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04 JUL 2013

R (on the application of Shafiq-Ur-Rehman) v Secretary of State of the Home Department [2013] EWHC 1280 (Admin); (2013) PLLR 083

Immigration - Detention - Hardial Singh

There had been no breach of the Hardial Singh principles to render the Claimant's detention unlawful. Various factors, including continued progress with obtaining emergency travel documents and the Claimant's previous provision of false information were held to be relevant factors.

17 May 2013

Adminstrative Court

Nicholas Paines QC

(1)        The Claimant, a Pakistani national, entered the UK in 1992. He claimed asylum in February 1996 on the basis of a fear of persecution. This claim was rejected and his appeal refused. The Claimant then absconded and was not found again until August 2007. He was convicted of using a false passport and sentenced to seven months' imprisonment. Upon his release becoming imminent, the Claimant was served with notice of the Defendant's intention to deport him.

(2)        The Claimant was transferred to immigration detention on 1 November 2007 and remained there until 8 September 2011. The Claimant was removed to Pakistan on 27 November 2012.

(3)        These were the third set of judicial review proceedings brought by the Claimant. By these proceedings, commenced in May 2010, the Claimant sought to challenge his detention. Given that the Claimant had been removed, the only issue remaining at the time of the hearing concerned the lawfulness of the Claimant's past detention. The primary issues concerned the Hardial Singh principles.

(4)        The Claimant contended that his detention became unlawful after he began to cooperate with the process for obtaining an Emergency Travel Document in January 2009, or by August 2010 at the latest, when a mistake as to his name was corrected.

(5)        The Claimant further contended that between January 2009 and August 2010 it became clear that the Defendant would not be able to obtain an emergency travel document (‘ETD') and deport him within a reasonable period of time.

(6)        HELD: The Court emphasised that if it was foreseeable that a person could be deported within a reasonable period, a past period of detention could not cause continued detention to be unlawful. It simply amounted to one factor to be weighed in the overall assessment.

(7)        The Court stated that the pertinent question was whether the material available from January 2009 onwards made it apparent that the Claimant could not be removed within a reasonable period. There was no requirement that a particular date for removal be set, merely that there be ‘a sufficient prospect of removal to warrant continued detention when account is taken of all other factors (paragraph 37, quoting R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112).' Factors taken into account included the high risk of absconding posed by the Claimant, the length of his detention and the details relating to his criminal offence.

(8)        Given that the Claimant had provided incorrect information that was unlikely to succeed in producing an ETD, his detention since January 2009 was afforded little weight.

(9)        Throughout 2009 the UK Border Agency had received reports that verification checks were being undertaken in Pakistan. In light of the likelihood of the Claimant attempting to frustrate his removal were he released, the Court found there to be sufficient justification to continue to detain him. After August 2010, the Court held that it was reasonable for the Defendant to wait to see if the enquiries made under the corrected name of the Claimant gave rise to any progress.

(10)     Having considered all of the above factors, the Court found that none of the Hardial Singh principles had been infringed during the Claimant's detention. As such, the claim was dismissed.

Claim dismissed.

Key Paragraphs

[27] - Focus on removal within a reasonable period.

[28] - Pertinent question.

[29] - No need for specific date.

[30] - Risk of absconding

[31] - Length of detention.

[32] - Criminal offence details.

[33] - Justification to detain.

[36] - Lesser weight.

[37] - Conclusion.

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