Unlawful Detention During COVID-19

Speaker: Amanda Jones
Chambers: Great James Street Chambers

Hardy (or Singh) Principles
The Secretary of State has the power under Immigration Provisions to detain a person for removal or deportation.
1. Must intend to deport or remove
2. No limit to detention
3. If removal cannot be done in a reasonable time during detention, power to detain must not be continued
4. Must act with reasonable diligence and expedition

Specific Provisions Article 5
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

(2) Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
(4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Application
Article 5(1)(f) is distinct from detention permitted under 5(1)(a)–(e) in that detention does not need to be “necessary” or “proportionate” to secure the deportation / extradition, nor to prevent illegal entry
Article 5(1)(f) does not set time limits on detention, but extradition / deportation must be conducted with “requisite diligence.”
Article 5(2) refers to a person who is “arrested” and to a “charge”. However, reasons must be given in any situation where someone has been deprived of liberty, so that he can challenge the lawfulness of any deprivation. The duty is applicable to every deprivation, so a new decision to detain requires a further explanation.
Article 5(4) – challenging the lawfulness of the detention before a court. The relevant court must decide “speedily” and order release if the detention is found unlawful. The supervision must be by a court, must entail an oral hearing with legal assistance in adversarial proceedings.
…..it is clear that Article 5 para. 4 (art. 5-4) does not guarantee a right to judicial review of such breadth as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the “lawful” detention of a person according to Article 5 para. 1 (art. 5-1) (see the above-mentioned E. v. Norway judgment, p. 21, para. 50).
Follow Pre-action Protocol Process
Use the Home Office’s own pre-action protocol form
General Points
No realistic prospect of removal or deportation within a reasonable time
Outstanding first tire tribunal appeals delayed/ adjourned
New directions give new process
Appellant must file appellant’s skeleton argument
Appellant’s Skeleton Argument
Summary of case facts
Summary of refusal or decision made
List of disputed/ non-disputed issues
Detailed references to appellant’s submissions
List of steps for reaching a decision
Home Office has 10 days to reply to ASA
If case is accepted, it’s sent for a video Case Management Hearing
The claimants judicial review bundle should not exceed 50 pages.
A separate application must be made for it to be loner.
Matters for urgent consideration require the Urgent Consideration form
Check the home office guidance for email address
Payment procedures available online
Government Legal Department to be served by email, as well as Home Office
Interim Hearings conducted via Video Link

You can contact Amanda Jones via clerks@greatjamesstreet.co.uk

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