Harrak, R (on the application of) v Secretary of State for the Home Department

Factual and Procedural Background

This judicial review claim challenges the legality of the Plaintiff's detention by the Defendant, the Secretary of State, from 7 August 2006 to 1 December 2009, a period of just under 40 months. The Defendant issued a notice of intention to make a deportation order on 4 August 2006, and following the Plaintiff's completion of a custodial sentence on 7 August 2006, the Plaintiff was detained under immigration powers pursuant to the Immigration Act 1971. A deportation order was signed and served on 30 July 2007, and subsequent detention was pursuant to this order.

The Plaintiff, born in Morocco in 1965, entered the United Kingdom as a visitor in 1986 and became an overstayer after extensions of leave were refused. He was later granted leave to remain as a spouse and subsequently indefinite leave to remain. The Plaintiff committed numerous criminal offences between 1997 and 2006, resulting in multiple convictions and custodial sentences. The Defendant decided to deport the Plaintiff based on these offences and public good considerations.

The Plaintiff appealed the deportation notice, but the appeal was dismissed in January 2007, exhausting appeal rights shortly thereafter. The Plaintiff was detained administratively from August 2006 until December 2009. Throughout much of this period, the Plaintiff refused to cooperate with the documentation process necessary to obtain an Emergency Travel Document (ETD) from the Moroccan authorities, which was required to effect removal.

From December 2008, after fingerprints were taken by force, the Plaintiff began to cooperate to some extent, and an ETD application was submitted to the Moroccan Embassy on 21 January 2009. However, the Defendant’s efforts to pursue the application were sporadic and lacked diligence. The Defendant’s internal units delayed and failed to maintain effective communication with the Moroccan Embassy, with very limited progress made over the subsequent months. The Plaintiff was granted bail following a court decision on 27 November 2009, effective 1 December 2009.

Legal Issues Presented

1. Whether the Defendant lawfully detained the Plaintiff under the immigration powers granted by the Immigration Act 1971 during the nearly 40-month period.
2. Whether the prolonged detention was reasonable and justified in light of the Plaintiff’s non-cooperation and the Defendant’s duty to act with reasonable diligence and expedition to effect removal.
3. Whether the Defendant had a reasonable prospect of securing the Plaintiff’s removal within a reasonable time, particularly after the submission of the ETD application in January 2009.
4. The extent to which factors such as non-cooperation, risk of absconding, and risk of re-offending justify continued detention.
5. Whether the Defendant’s mis-statements to the tribunal regarding the progress of the ETD application had any legal consequences affecting bail decisions and detention.

Arguments of the Parties

Defendant's Arguments

• The Defendant justified the initial and continuing detention on the basis that the Plaintiff was subject to a deportation order and that detention was necessary to effect removal.
• Non-cooperation by the Plaintiff in providing documentation and participating in the ETD process was a significant obstacle to removal and justified continued detention.
• The Defendant submitted that a period of up to 12 months after the ETD application submission (21 January 2009) was reasonable, given the Plaintiff’s prior non-cooperation and other factors.
• The Defendant relied on the Plaintiff’s extensive criminal record, history of absconding, and risk of re-offending to justify ongoing detention as necessary to protect public safety and prevent absconding.
• The Defendant argued that the ongoing detention was lawful because there was a reasonable prospect of removal within a reasonable time frame.

Plaintiff's Arguments

• The Plaintiff conceded no challenge to the legality of detention before fingerprints were obtained in December 2008 but argued that the length of prior detention (over 28 months) must be considered when assessing the reasonableness of detention after that date.
• The Plaintiff challenged the Defendant’s assertion that the period of detention after the ETD application was reasonable, emphasizing the Defendant’s lack of diligence in pursuing the application.
• The Plaintiff contended that non-cooperation ceased to be a significant obstacle after February 2009 and that the Defendant failed to take reasonable steps to remedy deficiencies in the ETD application.
• The Plaintiff questioned the weight attributed to criminality and risk of absconding given the length of detention and absence of a predicted removal date.
• The Plaintiff raised concerns about the Defendant’s mis-statements to the tribunal regarding the progress of the ETD application and its potential impact on bail decisions and detention continuation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hardial Singh v Secretary of State for Home Department [1984] 1 WLR 704	Detention under immigration powers must be for a reasonable period necessary to effect deportation; detention cannot be indefinite or for other purposes; Secretary of State must act with reasonable expedition.	The court applied these principles as the foundational legal framework for assessing the lawfulness and reasonableness of the Plaintiff's detention period.
R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888	Confirmed Hardial Singh principles; emphasized four key principles including intent to deport, reasonableness of detention period, cessation of detention if removal is not possible within reasonable time, and requirement for reasonable diligence.	The court relied on these principles to assess whether the Defendant maintained lawful detention throughout the period, particularly focusing on diligence and reasonableness.
R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804	Further elaborated on the factors relevant to reasonableness of detention, including risk of absconding and risk of offending; emphasized the court's role in determining legal boundaries of detention.	The court used this authority to analyze the relevance and weight of risk factors and to assert the court’s ultimate responsibility in determining detention legality.
Tan Te Lam v Tai A Chau Detention Centre [1997] AC 97	Approved the principles governing detention under immigration powers and the need for reasonableness and proportionality.	Referenced to support the established legal framework on detention limits and procedural fairness.
R (FR (Iran)) v Secretary of State for the Home Department [2009] EWHC 2094 (Admin)	Test for legality of detention requires a reasonable prospect of removal within a reasonable time, proven on the balance of probabilities.	The court applied this test to determine whether the Defendant had satisfied the burden of proof regarding the continuing lawfulness of detention.

Court's Reasoning and Analysis

The court began by outlining the statutory framework under the Immigration Act 1971, emphasizing that detention powers are limited to periods reasonably necessary to effect deportation and must be exercised with reasonable diligence and expedition.

Drawing on established authorities, the court reiterated four key principles: detention must be for the purpose of deportation, for a reasonable period, discontinued if removal is not feasible within that period, and accompanied by reasonable diligence.

The court acknowledged the Plaintiff's prior non-cooperation as a significant factor justifying detention before December 2008, but stressed that the lengthy detention period (nearly 40 months) required careful scrutiny of the Defendant's conduct thereafter.

After the Plaintiff's fingerprints were forcibly taken and the ETD application submitted on 21 January 2009, the court found the Defendant’s efforts to pursue removal were insufficiently diligent and lacked speed. The Defendant delayed contacting the Moroccan Embassy for many weeks and failed to remedy known deficiencies in the application for many months.

Despite internal knowledge from February 2009 that the ETD process could take up to 24 months without supporting documents, the Defendant did not take adequate steps to expedite the process, such as arranging the contemplated Embassy interview until March 2010, well after the Plaintiff was released.

The court found that from 23 February 2009 onwards, the Defendant could not demonstrate a reasonable prospect of removal within a reasonable time, rendering continued detention unlawful. The court further held that factors such as the Plaintiff’s criminal record, risk of absconding, and non-cooperation (which largely ceased by February 2009) did not justify continued detention absent a predicted removal date.

The court also noted discrepancies and mis-statements made by the Defendant to bail tribunals regarding the progress and anticipated timing of the ETD application, though it declined to extend the legal principles governing detention to include the manner of presentation to bail tribunals, citing procedural and evidentiary reasons.

Holding and Implications

The court DECLARED that the Plaintiff's detention from 23 February 2009 until his release on 1 December 2009 was unlawful. This declaration was based on the Defendant's failure to establish on the balance of probabilities that there was a reasonable prospect of removal within a reasonable time during that period, compounded by a lack of reasonable diligence and expedition in pursuing removal.

The direct consequence is that the Plaintiff's continuing detention after 23 February 2009 was unlawful, entitling him to declaratory relief. The court reserved further submissions on any consequential orders, including costs and potential damages, noting that damages claims would likely be assessed in a different court division.

The court did not set new legal precedent but reaffirmed and applied established principles governing the lawfulness of administrative detention under immigration powers, emphasizing the critical importance of the Defendant’s diligence and the reasonableness of detention duration in light of all circumstances.