United Kingdom – High Administrative Court rules in a case of unlawful detention of an asylum seeker

Friday, November 16, 2018

On 16 November, the England and Wales High Court (Administrative Court) ruled in a case concerning the detention of a Sudanese national due to criminal charges.

The applicant had requested asylum in the UK, claiming that he was a member of the non-Arab tribe from Darfur. In 2015 he was sentenced to 5 years and 10 months imprisonment after being found guilty of a serious sexual assault. Whilst he was in pre-trial custody, his asylum claim was refused. The applicant’s representatives appealed this decision. However, due to his conviction, a deportation order was made against the applicant and, after being released from prison he was immediately transferred to an immigration detention centre. The applicant appealed against the decision of detention, claiming, inter alia, that his detention was unlawful as common law principles were not respected and the decision to refuse his protection and human rights claim contained a public law error.

The Court first noted that the applicant’s high risk of harm to the public and high risk of absconding mean that his longer detention cannot be considered, in principle, unlawful. Under the common law principles on immigration detention, the latter will be lawful if there is a "realistic prospect" that deportation will take place within a reasonable time. In this context, the main obstacle to deportation was the lack of passport and Emergency Travel Document (ETD). The Court found that the UK immigration authorities took appropriate and timely steps to ensure that the Sudanese Embassy and the applicant would do what was necessary to obtain an ETD.

Due to these difficulties in obtaining an ETD, however, it became clear in March 2018 that there was no longer a realistic prospect that deportation would take place within a reasonable time. Although arrangements should have taken place for his release, the immigration authorities did not arrange suitable premises for him to live in, so his release could not take place. Therefore, the detention from March 2018 to October 2018 was found to be unlawful and damages should be awarded for this period, due to the violation of the aforementioned detention principles.

Finally, the Court examined the argument that the applicant’s detention was initially unlawful because the decision to refuse his international protection claim contained a public law error. The applicant argued that the immigration authorities did not take into account an expert report he had submitted with his initial application for asylum. He claimed that if they had considered this report, they would have agreed that he was a member of the specific tribe and granted asylum; therefore, he never would have been placed in immigration detention in the first place. The Court agreed that it was clear that the failure to take account of the report undermined the reasoning of the immigration authorities’ decision at a number of critical points. Although the judges stated that this made no difference to the outcome, the failure to take into account the report was material, therefore a public law error was established and they further found that the applicant was entitled to damages.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.