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15 APR 2013

Saleh v Secretary of State for the Home Department [2013] EWHC 61 (Admin); (2013) PLLR 021

Immigration - Detention - Hardial Singh - Appeals

The Court held that the Claimant had been lawfully held pending deportation, and whilst greater expedition might have been preferable, it did not render his detention unlawful.

25 January 2013

Administrative Court

Philip Mott QC

(1)        The Claimant, a Sudanese national, sought to challenge the lawfulness of his detention between 8 May 2009 and 24 May 2011, during which he had been held pending deportation. The Claimant was granted permission to apply for judicial review in relation to Hardial Singh grounds, but not in relation to an Article 5 ECHR challenge. By these proceedings he sought to renew his Article 5 challenge.

(2)        The Claimant advanced four grounds of challenge:

(a)        his asylum claim was so strong that he ought to have been granted bail at an early stage;

(b)        there had been undue delay in addressing his claim;

(c)        there had been a failure to notify him that the basis for detaining him had changed;

(d)        the Defendant's assessment of his risk of re-offending was unreasonable.

(3)        There was no dispute between the parties that the Defendant intended to deport the Claimant.

(4)        HELD: The Court considered the matter on two bases. First, was whether there was unreasonable delay in determining the Claimant's claim, and second, once the strength of the Claimant's Article 3 claim was appreciated (after consideration by the Upper Tribunal), should the Claimant have been granted bail.

(5)        The Court held that whilst greater expedition in dealing with the Claimant might have been ideal, the delay encountered was not unlawful. It was also considered relevant that the Claimant had not sought bail or started judicial review proceedings between May 2009 and August 2010. The later delays encountered arose due to the appeal process and the Claimant's new solicitors seeking an adjournment. The Court considered that the Defendant's consideration of the Claimant's background as a sex offender who had deliberately targeted a young and vulnerable girl was also appropriate, as he posed a risk of reoffending.

(6)        The Court found that the Defendant waiting for the First Tier Tribunal to make a determination on the Claimant's appeal was not an undue delay and had not been unreasonable. After the Upper Tier tribunal dismissed the Claimant's claim in 2011, there was a one week delay in releasing him from detention. The Court did not consider this delay to have been unreasonable, even if some of time was spent on what was an incorrect assumption that there was a further right to appeal.

(7)        The Court held that the Claimant's case failed on all grounds and there had been no breach of the Hardial Singh principles.

Claim dismissed.

Key Paragraphs

[32] - Intended to deport.

[45] - Delay not unlawful.

[46] - Later delays due to appeal.

[56] - Not unreasonable await first tier tribunal.

[60] - One week not unreasonable.

[61] - Conclusion.

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