 5 July 2012

(2)        The Claimant had been served with notice of liability to deportation on 5 May 2006. Following various challenges to the decision to deport him, on 25 February 2009 the Claimant was served with a deportation order. The Emergency Travel Documents that were eventually issued for the Claimant could not be submitted due to the closure of the Iranian embassy in London. Oman had been appointed to represent Iran's interests in the UK. However, it had not been tasked to provide travel arrangements.

(3)        Due to the lack of developments as to removal, by June 2012 the Defendant accepted that the Claimant could not be reasonably detained.

(4)        The challenge was brought on the basis of the Hardial Singh principles. It was alleged that the Claimant's detention had been unlawful:

(a)        from its inception; or

(b)        Thereafter on a monthly basis when his continued detention was reviewed; and/or from 30 November 2011 when the UK government ordered the Iranian embassy in London to be closed.

(5)        The Defendant submitted that the Claimant's detention had been lawful at all times. It was argued that the detention had not been unreasonably long because:

(a)        there was a risk of the Claimant absconding;

(b)        there was a risk of the Claimant re-offending; and

(c)        the Claimant failed to cooperate with removal.

(6)        HELD: The Court found the Claimant's initial detention to be lawful balancing his lack of cooperation and the time that he had spent in custody. In 2009, there were removals taking place to Iran. As such, there was a realistic prospect of removal. Bearing in mind the Claimant's criminal record and non-cooperation, continued detention was lawful. Nonetheless, it was highlighted by the Court that non-cooperation could not be viewed as a trump card by the Defendant, and it was important to retain a fact-specific approach to each case. 

(7)        The submission that the Claimant's detention became unlawful from the date of closure of the Iranian embassy was rejected. It was unreasonable not to allow the Defendant to make enquiries and alternative arrangements. In December, arrangements were still trying to be made to remove the Claimant to Iran, and as such, his detention remained justified. This was supported by the contention that there was evidence that removals had taken place up until December 2011.

(8)        The Court held that detention remained lawful throughout the detention until the end of March 2011. The danger that the Claimant might harm a roommate at his detention centre assisted the Court in concluding that his detention was lawful in January 2011.

(9)        By 26 March 2012, the Claimant's immigration was held to be unlawful. A reasonable period of time had elapsed for an alternative removal strategy to be put in place. Further, the Claimant had cooperated after November 2011, and so it could not be said that he was unlikely to cooperate with the contact requirements demanded of him.

(10)     The Claimant brought a claim for exemplary damages on the basis of a misrepresentation made by the Defendant in its defence filed in an action before Weymouth County Court. That claim was struck out due to there being no cause of action. The Defendant apologised for the error in the pleading. 

(11)     Although an error had been made in the defence stating that there was no reason for the Claimant to be detained, as the claim had been struck out, there was no basis for a claim of exemplary damages. 

Claim succeeds

Key paragraphs

[78] - Fact specific.

[85] - Oman limitations.

[104] - Initial detention lawful.

[108] - 2009 removals.

[109] - First review.

[114] - Lawful December 2009.

[118] - Detention May 2010.

[124] - September 2010.

[127] - End 2010.

[129] - Danger.

[131] - Detention not tipped.

[139] - Not unlawful from embassy closure.

[140] - Arrangements.

[151] - Unlawful.

[153]-[154] - No exemplary damages.

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