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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

31 JAN 2013

R (on the application of HE) v Secretary of State for the Home Department [2012] EWHC 3628 (Admin); (2013) PLLR 005

Immigration - Detention - Hardial Singh - Reviews

The Defendant had delayed conducting a review of the Claimant's detention, and this resulted in the period of detention between when his review should have taken place and when it had actually occurred to have been unlawful. The detention of the Claimant had otherwise been lawful.

17 December 2012

Administrative Court

Mr Ockleton

(1)        The Claimant, who had been detained between 10 September 2011 and 21 September 2012, alleged that his detention had been unlawful. The Claimant had arrived in the UK on 1 May 2000 and had claimed asylum. This claim was refused, and his appeal was also dismissed. The Claimant had a history of convictions and a failure to comply with reporting conditions.

(2)        The Claimant contended that he had always provided the best evidence in order to assist with the Defendant obtaining travel documents for him. The Claimant also alleged that he had a right to essentially dictate what communications the Defendant could make with the Chinese authorities.

(3)        The Defendant contended that despite the Claimant's case having previously put to Chinese officials, re-applications some re-applications met with success due to the diplomatic climate having changed. As such, it was alleged that there could not be said to be no prospect of travel documents being obtained.

(4)        HELD: The Court held that the Claimant had not provided the best evidence available to the Defendant, and had inconsistently provided evidence over the years. It was found that the Claimant could have provided further information to the Defendant.

(5)        Based on the history of this matter, the Court considered that any person reviewing the case could reasonably have considered that there was more information to be given by the Claimant, and that he might eventually provide that information. It was thus held that there was never a time when the Defendant ought to have concluded that there was no realistic prospect of the Claimant being correctly documented.

(6)        The Court also held that there was also no doubt that the Claimant's release would have posed a risk of further offences, and difficulties in tracing him if he absconded. The Court found there to be no legitimate challenge to the Claimant's length of detention. There had been no challenge to any of the Claimant's previous detentions, and the Defendant had always proceeded with the previous documentation process upon his re-detention, rather than starting afresh each time.

(7)        The Court determined that it was beyond question that the Defendant had been entirely free to make the decisions it had, and that this was important in order for it to maintain diplomatic communications between governments.

(8)        The Court nonetheless indicated that it was concerned by delays that should not occur within a well-conducted organisation. There had been a delay between 7 October and 20 October 2011 when a review should have taken place but had not occurred, consequently, this resulted in this period of detention being found to be unlawful. It was also acknowledged however that any errors that had occurred had not been deliberately concealed.

(9)        The Claimant's claim was dismissed in all respects other than his detention having been found to be unlawful between 7 October and 20 October 2011.

Claim succeeded in part.

Key paragraphs

[34] - Not best evidence provided.

[37] - Documented.

[38] - Risk reoffending.

[39] - No challenge detention. 

[41] - Changed diplomatic climate.

[44] -Decisions beyond question.

[45] - Concern delay.

[46] - No concealment of errors.

[47] - Delays render detention unjustified.

[53] - Period not unreasonable.

[52]-[54] & [60] - Hardial Singh principles.

[62]-[63] - Conclusion.

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