Immigration Detention — Court of Appeal orders immediate release of asylum seeker after “unreasonable” period of detention of over 3 years
Mr Harjang Singh was the subject of a deportation order issued in 2003 as a result of several serious criminal convictions. Following a 2017 conviction for blackmail, Mr Singh was detained at Castle Peak Bay Immigration Centre pending deportation section 32(3) of the Immigration Ordinance (Cap 115).
Harjang Singh v Secretary for Security and Another
| Reference: | [2022] HKCA 781 |
| Court: | Court of Appeal |
| Before: | Hon Barma JA, Hon G Lam JA and Hon Coleman J in Court |
| Appearance: | Tim Parker appeared for Mr Singh together with Josh Baker, instructed by Mohnani & Associates. |
| Date of Judgment: | 7 December 2021 |
| Date of Reasons for Judgment: | 29 July 2022 |
Overview
The Applicant, an asylum seeker, had been detained at Castle Peak Bay Immigration Centre pending deportation since his conviction for blackmail in 2017. The Court of Appeal found that the Applicant’s detention was in breach of the “Hardial Singh Principles” because (1) it had gone on for a period of time that was unreasonable in all the circumstances, and (2) his removal could not be effected within a reasonable time. His detention had therefore become unlawful and he was entitled to immediate release.
The Court of Appeal has ordered the release of an asylum seeker who had been held in immigration detention for over 3 years and 3 months.
The Judgment has significant ramifications for the application of the “Hardial Singh Principles”, which prevent administrative detention from being imposed longer than is reasonable.
Mr Singh was the subject of a deportation order issued in 2003 as a result of several serious criminal convictions (Judgment, §14). Following a 2017 conviction for blackmail, Mr Singh was detained at Castle Peak Bay Immigration Centre pending deportation section 32(3) of the Immigration Ordinance (Cap 115) (§23).
The Court (Hon Barma and G Lam JJA, Hon Coleman J) found that the Applicant’s detention had gone on for a period of time that was unreasonable in all the circumstances, in breach of Hardial Singh Principle 2. This line had already been crossed by the time the case had been heard at first instance, when the detention had gone on for some 2 years and 6 months (§82). Further, Mr Singh’s removal would not be possible within a reasonable time, breaching Hardial Singh Principle 3. His detention was unlawful, and he was entitled to immediate release.
The Judgment of the Court, given by Coleman J, contains a number of important propositions of law (summraised at §164 of the Judgment). Among others:
• A very careful assessment must be made in each case of the risk of the detainee reoffending or absconding, as the magnitude and potential impact of that risk will vary according to the circumstances.
• Neither risk (i.e. reoffending or absconding) can justify detention of any length, as that would permit indefinite detention.
• The longer the detention, the greater the risk necessary to justify it.
• The Court will rigorously scrutinise the assessment of the Secretary for Security / Director of Immigration as to risk on both grounds, and the weight to be given to that assessment will include consideration as to how convincing the reasoning is.
• 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.
• 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.
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Tim Parker
“Tim is a star. A measured yet forceful advocate who has a very tactical mind. He easily holds his own with the most senior of judges.” Legal 500 Asia-Pacific 2021 & 2022: Hong Kong Bar — Leading Juniors Tim Parker’s practice focuses on public and international law, competition and regulatory matters, and civil / commercial disputes. He practices both in Hong Kong and the United Kingdom, where he is a member of Blackstone Chambers. Tim has been ranked as a leading junior in, among others, Chambers and Partners 2022, and in Legal 500 Asia-Pacific 2022 for the areas of Administrative & Public Law, Commercial Disputes, and Competition Law. Tim has acted in a number of landmark constitutional and administrative law cases before the Hong Kong Court of Final Appeal and the Privy Council, including QT v Director of Immigration (2018) 21 HKCFAR 324 (striking down the Immigration Department’s exclusion of same-sex couples from its dependant visa policy) and C & Others v Director of Immigration (UNHCR Intervening) (2013) 16 HKCFAR 280 (representing the UNHCR; establishing the duty of the Hong Kong Government to screen refugee claims). Visit Tim’s profile to find out more.
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This article was first published on 5 August 2022.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photograph which appears in this article is included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related.