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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 Momoh) v Secretary of State for the Home Department [2012] EWHC 3740 (Admin); (2013) PLLR 006

Immigration - Detention - Delays - Unlawful - Emergency Travel Documents - Hardial Singh

After the Nigerian High Commission had refused to issue the Claimant with Emergency Travel Documents, the Defendant had failed to reappraise his prospects of removal within 3 months. Consequently, his detention was unlawful after the 3months had expired.

21 December 2012

Administrative Court

Birtles J

(1)        This was a claim for unlawful detention. The Claimant had been detained since 1 November 2009, and his detention had been pursuant to a deportation order. The Claimant was a Liberian national who sought asylum in 2003 upon arrival in the UK. His claim was based on a fear of persecution by factions involved in the war in Liberia. The Claimant's asylum claim was refused and his appeal dismissed in August 2004. Since that date he had remained in the UK unlawfully. The Claimant had been held in immigration detention since 1 November 2009. The Claimant accepted that since March 2012, he had exhausted his appeal rights.

(2)        In January 2010, due to the Claimant making repeated references to Sierra Leone, the Liberian authorities refused to issue an Emergency Travel Document (‘ETD') for him. The Nigerian High Commission had also refused to issue an ETD.

(3)        The Claimant submitted that there was no pending ETD, and as such, there was no realistic prospect of his removal within a reasonable period.

(4)        HELD: The Court found that the Liberian Embassy had refused to issue an ETD and there was no prospect of his removal to Liberia. The Defendant's later approach that the Claimant was Nigerian also led to the conclusion that there was no prospect of removal, as the Nigerian High Commission had refused to issue an ETD. The Court concluded that even if further enquiries were made by the Defendant, this situation would not change. Further, the Claimant was only said to be a low to medium risk of absconding, and this could be dealt with through rigorous bail conditions.

(5)        The Court was satisfied that the Claimant had been detained for longer than was reasonable. Following the Nigerian Government refusing to issue an ETD in March 2012, it was held that the Defendant should have urgently re-appraised the Claimant's case within 3 months. The Defendant's failure to do this rendered the Claimant's detention unlawful after 15 June 2012 as there was no prospect of his removal within a reasonable period (as per the Hardial Singh principles). Prior to March 2012, however, the Court considered that the Defendant had acted with reasonable expedition and the Claimant's detention had therefore not been unlawful at that point.

Claim succeeded.

Key paragraphs

[28] - No prospect ETD.

[32] - Low to medium risk of absconding.

[36] - Length of detention unlawful.

[40]-[41] - Reasonable expedition.

[42] - Conclusion. 

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