NAUSHAD MOHAMMED v. DIRECTOR OF IMMIGRATION

HCAL 1134/2022

[2022] HKCFI 3475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1134 OF 2022

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D E C I S I O N

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A. Introduction

1.  The Applicant has been held in immigration detention since 3 September 2021.  To the date of hearing, the period of immigration detention has lasted 441 days, or about 1 year 2½ months.  When the detention commenced, the detention was pursuant to a Removal Order issued on 12 January 2012.  Subsequently, on 28 October 2022, there was also issued against him a Deportation Order, pursuant to which his detention has continued until today.

2.  On 24 October 2022, the Applicant applied for a writ of habeas corpus on grounds identified in his supporting affirmation.

3.  On 25 October 2022, I gave directions to bring this matter to today’s hearing.  Directions were also given for the filing and serving of an ‘initial response’ by the Respondent.  Leave was also granted for the Applicant to file a reply, but none has been filed.

4.  At the hearing, the Applicant appeared in person (with the benefit of a Hindi interpreter).

5.  The Director was represented by Mr Jack Wong, Government Counsel, who signed the initial response/skeleton argument upon which he relied at the hearing.

6.  This is my Decision.

B.  Background Facts

B.1  Immigration Status

7.  The Applicant is an Indian national who has a long history of entanglement with Hong Kong’s immigration authority.  He first entered Hong Kong in 1994 using the identity of “Adbul Hakim” but was repatriated back to the India in the same year after having been convicted of breach of conditions of stay.

8.  From 1997 to 2000, he travelled to Hong Kong on multiple occasions using a second identity – “Shah Shahen” – and was eventually repatriated back to India again towards the end of that period.  He was convicted of theft and making false representation to the immigration authority, which charge arose from his using a different identity.

9.  But he returned to Hong Kong again in 2002, using a third identity – being the current identity as identified in the title of this action.  He was convicted of using a false travel document and making false representation to the immigration authority in 2011.  His last lawful entry was recorded on 4 June 2010 with his limit of stay last extended until 19 July 2010.  He was ordered to depart by 23 July 2010, but he did not do so and thus has been overstaying in Hong Kong since 24 July 2010.

10.  As said, he is the subject of both a Removal Order and a Deportation Order.  The Removal Order was issued on 12 January 2012 pursuant to section 19(1)(a), which authorizes issuance of such an order to a non-Hong Kong permanent resident who has been considered an undesirable immigrant.  The Deportation Order was issued on 28 October 2022 pursuant to section 20(1)(a)  which authorizes issuance of such an order to a non-Hong Kong permanent resident who has been found guilty of an offence punishable with imprisonment for not less than two years.

11.  I have already referred to some of the offences committed by the Applicant.  Including those occasions I have mentioned above, he was convicted on 8 occasions, on multiple counts of theft and immigration offences:

(1)  On 19 December 1994, he was sentenced for breach of conditions of stay and fined HK$2,000.

(2)  On 25 January 2000, he was sentenced for theft and fined HK$2,000.

(3)  On 31 January 2000, he was sentenced for making false representation to the immigration authority to 3 months’ imprisonment.

(4)  On 3 May 2011, he was sentenced for using a false travel document and making false representation to immigration authority to a total of 12 months’ imprisonment.

(5)  On 9 February 2015, he was sentenced for three counts of theft to a total of 12 months’ imprisonment.

(6)  On 6 February 2017, he was sentenced for theft to 3 months’ imprisonment.

(7)  On 22 August 2017, he was sentenced for theft to 6 months’ imprisonment.

(8)  On 6 July 2021, he was sentenced for theft to three months’ imprisonment.

12.  Besides criminal convictions, the Applicant also has multiple records of failing to report recognizance since he re-entered Hong Kong using his current identity.  From 2012 to 2014, he absconded for more than 2 years.  In 2016, he absconded for 5 months.  In 2017, he absconded for 3 months. From 2018 to 2019, he absconded for more than 1 year. On each occasion, he only resurfaced upon being arrested by the Police.  The reasons proffered for three of the absconding occasions was that he had no money for transportation and the other one was that he “went to hospital”.

B.2  NRC and JR

13.  The Applicant first lodged a torture claim in 2011 which was rejected by the Director in 2012.  After the Unified Screening Mechanism was implemented and grounds other than torture risk became available, the Applicant lodged a non-refoulement claim (“NRC”)  in 2015 on all applicable grounds other than torture risk.  The NRC was rejected by the Director in 2016.  The Applicant appealed to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”)  in 2017 and the Board dismissed the application on 13 July 2018 (“Board Decision”).

14.  On 23 May 2019, the Applicant sought leave from the Court of First Instance (“CFI”)  to judicially review the Board Decision.  By then, the application was about 7 months out of time.  The CFI dismissed the application on 30 September 2022.

15.  On 13 October 2022, the Applicant appealed to the Court of Appeal (“CA”).  On 10 November 2022, the Applicant applied for legal aid which triggered an automatic 42-day stay, that is until 21 December 2022 (unless the stay is otherwise lifted).  That is only just over one month from now.

B.3  Periods of Detention and Reviews

16.  Prior to the present detention, the Applicant was subject to immigration detention under various sections of the Ordinance on 7 occasions.  In 2011, he was detained for 14 days for inquiry and for determining if a removal order should be issued.  From late 2011 to early 2012, he was detained for 43 days for determining if a removal order should be issued and, after the Removal Order was issued, for detention pending removal.  From 2015 to 2018, he was detained for not more than 1 month pending removal every year during that period.  In 2019, from March to July, he was detained for about 4 months pending removal.

17.  The present detention, as said, commenced on 3 September 2021.  From 3 September 2021 to 11 October 2022, he was detained under section 32(3A)  pending removal.  Section 32(3A)  provides:

A person in respect of whom a removal order under section 19(1)(b)  is in force may be detained under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration pending his removal from Hong Kong under section 25.

18.  From 11 October 2022 to 28 October 2022, he was detained under section 29(1)  and then section 29(2)  for inquiring if a deportation order should be issued.  Section 29 provides:

(1)  If it appears to the Secretary for Security—

(a)  that there are reasonable grounds for inquiry as to whether a person ought to be deported under section 20; and

(b)  that such person should be detained for the purposes of or during such inquiry,

he may issue a warrant in the prescribed form authorizing the detention of such person for a period of 14 days.

(2)  If it appears to the Secretary for Security that it is desirable that a person detained under a detention warrant should be further detained—

(a)  for the purposes referred to in subsection (1);

(b)  for the purpose of inquiries into activities of that person which are prejudicial to the security of Hong Kong, being inquiries which in the opinion of the Secretary for Security should be conducted before the proceedings for the deportation of such person are completed; or

(c)  while proceedings for his deportation are completed,

the Secretary for Security may issue not more than 2 further warrants in the prescribed form authorizing the detention of such person for a further period of 7 days in each case.

19.  As already mentioned, the Deportation Order was issued on 28 October 2022. Since then, the Applicant has been detained pending deportation under section 32(3), which provides:

A person in respect of whom a removal order under section 19(1)(a)  or a deportation order is in force may be detained under the authority of the Secretary for Security pending his removal from Hong Kong under section 25.

20.  During the currency of the present detention, the Applicant’s detention has been reviewed 5 times, on 10 January 2022, 25 March 2022, 3 May 2022, 28 June 2022, and 7 November 2022.  On every occasion, continued detention was recommended.  The bases for continued detention are that (a) the Applicant’s removal is going to be possible within a reasonable time; (b) he poses or is likely to pose a threat or security risk to the community; and (c) he may abscond; and (d) he does not have close connection or fixed abode in Hong Kong; and (e) there are no other circumstances in favour of his release.

B.4  Steps towards Removal

21.  The obstacles standing in the way of removal or deportation are mainly (a) the Applicant’s extant JR proceedings arising from his NRC and (b) his expired passport which needs replacement.

22.  As for the JR proceedings, the Department of Justice (“DoJ”), on behalf of the Director had, by letter dated 2 June 2022, urged the courts to accord priority to the Applicant’s case and the CFI did dismiss the leave application on 30 September 2022.

23.  After the Applicant had applied to the Court of Appeal (“CA”)  to appeal against the CFI’s refusal, the DoJ, by letter dated 3 November 2022, had also written to request the CA to accord priority to the Applicant’s case.

24.  In respect of the expired Indian passport, it is noted that an Emergency Travel Certificate (“ETC”)  was once issued on 23 October 2019.  But the Director was not able to effect removal before the expiry of the ETC on 22 January 2020.

25.  In any event, since the commencement of the present detention, the Director has been in active liaison with the Indian Consulate.  The communication with the Indian Consulate regarding the Applicant’s return to India started on 9 September 2021, a few days after the present detention commenced.  But the process for obtaining a replacement travel document was less than smooth because the Applicant repeatedly refused to cooperate in going through the formalities, such as attending the Indian Consulate in person for identification verification and applying for travel document.  By letter dated 8 November 2022, the Director had made enquiries with the Consulate on alternative means to obtain a replacement travel document in light of his uncooperativeness.

C.  Applicable Principles

26.  In its Reasons for Judgment dated 29 July 2022 in Harjang Singh v Secretary for Security [2022] HKCA 781, the Court of Appeal addressed the principles to be applied in a case such as the present.  The case can be read for its full reasoning and explication of the correct approach, but at §164 the Court offered a summary of the principles which should be adopted and which can be applied as appropriate to the particular circumstances of this case.

27.  The summary is as follows:

(1)  The central question on an application for habeas corpus is whether there is, and continues to be, lawful authority for a detention.

(2)  An originally lawful detention may cease to be lawful if it continues for an unreasonable period in the particular circumstances.

(3)  What is a ‘reasonable time’ will therefore depend upon the circumstances of the particular case, taking into account all relevant factors.

(4)  The lawfulness of detention, or continuing detention, is subject to potential objective review by the Court.  But the review is not a review as to Wednesbury unreasonableness, or on other public law grounds.

(5)  Either continuing detention is reasonable and so lawful, or it is not.  Though the Court’s review involves an exercise of judgment and balance, that is not a discretionary decision.

(6)  Hence, the Court is the judge of, and the primary decision maker as to, the reasonableness of the detainee’s continued detention.

(7)  The burden of showing that detention is lawful lies upon the Secretary and Director.

(8)  The assessment will be made in line with the ‘Hardial Singh principles’, namely that:

(HS1)  the Secretary/Director must intend to deport the person and can only use the power to detain for that purpose;

(HS2)  the deportee may only be detained for a period that is reasonable in all the circumstances;

(HS3)  if, before the expiry of the reasonable period, it becomes apparent that the Secretary/Director will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; and

(HS4)  the Secretary/Director should act with reasonable diligence and expedition to effect removal.

(9)  Any relevant factor may affect the length of time of detention that might be regarded as reasonable.  Whilst in a specific case one or more factors may have especial weight, no factor is necessarily determinative.

(10)  A review of what might be regarded as a reasonable period of detention will include at least: (a) the length of the period of detention; (b) the nature of the obstacles which stand in the path of the Director preventing a deportation; (c) the diligence, speed and effectiveness of the steps taken by the Director to surmount such obstacles; (d) the conditions in which the detained person is being kept; (e) the effect of detention on him and his family; (f) the risk that if he is released from detention he will abscond (which may have the effect of defeating the deportation order); and (g) the danger that, if released, he will commit criminal offences.

(11)  It is helpful first to identify and have firmly in mind the period of detention to date, before balancing the various other factors and risks against that period.  This is because the weight to be given to the other factors and risks will vary as the period of detention increases in length.

(12)  Though it might seem attractive to set guideline periods or a red line (in terms of months or years)  applicable to all cases, as to the circumstances in which a lawful detention becomes unreasonable and hence unlawful, no such guidelines can be set. Indeed, any attempt to do so is unhelpful.  Reference to the facts of other cases is also likely unhelpful.

(13)  Nor would it be correct to think that the longer any period of detention, the greater the scrutiny that would be applied to it.  Every deprivation of liberty pending deportation requires proper scrutiny of all the facts, in accordance with the Hardial Singh principles, which are the sole guidelines.

(14)  The risks of absconding and reoffending are of critical and paramount importance in the assessment of the lawfulness of the detention.

(15)  This is because if a person absconds, it will defeat the primary purpose for which the power to detain has been conferred, and for which the detention order was made in the particular case.

(16)  However, a very careful assessment of the risk must be made in each case, as the magnitude and potential impact of that risk will vary according to the circumstances.

(17)  The risk of absconding is distinct from the risk of committing further offences, and not dependent on that further risk.

(18)  The risk of reoffending requires its own distinct assessment, by reference to both its likelihood and seriousness.

(19)  Neither risk can justify detention of any length, as that would permit indefinite detention.

(20)  The longer the detention, the greater the risk necessary to justify it.

(21)  The Court will rigorously scrutinise the Secretary/Director’s assessment of risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.

(22)  When assessing (a) the probability that removal can be effected at all and (b) the proximity of the time to removal, a real sense of the timescale likely to be involved must be identified to be able to qualify it as reasonable.

(23)  There must be a sufficient prospect of removal to warrant continued detention, having regard to and balanced against the weight of all other circumstances of the case.

(24)  As the period of detention gets longer, the greater the degree of certainty and proximity of removal would be expected to be required in order to justify continued detention.

(25)  On any appeal from a first instance decision of the Court, the appellate court will not interfere with the judge’s decision unless it can be shown that what is a difficult exercise of judgment is inconsistent with his findings of primary fact, or was based on an incorrect understanding of the law, or was one that was not sensibly open to him on the basis of those facts.  The leeway given to the first instance judge is not as a result of the view that he has made a discretionary decision, but rather as a reflection that the balancing exercise can be difficult.

D.  Applicant’s Submissions

28.  The Applicant exhibited to his affirmation 30-odd pages of hand-written notes together with copies of supporting documents.

29.  Central to his submissions appears to be the detention conditions in Tai Tam Gap Correctional Institution (“TGCI”)  – where has been detained since 9 December 2021.  He mentioned features of the TGCI most of which could also be found – in a verbatim manner – in other habeas corpus applications which have come before this Court recently.  He said TGCI is surrounded by a tall steel mesh fence.  Signage of the “Prison Ordinance” could be seen inside the institution.  There is CCTV, even in the bathroom and the shower areas. Detainees are subject to compulsory urine tests for detecting dangerous drugs. Detainees have to wear prison uniforms rather than their own clothes thus making them easily recognizable (as prisoner)  by the public when they attend hospitals or clinics.  When they are being escorted to the hospital, they are also chained to one of the escorting officers by a “chain leash” which is 3-feet long.  The code of discipline applicable to prisons is strictly enforced.  They could be sent to a separate confinement cell for 23 hours a day for minor breaches such as borrowing a book from another detainee to read.  The shower is not in their individual dormitories and they could only shower once a day.  It is not clear which conditions were personally experienced by the Applicant and which are only the general descriptions of the detention conditions inside TGCI.

30.  Following from the detention conditions inside TGCI he made the following points:

(1)  TGCI is a prison facility and he has been in effect treated or detained as a prisoner during his detention in the institution for no crimes.  He has already completed his prison terms for the crimes he committed, and he should not be further detained.  He relies on Article 14(7)  of the ICCPR which provides that “no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country”.  He also refers to Halsbury’s Law of Hong Kong, 2020 Ed., Vol. 1, §226, as support for the principle that the Court would release the applicant in an application for writ of habeas corpus when it becomes clear that the act for which a person is committed to prison is not a crime.

(2)  The treatment at TCGI, including for example the chaining of detainee to the escorting officer when they are taken to the hospital, is psychologically harmful, degrading and humiliating.  That amounts to a breach of Article 14 of the Hong Kong Bill of Rights.  Article 14(1)  provides that no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. He underlined that the treatments could amount to an attack on the detainees’ honour and reputation.

(3)  He has poor health.  He has long history of heart disease and mental problems.  His conditions are exacerbated by the detention conditions in TGCI.

(4)  He says the conditions of detention in TGCI amount to a breach of the “Nelson Mandela Rules” published by the United Nations (“UN”), a set of minimum standards for treatment of prisoners advocated by the UN.  He exhibited the excerpt of the Nelson Mandela Rules.  He drew attention to the Rule 47(1)  which says that the use of “chains, irons or other instruments of restrain which are inherently degrading or painful shall be prohibited”.  He also highlighted Rule 121, which provides that imprisonment which is not by order of a court as part of the criminal process should impose conditions on detainees no less favourable than untried prisoners.

(5)  He has committed no violent crimes and therefore there was no reason to keep him in TGCI (as opposed to Castle Peak Bay Immigration Centre (“CIC”))

(6)  He said it was wrong for the Director to claim that detainees’ treatment in TGCI is largely in line with those in CIC when in fact the conditions in TGCI are much less favourable.

31.  He has also raised the following, which, on their face, are not directly connected to the detention conditions at TCGI:

(1)  He referred to Article 28 and Article 41 of the Basic Law. Article 28 provides:

The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

He seems to suggest that he, whilst not a Hong Kong resident, is also entitled to the protection of Article 28 by virtue of Article 41, which provides:

Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter

(2)  TGCI is too crowded.  Detainees are “clustered” in a day room which had led to 9 detainees being infected with Covid-19 in September 2022.  The detention condition is not suitable, especially in light of his poor health. This is also against the Hong Kong Government’s Covid-19 restriction prohibiting gathering of more than 12 people.

(3)  He recognized that his criminal records are far from ideal but he promised to change his behaviour in the future.

32.  In the oral hearing, the Applicant made further submissions in a written document, which he asked to stand as his further points.  In it:

(1)  He sought to explain that he had not jumped court bail in December 2016.  What had happened was that he forgot his court date on 7 December 2016, and attended on 9 December 2016.  He was then arrested though his health was no good, and the court sent him to a mental hospital (Siu Lam)  for two weeks.

(2)  He said that since 2019 he had not absconded or jumped bail.

(3)  It is wrong to suggest that he had escaped from custody.

(4)  On 4 July 2021, he was again arrested for a theft offence and he had been detained since then.

(5)  He will never miss Immigration signing again.

(6)  He will follow all Immigration terms and conditions of recognizance.

(7)  He will also never do any crime again.

(8)  He has a guarantor, the name Hong Kong identity card number and telephone number of which he provided.

(9)  He is very, very sick.

(10)  He has been in Hong Kong for 30 years, and for the last 12 years with Immigration papers.

(11)  He asked, in conclusion, for the Court to give him a chance.

33.  I will bear in mind all these matters in my analysis below and mention them as appropriate.

E.  Merits of Application

34.  The central question for this habeas corpus application is whether the period of detention has become too long and thus unlawful by the time of assessment.  It is not for this Court to determine whether the Applicant should be allowed to stay in Hong Kong, which is the question to be answered in his NRC related proceedings.  It is also not for this Court to examine the detention conditions in their own rights to see if any public law challenge could be mounted.  That said, the conditions of detention are relevant in the current enquiry in that it is one factor against which the total length of detention must be balanced.

35.  As this Court has already set out in other decisions, the importance of the conditions of detention is not to be overlooked.  In assessing whether the period of detention has become too long, the Court has to balance (a) the gravity of any risks arising from release against (b) the deprivation of liberty.  The magnitude of the deprivation of liberty primarily turns on the length of the period of detention, but the conditions of detention are also a measure of how much a detainee has been deprived of his liberty.  The more severe the restraints placed upon the detainee, the deeper the intrusion into personal liberty.

36.  Mr Wong drew my attention to Schedule 1 of the Immigration (Places of Detention)  Order Cap 115B, which sets out some of the places for detention when a person is authorized to be detained under the Ordinance.  Item 1 of the Schedule 1 refers to

the sites and buildings from time to time set apart for the purposes of prisons under the Prisons Ordinance (Cap. 234)  and which are specified in the Schedule to the Prison Order (Cap 234 sub. Leg. B)

37.  TGCI is specified in the Schedule to Cap 234B.  Therefore, there was prima facie authority to detain the Applicant in TGCI pending his deportation.

38.  Thus, whilst I will not individually address any alleged breach of right arguments arising from the detention conditions in the context of this habeas corpus application – those arguments on their own are not capable of justifying why the present detention has become unlawful – I will bear in mind the detention conditions inside TGCI in my analysis below.

39.  The starting point is that there is an extant Removal Order and an extant Deportation Order both of which have remained in force at all times.  Thus, the detention of the Applicant under section 32(A)  and section 32(3)  of the Ordinance clearly provides prima facie lawful authority to detain the Applicant pending deportation.  So does section 29(1)  and section 29(2).  Whilst the Applicant has been detained in a prison facility, he was not committed to imprisonment, nor was he detained pursuant to any authority to imprison him.  The Applicant cannot rely on Article 14(7)  of the ICCPR or the relevant excerpts from the Halsbury’s Law of Hong Kong.

40.  Given that the detention was prima facie with lawful authority, the question raised by this application was whether the detention had become unlawful, as a result of the period of detention becoming unreasonable in all the circumstances – when looking at the Hardial Singh principles outlined above.

41.  For the Director, Mr Wong submitted that the detention of the Applicant had been reasonable at each stage, and throughout the entire 441 days.

42.  I accept that HS1 is satisfied, because the Director does intend to removal or deport the Applicant and is only using the power to detain for those purposes.  Whilst the Applicant had already applied for leave to challenge the Board Decision before the detention commenced on 3 September 2021, that was an application 7 months out of time.  The Director has kept in view the progress of (and apparent lack of merits in)  the JR application, and urging the Court to accord priority.  The leave was rejected by the CFI on 30 September 2022.  Although the Applicant has lodged an appeal to the CA on 13 October 2022, given the apparent lack of merits of the application, it is also not unreasonable to expect that the appeal could be resolved fairly soon. Active steps were also taken to remove the other obstacle to deportation – his expired passport.  Alternative means to obtain a replacement travel document had been explored in view of his uncooperativeness.

43.  HS4 is also satisfied, in that the Secretary has acted with reasonable diligence and expedition to effect removal, evident in efforts in urging the Court to accord priority to the Applicant’s JR proceedings and to obtain a replacement travel document.

44.  I also acknowledge – as suggested by the Director – that considerable weight is to be placed on the Applicant’s criminal history and absconding record as factors favouring continued detention.  The convictions include 7 counts of theft which are serious crimes.  I would give very little weight to the Applicant’s submissions that the crimes he committed was not violent in nature.  Against the history, the risk of further offending is certainly not low, and the potential gravity of offences if committed is also not low.  I would also give due weight to his multiple records of absconding (even ignoring the occasion in December 2016), all of which lasted for months or even years until he was arrested by the Police.  There is a real risk of absconding if he is released on bail, which would frustrate the very purpose of detention.  I also note that the Applicant’s previous use different identities might if adopted in future only add to the difficulties in locating him if he were to abscond.

45.  With respect to his JR proceedings, I note that in [2022] HKCFI 3006, the Court found no merits in the intended JR since the Applicant’s so called grounds were only broad and vague phrases with no particulars or specifics, nor were there explanations as to how the Board or Director had erred in their decisions.  The Court also refused to grant an extension of time for the “extremely substantial and inordinate” delay of 7 months.  In the Notice of Appeal, the ground of appeal put forward by the Applicant is that the CFI reached the decision without giving him the “opportunity to clarify my case and the situation in my country”.  Given the apparent lack of merits, I would expect CACV 410/2022 to be disposed of fairly quickly.

46.  I would also agree with the Director that relatively little weight should be given to the on-going JR proceedings.  As said, the application lacks apparent merits and seems to be a self-imposed obstacle to removal (and hence release).  Further, any delay in obtaining a replacement travel document is also self-imposed by the Applicant’s choice not to cooperate.

47.  I bear firmly in mind that the period of detention is substantial – 441 days – and the deprivation of liberty has been exacerbated by the perhaps rather stringent detention conditions.  But, on balancing all the factors, and after careful consideration of all the circumstances, I think HS2 and HS3 are satisfied.

F.  Result

48.  For the above reasons, I dismiss the application.

49.  I make no order as to costs.