R (On the Application of Rahman) v Secretary of State for the Home Department  EWHC 1640 (Admin)
After 2 years and 10 months of detention trying to remove the Claimant, the Defendant had exhausted all avenues of possible removal and the detention of the Claimant accordingly became unlawful.
22 May 2014
Queen’s Bench Division, Administrative Court
Rhodri Price Lewis QC
(1) The Claimant, who is from the Indian subcontinent but is unaware of his nationality, challenged the legality of his previous detention. His grounds for challenge were:
(i) That his detention exceeded the period which would be reasonable in all the circumstances;
(ii) It had become clear that the Defendant could not effect removal within a reasonable period;
(iii) The Defendant failed to act with reasonable diligence and expedition.
(2) The Claimant sought a declaration that his detention was unlawful and in breach of Article 5 ECHR. The Claimant sought damages for false imprisonment and breach of Article 5 ECHR.
(3) The Claimant was said to have arrived in the UK in 1995 or 1996 when he was approximately 13 years of age. In 2007, an application for leave to remain was made for the Claimant, the Claimant later denied any knowledge of this claim. The Claimant was sentenced to 15 months imprisonment for robbery on 5th February 2010. In March 2010, the Claimant alleged that due to his application in 2007, his life would be in danger in Bangladesh. On 4th May 2010, notice of the Defendant’s liability to automatic deportation as a foreign criminal was served upon him.
(4) A decision to detain the Claimant was made on 28th June 2010. The Claimant was considered to pose a risk of public harm and posed a high risk of absconding. The Claimant, when interviewed, claimed that his only family was a British friend called Mr Aziz, and he did not want to live a country with no family. An application to the Bangladeshi High Commission for an Emergency Travel Document was made on 4th September 2012. The Claimant failed to cooperate with the Commission during a telephone interview on 16th October 2012 and maintained that he did not know where he was originally from and could not provide any further information to assist with his removal.
(5) The Claimant was held in administrative detention between 29th June 2010 and 12th September 2013, a period of 38 and a half months. The Claimant relied upon three issues in demonstrating that his detention was in breach of the Hardial Singh principles: (i) the Defendant took a year to make a deportation order; (ii) a further 16 months elapsed before an emergency travel document interview was recorded; and (iii) Mr Aziz, who might have been able to provide information was never visited.
(6) HELD: The Court considered that where there had been over 38 months detention, this required careful and anxious scrutiny. The Court also noted that the risk of absconding could not be a trump card to allow detention regardless of all other factors.
(7) The Defendant had been correct to approach this case as one in which the Claimant posed a real risk of offending, a risk which had not decreased given that he had not cooperated and did not have an established base in the UK.
(8) The Claimant’s changing story as to why he did not wish to return home contributed to the time taken to pursue his removal and his failure to cooperate prolonged the process. The Defendant had not unreasonably delayed in attempting to contact Mr Aziz. The Claimant’s lack of cooperation also limited the obtaining of an ETD.
(9) However, by 25th April 2013 the Defendant had no further avenues to pursue in order to remove the Claimant within a reasonable period of time. The Bangladeshi High Commission had been unable to verify the identity of the Claimant as a Bangladeshi national. As such, his detention then became unlawful under Article 5.
(10) The Court held that the Defendant should have realised this by the 25th April 2013 and should have released the Claimant at that point. Damages fell to be assessed at a future date. High Court order set aside, case remitted to the judge.
 – Anxious scrutiny.
 – No trump card.
 – Correct approach.
 – Claimant failure to cooperate.
 – Unlawful.
 – Damages.
 – Conclusion.