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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

28 AUG 2013

R (on the application of Francis) v The Secretary of State for the Home Department [2013] EWHC 2115 (Admin); (2013) PLLR 100

Immigration - Detention - Unlawful policy - Hardial Singh

The Claimant's detention was pursuant to statutory warrant under Schedule 3 of the Immigration Act 1971, and not pursuant to an unlawful policy. He was therefore not entitled to any award of damages.

17 July 2013

Administrative Court

HHJ McKenna

(1)        David Francis, the Claimant, brought these proceedings challenging his immigration detention between 4 December 2007 and 29 September 2011 for a period in excess of 3 years and 9 months.

(2)        The Asylum and Immigration Tribunal (‘the AIT'), in April 2008 determined that the Claimant was a Jamaican citizen who had entered the UK in around 1996. The Claimant denied these findings, maintaining that he is a British national who has never been to Jamaica. The Claimant was convicted for using a false passport bearing the name ‘David Francis' on 16 July 2007. He maintained that he did not know the passport to be false, having found it amongst his deceased mother's possessions.

(3)        The Claimant was sent a notice of intention to deportation on 30 November 2007. During an interview in February 2008, the Claimant was unable to provide details about his family members, his mother's maiden name or his own birth certificate. In April that year, he was assessed as being a medium risk of reoffending and medium risk of harm to the public.

(4)        For the last five and a half years, in light of the Claimants consistent assertion that he was a UK national, the Defendant has been unable to obtain recognition from the Jamaican authorities that he his Jamaican. The Claimant was released from detention on 28 September 2011 following judicial review proceedings.

(5)        The Claimant split his detention into three periods. He alleged that he was falsely imprisoned during the first period (4 December 2007 to 9 September 2008) on the basis that he was detained pursuant to an unpublished policy of detaining foreign national prisoners at the end of their prison sentence, regardless of their personal circumstances. The Claimant sought only nominal damages for this period. 

(6)        It was not in dispute that the Defendant operated an unlawful policy during the first period of detention. The Defendant contended however, that the Claimant had not been detained pursuant to any decision taken in relation to such a policy, but under the mandatory terms of paragraph 2(3) of Schedule 3 of the Immigration Act 1971. The Claimant responded, relying upon R (Muqtaar) v SSHD [2013] 1 WLR 649, that detention to the parenthetic paragraph 2(3) did not preclude a challenge to the authority of detention on the basis of public law error.

(7)        The second period ran from 9 September 2008 to 29 September 2009. The Claimant contended that he was falsely imprisoned pursuant to a policy that his detention would only be reviewed by persons without authority to release him. This policy imposing obstacles rendering it impracticable to release the Claimant, therefore leading to his not being released. In the alternative, during this period, it was argued that the Claimant's case was not referred to the Chief Executive Officer, despite being repeatedly identified as being suitable for such a referral. The Claimant again sought only nominal damages for this period.

(8)        The third period of detention was between 29 September 2009 and 29 September 2011. The Claimant asserted his detention during this period to have been in breach of the Hardial Singh principles. It was argued that the Claimant had been detained for an unreasonable period of time and/or it had become clear that he could not be removed to Jamaica within a reasonable period of time, because the necessary documents could not be obtained. 

(9)        HELD: The Court held for the Defendant in finding that previous authorities, including Muqtaar, were concerned with detention pursuant to paragraph 2(1), and were thus concerned with warrants for detention arising from the discretionary exercise of power, rather than the statute itself (as was the case with this Claimant). The Court stated that it was not incorrect to find that the terms of the statute preluded the application of the Hardial Singh principles. This did not undermine the Hardial Singh principles, nor negate the requirement for individual circumstances to be considered.

(10)     There was nothing in Article 5 ECHR which prevented a statutory presumption from applying, so long as the detention was sufficiently connected with the purpose of removal. The Court thus found that as the Claimant had been detained pursuant to statutory warrant under Schedule 3 of the Immigration Act 1971, there were no available damages.

(11)     The requirement for senior review of release was not unduly bureaucratic and served a legitimate purpose of ensuring that release was authorised at the appropriate level of seniority. Nonetheless, the Court found that the policy could be criticised in so far as it was operated in such a way that permitted the continued detention of the Claimant despite various recommendations for release.

(12)     The Court held that its findings as to the basis for detention had been determinative, but nonetheless considered the subsequent grounds.

(13)     The Defendant had been entitled to conclude that the Claimant had not co-operated with his removal and was at risk of absconding. Nonetheless, the Court held that by the end of April 2010, it was plain that no Emergency Travel Document would be issued by Jamaica for the Claimant without proof of identity, and the Claimant was not going to provide such proof. At that stage, there was therefore no prospect of removal within a reasonable period of time.

(14)     Having allowed a reasonable period of time for the Defendant to review her position, the Court declared the Claimant's detention unlawful from 1 June 2010 until his release. Until that point, the Court considered that there was a reasonable prospect of securing the Claimant's removal within a reasonable period of time. 

(15)     The claim was dismissed and the Claimant was to bear the costs of the application for judicial review.  

Claim dismissed

Key Paragraphs

[15]-[17] - Grounds.

[127] - Authorities concerned discretionary power.

[130] - Hardial Singh precluded.

[131] - Individual circumstances.

[132] - Not contrary Article 5. 133- Ground 1 Conclusion.

[135] - Senior review.

[136] - Policy criticised.

[138] - Ground two.

[141] - Risk absconding.

[142] - No prospect of removal.

[142] - Ground three conclusion.

[143]-[144] - Conclusion. 

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