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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

20 SEP 2012

R (on the application of Othman) v Special Immigration Appeals Commission (SIAC) and Others [2012] EWHC 2349 (Admin) (2012) PLLR 121

Immigration - Detention - Hardial Singh - Special Immigration Appeals Commission

The Claimant's continued detention was not contrary to the Hardial Singh principles and his application for permission to seek judicial review was thus dismissed.

9 August 2012

Administrative Court

Hughes LJ and Silber J

(1)        The Claimant, a Jordanian national, brought applications for habeas corpus and permission to seek judicial review of his detention. Since as early as 2002, the UK Government considered the Claimant an ‘exceptionally high terrorist risk'. This view was upheld by the Special Immigration Appeals Commission in 2004 (‘SIAC').

(2)        The Claimant had consistently resisted deportation to Jordan, on the basis that it would involve infringements of his rights under the European Convention on Human Rights. The European Court of Human Rights (‘ECtHR') had rejected the Claimant's contention that he would be tortured if deported to Jordan, and thus rejected the submission that deportation would breach his Article 3 rights. His Article 5 claims were also rejected.  The claim that the Claimant's Article 6 rights would be breached was upheld in part, as there was a risk that at his re-trial evidence obtained from others through torture might be used against him.

(3)        Following this the UK Government contended that assurances given by the Jordanian Government meant that there was no risk of the Claimant facing evidence adduced by torture, and thus no barrier to his deportation.

(4)        The Claimant's central challenge was that his further detention was contrary to the Hardial Singh principles (R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704). This was pursued on the following grounds:

(a)        The period of his detention was too long for any further detention to be lawful;

(b)        Deportation could not take place within a year due to the domestic appeals that would occur and the highly probable further applications to the ECtHR; and

(c)        The assurances from Jordan could have been sought long ago, demonstrating a lack of due diligence on the part of the Defendant Secretary of State. 

(5)        HELD: The Court found that the Claimant relying solely on the timescale of his detention demonstrated a failure to balance this factor against the risk to the public, the latter being of paramount importance.

(6)        It was made clear that the SIAC was undoubtedly entitled to address Hardial Singh issues, as any tribunal deciding bail would be bound to ask whether the detention remained lawful. The Court stated that the SIAC was specially constituted to conduct the balancing act required by the Hardial Singh principles, and as such, unless there was a clear error in law or approach, the Court should not interfere with its decisions.

(7)        The SIAC's decision had not been challenged on the basis of an error in law or approach, and the Court determined there was, in any event, no arguable error of law. Further, the Court did not accept that it was inevitable that a further case would be accepted by the ECtHR.

(8)        The Court stated that further appeals could only be based on errors of law and these would therefore be limited. It was therefore found that the SIAC had been entitled to conclude that there was a reasonable prospect of deportation taking place within a reasonable period of time.

(9)        The Court acknowledged the length of the period of detention, noting that it had been prolonged by litigation on the part of both parties. It was acknowledged that the balancing act encompassed all factual factors, including risk to the public and whether detention was in aid of deportation. The Court could find no error of law of any kind.

(10)     The Court rejected the argument that the Defendant had failed to act with due diligence, stating that there was little or no evidence to justify such a claim. The Court further rejected oral submissions that there had been an incorrect assessment of the risk of absconding, stating that the Court had no basis on which it could go behind the expert assessment of the evidence.

Applications refused

Key paragraphs

[16] - Risk to public.

[18] - SIAC power.

[21] - No error of law.

[23] - Balancing act.

[24] - Due diligence.

[25] - Risk of absconding.

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