The claimant challenged his continued detention under the 1971 Act after his appeal to the Immigration Appeal tribunal had been successful. He had been accused of rape, but was convicted of a sexual assault, though still serious. Before being released from his sentence, the respondent had authorised his continued detention under the 1971 Act. The IAT had then found a well founded fear of persecution if returned. The respondent had sought to appeal but out of time, and now sought to rely on the exeption allowing deportation where an applicant had committed a ‘particularly serious crime’.
Held: The claimant had been unlawfully detained. The initial refusal of bail had been made on a factually incorrect and prejudicial basis, and though ‘risk of absconding and further offending were matters for proper consideration, such material as there is suggests that the consideration was flawed. There is no hard evidence of it, save for what appears in the bail summary to which I have referred. There is no evidence of careful reappraisal at that stage, or of any attempt to weigh the long period of immigration detention against the perceived prospects of success in any appeal, and the duration of the appeal process. The Secretary of State was entitled to consider his position, but it was incumbent upon him to address the continued detention of the claimant with the utmost care, particularly in regard to the history of the matter, to which I have referred. I am not satisfied that he did so.’
Judges:
Maurice Kay J
Citations:
[2003] EWHC 1530 (Admin)
Links:
Statutes:
Immigration Act 1971, European Convention on Human Rights 3
Jurisdiction:
England and Wales
Citing:
Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
Cited – I, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jun-2002
The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been . .
Cited – Regina v A Special Adjudicator and Secretary of State for Home Department ex parte B Admn 17-Dec-1997
Kay J referred to the Secretary of State’s policy documents on the detention and removal of failed asylum seekers and emphasised the need for a careful reappraisal by the Secretary of State in the light of changing circumstances. . .
Cited – In re Wasfi Suleman Mahmod Admn 17-Jan-1994
Laws J considered the Hardial Singh principles, adding: ‘While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it . .
Cited – Tan Te Lam v Superintendent of Tai A Chau Detention Centre PC 27-Mar-1996
(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights
Updated: 19 October 2022; Ref: scu.185611