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Judgment
Ms Alexandra Marks :
Introduction
The Claimant challenges the lawfulness of his detention for a period of 22½ months pending deportation.
The challenge is on three grounds:
Breach of the principles first identified by Woolf J in Re Hardial Singh [1984] 1 WLR 704
Breach of the Defendant’s policies
Article 5 of the European Convention on Human Rights
The third ground was not pursued during oral argument on the basis that the Article 5 issue is subsumed in the Hardial Singh principles.
The relief sought by the Claimant includes a declaration, and damages for unlawful detention.
Background
The Claimant is a Chinese national who says he was born on 2 April 1971 (although on various occasions his year of birth has been stated as 1970 and 1972). The Claimant says he entered the United Kingdom clandestinely in early January 2009.
The Claimant only came to the attention of UK Immigration Authorities in April 2009 when he was arrested in Scotland for drugs offences.
On 30 May 2009, the Claimant was charged with cultivating cannabis and held on remand at HMP Edinburgh. His fingerprints were taken, and he was interviewed under caution. The Claimant admitted entering the UK illegally, and said he had claimed asylum in Austria. On the same day, the Defendant served on the Claimant notice of the decision to remove him pursuant to Section 82 of the Nationality, Immigration and Asylum Act 2002 as an illegal entrant to the UK.
On 11 June 2009, the Claimant underwent a travel history interview while still remanded in custody in Scotland. He indicated that he wished to withdraw all outstanding applications to stay in the UK, and wanted to leave the country voluntarily.
On 24 June 2009, the Claimant was interviewed for an Emergency Travel Document (ETD). He again stated that he wished to leave the UK as soon as possible.
On 7 July 2009, the UK Border Agency (UKBA) applied for an ETD for the Claimant on the basis of bio-data he had supplied.
On 13 October 2009, having pleaded guilty to drugs offences (cultivation of cannabis contrary to Section 4(2)(A) Misuse of Drugs Act 1971 , and a minor possession offence), the Claimant was sentenced to three years’ imprisonment.
On 10 November 2009, some four weeks after sentencing, the Defendant wrote to the Claimant, noting his conviction and giving notice of his liability to deportation.
On 20 November 2009, the Chinese Embassy faxed UKBA that “no record has been matched” for the Claimant and thus the attem