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Man in immigration detention for 45 months loses judicial review

Man in immigration detention for 45 months loses judicial review

Taskiran v Secretary of State for the Home Department [2017] EWHC 2679 (Admin) is a sad case. A web of domestic immigration law and international agreements have resulted in Mr Taskiran undergoing almost four years of immigration detention, which the court found legal.

Mr Taskiran was brought to the United Kingdom from Turkey aged 13. In March 1994 his family, including his refugee father, were granted Indefinite Leave to Remain. However, Mr Taskiran became addicted to crack cocaine. This seems to have fuelled a long history of offending: between August 1994 and January 2014, he had 27 convictions for 54 offences. In January 2014 he was convicted of rape and sexual assault.

Since his release from custody, Mr Taskiran has been in immigration detention. His total period in immigration detention between 2006 and today is 45 months, and counting.

The Secretary of State tried to deport him twice before 2014, in 2007 when he was sent a notice of intention to make a deportation order, and in 2009 when the deportation order itself was served on him. It was believed deportation would be straightforward so long as he went to the consulate and promised to do mandatory national military service. He refused both times.

Mr Taskiran applied for asylum in October 2016. He further claimed to be stateless, since Turkey removed his citizenship when he refused to do national service, and the UK denied his naturalisation application for reasons of bad character. In June 2017 his asylum claim was refused, although the First-tier Tribunal allowed an appeal and the Home Office undertook to reconsider it. The reconsideration will have an in-country right of appeal.

The relevant legal principles are those originally in R v Governor of Durham Prison ex Hardial Singh [1984] 1 WLR 704, and re-stated by Lord Dyson in Lumba v Secretary of State for the Home Department [2011] UKSC 12:

i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

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

iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.

On the facts of the present case, the Home Office had been continually in contact with the Turkish authorities. This meant that the fourth principle was not breached. But Mr Taskiran argued that his detention was unlawful on the basis of the third principle (capacity to effect deportation within a reasonable period).

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The decision of the High Court was influenced by the fact that the Secretary of State has finally been able to make an application to the Turkish authorities through the EU Readmission Agreement. It was only in July 2017 that the Turkish authorities gave the Home Office the email address to use for this process. It was expected that an  application would be made to the Turkish authorities once the legal barrier to removal – his asylum claim and appeals process – were finished.

Therefore there had been a material change of facts justifying detention to the present date, although the High Court agreed with the decision-maker that this was a finely balanced case.

The barrier to removal set up by the asylum claim

was and is capable of being resolved relatively quickly. If an adverse decision is made by the Secretary of State in response to the decision of the FTT, and C appeals against it, on past evidence, an appeal could be listed within a month of the decision. The success of the appeal did not mean that, during the period between 7 July 2017 and the date of the hearing before us, removal would not be possible within a reasonable further period, having regard to the time for which, by 7 July, C had so far been detained.

The court concluded that

we do not consider that the point has yet been reached where there is no realistic prospect of removal within a time which is reasonable, in the light of the time which has elapsed already; indeed, we take the view that there is such a prospect.

States such as the United Kingdom must grapple with the question of what to do with an immigrant who has fallen into serious and persistent crime. Deportation is one response. Yet this brings in political and bureaucratic challenges, demonstrated ably by this case. The legality of 45 months of immigration detention, including 11 months’ continuous detention up to the present day, without an immediate end in sight, makes for depressing reading.

Paul Erdunast

LLM student at Cambridge University. Formerly a full-time Education and Community Care Paralegal at Just for Kids Law, Intern at Hackney Community Law Centre and Legal Caseworker at the AIRE Centre. GDL graduate from City University. Previously studied Classics at Worcester College, Oxford. Interested in immigration, asylum and refugee law and policy.

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