Shehadeh (FE), Re Judicial Review

Factual and Procedural Background

The petitioner, of Palestinian ethnicity, was born in the West Bank in 1954 and initially held Jordanian nationality. She entered the United Kingdom in 2002 on multiple six-month visas issued on the basis that she was a Jordanian national but subsequently overstayed. In 2005, she was arrested and convicted for attempting to use false French passports and received concurrent prison sentences with a deportation recommendation upon release. After release, she claimed asylum in 2006 but failed to attend an asylum screening interview. The Home Department decided to deport her to Jordan, and she was detained in December 2006. Her asylum claim was refused in May 2007 and her appeal dismissed in August 2007. In January 2008, the Home Department removed her to Jordan, but she was refused entry as she identified as Palestinian, not Jordanian, and was returned to the UK and detained again.

Subsequent efforts to confirm her nationality and effect removal were slow and complicated by conflicting information from Jordanian authorities regarding her nationality. Monthly detention reviews were conducted, with the Home Department initially maintaining detention on the basis of her presumed Jordanian nationality and risk of absconding. In July 2008, the Jordanian Embassy confirmed she was not Jordanian but Palestinian, making removal difficult. Despite this, detention continued without timely decisions on release under rigorous reporting conditions. The petitioner was eventually released on bail in August 2009 after producing a birth certificate. Further attempts to remove her to Jordan were made, but she remained at liberty pending new asylum claims.

Legal Issues Presented

1. Whether the petitioner's detention following the failed removal to Jordan in January 2008 complied with the Hardial Singh principles governing lawful detention pending deportation.
2. Whether the continued detention of the petitioner after July 2008, when the Jordanian Embassy confirmed she was not a Jordanian national, was lawful.
3. Whether the petitioner is entitled to compensatory damages for unlawful detention and, if so, the appropriate quantum of damages.

Arguments of the Parties

Petitioner's Arguments

• The petitioner's detention became unlawful immediately or within a week after the failed removal attempt in January 2008, or at various subsequent points.
• The detention decisions were based on incorrect factual premises, such as the belief that the petitioner only claimed Palestinian nationality upon arrival in Jordan.
• The petitioner did not present a material risk of absconding, having remained at the same address for a year after release from prison despite a deportation recommendation.
• The respondent exaggerated the risk of absconding and misrepresented the petitioner's immigration history, including the use of multiple aliases.
• The detention breached the Hardial Singh principles concerning reasonableness of detention duration and the ability to effect deportation within a reasonable time.
• The respondent failed to consider material facts and proceeded without legitimate basis for continued detention after July 2008.

Respondent's Arguments

• The detention was lawful at all times, complying with the Hardial Singh principles.
• The respondent always intended to deport the petitioner, and detention was solely for that purpose.
• The detention period was reasonable given the petitioner's refusal to cooperate with voluntary return, her criminal history, and the risk of absconding and re-offending.
• There was always a sufficient prospect of removal, supported by evidence of Jordanian nationality and ongoing efforts to confirm this with Jordanian authorities.
• The petitioner obstructed removal by failing to provide true identity details and by claiming Palestinian nationality upon arrival in Jordan, frustrating removal efforts.
• The refusal of bail by an immigration judge in June 2009 supported the lawfulness of continued detention based on the risk of absconding.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed review of the petitioner's detention in light of the Hardial Singh principles, which limit detention pending deportation to that which is reasonable, for the purpose of deportation, and with reasonable diligence to effect removal.

Initially, the court found that the detention following the failed removal attempt in January 2008 was not unlawful despite some factual inaccuracies in the respondent’s reasoning, given the uncertainty surrounding the petitioner's nationality and the absence of evidence confirming her claim to be Palestinian without documentation. The court acknowledged the petitioner's immigration history and the risk of absconding, albeit not as severe as portrayed, but deemed detention reasonable pending further inquiries.

During the first half of 2008, the court found the monthly decisions to continue detention reasonable on a month-to-month basis while awaiting confirmation of nationality, despite some unjustified assumptions about the petitioner’s conduct and identity.

The pivotal moment came in July 2008 when the Jordanian Embassy confirmed the petitioner was not Jordanian but Palestinian, making removal to Jordan unlikely and removal to Palestine highly improbable due to political and logistical barriers. The court held that this development required a fresh, careful reassessment of the lawfulness of detention.

The court concluded that from this point, the respondent should have recognized the lack of a reasonable prospect of removal within a reasonable period and reconsidered the risk of absconding, which had been overstated. The failure to expedite a decision on release under rigorous reporting conditions and the cessation of references to such release suggested unreasonable delay. Consequently, the court held that the petitioner's detention became unlawful by the end of August 2008 and continued unlawfully until her release on bail in August 2009.

The court rejected the respondent’s reliance on the bail refusal in June 2009 as insufficient to justify continued detention, noting that the refusal was provisional and based on incomplete information.

Regarding damages, the court applied established principles requiring proportionality and tapering of awards for prolonged detention. It rejected the respondent’s submission that the petitioner chose detention over freedom elsewhere, distinguishing the present facts from precedent. The court awarded compensatory damages of £36,000 inclusive of interest for the unlawful detention period of one year.

Holding and Implications

The court held that the petitioner's detention was lawful up to the failed removal attempt in January 2008 and through the first half of 2008, but became UNLAWFUL from the end of August 2008 until her release on bail in August 2009, a period of one year.

The petitioner was awarded compensatory damages of £36,000 for this unlawful detention.

The decision underscores the necessity for the Home Department to act with reasonable diligence and to reassess detention lawfulness promptly when circumstances change, particularly when the prospect of removal becomes uncertain or impossible. It confirms that detention must be justified prospectively based on information available at the time, without reliance on hindsight. No new precedent was set beyond reaffirming the application of established principles to complex nationality and removal issues.