Scottish Human Rights Law Group

The petitioner arrived in the UK in 2000 and was granted asylum. In 2002, he is arrested, but granted Temporary Admission and released from custody subject to reporting conditions which he breaches. In 2004, he is convicted of robbery and sentenced to four years imprisonment. The trial judge recommends deportation noting that there is a high risk of re-offending. The Secretary of State moved to deport the petitioner on conclusion of his sentence in 2006. The petitioner remains in detention pending deportation. He currently cannot be deported as he has no identity documents and he fails to co-operate with the authorities to obtain them. All his statutory rights of appeal have been exhausted or waived. It is maintained by the Secretary of State that he presents a high risk of re-offending and/or absconding, and therefore that his release is not possible. He will be deported as soon as he co-operates and obtains emergency travel documentation. The Petitioner states that his continued detention is procedurally flawed as the Secretary of State has been operating illegal immigration policies, and that in any event, the time has long passed since the Petitioner was reasonably and properly detained and so is entitled to be released.

The court accepted that there is a presumption of liberty at common law in Scotland. It was therefore for the Secretary of State to justify continuing detention. The Court further held that under the principles set out in R v Governor of Durham Prison ex p Hardial Singh 1984 1 WLR 704 there is no single period which when reached, automatically leads to the conclusion that the period of detention has become unreasonable, each case must be considered on its own merits. Legaility of detention does not hang on compliance with policy and the Detention Centre Rules, thus formal non-compliance does not matter where the merits show that the period of detention is reasonable. In considering the merits the Court held that the petitioner’s self-induced detention through his non co-operation and inconsistent attitude are weighty considerations, as are the lack of ties between the petitioner and the UK, that he had exhausted all his statutory rights of appeal. Also considered was the factual history of his entry to the UK and criminal conduct whilst in the UK and the implication from that of a significant risk of absconding and re-offending. It therefore appeared reasonable to the Court to continue the Petitioner’s detention while these risks still obtain and while it still appears to be the case that co-operation on his part will lead to his speedy deportation.

The full report can be found here.