Detention and Hardial Singh, two recent cases

Two recent cases from the High Court have dealt with the issue of the Home Secretary detaining people for years before deportation.

In Lamrani the claimant wanted to have the decision to detain him reversed by the court; in Muqtaar the claimant wanted it declared that his detention was unlawful.

Before deporting migrants the Home Secretary is allowed to detain them. But in Lamrani the claimant had been detained between June 2008 and November 2011; and in Muqtaar the detention was between February 2008 and July 2011. Neither of the claims were successful.

Lamrani – the facts

Lamrani was a claim by a Moroccan who arrived in 1978, aged 7. He has “a regular and depressing history of repeated offending.”

He has been convicted, since 1992, of theft, burglary, possession of obscene articles for gain, handling, burglary (again), unlawful sexual intercourse with a 14-year-old girl, attempting to obtain property by deception, and indecent exposure.

In total he has 20 convictions for over 20 offences.

He has also married a Moroccan woman and they had children. All of their children were born in the UK, and were British citizens. Following his sexual convictions, he was divorced from his wife in 2007.

Having been released from prison in 2006 he didn’t notify of a change to his address whilst on the sex offenders’ register.

Although he was not considered for deportation when he went to prison, he was served with a deportation notice in February 2008. He has been detained since June 2008. The reason for his deportation was his re-offending.

Appeals

At that point there was not enough evidence for him to make a successful article 8 claim. His lost his appeal in August 2008.

He then made another appeal and applied for bail. In December 2008 a judge ordered the tribunal to consider his application because evidence from Lamrani’s family might have helped his article 8 claim.

He lost. But there was a reconsideration in March 2009. There was a series of delays: partly his fault, partly not. Another bail application was refused. When his case was reconsidered he lost again.

When he appealed to the Court of Appeal it was said that his record of offending was “at a relatively low level of seriousness.” They allowed him a third hearing at the Upper Tribunal.

He has not had that hearing, but in the meantime has applied for judicial review for his prolonged imprisonment, which was what this case was about.

Muqtaar – the facts

Muqtaar is a Somalian who came to the UK in 1999. His asylum application failed, but he was granted exceptional leave to remain until September 2004. Between 2001 and 2005 he received 10 criminal convictions.

His offences included robbery, possessing an offensive weapon, taking a motor vehicle without consent, theft, public order offences, having a bladed article in public, theft (again), and drink driving.

He was in prison between 17th December 2007 and 7th February 2008. The Home secretary decided to deport him on 29th January 2009. This meant that he was detained for deportation on 7th February 2008.

Appeals

His appeal against deportation was dismissed. Removal directions were given on 17th June 2009. Then the European Court of Human Rights gave him interim protection against deportation.

He was refused bail four times between June 2008 and July 2010. This delay was partly because of his case at the European Court of Human Rights. He was not trusted to show himself to the authorities on bail because of his criminal history.

The same was true of Lamrani.

On 17th November 2010 the Home Secretary rejected a new asylum claim. Then on 19th November he claimed that his detention was unlawful. Bail for that was heard on 17th June 2011.

He did not get bail because he has “an appalling criminal record”, and “nothing in the past has prevented him from absconding”.

What’s this all about?

The principles that the court had to focus on in both cases are from the case of Hardial Singh. There are four things that the Home Secretary has to comply with to make the detention of the immigrant justifiable:

1. The Home Secretary must intend to deport the person;
2. The period of detention must be reasonable;
3. If it becomes clear that the Home Secretary won’t be able to deport the person within a reasonable time, the person must not be detained;
4. The Home Secretary must act with reasonable diligence to remove the person.

These principles were confirmed and explained by the Supreme Court in the case Lumba. Lord Dyson said,

if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention was unlawful.

This case is important because it gives guidelines to help assess what factors are important when deciding whether the period of detention is reasonable. If a “meritorious appeal” is being pursued that should be considered differently than if the person is “pursuing a hopeless legal challenge.”

Likewise, when considering the amount of time detained during appeals is “always fact sensitive.” And “the risks of absconding or re-offending are always of paramount importance.”

Both judges’ attitude was that the liberty of the individual was the crucial consideration.

The decision in Lamrani

The judge decided that the decision to detain Lamrani in June 2008 was lawful: his criminal record was “of concern in the context of the risk of absconding. But when considering the total length of detention is was less straightforward:

On any basis the overall period of delay since June 2008 is concerning.

And the appeals that Lamrani had brought did not count against him; nor did his bail applications,or his slowness in providing documents – this was happening at the same time as a pending appeal, and so did not cause any further delay.

What did count against him was his criminal record. The risk of his re-offending or absconding was an important factor; in particular his failure to change his address on the sex offenders’ register “showed a somewhat cavalier attitude.”

Even though the total length of detention was “worrying” the judge decided that his continuing detention was “justifiable and reasonable” because of the risks of his re-offending or absconding.

The decision in Muqtaar 

Like the judge in Lamrani the judge here was concerned about the length of the detention. When conisdering what a “reaonable period” was under the rules from Hardial Singh (see above) he referred to the case of Sino, which said it:

will depend not merely on the risk of an individual absconding and the likelihood of his re-offending. It will also depend, for example, on the nature of any likely future offences and their consequences and how imminently any removal can confidently be predicted. It is unlikely,therefore, that there is any single period which is applicable to all cases with only certain specific exceptions … what may (or may not) constitute a reasonable period of detention pending deportation needs to be considered carefully by reference to the specific facts of his case

He also quoted the case of A which said that the risk of absconding was likely to be “decisive”. The link between Muqtarr’s offending and use of drugs and alcohol was important, as was the fact he has absconded six times in the past.

After looking at a range of factors, especially ongoing proceedings in the European Court of Human Rights, the judge decided that the period of detention was still reasonable. Like in Lamrani the criminal record and risk of absconding were important to the final decision.

Conclusion

When considering the principles of detention from Hardial Singh, it seems that whilst the courts are alert to the issue of prolonged detention, they are not prepared to take the decision to release a migrant with a long criminal record or serious risk of absconding. Although each case is fact-sensitive, this is a factor that will often be decisive.