Wang v Secretary of State for the Home Department  EWHC 2619 (Admin); (2014) PLLR 101
Queen’s Bench Division, Administrative Court, Ms Alexandra Marks 29 July 2014
Where the only impediment to the claimant’s removal was his refusal to cooperate with efforts to obtain emergency travel documents for him, a reasonable period of detention may be longer than it might otherwise have been.
(1) The Claimant challenged the lawfulness of his detention pending deportation for a period of 22 ½ months on the grounds that the defendant had breached Hardial Singh principles, the defendant’s own policies and Article 5 of the ECHR (the final argument was not pursued at final argument, being subsumed by the Hardial Singh arguments.
(2) The claimant entered the UK clandestinely in January 2009. In April 2009, he was charged with cultivating cannabis. The claimant admitted that he had entered the UK illegally on 30 May 2009 and the defendant served notice of the decision to remove him as an illegal entrant the same day. The claimant asked to leave the country voluntarily on 11 June 2009.
(3) On 24 June 2009, the claimant was interviewed for an Emergency Travel Document (ETD). On 7 July 2009, the UKBA applied for an ETD on the basis of the data he had supplied.
(4) In October 2009, the claimant was sentenced to three years imprisonment on the drugs charges, and on 10 November 2009, the defendant notified the claimant of his liability to deportation.
(5) On 20 November 2009, the Chinese Embassy informed the UKBA that it was unable to obtain records concerning the claimant, and the attempt to obtain an ETD had failed. The UKBA re-interviewed the claimant on 21 December 2009 to again tried to obtain an ETD.
(6) On 15 March 2009, the claimant answered a Home Office questionnaire providing various details about himself and his family for the purpose of obtaining an ETD. He also claimed asylum, and asserted that removal from the UK would breach his rights under Articles 2, 3 and 8 of the European Convention on Human Rights.
(7) At various times between June and September 2010, the defendant made further attempts to obtain an ETD for the claimant and assess his asylum claim.
(8) The claimant’s asylum claim was still being considered at the expiry of his criminal custodial sentence on 1 October 2010, at which point he continued to be detained on immigration grounds.
(9) A deportation order was made on 21 April 2011, with the claimant also being notified of the rejection of his asylum claim on 4 May 2011. The FTT rejected the claimant’s appeal on 5 July 2011, finding that he was an ‘economic migrant,’ and that his human rights claims were without foundation. The claimant’s appeals rights were exhausted on 5 August 2011.
(10) The claimant was still lacking an ETD at this time, which had not yet been obtained from China due to severe difficulties in obtaining information about the claimant’s identity and personal details. Further efforts were made to obtain this information over a series of months, with the defendant stating that claimant refused to provide information (the claimant disputed this evidence).
(11) On 1 July 2012, the claimant started refusing food and reduced his fluid intake. Efforts to obtain his bio-data were continuing during this time.
(12) On 18 July 2012, the claimant was admitted to the healthcare facility at the detention centre. He expressed concerns about not being able to support his family and said he would rather die if he could not work. He also stated that he believed if he continued to refuse to eat, UKBA would eventually let him go.
(13) On 24 July 2012, the Claimant signed an Advance Directive stating that he did not intend to eat but would have water, and refused consent to any sort of administration of nutrition, hydration or medical treatment in the event his condition deteriorated.
(14) On 2 August 2012, the doctor at the detention facility warned that the claimant was not fit for detention and his risk of mortality was very high. Other doctors repeated this finding on 4 August 2012 and 9 August 2012.
(15) On 10 August 2012, the claimant’s representatives made an ex parte application to the Administrative Court, which ordered that the defendant was to convey the claimant to hospital, which was undertaken shortly thereafter. The claimant received fluids on 12 August, but was returned to detention on 13 August.
(16) One official concluded on 13 August that ‘there appears to be no prospect of removal within a reasonable timescale’ and recommended the claimant’s release. UKBA made further efforts to seek an ETD for the claimant at this time.
(17) On 14 August, the Administrative Court again ordered that the claimant be conveyed to hospital and remain there until he was in a fit state to be detained.
(18) On 15 August, the claimant agreed to go to hospital for safe re-feeding and assessment; he was discharged on 16 August with a finding the he was fit to be detained with certain medical monitoring conditions. The claimant refused the attempts to monitor his condition, and on 20 August, the parties agreed terms of an order conveying the claimant to the hospital.
(19) The claimant argues that the defendant had been insufficiently diligent under Hardial Singh principle 4 in attempting to secure his release from detention, and invited the court to find that the detention had been unlawful from either 4 May 2011 or 13 August 2012.
(20) The claimant submitted that the defendant acted unlawfully under Hardial Singh principle 3, as it had become apparent to the defendant that she would be unable to operate the deportation removal machinery within a reasonable period of time.
(21) The claimant further submitted that his detention had been unlawful under Hardial Singh principle 2, as the claimant’s detention was longer than the ‘reasonable period’ of detention permitted.
(22) The claimant also argues that a 9-month delay between the claimant’s first asylum interview and his asylum screening interview was unjustified.
(23) HELD: The court found the claimant’s detention was not in breach of either Hardial Singh principles or the defendant’s policies, and was therefore lawful.
(24) Considering the claimant’s argument under Hardial Singh principle 4, the delays in assessing the claimant’s asylum claim did not demonstrate a failure by the defendant to act with reasonable diligence and expedition to effect removal. In parallel to the claimant’s asylum claim, the defendant was taking preparatory steps for the claimant’s removal while he was still incarcerated in case his asylum claim failed. The deportation decision was also made prior to the formal rejection of the claimant’s asylum claim. An asylum screening interview is not a necessary pre-requisite to making an asylum decision, even if it is the defendant’s usual practice.
(25) Considering the claimant’s argument under Hardial Singh principle 3, the court found that given the defendant’s numerous, various and continuing efforts to obtain an ETD for the claimant, the defendant cannot be said to have known that such efforts would be unsuccessful. The claimant gave the impression of cooperating in attempts to obtain documentation, but his inconsistent and inaccurate information contributed to the defendant’s difficulty in doing so. The court found that even if an individual's behaviour falls short of obvious non-cooperation, a reasonable period for his detention may be longer than it might otherwise have been. Where the only obstacle to the claimant’s removal was an inability to obtain travel documentation, it did not became apparent to the defendant that she would not be able to effect the claimant's deportation within a reasonable period.
(26) The court went on to consider Hardial Singh principle 2, whether the overall period of detention was reasonable. Direct comparison with other cases is inappropriate because each case turns on its facts and circumstances. It was appropriate to give considerable weight to the risk of the claimant committing criminal offences and absconding given his criminal history and lack of ties to the UK. It cannot count against the claimant that his declining physical health as a result of his hunger strike was self-imposed. However, following Lumba, the court found that detention does not become unlawful on Hardial Singh principles by reason of the detainee’s hunger strike.
(27) The court found that a single official’s recommendation is not determinative on the question of release, and that the claimant’s detention was reasonable at all times.
(28) The claimant submitted that his detention breached the defendant’s own policies in the Enforcement Instructions and Guidance Chapter 55, relating to individuals on hunger strikes. The court found that the claimant was suitable for detention in accordance with the EIG policies, given his advance directive refusing treatment, his repeated assertions that he felt well and his consistent assessment by the medical team. The court also found it significant that the claimant was repeatedly discharged from hospital after admission.
(29) The court assessed the claim that the defendant breached Detention Service Order 07/04 on food and fluid refusal in Immigration Removal Centres due to doctors employed by the defendant stating that the claimant’s condition could not be adequately monitored while he was in custody. The court found it significant that the claimant refused opportunities to attend hospital, and that hospital doctors quickly discharged him upon his admission. The court also found that the availability of 24-hour nursing care in the immigration removal centre was able to provide for the claimant’s needs, and that the defendant was not in breach of her policy.
(30) The court rejected the claimant’s argument that the defendant acting irrationally in detaining the claimant beyond 13 August 2012 for the reasons given above.
 – Asylum screening interview - – Reasonable diligence and expedition in effecting removal - - Reasonable diligence and expedition in effecting removal - – Operating removal machinery  – Non-cooperation of a person to be deported  – Deportation within a reasonable period  – Comparison of detention length  – Risk of committing criminal offences and absconding  – Self-imposed physical ailments  – Recommendations of release by officials  – Suitability for detention  - Suitability for detention  – DSO policy on food and fluid refusal  – Irrationality – – Conclusion.