LexisLibrary and LexisPSL
Sign up for a free trial today and get full access for a weekTrial
There was not found to be excessive delay in effecting the deportation of the Claimant and, as such, his detention was not in breach of the Hardial Singh principles.
28 February 2013
Robin Purchas QC
(1) The Claimant sought review of his detention pending removal to India. The Claimant entered the UK illegally in 2007, whereupon he committed a series of offences. The primary issue arising in this case was whether the Claimant's detention was in breach of the Hardial Singh principles by reason of it having been for an unreasonable period. A subsidiary issue arose as to whether the Defendant had acted unlawfully in failing to apply for emergency travel documents (‘ETD') between March and July 2011.
(2) It was alleged that 1 year 9 months detention was not reasonable. Whilst the Claimant had been known to abscond earlier in life, this had been liked to his previous drug habit, which he had now rid himself of. As such, his risk of absconding and reoffending had at the least been decreased, if not eliminated altogether.
(3) The Claimant submitted that by the end of the first three months for detention, it would have been evident that continued detention was unreasonable given the lack of information allowing for deportation to take place. Alternatively, the average period of detention of 288 days should be considered to be the limit of what was reasonable.
(4) The Claimant alleged that there was no realistic prospect of removal due to the difficulty in obtaining ETD from the Indian authorities. Further, the time that would be likely to elapse before the ETD were agreed and deportation took place would be so great that the Claimant's continued detention would be wholly unreasonable.
(5) HELD: The Court made clear that the lawfulness of detention required a balancing of all the relevant circumstances against the question of whether continuing detention was reasonable and lawful in order to effect deportation.
(6) The Court considered it relevant that the Claimant was said to have left India at age 7 and had no supporting documents. Further, significant delays in obtaining ETD, this taking longer than the 288 day average, were not uncommon. It was not unreasonable for the Defendant to expect that local inquiries in the Claimant's former village might assist with his identification.
(7) The Court concluded that there was therefore a realistic, but not certain, prospect of deportation being effected within the short term. The appropriate period for detention in order to effect deportation was held to be two years.
(8) The Court considered that there was no unjustified delay by the Defendant in proceeding with the process of obtaining an ETD and there was nothing that would suggest that the Claimant's detention was unlawful during this period. There was also no failure to use due diligence, and the Claimant had done everything it could after the initiation of the process. The risk of reoffending and/or absconding was held to be substantial and it was correct for these factors to have been afforded considerable weight when the reasonableness of continued detention was weighed.
(9) The Claimant's claim was therefore dismissed.
 - Relevant Hardial Singh principles.
 - Balancing act.
 - Delay not uncommon.
 - Local inquiries.
 - Realistic prospect of deportation.
 - Two years.
 - No unlawful due to ETD delay.
 - No failure to have due diligence.
 - Considerable risk reoffending/absconding.
 - Dismissed.
To read the full case summary and to view the case transcript, you must subscribe to Jordans Public Law Online (if you already subscribe click here to log in).
To request a free trial click here and select Jordans Public Law online from the drop down menu
Comprehensive and reliable reporting service.