HARJANG SINGH v. SECRETARY FOR SECURITY AND ANOTHER

CACV 183/2021

[2022] HKCA 781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 183 OF 2021

(ON APPEAL FROM HCAL NO 224 OF 2021)

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REASONS  FOR

JUDGMENT

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Hon Coleman J (giving the Reasons for Judgment of the Court):

A.   Introduction

1.  The question in this case was: when does a period of originally lawful administrative detention become unreasonable, and so unlawful?

2.  The question arose in an appeal from the decision of Chow J (as he then was) given on 19 March 2021, [2021] HKCFI 705 (“Judgment”), refusing the Applicant’s applications for (1) leave to apply for judicial review and (2) a writ of habeas corpus, in relation to his being held in immigration detention pending his removal from Hong Kong.

3.  It is worthy of note that by the date of the appeal hearing on 7 December 2021, the Applicant had spent 1,208 days – namely almost 3 years and 4 months – in continuous administrative detention.  Even by the date of the hearing before Chow J, the Applicant had already spent some 2 years and 6 months in continuous administrative detention, which the Judge recognized to be “undoubtedly a very substantial period of time”.

4.  On the appeal, the Applicant was represented by Mr Timothy Parker and Mr Josh Baker of Counsel.  The respondents to the appeal were the Secretary for Security (“Secretary”) and the Director of Immigration (“Director”), and they were represented by Ms Leona Cheung and Mr Sunny Li from the Department of Justice.

5.  At the end of the hearing, we allowed the appeal. We ordered the Applicant to be released from detention under RHC Order 54 rule 4 and/or the inherent jurisdiction, on terms of recognizance acceptable to the Director, with the Applicant’s costs of the appeal and below to be paid by the respondents to be taxed if not agreed.  We said we would hand down our reasons later.

6.  These are our Reasons for Judgment.

7.  These Reasons for Judgment are being handed down at the same time as the Judgment in another appeal, heard by a differently constituted Court, in CACV 215/2021 [2022] HKCA 779.

B.   Background

8.  The Judgment below, at §§7-37, contains an account of the relevant background facts and procedural steps which we adopt with modifications and set out as follows.

9.  The Applicant is an Indian national born on 15 January 1973.  He came to Hong Kong with his mother as visitors in March 1991 and they applied for residence after their arrival.  In August 1991, they were allowed to remain in Hong Kong as dependants of the Applicant’s elder sister, a Hong Kong resident.  The Applicant’s mother has since acquired Hong Kong permanent resident status.  The Applicant was last permitted to remain in Hong Kong with a limit of stay until 28 April 1999.

10.  According to the Applicant, his eldest brother died in December 1991 leaving a wife (Ms Kulwinder Kaur) and two children.  The Applicant says that in 1994, while he was visiting India, he was forced by two elder brothers to marry his widowed sister-in-law.  The Applicant later returned to Hong Kong.

11.  Between 1994 and 2000, the Applicant was convicted of the following offences:

(1)  on 3 June 1994, (i) making a false instrument with intent, contrary to section 71 of the Crimes Ordinance, and (ii) attempted theft contrary to section 9 of the Theft Ordinance and section 159G of the Crimes Ordinance – he was sentenced to a total of 4 months’ imprisonment suspended for 18 months;

(2)  on 7 October 1996, wounding or inflicting grievous bodily harm, contrary to section 19 of the Offences against the Person Ordinance – he was sentenced to the Detention Centre;

(3)  on 3 November 1999, wounding with intent, contrary to section 17 of the Offences against the Person Ordinance – he was sentenced to 3 years’ imprisonment; and

(4)  on 8 May 2000, (i) doing an act tending and intended to pervert the course of public justice, contrary to common law, and (ii) wounding with intent to do grievous bodily harm, contrary to section 17 of the Offences Against the Person Ordinance – he was sentenced to a total of 2 years’ imprisonment.

12.  The Applicant alleges that his convictions referred to in 10(2), (3) and (4) above were related to or arose from his forced marriage in 1994.

13.  On 16 July 2003, the Applicant completed his prison term and was transferred to Victoria Prison for detention under section 29(1) of the Immigration Ordinance Cap 115 (“Ordinance”).

14.  By reason of the criminal convictions mentioned in §10(3) and (4) above, the Permanent Secretary for Security issued a deportation order for life dated 22 July 2003 (“Deportation Order”) against the Applicant pursuant to section 20(1)(a) of the Ordinance, which permits a deportation order to be made against an immigrant if “the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years”.  The Deportation Order required the Applicant to leave Hong Kong and prohibited him from being in Hong Kong at any time thereafter on the grounds that, amongst other things:

(1)  the Applicant was not a Hong Kong permanent resident; and

(2)  the Applicant had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years.

15.  Authorization was also given for the Applicant’s detention under section 32(3) of the Ordinance on 22 July 2003.

16.  On 16 December 2003, the Applicant’s application to rescind the Deportation Order was refused.  A further application to rescind is pending but the Deportation Order remains in force to date.

17.  On 10 May 2004, the Applicant lodged a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.

18.  On 12 November 2004, the Applicant was released on recognizance.  He was later paid about $100,000 in compromise of an unlawful detention claim in respect of the period from July 2003 to November 2004.

19.  In around 2011, while on recognizance, the Applicant committed and was convicted of the offence of possession of offensive weapon, contrary to section 17 of the Summary Offences Ordinance.  He was sentenced to 4 months’ imprisonment suspended for 2 years on 15 April 2011.

20.  On 31 December 2012, the Applicant’s torture claim was rejected by the Torture Claim Assessment Section of the Immigration Department.  On 26 March 2013, his appeal against the rejection of his torture claim was dismissed by the Torture Claims Appeal Board (“Board”).

21.  On 29 April 2013, the Applicant made a non-refoulement claim on the grounds of cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights.  This claim was subsequently assessed as a non-refoulement claim based on all applicable grounds apart from torture.

22.  On 20 April 2016, the Applicant married a Hong Kong permanent resident (“Ms Wong”) in Hong Kong, and became the step-father of Ms Wong’s daughter (born September 2002) who is also a Hong Kong permanent resident.

23.  On 17 July 2017, the Applicant was convicted of the offence of blackmail committed on 15 June 2016, contrary to section 23(1) and (3) of the Theft Ordinance.  On 16 August 2017, he was sentenced to 3 years’ imprisonment.  The conviction and sentence were subsequently upheld by the Court of Appeal on 17 December 2019, [2019] HKCA 1439.

24.  The Applicant obtained full remission of his sentence for good behaviour while in prison and was released on 17 August 2018, whereupon he was transferred to the Immigration Department and detained at Castle Peak Bay Immigration Centre under section 32(3) of the Ordinance pending his removal from Hong Kong, where he was from then continuously held in custody.

25.  As mentioned above, the Director treated the Applicant’s claim for non-refoulement protection as a claim under all applicable grounds (except the risk of torture which had already been assessed and rejected), and processed the claim under the United Screening Mechanism.  A screening interview of the Applicant was scheduled for 19 September 2018 but did not take place because he insisted that the interview be conducted with the assistance of a Punjabi interpreter from India, instead of someone from Pakistan as arranged.  No further screening interview of the Applicant was eventually conducted.  The Director assessed the claim based on the available information before him, and rejected it by Notice of Decision dated 26 September 2018.

26.  In the meantime, on 24 September 2018, the Applicant made a habeas corpus application to the court in HCAL 2025/2018. The application was heard on 28 September 2018 and rejected by Chow J on 2 October 2018, [2018] HKCFI 2234.

27.  On 4 October 2018, the Applicant, with the assistance of the Duty Lawyer Service, lodged a Petition (“Petition”) to the Board (which also serves as the Non-refoulement Claims Petition Office under the Unified Screening Mechanism (“USM”)) against the Director’s decision of 26 September 2018 rejecting his non-refoulement claim.

28.  On 28 November 2018, the Director informed the Board that the Applicant was under detention and requested the Board to accord priority to the Petition.  On 30 November 2018, the Board informed the Director that it was aware of the urgency of the matter and had decided to expedite consideration of the Petition.

29.  On 17 December 2018, the Board gave notice to the Applicant and Director that the Petition would be heard on 11 February 2019.

30.  At the hearing before the Board on 11 February 2019, the Applicant (through his counsel) sought an adjournment on the grounds that (i) he did not have sufficient time to go through the hearing bundle, and (ii) he wished to gather further evidence from his friends in India to support his non-refoulement claim.  The Board granted an adjournment and re-fixed the Petition for hearing on 20 May 2019.

31.  On 28 March 2019, the Applicant applied for a dependant visa, with Ms Wong as his sponsor.

32.  On 10 May 2019, 10 days before the re-scheduled hearing of the Petition, the Applicant’s Duty Lawyer (counsel Mr H Y Wong) wrote to the Board to lodge further evidence gathered during the adjournment and to seek a further adjournment for 3 months on the ground that the Applicant needed more time to gather evidence in India. By a letter dated 16 May 2019, the Board allowed the application to adjourn, but also made it clear that the adjournment would be the “final” one that would be granted to the Applicant for him to prepare for the hearing, and that a new hearing date would be fixed having regard to the availability of a suitable interpreter and in consultation with counsel’s diaries.

33.  On 29 May 2019, the Applicant made a second habeas corpus application in HCAL 1540/2019.  That application was heard on 3 June 2019, and rejected by Chow J on 6 June 2019, [2019] HKCFI 1486.  The Applicant lodged an appeal against that decision in CACV 312/2019, but later expressed he no longer wished to pursue it. At the hearing before us, the Applicant agreed that that appeal might be formally dismissed with no order as to costs.

34.  On 18 July 2019, the Board directed that the hearing of the Petition was to take place on 12 September 2019. The hearing took place as scheduled.  On 7 November 2019, the Board dismissed the Petition.  On 31 December 2019, the Applicant filed an application in HCAL 3895/2019, seeking leave to apply for judicial review of the Board’s decision (“JR Application”).

35.  The Applicant applied for legal aid for those proceedings but was refused.  His appeal against refusal of legal aid (LAA 159/2020) was originally scheduled for hearing on 28 August 2020, but, following the filing of a notice to act by Mohnani & Associates in that matter and a letter to the Legal Aid Department on the merits of the JR Application, the hearing was adjourned at the instance of the Legal Aid Department.  As at the date of Chow J’s Judgment below, no date had been rescheduled for the hearing of the legal aid appeal.

36.  On 11 December 2020, the Department of Justice wrote to the court to enquire when the JR Application would be heard, and requested the court to accord priority to the case.  On 15 December 2020, the Registrar of the High Court gave notice to the parties that the JR Application would be heard on 29 December 2020.  On 21 December 2020, Mohnani & Associates, on behalf of the Applicant, wrote to the court seeking an adjournment of that hearing, on the ground that the Applicant had an outstanding legal aid appeal.  On 28 December 2020, the Department of Justice wrote to the court stating that whether the date for the hearing of the JR Application should be vacated was a matter in the court’s discretion.  On the same date, Deputy High Court Judge P Li made an order vacating the hearing date of the JR Application scheduled for 29 December 2020, and directed the Applicant to inform the court of the result of the legal aid appeal (once it was known).

37.  Throughout the period since the date of the Applicant’s detention under section 32(3) of the Ordinance, the Applicant, either by himself or through his lawyers or other persons, had made many applications to the Director for him to be released on recognizance.  It is not necessary to set out the details of all those applications or the Director’s responses, save to mention that the applications had not been successful.

38.  There had also been periodic reviews of the Applicant’s detention by the Permanent Secretary for Security (13 times) and/or the Director (31 times) between 27 September 2018 and 3 March 2021. Details of those periodic reviews were set out in the evidence.  (The detail of a review process will be considered below.)  It would appear that the Director’s main concern about the release of the Applicant from detention related to the risks of re-offending and/or absconding, having regard to the following matters:

(1)  the Applicant has 8 criminal convictions in Hong Kong, including 2 convictions after the issuance of the Deportation Order against him;

(2)  while being released on recognizance, the Applicant committed and was convicted of the offences of possession of offensive weapons and blackmail for which he was sentenced to 4 months’ imprisonment (suspended for 2 years) and 3 years’ imprisonment respectively;

(3)  the Applicant had failed to comply with the reporting condition under his recognizance since 13 July 2016 until he was arrested by the police on 17 August 2016;

(4)  his failure to comply with the reporting condition under his recognizance in 2016 was shortly after his marriage to Ms Wong in Hong Kong; and

(5)  the offence of blackmail of which the Applicant was convicted was a very serious offence in itself.

39.  On 24 February 2021, the Applicant filed the application for leave to apply for judicial review in the proceedings below, HCAL 224/2021.  The relief sought included an order that the Applicant be released from detention under Order 54 rule 4 or alternatively an order that the writ of habeas corpus ad subjiciendum do issue under Order 54 rule 2(1), a declaration that his detention has been unlawful since 7 June 2019 or sometime thereafter, and damages.

40.  Six grounds were advanced in the Form 86. By agreement, only the application for release from detention, encompassing the application for a writ of habeas corpus, based on the first two grounds of review (corresponding to the second and third Hardial Singh principles – HS2 and HS3 – referred to and defined below), was argued before the Judge at a hearing on 12 March 2021.  The Judge dismissed that application on 19 March 2021, by the Judgment the subject of this appeal.  The parties were given liberty to apply for directions for the remainder of the application for judicial review (and those matters were not the subject of this appeal).

41.  On 15 April 2021, the Applicant filed a Notice of Appeal against the Judgment.  Unfortunately, because his application below was in the form of an application for leave to apply for judicial review, there arose an issue between the Applicant and the Appeals Registry as to whether the appeal was lodged in time – since an appeal against refusal of leave to apply for judicial review has to be brought within 14 days, whereas an appeal against refusal of a writ of habeas corpus can be brought within 28 days.  Despite that directions were eventually given in July 2021 for the appeal to be fixed for hearing with an early date, it only came before this court on 7 December 2021.

42.  After the Judge gave his Judgment below, the Applicant’s legal aid appeal was fixed for hearing, and dismissed on 10 June 2021. The JR Application was originally fixed for hearing on 22 November 2021, but an adjournment (of no more than one month) was granted because the Applicant’s counsel (who was neither Mr Parker nor Mr Baker) was indisposed.

43.  From enquiries we have made, we understand that the adjourned hearing was re-fixed for 24 December 2021. Unfortunately, the Appellant’s counsel was still unable to attend on that date (having just been hospitalised), and the JR Application was again adjourned to a date to be fixed.  It further appears that despite instructions to new counsel, and the provision of his available dates, no hearing has yet been re-fixed.

C.   Outline of the Legal Framework

44.  The purpose of an application of habeas corpus is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice; those are matters properly within the realm of judicial review.  Rather, the central question is whether there is, and continues to be, lawful authority for a detention.

45.  The Deportation Order was made against the Applicant under section 20(1)(a) of the Ordinance.  Section 25 provides for the detailed steps for removing a person subject to a deportation order (or a removal order) from Hong Kong.

46.  Section 32(3) of the Ordinance confers authority for the detention of such a person pending removal in these terms:

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.

47.  Though not directly relevant for present purposes, it can be noted that a similar provision can be found in section 32(3A):

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.

48.  Subsections 32(3B), (3C) and (3D) identify that:

(1)  “pending removal” includes awaiting a response from relevant authorities outside of Hong Kong for approval to remove the person to that place;

(2)  though that should not be interpreted as giving authority to detain a person for a purpose other than pending his removal from Hong Kong; and

(3)  that does not prevent a court, when applying subsection (4A), from determining that a person has been detained for an unreasonable period.

49.  Further, although the provision as amended was not in force at the time the Judge gave the Judgment below, a statutory amendment effective from 1 August 2021 expanded section 32(4A) of the Ordinance, to stipulate further circumstances under which the length of detention would be considered as reasonable and lawful.  Subsection 32(4A) provides as follows:

(4A)  The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances that justify its length, including, in the case of a person being detained pending removal from Hong Kong—

(a)   whether the number of other persons pending removal from Hong Kong is such that it is reasonable to take the time it is taking, or has taken, to remove the person;

(b)   whether the manpower and financial resources allocated for the removal of persons from Hong Kong under this Ordinance are such that it is reasonable to take the time it is taking, or has taken, to remove the person;

(c)   the extent to which it is possible to make arrangements to effect the person’s removal;

(d)   whether the person’s removal is directly or indirectly prevented or delayed by any action or lack of action of the person, including the person not obtaining, or not providing assistance to obtain, any authorization from the relevant authorities of a place outside Hong Kong that is required for the person’s entry to that place;

(e)   the time required for the issue of the authorization referred to in paragraph (d);

(f)   whether the person poses, or is likely to pose, a threat or security risk to the community; and

(g)   factors that directly or indirectly prevent or delay the person’s removal that are not within the control of the Director.

50.  It is common ground that the purpose of the amendment is to conform to the Hardial Singh principles (see below), and to enhance transparency and unequivocal legal support to immigration officers in considering and determining the appropriate detention period.

51.  An initially lawful detention may be turned into an unlawful detention if it fails to meet the ‘Hardial Singh principles’ set out in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as summarised in R(I) v Secretary of State for the Home Department [2003] INLR 196 at §46, and adopted by Ribeiro PJ in Ghulam Rbani v Secretary for Justice for and on behalf of the Director of Immigration (2014) 17 HKCFAR 138 at §23.

52.  The Hardial Singh principles are broken down into the following four points:

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

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

(3)  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 (“HS3”);

(4)  The Secretary/Director should act with reasonable diligence and expedition to effect removal (“HS4”).

53.  The burden of demonstrating the detention (and the continuation of it) is lawful rests on the respondent to the application for habeas corpus.

54.  There is no ‘red line’ applicable to every case in terms of months or years, beyond which time for detention becomes unreasonable. What is a ‘reasonable time’ will depend upon the circumstances of a particular case, taking into account all relevant factors.

55.  It is settled that a review of what might be regarded as a reasonable length or period of the 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.

56.  As to the last factor of the chance that the deportee may reoffend if released, of particular importance is not simply the mathematical chances of reoffending, but the potential gravity of the consequences to the public of reoffending if it were to occur.

57.  That list of factors is not, of course, exhaustive.  Any relevant factor may affect the length of time of detention that might be regarded as reasonable, and no factor is necessarily determinative.  Indeed, even where there is a high risk or even inevitability of reoffending and/or absconding, nevertheless there may still be circumstances in which release of a deportee is required.

58.  The alternative to detention is release on recognizance under section 36(1) of the Ordinance, which provides:

An immigration officer and any police officer may require a person –

(a)  who is detained under section 27, 32, 34, or 37ZK; or

(b)  who, being liable to be detained under any of those sections, is not for the time being so detained,

to enter into a recognizance in the prescribed form in such amount, with such number of sureties and subject to such conditions as the immigration officer or police officer may reasonably require or impose; and where a person who is so detained enters into such a recognizance he may be released.

59.  It can also be noted that it is an established policy that the Immigration Department will not seek to remove a person who has a pending non-refoulement claim including an appeal/petition to the Board. Further, the Director will suspend the removal if court proceedings have commenced, or if he knows that court proceedings are about to commence.

60.  We will consider the application of these broad principles in further detail below.  But it is helpful first to consider the approach adopted by the Judge.

D.   The Judgment Below

61.  As already stated above, the Judge focused in the Judgment below on the two grounds relating to: (1) whether the Applicant had been detained for an unreasonable period of time (HS2); and (2) whether removal could be affected within a reasonable time (HS3).

62.  In his assessment of whether the Applicant’s detention in the present case had gone on for an unreasonable period of time (HS2), the Judge considered the following matters to be relevant.

63.  First (at §48), he thought it clear from the history that the removal of the Applicant from Hong Kong (subject to the resolution of his outstanding non-refoulement claim) had been substantially delayed by the Applicant’s repeated applications to adjourn the hearings of the Petition and JR Application – and the Judge set out some of the timetable.

64.  Second (at §49), the Judge accepted the Secretary/Director’s assessment that if the Applicant were to be released, he may abscond and/or reoffend, and pose a threat or security risk, even though the risk of absconding may be somewhat mitigated by the existence of family connections in Hong Kong.  The Judge expressed the view that “the risk of reoffending of a serious nature is not low”, given the number of serious criminal offences in Hong Kong that the Applicant has committed and been convicted of over the years since he first came to Hong Kong, including offences committed while he was on recognizance.

65.  In that connection, he described (at §50) Mr Parker’s submission that the purpose of immigration detention is to effect removal, not to protect the public as “over-simplistic”.  Referring to previous authority, the Judge stated that (1) a propensity to commit serious offences is a risk the purpose of the deportation order seeks to protect the public from, and so must be a relevant consideration when determining the reasonableness of detention pending removal, and (2) the risks of absconding and reoffending are always of paramount importance, since if a person absconds he will frustrate the deportation for which purpose he was detained in the first place.

66.  Third (at §51), the obstacle which stands in the path of the Secretary/director preventing the Applicant’s removal was his outstanding JR Application.  But, as earlier noted, the Judge again noted that the Applicant was responsible for at least part of the delay towards final resolution of his non-refoulement claim.

67.  In his consideration as to whether removal could be effected within a reasonable time (HS3), the Judge dealt with this ground briefly.  In essence, the Judge thought the JR Application was ready to be heard and that the legal aid appeal would come on soon.  But, in order to avoid any further delay, he directed a copy of the Judgment to be sent to the Registrar and for the JR Application to be fixed for hearing as soon as the Applicant’s legal aid appeal shall have been determined, with an earliest practical date being given for the hearing of the JR Application.

68.  In response to Mr Parker’s submission that it is logically impossible to say that removal is possible within a reasonable time when the Director has not attempted to identify, even by way of an estimate or range, when the Applicant is likely to be removed, the Judge stated that it was not necessary to pinpoint a specific date or range of dates on which the Applicant is likely to be removed before one can conclude whether it is possible for the Applicant to be removed within a reasonable period of time.  Given the directions he had made, he saw no reason why the legal aid appeal and the JR Application could not be disposed of within a reasonable period of time.

69.  The Judge’s conclusion was that he thought it reasonable to take the view that, subject to the outcome of the JR Application, the Applicant could be removed before the expiry of a reasonable period of detention, and in any event it had not become apparent that the Secretary/Director would not be able to effect removal within that reasonable period.

70.  Though it forms no real part of our consideration, it may be noted from the more recent part of the chronology set out above that the Judge’s intended acceleration of the process was unfortunately not achieved.

E.   The Argument

71.  In the Notice of Appeal and written skeleton argument, the Applicant raised the following broad grounds of appeal:

(1)  Ground 1 (HS2): There was unreasonably long detention, bearing in mind (a) the Applicant had no “responsibility” for detention in maintaining his non-refoulement claim, and (b) there was insufficient risk to justify such lengthy detention.

(2)  Ground 2 (HS3): The Judge failed to give proper consideration to whether removal can be effected within a reasonable time when (a) he did not take into account the very long time that the Applicant had already spent in detention and (b) no concrete assessment was made as to when the Applicant might actually be removed.

(3)  Ground 3: The factors informing how long a period is reasonable for HS2 and HS3 purposes includes the effect of detention on the detainee’s family, but the Judge failed to give any reasons why he was not prepared to attach much weight to the factors in this case, including the numerous character references.

72.  In his oral submissions, Mr Parker sought to address the grounds by way of three main questions of principle, which he identified as follows:

(1)  what significance, if any, attaches to steps taken by the Applicant that have lengthened the procedures in the other proceedings, i.e. the non-refoulement proceedings, bearing in mind the Judge’s reliance on a number of adjournments which the Applicant sought? (“Adjournment Issue”)

(2)  is the likelihood and seriousness of the Applicant’s reoffending risk capable of justifying a period of detention this long? (“Reoffending Issue”); and

(3)  when evaluating whether removal can be achieved within a reasonable time, how much certainty is required about the probability of removal and its proximity? (“Time for Removal Issue”).

73.  The first two questions arise primarily under HS2, and the third question under HS3.

74.  In her oral submissions, Ms Cheung helpfully addressed those same points.  We also accept it is convenient to address those questions, and will do so below.

F.   Reasonable Period

75.  But Mr Parker first submitted that the strongest point in favour of the Applicant was the length of the detention to date; the nearly three years four months’ length of detention is exceptionally long even before adding in the further 16 months of detention served in 2003 and 2004.  By way of telling calculation, Mr Parker suggested that that period of detention would be approximately 5% of the average lifespan of a male.

76.  As already stated, the burden of justifying the period of detention, both in law and in fact, rests on the respondents.

77.  In many, if not most cases, it may not be possible to predict accurately in advance the date on which continued detention would become unlawful by being unreasonable.  Of course. there may be cases where something happens and it is possible to say that from that point on continued detention is unlawful.

78.  But there may be other cases – we would think the majority of cases – where the line is not so clear-cut. However, in some cases one might well be able to say that, by now, looking backwards, the period of detention must have become unreasonable.

79.  An assessment under HS3 inevitably has some predictive element, but an assessment under HS2 is essentially backward looking.  Even then, it may not be possible to pinpoint the date when unreasonableness occurred, though it might be possible to identify that unreasonableness must have occurred at some prior time, whenever that was.

80.  In a detention damages claim, it may be necessary to identify the relevant commencement of the unreasonableness, though it may be necessary to take a relatively broad brush and not entirely scientific approach – unless there is some obvious change of circumstances.  But in every case, how long is too long and unreasonable is a question of judgment, where reasonable minds may differ to some extent.

81.  Where the matter comes before the Court by way of an appeal, the primary focus on the appeal is by reference to the events as at the date of the first instance judgment.  But, we accept that where the liberty of the subject is concerned, there is a strong argument that in an appropriate case it may necessary to consider the position even up to the date when the appeal is heard.  Therefore, even if the view were to be taken that at the date of the hearing before the first instance Judge the detention had not become unreasonable, but by the date of the appeal it had become unreasonable, the correct thing to order would be the release of the applicant.  The Court of Appeal has the powers of the court below.

82.  But in this case, the primary submission made by Mr Parker was that the line had already been crossed by the date of the first instance hearing.  We agree.

G.   The Adjournment Issue

83.  The question arises as to how the Court makes a qualitative assessment of the time taken in the non-refoulement proceedings, including as to any delay caused by adjournments.

84.  Useful reference can first be made to R (WL)(Congo)) v Home Secretary [2012] 1 AC 245 (“Lumba”) at §103, §111ff and the conclusion at §121.  At §103, in setting the scene for consideration, Lord Dyson JSC said:

103.     A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place.  As I said at para 47 of my judgment in I’s case, there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention.  I deal below with the factors which are relevant to a determination of a reasonable period.  But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.

85.  At §104, he set out a non-exhaustive list of the circumstances that are or may be relevant to the question of how long it is reasonable to detain a person pending deportation.  One of the matters is the nature of the obstacle standing in the path of deportation.  At §105, he identified that the nature of the obstacle might include consideration of the relevance, if any, of delays attributable to the fact that a detained person is challenging the decision to deport him by appeal or judicial review, and will generally not be deported until his challenges have been determined.

86.  Under the heading ‘Delay attributable to challenges to deportation’, Lord Dyson JSC began that specific consideration at §111.  He noted the submission of Counsel for the Secretary that time taken to resolve legal challenges brought by an individual against deportation should generally be left out in considering whether a reasonable period of detention has elapsed.  Lord Dyson termed this the ‘exclusionary rule’.  In the following paragraphs, he noted various difficulties with the exclusionary rule, and he rejected the in terrorem argument that, unless the exclusionary rule applies, detained persons will be able to procure their release from detention simply by pursuing hopeless legal challenges.  At §120, Lord Dyson stated that it is neither undesirable nor unduly difficult to identify hopeless or abusive challenges, for which time taken would be given minimal weight.  We agree, and we also point to the statutory mechanisms to curb unmeritorious appeals and renewed applications.

87.  The conclusion was expressed in §121:

121.  To summarise, I would reject the exclusionary rule.  If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances.  On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person.  Indeed, Mr Husain [Counsel for Mr Lumba] does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or reoffending, which would compel an appellant’s release if the appeals process lasted a very long time through no fault of the appellant.  He submits that the weight to be given to time spent detained during appeals is fact-sensitive.  This accords with the approach of Davis J in Abdi and I agree with it.  The risks of absconding and reoffending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place.  But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.

88.  We agree that the exclusionary rule should not be applied.  Time in administrative detention is not somehow to be discounted or excluded because it has been spent pursuing claims resisting removal.  Indeed, HS2 is a principle applied because of the recognition that individual liberty is precious (rather than intended to reflect some concept that would bite only when the respondents are thought ‘responsible’ for the time taken to effect removal).

89.  Rather, some assessment should be made (though necessarily fairly broad brush and on a preliminary basis) as to the apparent merits of the challenge to deportation or claim to non-refoulement protection.  Unless the Court considers the challenge to be hopeless, frivolous or abusive or there is some special reason, so that it can accord minimal weight to the time taken for determination of that challenge, the Court will be unlikely to ‘discount’ the period taken for determination of the challenge.  Instead, that period will be taken into the overall consideration of reasonableness.

90.  But the specific point arising on this appeal relates to those parts of the period taken for determination of the challenge which arise from adjournments, and specifically from adjournments sought and obtained on the application of the detainee.

91.  Mr Parker submitted that the matter of adjournments in the non-refoulement claim was a subsidiary or anterior point at best.  Yet it was clearly viewed as being important, where the Judge mentioned it first and twice, both as his first and his third point on the HS3 assessment: see above.

92.  Some qualitative assessment may be required to deal with time taken by adjournments.  First, it would be necessary to decide whether any real or substantial delay to the process has actually been caused. If so, the question then arises as to how to treat any period of delay found.  For example, if the period of delay is four months, should it be ignored altogether as contributing to the period of detention, or does it just come into the overall consideration in some way, with some particular weight to be given in the particular context of the case?

93.  We accept that adjournments are or may be simply part of the tribunal or Court process, so that reliance on the mere fact of adjournment would be wrong in principle.  It may be appropriate for adjournments to be considered if, on the facts, the applications were seen to be unreasonable or bound to fail or time-wasting, seen individually or as a whole.  But, if that is not the position, then it would be improper to take them into account against the detainee.

94.  On the evidence relating to the reviews of detention in this case, there was no suggestion about delay arising from adjournments in the non-refoulement proceedings.  During the reviews, neither the Director nor the Secretary considered that the period of detention was made (or in part made) reasonable or justified by reason of any supposed delay in the Applicant’s non-refoulement claim or the JR proceedings.  Indeed, that the point on adjournments was not one relied on by the respondents until the hearing before the Judge, identifies why there were no materials before the Judge (or before us) to support such an assessment.

95.  In this case, the Judge found only that the Applicant had applied for and obtained adjournments, but did not find that they were unjustified or unwarranted.  Whilst the Judge observed that the Applicant’s application for Legal Aid had caused a delay in the JR proceedings, he did not find the application was improper or an abuse, nor that the JR proceedings themselves were hopeless or frivolous.

96.  Ms Cheung submitted that it was a matter for the Judge how relevant the time attributable to the Applicant’s case (and the various adjournments) is when assessing reasonableness.  She submitted that the Judge commented on the adjournments, but without criticism, and took them into account in a holistic assessment of all the circumstances, which was the correct approach.  Ms Cheung pointed also to the 1-page ‘homemade’ Form 86, and that whilst there had been the suggestion of an amendment there was no proper summons to amend.  As to that point, Mr Parker showed us the draft amended Form 86, which has been produced.  But, as to the first point, it is correct that the Judge merely commented on the adjournments without specific criticism, though the fact was plainly important when he assessed continuing reasonableness of detention.

97.  On the limited evidence available and the chronology set out above, it is unlikely that any judge would have found any procedural impropriety or abuse on the part of the Applicant:

(1)  The substantial delay between 10 May 2004 (when the Applicant first made his torture claim) and 17 August 2018 (the beginning of his material immigration detention) encompassed the gradually varying approach to the USM, following successive Court decisions holding that previous existing schemes were inadequate or systematically unfair.

(2)  The Director eventually determined the Applicant’s USM claim on 26 September 2018, following which the Applicant lodged an appeal/petition to the Board.

(3)  Whilst the Board sought to expedite the hearing, and originally fixed it for February 2019, the Board granted an adjournment to May 2019 to enable the Applicant to reduce further relevant evidence.  Subsequent evidentiary materials were indeed produced.

(4)  A further adjournment to obtain further evidence, and documents from the Director, was granted by the Board on a ‘final’ basis until September 2019.

(5)  The Board dismissed the Applicant’s petition/appeal on 7 November 2019, and the Applicant filed his JR against the Board’s decision on 31 December 2019.

(6)  The Applicant applied for Legal Aid, but was refused by the Director of Legal Aid (“DLA”).  His legal aid appeal was fixed for 28 August 2020, but adjourned on the application of the DLA to a date to be fixed.

(7)  After that, the Applicant applied to adjourn the JR hearing fixed for 29 December 2020, pending the outcome of his legal aid appeal, and the Director took a neutral stance.

(8)  DHCJ P Li clearly considered that there was a proper reason not to press on with the JR proceedings before determination of the legal aid appeal.  He granted the adjournment, with directions that the Applicant should inform the Court of the result of the legal aid appeal once known.

98.  In those circumstances, we agree that it was unfair and in error for the Judge to take into account the mere fact of adjournments, or to give any ‘discount’ or weight to that fact in consideration of the reasonableness of the period of detention.

99.  There is a further, subsidiary point of principle arising.  It relates to the situation where the reasons given by the Court are different from, or ex post facto reasons as compared to, those reasons given contemporaneously by the Secretary and Director as justification for the reasonableness of the period of detention.  Ms Cheung submitted that it was open to the Judge to come up with his own reasoning and approach.  She relied on Youssef v The Home Office [2004] EWHC 1884 (QB) at §62, which states:

62.  Whilst it is a necessary condition to the lawfulness for Mr. Youssef’s detention that the Home Secretary should have been reasonably of the view that there was a real prospect of being able to remove him to Egypt in compliance with Article 3 ECHR, I do not agree that the standard by which the reasonableness of that view is to [be] judged is the Wednesbury standard.  I say this both because I can find nothing in the judgement of Woolf J. in Hardial Singh that points to this being the standard and because where the liberty of the subject is concerned the court ought to be the primary decision-maker as to the reasonableness of the executive’s actions, unless there are compelling reasons to the contrary, which I do not think there are.  Accordingly, I hold that the reasonableness of the Home Secretary’s view that there was a real prospect of being able to remove Mr. Youssef to Egypt in compliance with Article 3 ECHR is to be judged by the court as the primary decision-maker, just as it will be the court as primary decision-maker that will judge the reasonableness of the length of the detention bearing in mind the obligation to exercise all reasonable expedition to ensure that the steps necessary to effect a lawful return are taken in a reasonable time.

100.  Ms Cheung submitted that the Court looks at situation at time the matter comes before the Court (not at some earlier frozen time of last review) and that the Court does not act in a vacuum.  The Court asks why the respondent says the detention is justified, and it assesses that. The Court is assisted by the evidence, but Court makes its own assessment.  She submitted that the Court can look at anything and make its own assessment.

101.  As to the temporal question – namely, whether the Court’s consideration is limited to factors which were before the original decision maker at that time, or whether it can take into account subsequent events –there is some conflict in the authorities.  But we think that because detention is an ongoing phenomenon, in a habeas corpus case where detention has continued to be authorised up to the date of the hearing, the Court should not ignore relevant new materials simply on technical pleading type grounds.  (We will return to this question in the context of appeals: see below.)

102.  It is, also, important to understand what is meant by the concept that the Court is the primary decision maker.  First, it can be noted that the Court is not itself vested with the relevant power to detain a person.  That power rests with the Secretary and Director.  What the Court is concerned with is scrutinising the basis of the detention on a primary decision maker basis.  It is correct that the Court makes its own assessment on the evidence.  We accept that the Court as primary decision maker decides reasonableness for itself, and the standard is set by application of the HS principles.  But that does not mean that the Court can or should come up with its own, or a new, basis or justification for the detention.  The introduction of a fresh consideration which is not relied upon by the Secretary or Director would step outside the permissible review by the Court, unless there is material properly available on the papers (even though not relied upon by the Secretary or Director), where the Court can see it, assess it and give it weight without engaging in a more speculative analysis.

103.  This is also a matter of fairness within the Court proceedings.  A detainee making an application comes to Court to address the reasons which have been given as supposedly justifying his continued detention.  In dealing with the application, the Court is reviewing on a primary decision maker basis the claimed justification for the continued detention, and it could be unfair for the response to that application, or worse still the Judgment, to identify new and different reasons which are said to justify the detention.

104.  We accept there is a difference between (A) points relied upon expressly by the respondents in their own decision to continue detention, and (B) points relied upon by the respondents in order to oppose habeas corpus proceedings, and that (B) is not necessarily confined to (A), although fair notice must of course be given of any points in (B) that are not apparent in (A).  For example, the Director may have considered that the risks of absconding and re-offending are sufficient to justify continued detention without considering discounting any part of the previous detention.  We do not see why, on a habeas corpus application, he cannot argue (subject to fair notice and an opportunity to respond being given and there being a proper evidential basis) that, in any event, part of the previous detention should not be given weight because, for example, it was caused by a hopeless non-refoulement claim or wasteful adjournments of legal proceedings sought by the applicant, or indeed because of other considerations such as those now spelt out in section 32(4A).  What is an unreasonable period under HS2 is a matter for the Court, taking account of all objective circumstances.

105.  Here, of the Judge’s three points, the adjournment issue was essentially two of the three, weighing apparently heavily on the Judge’s mind.  With respect, we do not think it was for the Court to offer a reason which was not a basis underlying the original detention decision, and which was not sustainable on the materials which simply identified the fact of adjournments and nothing more.  In his approach, the Judge fell into error.

106.  Lastly as regards the length of time taken for determination of non-refoulement claims, we posed a question at the hearing about the practicalities arising where an applicant for judicial review is being held in detention.  Such a situation is one where it would be hoped that the application could be dealt with on an expedited basis.  But, because such applications are ordinarily made on an ex parte basis, it may be that the putative respondents would not know of the application, or at least not know of it for some period of time, so as to be able inform the Court that the applicant in the case is held in detention.  Also, as is well known, there are numerous similar applications issued, so that ones where the applicant is in detention may not always be readily spotted for potential expediting of the process.

107.  Though not a point arising for determination in this appeal, we would therefore invite consideration to be given as to what practical steps might be taken to assist with this problem.  For example, it may be helpful if all applicants from detention are informed of a need to bring the fact of detention expressly to the notice of the Court, or to give notice of the application to the putative respondent(s).  We will also ask the Registrar of the High Court if staff might be asked to note where the applicant gives his or her address as a place of detention, so that the file can be brought to the early attention of a relevant Judge.

H.   The Reoffending Issue

108.  It is rightly common ground that the risk of reoffending is a relevant consideration.  Guarding against the risk of reoffending is perhaps not the primary purpose of the power (which is the power of detention so that removal can be effected), but it may be relevant to the reasonable necessity for deportation or carrying out the deportation. Indeed, to the extent relevant, it may be appropriate to take into account the risk of reoffending as something which may defeat the purpose of the intended deportation (for example, in leading to a period of imprisonment following conviction of a crime).

109.  Again, useful reference can be made to the Lumba case, at §103, already quoted at §84 above.  It is also worth again noting, in passing, the emphasis placed in that §103 that the assessment of a reasonable period should have regard in particular to the time that the person has already spent in detention.

110.  At §106, Lord Dyson recorded the submission made on behalf of Mr Lumba that the risk of reoffending is relevant to the assessment of the duration of detention that is reasonably necessary to effect deportation, but only where there is also a risk of absconding.  Where there is no such risk, it was submitted, detention is not necessary to facilitate deportation, because it will be possible to effect the deportation without the need for detention.  The underlying purpose of the power to detain is not to prevent the commission of criminal offences, but to facilitate the implementation of a deportation order.

111.  However, at §§107-109, Lord Dyson expressed having some difficulty in understanding why the risk of reoffending is a relevant factor in a case where there is a risk of absconding, but not otherwise.  He recognized the possibility of construing the power to detain either narrowly (as a power which may only be exercised to further the object of facilitating a deportation) or more broadly (as a power which may also be exercised to further the object which is sought to be achieved by a deportation, such as the removal of an offender whose presence is not conducive to the public good).  But, though he preferred the latter, he considered the risk of reoffending to be relevant in either case.  Put simply, the period which is reasonable for detention will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is an obviously relevant circumstance.  We agree.

112.  As regards the factor of reoffending, Mr Parker advanced four propositions as to legal principle:

(1)  first, the court is concerned not simply with a mathematical chance of reoffending but the potential gravity of the consequences of reoffending if it were to occur – by reference to the two sub-elements of the risk and the gravity;

(2)  second, the court will or should rigorously scrutinise the executive’s assessment of risk on both grounds, and the weight to be given to that assessment depends on how convincing the reasoning is;

(3)  third, the longer the detention the greater the risk necessary to justify it; therefore, as the period of detention drags on, the particular level of risk becomes of less weight in the balance;

(4)  fourth, however high the risk of reoffending, there will ultimately come a time when detention becomes unreasonable.

113.  We accept those propositions.  Those are the proper principles to be applied on assessment of the risk of re-offending and the seriousness of it.

114.  First, pointing simply to “a risk” actually says very little.  Saying that there “may be a risk” (a possibility or risk of a risk) says even less.  There is a scale of likelihood and seriousness.  A risk can be minimal or small or substantial or large, and its impact might be minor or great or somewhere in between.  The potential impact of a small risk may be greater than the potential impact of a large risk.  It is, therefore, necessary to consider (or, it might be put, to multiply) the extent of the risk and the seriousness were it to occur, if proper assessment is to be given to the weight of that factor in the particular case.

115.  Ms Cheung submitted that the Judge’s assessment of the risk at “not low” was very fair.  But we think that was only part of the actual assessment needed.

116.  As regards Mr Parker’s second proposition, reference can be made to Sanger Sabir Mohammed v Sectretary of State for the Home Department [2020] EWHC 507 (Admin) at §§12-13:

12.  However, in my judgment, notwithstanding those features and their strength, this is a case in which on the face of it there is strong claim that detention is in breach of the third Hardial Singh Principle.  The position is this.  Following a consent order (in judicial review proceedings) dated 25 November 2019, and on the face of that order, it was clear that it was going to be several months before any decision would be taken by the Secretary of State on the claimant’s putative fresh claim.  The submissions and evidence, for which a 3-month period was allowed, were duly provided on 10 February 2020. Even then, the earliest time at which a decision by the Secretary of State was reasonably to be anticipated was in a 3-month period thereafter, even assuming no further extension of the timetable were necessary.  In addition to that, as Ms Dring realistically accepted, this is a case given its nature in which the decision by the Secretary of State – if it is adverse to the claimant – stands very likely to be challenged, whether by way of appeal or by way of judicial review, depending on whether the Secretary of State recognises the claim to be a fresh claim.  Either of those routes will stand to involve a further period of several months.  In addition to that, it is highly relevant to have in mind the pre-existing and detention to which the claimant had already been subjected.  This is a matter to which the Lumba case draws attention at paragraph 103 when it describes what period is “reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention”.  In the present case the claimant’s immigration detention goes back to the beginning of May 2019 and so was already a significant period by the time of the order in November.  As at today, the claimant has already been in immigration detention for some 11 months.  It is worth having in mind, as Mr Goodman reminded me, that the previous criminal conduct of the claimant has attracted two custodial sentences: in each case, those custodial sentences were 6 months.

13.  In evaluating whether the ‘realistic prospect of removal within a reasonable time’ principle is being complied with, I have anxiously looked at the contemporaneous documents disclosed by the Secretary of State.  That is because the court can be greatly assisted by the evaluation of those dealing with the matter on the front-line, particularly if a reasoned and convincing basis is given for the assessments which they conduct.  This is a point which cuts both ways because, as I have explained, a reasoned evaluation of risk (of absconding and re-offending and harm) is something to which a court will give considerable weight, as indeed I have done.  The application of the Hardial Singh Principles is an objective matter for the court dealing with the substantive arguments. Nevertheless, the court will look to see what the evaluation is and how convincing the reasoning is, from the contemporaneous documents.

117.  Therefore, whilst the Judge was right to think that some assistance may be obtained from the assessments performed by the Secretary and by the Director (in an area where they might be expected to have greater expertise than the Court), that would only be correct if there is some appropriate contemporaneous documentation showing their evaluation, and which enables consideration as to how convincing their reasoning was.

118.  As to Mr Parker’s third and fourth propositions, reference can be made to Orlando Polanco v Secretary of State for the Home Department [2009] EWHC 826 (Admin) at §§18-20:

18.  So far as likelihood of re-offending is concerned, the Secretary of State’s view appears to be that the offences of which the claimant was convicted carry such a likelihood by their very nature.  There does not appear to have been any other real assessment of the likelihood of re-offending in his case, and certainly no recent assessment.  The Secretary of State also points to the seriousness of the offences, as demonstrated not only by the length of the sentence imposed, but by the age of the victims.  Lastly, on removability, the Secretary of State recognises that the claimant cannot be removed while his appeal continues but does not accept that a long delay is inevitable.  Her position is that this is not a case where the claimant’s country of nationality is one to which removals are difficult.

19.  On behalf of the claimant, Mr Goodman submits that the justifications raised by the Secretary of State do not in the claimant’s case have the weight that the Secretary of State seeks to attribute to them.  He asks me to regard the claimant as a person who on release from his sentence complied with the conditions of his licence.  He reminds me that the claimant has been in the country for a very long time.  He also says (and I have no reason to doubt this) that the period of detention in the claimant’s case is longer than that in any comparable reported case of which he is aware, except R(A) v SSHD.

20.  Now that the matter is before the court, it is for the court to determine whether continued detention is justified.  If there were any doubt about that, it is removed by the judgment of Keene LJ in R(A) v SSHD at [71] – [72] and the cases he there cites.  It might at first glance seem odd that the question of whether detention is justified for the present and the future should in part depend on the length of time for which it has continued in the past.  After all, if the risks of release from detention exist, they pertain to the future.  But it has been clear at least since Hardial Singh that, faced with a period of detention in the past which may be in many cases be assumed to be lawful, the court has to decide whether the period of detention is now too long.  What it is necessary to do is to balance the gravity of any risks against the breach of the principle of liberty.  The longer the detention is (or is likely to be) the greater the risk will have to be in order to justify it.  It follows from that, that a risk at a particular level becomes of less weight in the balance as the period of detention continues.  To put that another way, if throughout the period of detention the Secretary of State relies on the same risk to justify it, there may well come a point where that risk no longer does justify it.  As Dyson LJ put it in R(M) v SSHD, at [37] “however grave the risk of absconding and re-offending, there must come a time when it can no longer be said that the detention is reasonable”.  Ms. Patry Hoskins emphasised, and I accept, that there is no absolute limit on the length of detention under the Immigration Acts.  But that does not mean there is no effective limit in any particular case.

119.  That last paragraph emphasises, correctly in our view, the following factors:

(1)  The Court’s task is to assess whether the period of detention is too long by the time of the assessment.

(2)  That assessment involves balancing (a) the gravity of any risks arising from release from detention against (b) the breach of the principle of liberty.

(3)  The longer the detention is (or may be), the greater the risk will have to be in order to justify it.

(4)  Therefore, risk at a particular level becomes of less weight in the balance as the period of detention continues.

(5)  There may come a time when the risk no longer justifies continued detention.

120.  Though which point is addressed first might be thought not to matter, we think it logically follows that the first task of the Court – and, indeed, the Secretary and the Director – is to identify the period of detention already served and any likely further period of detention, so that any balancing can be performed against that period.  Starting instead with an assessment of risk itself risks losing sight of the period of detention already served (plus any likely further period of detention).  As will be seen below, that may well be what happened in this case.

121.  In the evidential materials before the Judge, and reproduced on the appeal, there were two full bundles containing the various reviews.  First, it might be said the sheer volume was itself simply a testament to just how long the Applicant had been detained. Second, it can be noted that there was enormous similarity in wording and approach in the documents, even though they were produced over a long period.

122.  It can be noted that there is a distinction in the roles played by the Secretary and Director in the review process.  The Secretary makes a decision as to whether to require continued detention, but leaves it to the Director to decide whether a recognizance is necessary.  This is reflected in the documents.  It can also be noted that the review process often includes input from the Commissioner of Police.  For example, in the Applicant’s particular case, the Director wrote to the Commissioner on eight occasions between November 2019 and March 2021, asking whether the Commissioner had any comment on or objection to the Applicant being released on recognizance.  On each occasion, the Commissioner replied that he had “no comment” (and so, at least implicitly, no objection).

123.  It is helpful to consider – and comment on – one ‘set’ of review documents, starting with the Notice of Review of Detention given to the Applicant, telling him the outcome of the review.  It has two notes at the beginning reading:

(i)   Detention must be justified with sufficient reasons and for a period which is reasonable in all circumstances.  Reasonable alternatives will be considered before detention is authorised.  No one is subject to arbitrary detention.  The power to detain must only be used for the specific purpose for which it is authorised and its exercise must be justified on proper grounds. Each case is to be considered on its own facts and merits.  Detention will be kept under regular review and will be reviewed when there is a material change of circumstances.  The factors listed in Part B are factors which the Director of Immigration (“Director”)/Secretary for Security (“Secretary”) will generally take into account in determining whether a person should be detained or released, and are not meant to be exhaustive (in that each case will be considered on its own individual merits and there may be other facts and circumstances relevant to any particular individual case) or in any order of priority/weight.  The mere presence of a particular factor does not automatically lead to detention or release.  The factors will be considered in the context of all the circumstances of the case.  The Director/secretary will give due consideration to any representation made against detention.

(ii)  Relevant Notices in respect of the detention policy have been posted up in detention centre.  Should you wish to have a copy of the relevant notices in respect of the detention policy, you may make request to the interviewing officer.

124.  The first note may be regarded as a generally fair summary of the correct approach, and the reference to “Part B’ is to a list of possible grounds/factors to be ticked, in a form materially identical to the Part B of Annex A to the following document.  The boxes ticked on the corresponding two Parts B would be the same.  The question is, however, whether the approach identified can be demonstrated to have been followed, and whether the boxes ticked also show how the review has really been conducted and reasoned.

125.  There is a Memo from the Director to the Secretary, this one dated 15 January 2021, headed ‘Review of Detention Authorization, Section 32(3) of the Immigration Ordinance, Cap 115’ relating to the Applicant.  It reads:

[1.]  This is to seek your review of the detention authority under section 32(3) of the Immigration Ordinance, Cap.115 (“the Ordinance”) as authorized on 22 July 2003 by the Principal Assistant Secretary for Security (“PAS”) in respect of the above-named deportee (“Mr Singh”).

2.  In gist, Mr Singh is a subject of a deportation order made by the Permanent Secretary for Security on 22 July 2003 on the basis of his criminal convictions of “Doing an act tending and intended to prevent the course of public justice, contrary to Common Law” and two counts of “Wounding with intent”, for which he was sentenced to a total of five years’ imprisonment.

3.  Whilst being released on recognizance, he was convicted for another serious offence, namely “Blackmail”, and received heavy imprisonment.  In this regard, Mr Singh is a repeated offender and likely to pose a threat to the local community.

4.  We last sought your review of the detention authority in respect of Mr Singh on 16 December 2020.  On 23 December 2020, the PAS conducted a review on Mr Singh’s detention under section 32(3) of the Ordinance.  Having balanced the individual circumstances of the case, it was considered that there were grounds for continued detention.

Updated information

5.  Mr Singh was re-admitted to the Castle Peak Bay Immigration Centre on 14 December 2020. On 17 December 2020, Mr Singh resumed taking full meal and his health condition was found to be stable.

6.  On 15 December 2020, Mr Singh’s application for leave for judicial review against the refusal decision in relation to his non-refoulement claim under court case reference of HCAL 3895/2019 was scheduled to be heard at 1000 hrs on 29 December 2020. On 28 December 2020, the Court informed that the hearing has been vacated.  The said leave application is under processing by the Court.

7.  Mr Singh committed serious offences leading to the making of the deportation order against him.  As regards his application for leave for judicial review in relation to his non-refoulement claim, there is no sufficient reason to believe that the said leave application cannot be determined in a reasonable foreseeable future.  Having considered all relevant circumstances of the case, subject to your review on whether Mr Singh should continue to be detained, we would decide whether to continue his detention under section 32(3) of the Ordinance.  Should Mr Singh’s legal proceeding be completed and re-entry be secured, arrangement will be made to effect his deportation as soon as practicable, subject to no any other unusual circumstances or impediment hindering his deportation.  Otherwise, a further review of detention will be conducted forthwith.

8.  The relevant facts of the case are set out at Annex A.

9.  The Notice of Review of Detention was served on Mr Singh on 5 January 2021.

Annex A

Part A.    FACTS OF THE CASE

1.     Name of subject:	Mr Harjang SINGH alias Singh HARJANG
2.     Date of birth:	15 January 1973
3.     Nationality:	Indian
4.     Offence(s) & sentence (Basis of deportation order):	“Doing an act tending and intended to pervert the course of public justice, contrary to Common Law” and two counts of “Wounding with intent”; sentenced to a total of five years’ imprisonment.
5.     Other convictions:	“Possession of offensive weapon”; sentenced to four months’ imprisonment suspended 2 years on 15 April 2011; and “Blackmail”; sentenced to 3 years’ imprisonment on 16 August 2017.
6.     Date of deportation order:	22 July 2003
7.     Last deported on (if applicable):	Not applicable
8.     Last re-entry to Hong Kong (if applicable):	Not applicable
9.     Current immigration status:	Subject of deportation order
10.     Date of discharge from prison:	17 August 2018
11.     Family connection in HK (if any):	Mr Singh’s wife, step-daughter, mother and a sister are Hong Kong permanent residents.
12.     Remarks:	Nil

Part B.    PROPOSED GROUNDS FOR DETENTION

It has been recommended that the subject should be detained / remain in detention because:*

a. The subject’s removal is going to be possible within a reasonable time. b. The subject may constitute a threat / security risk to the community. c. The subject may abscond and / or (re)offend. d. The subject’s identity has not been resolved or is not satisfied to be genuine. e. The subject does not have close connection or fixed abode in Hong Kong. f. There are no other circumstances in favour of the subject’s release.

The recommendation has been reached on the basis of the following factors:*

1. The subject’s removal from Hong Kong is imminent and / or immediate repatriation is being arranged for the subject’s departure. 2. The subject is willing to leave and removal arrangement is underway. 3. There is no sufficient reason to believe that the subject’s case cannot be finalized in the near future. 4. The subject has no outstanding claim impeding removal. 5. The subject has no outstanding legal proceedings e.g. petition / appeal / judicial review impeding removal. 6. If there is an outstanding claim / legal proceeding, there is no sufficient reason to believe that the subject’s claim / legal proceeding could not be completed within a reasonable period of time. Details: ________________________________________ 7. The subject is likely to pose a threat / security risk to local community e.g. suspected to have connection with terrorist activities. 8. The subject has conviction(s) associated with crime(s) of serious or violent nature. 9. The subject has records of violent behaviour during detention / imprisonment. 10. The subject has previously absconded or escaped from custody. 11. The subject has a record of jumping bail. 12. The subject has failed to comply with the terms / conditions of recognizance. 13. The subject has failed to attend appointment(s) / scheduled interviews without reasonable excuse, in response to call-up by the immigration offices / section e.g. investigation sections / Extension Section. 14. The subject is a returning deportee. 15. The subject is re-arrested during recognizance. 16. The subject has a series of previous convictions of criminal and / or immigration offences or re-committed the same offence in respect of the subject’s previous arrest. 17. The subject has not produced satisfactory evidence or any proof of identity and there are no relevant documents to establish the subject’s identity / nationality. 18. There is doubt on the subject’s true identity (e.g. false / forged / different identities travel documents). Details: ________________________________________ 19. The subject is non-cooperative or has failed to give satisfactory or reliable answers to an immigration officer’s enquiries / investigation on the subject’s identity. 20. The subject does not have fixed abode or close connection (e.g. family or friends) in Hong Kong to make it likely that he/she will be easily located. Details: ________________________________________ 21. The subject is likely to engage in unlawful employment or business if released from detention. Details: ________________________________________ 22. The subject has expressed that he/she is not able to take care of himself / herself in Hong Kong if released from detention. 23. The subject is required to give evidence in a trial / facilitate inquiries into an offence or suspected offence. 24. Others (please specify): __________________________

Part C.    GROUNDS AGAINST DETENTION

a. The subject is a person under the age of 18. b. The subject is an elderly requiring close supervision / medical care. c. The subject is a pregnant woman and there is no clear prospect of imminent removal. d. The subject is in serious medical / mentally ill-health condition. e. The subject is physically disabled requiring constant nursing care. f. There is satisfactory evidence that the subject has been tortured.

Part D.    REPRESENTATIONS AGAINST DETENTION (if any)

The Notice of Review of Detention was served to Mr Singh on 5 January 2021.

In respect of the current review of detention, Mr Singh’s legal representative, Josh Baker, on behalf of him, has made a written submission at Annex B [not set out here].

126.  Something can be said about the tick box aspect of the document.  A real, and presumably intended, benefit of such a form is that it identifies in short form those matters which might or ought to be taken into account in the process of reviewing detentions for continuing reasonableness and lawfulness.  But a potential problem of a tick box form is that it may discourage actual assessment or evaluation, because it tends to identify the mere presence or absence of a feature (often rather generally described), rather than the precise circumstances, and any real evaluation of its likelihood or severity, and the underlying causes which may vary from time to time.  If used alone, such a form is a highly reductive tool when seeking to apply the HS principles.

127.  Unless there is some evidence that the factors have actually been considered, and how they have been considered in relation to each factor, that is on its own unlikely to be sufficient.  It does not tell you what has gone into the process in relation to any individual factor when reaching the conclusion.  As examples:

(1)  Ticking the box “The subject may constitute a threat / security risk to the community” does not identify what the suggested threat and/or security risk is (and the form does not clearly identify whether such a risk is different from, or might overlap with, the risk of reoffending for example).  Ticking the further box “The subject is likely to pose a threat / security risk to local community e.g. suspected to have connection with terrorist activities” tends to suggest (from the example of terrorist activities given) that the relevant threat or security risk is something rather different than merely the risk of reoffending, but it is difficult to follow why the Applicant in this case might have been thought to pose such a risk.

(2)  Ticking the box “The subject may abscond and / or (re)offend” does not identify whether the perceived risk is absconding or reoffending or both.  It does not identify the level of the risk of reoffending, the feared type of reoffending, and the gravity of the consequences.

128.  Further, where the decision-maker is required to weigh and balance the various factors at various points of time over potentially many months or years, the form certainly does not promote any recognition that as time goes on the weight to be given to some of these boxes may have to change.  The very structure of the form may tend to lead away from such a recognition.

129.  Of course, we accept, as Ms Cheung submits, that any question as to the adequacy of the documents, in particular the tick box forms – simply because there is no detailed discussion as to how a factor is brought into the balance – does not necessarily mean it was not properly brought into the balance; nor does it necessarily suggest that the Director has erred in the way in which those matters have been assessed.

130.  But, one purpose of the form is to provide it (or part of it – Part B) to the detained person, so that that person knows the particular elements that have led to the decision for his continued detention, and where the form does not identify the real analysis or reasoning, we think that is problematic.  Further, it is also important for the Court to be able see the basis of the assessment, if it is to be able to place any real weight upon that assessment.  The Court needs to see what the factors are which have properly been taken into account, how they have been taken into account in the weighing process when deciding to prefer continued detention rather than liberty, to be able to assess whether that reasoning is convincing or otherwise. We do not think what is said in the body of the Memo (at least in this case) covers the gap.  This is especially so where there is no clear or overt statement to identify the period of detention – counted in months or years and months – against which the other factors are to be weighed.

131.  The Secretary’s reply to the Memo above is, in this instance, dated 19 January 2021, and reads:

Re: Mr Harjang SINGH

[1.]   I refer to your memo dated 15 January 2021 seeking review of the detention of the above-named person under s. 32(3), Cap 115.

2.  The Principal Assistant Secretary for Security has reviewed the subject’s detention.  Balancing the individual circumstances of the subject, it is considered that there are grounds for continued detention.  The grounds for detention are stated in Annex A.

3.  Subject to your decision on whether the subject should be release on recognizance, you are advised to inform him, among other things, the purpose and grounds for him continued detention in accordance with the prevailing procedure.  You are reminded to closely monitor the subject’s health condition and execute the deportation order as soon as possible within a reasonable time, beyond which a review of further detention is needed.

132.  As indicated above, this is the Secretary’s decision authorising continued detention, but leaving to the Director the decision whether there should be release on recognizance.  It might also be noted that the last sentence is not entirely accurate; if the deportation order cannot be executed within a reasonable time, that should lead to a release (though the practical way to achieve that may be by way of a review, albeit not a review of further detention).

133.  It can be noted that neither of the Memos identifies when the detention actually began, unless one takes the date of discharge from prison on Part A of Annex A as the inferred date.  Certainly there is neither (a) clear identification of the commencement of, and the length of the detention to date, or (b) express recognition that by January 2021 the Applicant had already been detained for 29 months, and it is that period (plus any anticipated future period until the determination of the JR proceedings) against which the other factors needed to be weighed and balanced.  In other words, neither Memo gives any sense that the Secretary or Director considered the primary question as to how long the Applicant had already been deprived of his liberty through administrative detention.

134.  To complete the documentary picture, it is helpful to look at one of the Director’s memos about reviewing recognizance. The following is M.46, from the previous review, and dated 24 December 2020. It reads:

[1.]   You last saw this case at M.43.

2.  This concerns a review on the detention authority under section 32(3) of the Immigration Ordinance, Cap. 115 (“the Ordinance”), as authorized by the Principal Assistant Secretary for Security (“PAS”) in respect of the above-named (“Mr Singh”) on 22 July 2003 – (89)² of Pt.4, (31) of Pt.5 & DMS record at float.

Case Background

3.  In brief, Mr Singh is the subject of a deportation order made by the Permanent Secretary for Security on 22 July 2003 on the basis of his criminal convictions of “Doing an act tending and intended to pervert the course of public justice, contrary to Common Law” and two counts of “Wounding with intent”, for which he was sentenced to a total of five years’ imprisonment – (30) of Pt.5 & Float A^{6-7, 15}.  The repatriation against him had been dragged on due to his imprisonment and subsequent legal impediments.

Legal Impediments

4.  Deportation proceedings against Mr Singh have been withheld due to the following legal impediments: [table of procedural chronology (not set out)]

Detention at the Castle Peak Bay Immigration Centre (“CIC”)

5.  While being last released on recognizance, Mr Singh was convicted of “Blackmail” and was sentenced to three years’ imprisonment on 16 August 2017 – (98)¹ of Pt.4.

6.  Mr Singh was discharged from prison and was transferred to CIC on 17 August 2018. Since then, he has been detained under section 32(3) of the Ordinance pending his deportation from Hong Kong – (89) & (89)² of Pt.4, (31) of Pt.5 & DMS record at float.

7.  On 24 September 2018, Mr Singh applied for Writ of Habeas Corpus under HCAL 2025/2018 – (111)¹ & (112) of Pt.4.  The said application was dismissed by the Court of First Instance (“CFI”) on 2 October 2018 – (115) of Pt.4 & Judgment at float.

8.  On 29 May 2019, Mr Singh applied for Writ of Habeas Corpus in respect of his detention again under Intended Action 78/2019 & HCAL 1540/2019 – (1)^2-5 of Pt.5.  The said application was dismissed by the CFI on 6 June 2019.  The CFI agreed that Mr Singh’s detention at the time was in compliance with the Hardial Singh principles – (11) & (12) of Pt.5.

9.  On 4 July 2019, Mr Singh lodged an appeal to the Court of Appeal (“CA”) under CACV 312/2019 against the CFI’s decision given on 6 June 2019 – (49)^1-2 of Pt.5.  However, Mr Singh failed to lodge a sealed CFI order with the Court.  On 19 July 2019, the Court directed that if no application for extension of time was made on or before 20 August 2019, or if Mr Singh failed to file and serve a Supplemental Notice of Appeal by 20 August 2019, the matter(s) would be referred to the CA for consideration of the appropriate sanction – (49)⁴ of Pt.5.

10.  On 29 July 2019, Mr Singh sent the sealed CFI order to the Court by post.  On 28 August 2019, the Court ordered that the time to lodge a copy of the sealed order be extended to 29 July 2019 and the said copy was treated as having been lodged by Mr Singh on 29 July 2019 – (50)² of Pt.5.

11.  On 17 October 2019, Mr Singh wrote to the Court to seek leave to withdraw his appeal mentioned in paragraphs 9 and 10 hereinabove.  By the letter dated 22 October 2019, the CA directed Mr Singh that he should lodge the dismissal request as stipulated in the Practice Direction to the CA on or before 22 November 2019 ¹ – (61) of Pt.5.

[Fn 1 reads: By an email dated 27 May 2020, DoJ SGC is reviewing the way forward of the appeal case under Court ref. CACV 312/2019. ImmD had not received any other updates from the DoJ or Mr Singh so far.]

12.  On 31 December 2019, Mr Singh filed an application for leave to apply for judicial review against the TCAB/NCPO’s decision in dismissing his NRC appeal/petition under HCAL 3895/2019 – (90) of Pt.5 & RLS record at float.

Re-entry to India

13.  The re-entry seeking in respect of Mr Singh has been initiated – (114) of Pt.4.  On 20 November 2019, a request was made to the Consulate General of India to expedite the issuance of travel document of Mr Singh – (64) of Pt.5.

Latest development

14.  From 29 June 2020 to 16 December 2020, Mr Singh refused to take meal in order to bring attention to his request for releasing on recognizance.  Subject’s medical condition was under close monitoring by medical staff in CIC and test on subject’s blood glucose level was regularly conducted.  During the period he refused to take supplied food at CIC, subject consumed liquid good, i.e. milk/milk-tea.  Subject resumed taking full meal since 17 December 2020 and his health condition was generally stale – CIC email at float.

15.  Counselling interviews were last conducted by RAL(REP) and RAL(D) officers on 22 and 24 December 2020 with a view to showing our concern on his health condition and updating him the case status – M 44 & M45.  Notice of Review of Detention was last served to him on 22 December 2020 – (96).

16.  As informed by RLS2 counterpart, subject’s JR case, i.e. HCAL 3895/2019, would be heard by the Court on 29 December 2020.

17.  As informed by the Legal Aid Department (“LAD”), Mr Singh had applied for legal aid to seek judicial review in relation to his detention – (73).  SB and RLS3 counterparts were informed of his application for legal aid – (85) & (87).

PAS’ consideration

18.  Given Mr Singh’s criminal background, the possible risk that he may pose to the community if released on recognizance, the updated development of Mr Singh’s NRC and all other relevant circumstances, the PAS last reviewed the detention on 23 December 2020 and considered that there were grounds for continued detention – (98).

Comments from the Police

19.  By their memo dated 10 November 2020, the Police confirmed that Mr Singh was not adversely known to them and they had no comment on releasing him on recognizance – (67).

Recommendation

20.  Mr Singh is a repeated offender who committed of serious offences leading to the making of deportation order.  While being released on recognizance, he was again convicted of serious offence and received heavy sentence.  As regards Mr Singh’s judicial review case, there is no sufficient reason to believe that his legal proceeding cannot be finalized and completed within a reasonable period of time, there is a reasonable prospect of effecting his deportation within reasonable time in the foreseeable future.  After careful consideration of all circumstances of the case, including the PAS’s conclusion on the review of Mr Singh’s detention, I recommend his continued detention under section 32(3) of the Ordinance pending deportation.

21.  Submitted for your consideration, please.

135.  Whilst there is the note in paragraph 6 of the time when the current detention commenced, it can nevertheless be noted at once that the conclusion/recommendation section of the Review makes no reference to the period of detention to date, against which the matters which are mentioned are to be balanced.

136.  The Review is signed by an Ag. SIO(RAL)D5, and appears to have been submitted to be considered up the chain of command, as follows:

(1)  a CIO(RAL)D wrote “Subject’s continued detention is supported, please.”

(2)  a APIO(RAL)3 wrote “Para. 20 is supported, pls.”

(3)  a PIO(RAL) wrote “Confirmed detention endorsed.”

137.  Therefore, it seems that the ultimate decision was taken by the Principal Immigration Officer who signed.  Though presumably he or she was expressing confirmation to endorse the detention by reference to the information contained in the Review, there is no additional evidence of any independent thought process.  All three notations are dated the same day as the Review, namely 24 December 2020 – so the file was passed to and dealt with by a total of four officers within one day.  We do not think it unfair to say that the question arises as to how the more senior officers could have performed any real assessment or analysis, nor is there any evidence of any different or critical thought being brought to play by any of the higher officers up the chain.

138.  Looking at the voluminous contemporaneous documents as a whole, we would respectfully point out that it is not apparent that there is any real ongoing and varying analysis of the factors as they may shift in the balance.  Instead there appears to be a rote assertion copied and pasted on a number of occasions month by month.  Many of the subsequent reviews and recommendations are copied word for word from earlier ones.

139.  Whilst significant change from one individual review to the next individual review may not be expected, it would be expected that over a period of months or years there would be real change.  That real change should reflect the recognition on the part of the decision maker that over time – particularly over an extended period of time – the weight to be given to factors in the balance will or might change.

140.  Indeed, as time moves on, the analysis must change, because the approach at ‘month 1’ may be very different from the approach which may be required at ‘month 30’: here, in this case, there is not much internal variation from one review to the next or thereafter.  From the documents, nowhere is there any sense that the passage of time is really brought into consideration.

141.  Nor is it apparent that there is any real individual consideration of the Applicant as a person, trying to understand what the real level of risk is that he would reoffend, and what the consequences would be of his reoffending.  In this particular case, the most serious offences committed by the Applicant occurred more than 20 years before, and even the more recent offence of blackmail was in 2016.  The essential reliance by the Director and Secretary was on the (mere) fact of past offending, and the materials do not have persuasive or detailed reasons that might lead to the view that there has been a fresh and robust, up-to-date and current, assessment which can be treated as reliable.

142.  Therefore, we respectfully agree that on the evidence in this case the Judge fell into error in, in effect, placing conclusive weight on the views of the Secretary and the Director with regard to the potential risks of absconding and reoffending and of the Applicant, if released, posing a threat or security risk to the community, especially having regard to the fact that the Judge had himself recognised that the risk of the Applicant absconding was mitigated by his family connections in Hong Kong and the Police had confirmed that the Applicant was “not adversely known to them” and had apparently no objection to his release on recognizance.

I.   The Time to Removal Issue

143.  The question arises as to how much certainty is required for the assessment as to (1) the probability that removal can be effected at all and (2) the proximity of the time to removal.

144.  The Judge below said there was no need to pinpoint a specific date, nor to estimate even a range of dates.  But, Mr Parker puts it the other way round and says that if a Court is going to qualify a period of time as being reasonable, then there must be some idea as to the how long the period is that is being seen to have that quality.  As he put it, there must be some level at which it is possible to quantify what period of time would be considered reasonable.  Secondly, reliance is placed on the proposition that the longer the period is, the more certainty there should be as to the time of removal, so as to justify the continued detention after that time as being assessed as reasonable.

145.  These points arose for consideration in the case of MH v Secretary of State for the Home Department [2010] EWCA Civ 112, a case in which the detainee had been held for 38 months, and had been convicted of a string of offences, some serious.  At §38 is reference to a passage from another case, which suggested that two questions must be being capable of being answered, which was then analysed at §§65 and 68 – in particular at §68(v) – as follows:

38.  Finally, the submissions for the claimant placed considerable weight on R (A and Others) v Secretary of State for the Home Department [2008] EWHC 142 (Admin), in which Mitting J said this about the detention of A:

“16. In those circumstances, for continued detention to be lawful two questions have to be capable of being answered. First, by when does the Secretary of State expect to be able to deport A? Secondly, what is the basis for that expectation? Mr Patel, on instructions, is understandably unable to answer either of those questions, other than by the generality that the Secretary of State expects to be able to deport him within a reasonable time. Mr Patel realises that that begs the question. In my view, against the history that I have recited, there is simply no basis for concluding that A can be expected to be deported within the near future, nor can anybody, let alone the Secretary of State, give an answer to the first of those questions. An impasse has been reached in A’s case. It has been reached after the lapse of many months of detention. His detention has now become unlawful.

17.  I reach that conclusion notwithstanding that he has committed a serious criminal offence and that there is in his case the risk of absconding.  Those are factors which have to be weighed in the balance.  Were there grounds for believing that his application for emergency travel documents would soon be resolved favourably, then those factors would have led me to uphold the lawfulness of his detention.  But absent any basis for concluding that he can soon be deported, those factors do not outweigh the claim that he has to conditional release ….”

…

65.  I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected.  That would be to add an unwarranted gloss to the established principles.  In my view Mitting J was not purporting to do that but was simply asking himself the questions “by when?” and “on what basis?” for the purposes of his own consideration of the case before him.  Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention.  There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all.  Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors.  Thus in A (Somalia) itself there was “some prospect of the Home Secretary being able to carry out enforced removal, although there was no way of predicting with confidence when this might be” (per Toulson LJ at para 58); and that was held to be a sufficient prospect to justify detention for a period of some four years when regard was had to other relevant factors, including in particular the high risk of absconding and of serious re-offending if A were released.

…

68.  It seems to me that the judge’s assessment of the various factors to be taken into account in determining the lawfulness of continued detention was comprehensive and sustainable.  In particular:

(i)  The judge took the view that the risk of the claimant reoffending “in potentially serious ways” was high.  In my judgment, that was a fair assessment.  The claimant’s offending history was not at the gravest end of the spectrum, but he had spent the major part of his time in this country in custody, serving sentences for criminal offences which included two offences of robbery; he had continued to offend despite a warning that he risked deportation; and the immigration judge who heard his appeal against the deportation order found that he was unlikely to desist from his pattern of offending.  It was legitimate to consider that he posed a potentially serious risk to the public if released.

(ii)  The judge’s findings that the claimant presented a high risk of absconding and that electronic tagging was not a suitable and effective way of meeting the risk of absconding were also properly open to him on the evidence.

(iii)  The judge considered that the claimant’s lack of co-operation was relevant to the assessment of the risk of absconding. …

(iv)  …

(v)  The judge gave proper weight to the very long period of time during which the claimant was subject to immigration detention, and rightly treated it as a factor of considerable and increasing importance as the situation dragged on. As the period of detention gets longer, the greater the degree of certainty and proximity of removal I would expect to be required in order to justify continued detention.  The judge evidently had that point in mind when he observed that especially in the latter stages, from late 2006, “the Secretary of State should have been giving particularly anxious consideration to the question whether it remained viable to suppose that there was a realistic possibility of removal to Somaliland, such as to justify the detention of the Claimant” (para 113).

146.  We agree in particular with the sentiments that (1) the period of immigration detention is of increasing importance as the situation drags on and (2) as the period of detention gets longer, the greater the degree of certainty and proximity of removal that would be expected to be required in order to justify continued detention.

147.  Reference can also be made to the case of R (Muqtaar) v Home Secretary [2013] 1 WLR 649 – which was relied on by both Ms Cheung and Mr Parker – and which supports what was said in the MH case.  Muqtaar involved a detainee convicted of numerous offences and who appeared to be a chaotic recidivist, though the decision in the case was given after he had been released on bail.  The key passage for present purposes is to be found in §38:

38.  Mr Husain submitted that that reasoning cannot live with the formulation of the Hardial Singh principles by the Supreme Court in the Lumba case [2012] 1 AC 245, in particular at paras 103-104 where Lord Dyson JSC said that a convenient starting point in the application of the principles to Mr L’s appeal was “to determine whether, and if so when, there is a realistic prospect that deportation will take place” and that “if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful”, and where he went on to identify factors relevant to the question of how long it is reasonable to detain a person pending removal.  There is nothing to show, however, that Lord Dyson JSC was intending to address the point made in the passage quoted above from the MH case, and there does not seem to me to be any inconsistency between his observations and that passage.  I adhere to the view that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all.  At the time of receipt of the rule 39 indication in the claimant’s case, although it was not possible to say when the ECtHR proceedings would be concluded, there was none the less a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances.

148.  The proper emphasis is the determination of whether, and if so when, removal will be possible.  We accept that that does not necessarily mean a specific pinpointed date or range of dates, but at least there must be some sense at a broad level of what sort of timescale is being canvassed.  We agree with Mr Parker’s fundamental proposition that unless there is some idea as to what sort of timescale is being suggested, it is not possible to qualify it as reasonable.

149.  We are also alive to a potential paradox, in that the longer the detention, the sooner the expected removal might be.  Indeed, where the legal impediment to removal is an ongoing non-refoulement claim, and/or related intended judicial review proceedings, the closer those proceedings get to the final possible tier, the sooner the legal impediment might be expected to be removed (ignoring, for the moment, other practical difficulties in effecting removal).  But that paradox seems to us only to emphasise the need to assess the anticipated time for removal with an increasing need for certainty and proximity, and to make the assessment of reasonableness with the prior period of detention firmly in mind.

150.  In this case, the Judge did try to speed things up, so as to increase the apparent proximity of possible removal, if not its certainty.  But – leaving aside that the intended expediting did not actually materialise – we think what should have happened is that the Applicant ought to have been released, because of the lack of sufficient clarity as to when the legal aid appeal and JR application might be heard.  Indeed, after such a lengthy period of detention, hoping for expediting and therefore thinking that would be reasonable was really too amorphous, and lacked the by then required degree of certainty and proximity.

151.  In the context of determining whether a reasonable prospect of deportation exists in the near future, the question also arises as to what extent the possibility of appeal(s) might or should be taken into account. For example, in this case the Applicant’s judicial review proceedings remained to be determined at first instance, but there was also a right of appeal if leave to apply for judicial review were not granted.

152.  Ms Cheung submitted that the correct approach is to look at present facts, rather than assume or second guess as to what will happen in future.  Recognising that there is a possibility of an appeal from a refusal of leave to apply for judicial review is best dealt with by reviewing the matters in the light of an appeal if and when actually brought.  Mr Parker submitted that there ought to be no dogmatic answer to this.  The possibility of an appeal may be relevant on a probabilistic assessment, when looking at the ultimate question as to how soon a removal might take place.  The focus is on the probability of removal, and the probability of removal within a particular time.  Therefore, the existence of a right of appeal which is likely to be exercised, leading to further delay in removal, will generally be a matter that should be taken into account.

153.  Our view, however, is that it is difficult to factor in any particular weight to the possibility of appeal, as there are a range of merits of any possible appeal which it may not be possible to assess realistically in advance of the resolution of the matter at first instance.  Whether the possibility of an appeal is a factor, and what weight should be given to it, depends on all the circumstances, in particular the period of detention to date.  Hence, the possibility of an appeal may take on more significance if it arises after an already lengthy period of detention.

J.   Family and Local Connections

154.  Though not as part of his main submissions on the three principles, Mr Parker also canvassed orally the third ground of appeal.  He said – with some force in the point – that when looking at the underlying documents, there is no indication that the family ties were taken into account.  Whilst it is correct that Part A of the Annex A to the various memos recited the facts about the Applicant’s family, that is not the same as analysis or weighing in balance.  Nor is there any box reflecting this factor in the section of listed factors against continued detention, which triggers the point being considered.  Yet, it might be thought that impact on family and the presence of family would be a relevant consideration to weigh in the balance, including when weighing the risk of absconding or further offending.  The further complaint is that the Judge simply stated the point to be of no weight, without analysis as to why.

155.  Ms Cheung submitted that there is no need for the Director to take into account family rights or considerations.  That is a matter of discretion only, and it is open to the Director to take that into account or not, in line with the common law authorities.  We disagree.  The authorities on application of the HS principles specifically identify the effect of detention on the detainee and his family as being one of the matters to take into account in considering the continued reasonableness of detention.

156.  However, Ms Cheung is on stronger ground when she identifies that, when reviewing reasonableness in this case, the Judge did consider the Applicant’s family circumstances but decided to give it little weight, and it cannot be said that that is wrong in law.  Ms Cheung is also correct to point out that the family circumstances might be considered to have little impact in this case, as the Applicant is being held pending deportation, namely to be removed from his family in Hong Kong anyway, so that the factor might be of little significance when weighed against matters overall.

K.   Proper Consideration on an Appeal

157.  Because the matter came before us on an appeal, the question arises as to what is the task of the Court of Appeal when hearing an appeal against a Judge’s decision in a habeas corpus case like this one.

158.  The starting point must be from the first instance Judge’s point of view.  In the objective review to determine the lawfulness of the decision made by the respondent, the Court examines the decision on the basis of the evidence as known to the respondents when the decision was made.  Although the decision of the Court is necessarily ex post facto, the Court does not usually take into account matters that subsequently occurred.  This was explained in R (MH) v Secretary of State for the Home Department [2009] EWHC 2506 (Admin) at 105, as follows (in a decision subsequently upheld on appeal):

In my view, although the court is the judge of whether reasonable grounds for detention existed at any particular point in time, it makes that assessment by reference to the circumstances as they presented themselves to the Secretary of State.  The Secretary of State needs to have means of assessing the legality of his actions at that time, in order to know what his legal duty is.  Rule of law values indicate that the Secretary of State should be entitled to take advice and act in light of circumstances known to him, without fear of being caught out by later circumstances of which he would have no knowledge.

159.  This approach ought to cause few problems at first instance, where it can be anticipated that the application will be dealt with by the Judge with some urgency, and relatively soon after the most recent decision taken to continue detention.  However, as we have already touched on above, where there is either significant time between the last review and the hearing, or something of real significance has occurred in the meantime, it may be right to take that new information into account – assuming it can be done fairly within the proceedings.  But a problem may arise also if there is any significant delay until the determination of any appeal from the decision of the Judge.

160.  Also helpful is what was said in the Muqtaar case, at §§46, 48 and 83, as follows:

46.  I have taken the view that the conclusion reached by the deputy judge on each of the issues considered above deserves considerable respect, given that he directed himself correctly on the law and undertook the task of applying the law to the facts in an obviously careful and conscientious manner.  In the judgment of the court in the Abdi case, Sedley LJ pointed out, at para 7, that the concepts of “reasonable period” and “in all the circumstances” are open-ended and describe “a large area of judgment to be made in each case that comes before the court”.  He said, at para 62:

“The judges of the Administrative Court frequently face a difficult task in deciding whether detention has continued for an unreasonable time, and if it has at what point in time it became unreasonable. This 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.”

In similar vein, Longmore LJ observed in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 at [73] that judges “have to make a judgment taking a range of (often competing) factors into account”, but that “once a judge has done that, it will be a rare case in which it would be right for this court to interfere”.  I agree with those observations, which in my view represent the correct approach of an appellate court to cases involving the application of Hardial Singh principles.

48.  Toulson LJ’s observations in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 were directed to an argument that the role of the court was to review the reasonableness of the Secretary of State’s decision to exercise his power of detention; in the passage in question, he was not considering the respective positions of a first instance judge and an appellate court.  It is well established that in applying the Hardial Singh principles the court must form its own judgment (for example, as to whether a reasonable period has been exceeded) rather than reviewing on Wednesbury grounds (see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) a judgment made by the executive.  But the forming of such a judgment is an evaluative exercise, involving the balancing of a wide range of relevant factors.  It is a situation in which, as it seems to me, the approach advocated by Sedley LJ in the Abdi case and by Longmore LJ in the MH case is entirely apposite; and I respectfully prefer that approach to the view expressed by Laws LJ in the AS (Sudan) case.

83.  I agree with Richards LJ that there is not one right answer to the question what is a reasonable period.  It is a matter of judgment, and this court should only interfere if satisfied that the assessment of the judge below was wrong. Like Richards LJ, I also respectfully disagree with the observations of Laws LJ in AS (Sudan) v Secretary of State for the Home Department [2009] EWCA Civ 1518, para 7, referred to by Richards LJ at para 47 above, to the extent that they were seeking to suggest that where the Court of Appeal is reviewing a case on the papers, it can effectively decide the matter for itself afresh.  That, it seems to me, renders virtually pointless the first instance decision.  No doubt the fact that a decision is reached on the papers means that the appellate court can more readily be satisfied that a decision is wrong than it can where, for example, an assessment has to be made of oral evidence.  But a decision is not wrong simply because the Court of Appeal would have exercised its judgment differently.  So I accept that in acceding to the appeal on this point, we must be satisfied that in allowing in excess of two weeks for the Secretary of State to review the claimant’s situation, the judge was wrong.

161.  We think that those passages identify the correct approach.  The first instance judge forms his or her own judgment as to whether a reasonable period of detention has been exceeded in the particular circumstances of the case.  That is an evaluative exercise, and it involves balancing a wide range of factors, often competing factors. Forming such a judgment is not the same as being engaged in a discretionary exercise. However, 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.  It is not helpful to the description of the test to suggest that such interference will only be in a rare case.  Rather, the test is sufficiently clear, and appellate interference with a first instance decision will occur when it is appropriate.

162.  We have applied that approach in this appeal.

L.   Summary of Applicable Principles

163.  Though we set out a section earlier in this Judgment relating to relevant legal principles, we then considered the application of those broad principles to further specific matters – many of which will frequently occur in other cases.  In those circumstances, it would be helpful to offer a summary of applicable principles (without reference to authority) to provide guidance for future cases, and to the Secretary and Director in their own application of the principles.

164.  Though obviously not intended to be exhaustive, our 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 objectivereview 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.

M.   Conclusion

165.  For the above reasons, the appeal was allowed.