Court name
Court of Appeal of Turks and Caicos Islands
Case number
CL-AP 7 of 2021

Moin Alhashash v. Derek Been, Director of Immigration (CL-AP 7 of 2021) [2022] TCACA 6 (07 April 2022);

Media neutral citation
[2022] TCACA 6
Coram
Morrison, P
John, JA
Stollmeyer, JA

 

 

IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

Appeal No. CL-AP 7/21

From CL 31/21

BETWEEN:

MOIN ALHASHASH                                                                          Appellant

-and-

 

DEREK BEEN, DIRECTOR OF IMMIGRATION

ATTORNEY GENERAL                                                                    Respondents

 

BEFORE:

The Hon. Mr. Justice C. Dennis Morrison P

                                    The Hon. Mr. Justice Stanley John JA

                                    The Hon. Mr. Justice Humphrey Stollmeyer JA

 

APPEARANCES:   

Mr Tim Prudhoe instructed by Prudhoe Caribbean for the Appellant

                                    Ms Clemar Hippolyte for the Respondents

 

Date Heard:               25th January, 2022

Date Delivered:          7th April, 2022

 

JUDGMENT

MORRISON P

 

     Introduction

 

1. The appellant Moin Alhashash (‘MA’) is a 29 year-old Syrian national.

 

2. The first respondent is the Director of Immigration (‘the Director’) for the Turks and Caicos Islands (‘TCI’ or ‘the Islands’).

 

3. On 8 January 2021, MA entered the TCI illegally, having arrived by boat in the Northwest Point area of Providenciales. It later transpired that he had previously travelled from Lebanon to Brazil, on to Haiti, and that, at the time of his unknowing landfall in the TCI, he was en route to Miami, in the hope of eventually making his way to Canada[1].

 

4. On 11 January 2021, MA presented himself to the Royal Turks and Caicos Islands Police Force, Criminal Investigation Department, where he was interviewed under caution. He was later escorted to the Immigration Enforcement Unit Office and, on 16 February 2021, after a further interview, he was formally cautioned and charged with the offence of unlawful entry, contrary to section 102(1)(a) of the Immigration Ordinance (‘the Ordinance’).

 

5. MA was held at the Immigration Detention Centre (‘the Detention Centre’) from 11 January 2021 until 22 March 2021, when he was taken before the Chief Magistrate on the unlawful entry charge. He pleaded guilty to one count of unlawful entry and the Chief Magistrate sentenced him to time served (74 days). The Chief Magistrate also recommended MA’s deportation to the Minister with responsibility for Immigration, but stayed the recommendation until 21 September 2021 to enable MA to make an application for asylum if he wished to do so.

 

6. MA remained at the Detention Centre until 30 March 2021. The Director’s evidence was that, subsequent to MA’s appearance before the Chief Magistrate on 22 March 2021, efforts were made to seek alternative accommodation for him. These involved activating the necessary procurement processes and making requests to the Ministry of Finance, “to seek approval to incur the associated expense”[2].

 

7. On the morning of 30 March 2021, on MA’s application[3], Lobban Jackson J ordered that a writ of habeas corpus be issued to the Director to bring him before the Supreme Court on 1 April 2021, “in the event that [he] is not released before then”.

 

8. At approximately 2:00 pm on 30 March 2021, MA was relocated from the Detention Centre to the Airport Inn Hotel, 83 Airport Road, TKCA IZZ (‘the Airport Inn’). That same day, a document headed, ‘Notification of Temporary Admission/Release to a Person Liable to be Detained’ (‘the Notice’), signed by an immigration officer, was issued to MA by the Ministry of Border Control and Labour. The Notice, which described MA as “a person who is liable to be detained”, stated the conditions of his release to be that (i) he should reside at the Airport Inn[4]; (ii) he was obliged to report to an Immigration Officer at the Enforcement Unit Office every Wednesday at 10:00 am; and (iii) he was prohibited from entering into employment or engaging in business of any kind.

 

9. On 2 April 2021, Prudhoe Caribbean, acting on MA’s instructions, lodged an application for asylum in the TCI on his behalf.

 

10.  In the period immediately following his release from the Detention Centre, MA, through his attorneys Prudhoe Caribbean, sought to have the habeas corpus application relisted. MA’s contention was that conditions (i) and (ii) attached to his release from the Detention Centre (‘the post-release conditions’) amounted, in effect, to continued detention.

 

11. On 4 June 2021, Simons J (‘the judge’) ordered a second writ of habeas corpus to issue to the Director to produce MA before the court on 22 June 2021[5].

 

12. On 22 June 2021, having heard counsel for the parties, the judge dismissed the writ, making no order as to costs. The judge’s reasoning may be summarised as follows:

i. Although MA’s initial detention was lawful, once he was convicted before the Chief Magistrate on 22 March 2021 and sentenced to time served, he was “no longer a person liable to be detained under the Ordinance and his continued detention was unlawful”. Accordingly, “the restrictions imposed upon his release constituted unlawful restraints upon his liberty, in the sense that if there is no power to lawfully detain there can be no power to impose conditions on liberty from that detention”.

 

ii. However, in light of the eight-day period between MA’s conviction on 22 March 2021 and his release on 30 March 2021, and the Director’s evidence that “the time was spent planning to find alternative accommodation for [MA] and to procure funding approval from the Ministry of Finance to pay for it”, this was not an inordinate period.

 

iii. Further, that “the restrictions imposed when [MA] was released to the Airport Inn were not unreasonable for a person convicted of an immigration offence and who is the subject of a deportation order (albeit suspended for six months)”.

 

iv. In these circumstances, the restrictions fell within the contemplation of both “the grace period” and the “appropriate conditions for release” sanctioned by the authorities.

 

v. Accordingly, “[MA’s] liberty was not constrained in an actionable way” and the writ of habeas corpus would be dismissed.

 

13.  In arriving at this decision, the judge relied heavily on what he described as the “Hardial Singh principles”, a reference to the well-known immigration decision of Woolf J (as he then was) in R v Governor of Durham Prison, Ex p Hardial Singh[6] (‘Hardial Singh’).

 

14.  Both sides now say that the judge misapplied the Hardial Singh principles. In grounds of appeal filed on 6 October 2021, MA contends that the judge erred in law –

“1) ... in his considering that conditions found to be unlawful could be either made lawful or otherwise be overlooked as to the effect of their unlawfulness for a period beyond/past any grace period granted in accordance with Hardial Singh principles; and

 2) separate to the issue of unlawful conditions permitted by him, ... there was no consideration as to the effect of such conditions themselves constituting continued detention.”

 

15. On the other hand, by a respondents’ notice filed on 21 October 2021[7], the respondents contend that the judge erred –

 “1. In fact and law in that he found that when [MA] was convicted before the Chief Magistrate on 22 March 2021 and sentenced to time served, he was no longer a person liable to be detained under the Ordinance and his continued detention was unlawful.

2. In law in finding that the writ of habeas corpus ad subjiciendum should issue.

 3. In law in finding that the restrictions imposed upon [MA’s] release from such detention were also unlawful.”

 

     An item of fresh evidence

16. On 17 November 2021, while the hearing of this appeal was pending, MA applied for permission to adduce fresh evidence. The application was supported by the affidavit of Edward Claude sworn to on 17 November 2021, which stated as follows:

 

“9. On 3 June 2021 [MA] was interviewed by the United Nations High Commissioner for Refugees [UNHCR] in order to determine whether [MA] qualified as a refugee within the meaning of the United Nations 1951 Convention Relating to the Status of Refugees and its 1967 Protocol Relating to the Status of Refugees ...

 

11. On 2 November 2021, the UNHCR produced to the respondents to this application an Advisory Opinion relevant to [MA] confirming that he qualified as a refugee ...”

 

17. The respondents did not oppose the application and accordingly, by a consent order made on 12 January 2022, the UNHCR’s Advisory Opinion dated 2 November 2021 was admitted in evidence. The Advisory Opinion recorded the UNHCR’s conclusion that, having considered the information supplied by MA in his interview, as well as the available supporting documents and information, “[MA] qualifies as a refugee within the meaning of the 1951 Convention”[8]

 

18. When the appeal came on for hearing on 25 January 2022, the court was advised that MA’s application to the Government of the TCI for asylum was still under consideration by the relevant authorities. In answer to the court’s specific enquiry, Mr Prudhoe told the court that MA placed reliance on the Advisory Opinion at this stage for context only; while Ms Hippolyte stated that grant of refugee status to MA by the UNHCR had no bearing on the narrow issues which this court was asked to decide.

 

19. I agree with Ms Hippolyte on this point. I therefore approach the matter on the basis put forward by Mr Prudhoe, which is that the Advisory Opinion’s only relevance to this appeal is as to background.

 

     The Hardial Singh principles

20. The applicant in Hardial Singh was an Indian national who was in the United Kingdom lawfully, having been given indefinite leave to remain in the country in 1977. However, in 1980 and 1982 respectively, he committed two criminal offences. Ordinarily, he would have been released from prison on parole on 20 July 1983, but a deportation order was made against him on 16 June 1983. The effect of this was that he was detained beyond his ordinary release date, pursuant to the provisions of paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (‘the 1971 Act’), pending his removal from the country. Paragraph 2(3) provided that “[w]here a deportation order is in force against any person, he may be detained ... pending his removal or departure from the United Kingdom ...”.

 

21. On 2 December 1983, the applicant, who was still in detention, applied for an order for a writ of habeas corpus ad subjiciendum directed to the prison authorities to show cause why he should not be released immediately. The question for the court was whether, in light of the fact that the power to detain under paragraph 2(3) was not subject to any express limitation as to time, it was nevertheless possible to imply such a limitation.

22. It was held that the power to detain was in fact subject to an implicit limitation. Explaining the basis of this conclusion, Woolf J said this[9]:

 

“... as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

 

In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time.”

 

23. In the result, the court ordered that unless the Home Office produced evidence within three days to show that the applicant was about to be deported or that his continued detention was reasonable in the circumstances, the court would order that he be released from custody.

 

24. The Hardial Singh principles have since been discussed and applied in a number of cases, many of them at the highest level. In R (Lumba) v Secretary of State for the Home Department[10], for instance, Lord Dyson summarised them as follows:

 

“(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."

 

25. Here in the TCI, the Hardial Singh principles were expressly adopted and applied by Agyemang CJ at first instance in Kajeepan v Been[11] (‘Kajeepan’). However, the Chief Justice held that, in the particular circumstances of the case, the detention of the 15 immigrants involved, “which was lawful in the beginning as done pending their removal from the Islands, continues to be lawful in spite of the delay in repatriation caused by the unforeseen circumstance of COVID-19”.

 

26. On appeal, this court also approached the matter on the basis that the Hardial Singh principles were applicable. Indeed, Winder JA, with whom John JA agreed, described the relevant principles as “fairly well settled”[12]. However, by a majority, the Court of Appeal disagreed with the Chief Justice’s decision on the facts of Kajeepan. Winder JA considered that, on the evidence, it was clear that the immigrants in that case were not in fact detained for immigration purposes, as the Chief Justice had found, but for the purposes of furthering a criminal investigation. This is how Winder JA explained his conclusion[13]

 “I am satisfied that the principles identified in [Hardial Singh] were offended by the Respondents, in large measure, in that:

 “(1) the power to detain was not used for the    immigration-related examination, for which it was designed, but actually used to investigate the criminal offences of [the human smuggler];

(2) the period of time for which the Appellants were detained was not reasonable in the circumstances as these were not criminals but vulnerable individuals seeking refuge;

(3) there were barriers to any removal of the Appellants and therefore no purpose in properly detaining them while these barriers existed and no prospect of imminent removal; and

(4) no due diligence or expedition was demonstrated by the immigration authorities in discharging their responsibilities under the [Ordinance].”

 

27. Mottley P dissented on the facts of the case. In his view, considering the state of the evidence which was before the Chief Justice, it would be undesirable for the Court of Appeal to make “findings which would be adverse to the public officials without affording them an opportunity to explain the circumstances and the reason why the appellants were not released prior to the date on which they were eventually released”[14]. In these circumstances, Mottley P considered that it could not be said that the Chief Justice erred in concluding that the detention was lawful. However, it is clear that Mottley P’s analysis also proceeded on the basis that the Hardial Singh principles were applicable.

 

28. FM v Secretary of State for the Home Department[15] was another case in which the Hardial Singh principles were applied. In that case, discussing the scope of the obligation to release the person once it becomes clear that detention is no longer required to effect removal, Pitchford LJ observed that:Anchor

“... common sense demands that a short period of grace is required for the decision-making process to take place which may include a decision as to the management of the detainee on release.” 

 

29. This notion of a period of grace within which to effect release from detention is now a fully recognised feature of this area of the law. However, as was emphasised in R (on the application of AC (Algeria)) v Secretary of State for the Home Department[16], permissible grace periods will depend on the facts of each case, but should be “only for a reasonable period to put in place appropriate conditions for release”[17]. While revealing no clear limits to allowable grace periods, the examples referred to in the judgment of Irwin LJ in this case show periods measured in days and weeks rather than months[18].

 

     The statutory framework

30. Before coming to counsel’s submissions, I will next mention a few of the provisions of the Ordinance which have a bearing on the issues raised by the appeal.

 

31. First, under the rubric, “Power of immigration officers to examine persons on entry”, section 50(1) and (2) empowers an immigration officer to board any ship or aircraft for the purpose of exercising his function under the Ordinance[19], and examine any person who has arrived in the Islands by ship or aircraft for the purposes of establishing their immigration status[20]. Section 50(3) goes on to provide that such a person may be examined by the Government Medical Officer or any other appropriately qualified and authorised person; and section 50(4) provides that a person on being examined by an immigration officer or the Government Medical Officer may be required to submit to further examination.

32. Section 51(1) authorises an immigration officer to examine any person whom he reasonably suspects –

 “(a) of having entered the Islands unlawfully; or

  (b) of being in the Islands in breach of any condition or restriction of his permit to enter or reside in the Islands.” 

 

33. Sections 52 and 53 authorise an immigration officer to give directions for the removal of persons refused leave to enter the Islands and for the removal of unlawful entrants.

 

34. Importantly for the purposes of this case, under the rubric, “Detention of persons liable to examination or removal”, section 54(1) and (2) provides that persons who may be required to submit to examination under section 50(2), (3) or (4), or under section 51, or persons in respect of whom directions may be given under sections 52 or 53, may be detained under the authority of an immigration officer pending his examination or directions respectively, and pending his removal pursuant to any directions given.

 

35. Under the rubric, “Detention Centres”, section 56(1) provides that “[p]ersons may be detained under section 54 in such places as the Minister may direct ...”

 

36. Next, under the rubric, “Temporary admission or release of persons liable to detention”, section 58 provides that:

“(1) A person liable to detention or detained under section 54 may, under the written authority of the Director –

(a) be temporarily admitted to the Islands without being detained; or

(b) be released from detention ...

 (2) ...

(3) As long as a person is at large in the Islands by virtue of this section, he shall be subject to such restrictions as to residence and as to reporting to the police or an immigration officer as may be notified to him in writing.”

 

37. Section 82 provides for applications to the Minister for asylum, while section 83(1) provides that when an application for asylum is pending, the Minister shall, subject to the conditions set out in section 83(2), “direct the Director – (a) to grant the applicant exceptional leave to remain in the Islands; and (b) make arrangements for his support, accommodation and upkeep”. 

 

38. The conditions set out in section 83(2) are:

“(a) that the application for asylum was made as soon as reasonably practicable after the applicant’s arrival in the Islands;

(b) that for obvious and compelling reasons the applicant cannot be returned to his country of origin or nationality, or

(c) that the Islands are the first country where the applicant would reasonably be expected to apply for asylum after leaving his country of origin or nationality.”

           

39. And, finally for present purposes, section 95(1)(b) provides that a person, other than an Islander, a British overseas territory citizen or a permanent resident, who has been convicted of any offence and a recommendation made for his deportation, shall be liable to deportation. This is supplemented by section 97, which gives a power of detention to an immigration officer in respect of a person against whom a deportation order has been made.

 

40. As might be expected therefore, the Ordinance gives broad powers to immigration officers to examine and give directions to persons seeking to enter the Islands. Those powers extend to a power to authorise the detention of such persons in designated detention centres, and to authorise temporary admission to the Islands without detention, subject to such restrictions as to residence and reporting as may be imposed. Provision is also made for the grant of exceptional leave to remain in the Islands when an application for asylum is pending. And finally, provision is made for detention of persons subject to deportation orders.

 

The submissions

 Mr Prudhoe for MA

41. Mr Prudhoe took no issue with the condition that MA should not engage in employment. However, he submitted strongly that the other two post-release conditions, viz, that MA should remain in residence at the Airport Inn and that he should report weekly to the Enforcement Unit Office, were not appropriate conditions for release in the circumstances of this case.

 

42. Mr Prudhoe’s contention was that, firstly, the post-release conditions were not imposed for the purpose of deportation, but were imposed, presumably, to facilitate MA remaining in Providenciales pending the determination of his asylum application. In these circumstances, the Hardial Singh principles and the notion of an appropriate grace period, which only applied where deportation was being contemplated, simply did not arise.

 

43. Secondly, that the post-release conditions were such as to constitute detention in themselves, in that they operated as restraints on MA’s freedom. Mr Prudhoe complained in particular that the judge had omitted altogether to address this second point, although it had been brought to the court’s attention in skeleton arguments filed on behalf of MA.

 

44. On this point, Mr Prudhoe referred us to, among other authorities: (i) ‘The Law of Habeas Corpus’[21], to make the point that a ‘qualitative restraint’ on a person’s freedoms may affect a person’s freedom, “where the individual’s right to live and to come and go as he or she pleases is restricted even though there is no confinement within a given perimeter”; (ii) the older case of R v Secretary of State for Home Affairs, ex parte O’Brien[22], in which Atkin LJ observed, in the context of determining the body to which a writ of habeas corpus should be directed, “Actual physical custody is obviously not essential”; and (iii) the Canadian case of R v Therens[23], in which Le Dain J found (with the concurrence of the other members of the court) that the request to accompany a police officer to a police station and submit to a breathalyzer test constituted a detention within the meaning of the Canadian Charter of Rights and Freedoms (to similar effect, see R v Thomsen[24] and R v Thompson[25], decisions of the Supreme Court of Canada and the Ontario Court of Appeal respectively).

 

45. On this basis, Mr Prudhoe submitted that MA had no choice but to comply with the conditions as to residence and reporting and that this in effect amounted to a deprivation of his liberty. He therefore invited the court to remit the matter to the Supreme Court for consideration of the issue whether these conditions in themselves constituted continued detention.

 

46. And thirdly, Mr Prudhoe submitted that, having applied for asylum on 2 April 2021, MA ceased to be a person subject to “temporary admission”, and therefore subject to sections 54 or 58 of the Ordinance, but rather became a person to whom “exceptional leave to remain in the Islands” had been granted under section 81(1) of the Ordinance. There was therefore no legal power to detain him, “for so long as exceptional leave subsists”[26].

 

47. On this last point, Mr Prudhoe referred us to Lord Lloyd-Jones’ observation in B (Algeria) v Secretary of State for the Home Department[27], that:

“It is a fundamental principle of the common law that in enacting legislation Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear.”

 

     Ms Hippolyte for the respondents

48. Ms Hippolyte submitted that, although the judge’s decision to refuse the writ of habeas corpus was correct, his reasons for doing so were flawed. As regards Mr Prudhoe’s first point, Ms Hippolyte took issue with the judge’s finding that upon MA’s conviction and sentence on 22 March 2021, he was no longer a person “liable to be detained”. In this regard, she drew attention to section 58 of the Ordinance, which makes provision for temporary admission into the Islands of persons liable to detention under section 54, and the power given to the Director to impose restrictions in such circumstances. She also referred us to sections 95 and 97 of the Ordinance and the power to detain a person who is subject to a deportation order.

 

49. In support of her argument on this point, Ms Hippolyte placed great reliance on R v Secretary of State for the Home Department, ex parte Khadir (FC)[28], a case concerned with the ambit of the phrase “liable to detention”, as it appeared in paragraph 21 of Schedule 2 of the 1971 Act.

 

50. The issue in that case arose in this way[29]. Where a person is refused leave to enter the United Kingdom (‘the UK’), paragraph 8(1)(c) of Schedule 2 to the 1971 Act enables an immigration officer to give directions within a reasonable time to those responsible for carrying that person to the UK to make arrangements for his removal. Paragraph 16(2) provided that if there were reasonable grounds for suspecting that a person is someone in respect of whom such directions may be given, that person may be detained under the authority of an immigration officer pending a decision whether or not to give such directions or his removal in pursuance of such directions.

 

51. This is the background to paragraph 21, which provided as follows:

“(1) A person liable to detention or detained under paragraph 16 above may ... be temporarily admitted to the [UK] without being detained or be released from detention ...

(2) So long as a person is at large ... by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer.”

 

52. In a judgment with which the other members of the House agreed, Lord Brown held that “[s]o long as the Secretary of State remains intent upon removal of the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile”. In such a circumstance, “[h]e remains ‘liable to detention’ and the ameliorating possibility of his temporary admission in lieu of detention arises under para 21”[30].

 

53. This view of the meaning of the phrase “liable to detention” was also adopted in R (on the application of Kaitey) v Secretary of State for the Home Department[31], in which Singh LJ said that:

“… the phrase ‘liable to detention’, on its natural meaning, refers to a person who can in principle be detained: in other words that there exists a legal power to detain them. It does not say ‘liable to lawful detention’. Nor does it say that the power to detain must not only exist but must be capable of being exercised lawfully.

 

54, As regards Mr Prudhoe’s second point, Mr Hippolyte did not dissent from the proposition that the fact that MA was released from physical detention subject to conditions on 30 March 2021, was not fatal to an application for habeas corpus. Indeed, she cited authorities to that effect[32]. But she submitted that the court should “closely examine the facts in [their] totality including the nature and impact of the conditions imposed on [MA’s] right to liberty”[33]. In this case, the post-release conditions did not amount to deprivation of liberty and the judge therefore erred in finding that the post-release conditions were unlawful.

 

55. Ms Hippolyte also referred to a number of cases in support of her point that in this case the post-release conditions did not amount to a deprivation of MA’s liberty. For present purposes, it is only necessary to mention the decision of the European Court of Human Rights in Guzzardi v Italy[34], in which it was said that:

 “In order to determine whether someone has been ‘deprived of his liberty’ ... the starting point must be his concrete situation and account must be taken of a whole range of criteria such as type, duration, effects and manner of implementation of the measure in question.”

 

56. In the next paragraph[35] of the judgment, the court went on to explain that “[t]he difference between deprivation and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance”.[36]

 

 Discussion and conclusions

57. Mr Prudhoe says that the judge misapplied the Hardial Singh principles. As I understand it, his contention is that if, as the judge found, MA was no longer a person liable to detention as at 22 March 2021, then the question of detention for the purposes of MA’s removal from the TCI, which is what Hardial Singh is all about, ceased to be relevant. In these circumstances, it was inappropriate for the judge to have applied Hardial Singh analysis relating to grace periods and the like, to sanction the post-release conditions, conditions which in any event amounted to continued detention.

 

58. The first critical question is therefore whether, notwithstanding his conviction and sentence on 22 March 2021, MA remained, as Ms Hippolyte contended, a person “liable to detention” under the Ordinance. In my respectful view, much for the reasons advanced by Ms Hippolyte, he plainly did.

 

59. As at the end of the hearing before the Chief Magistrate on 22 March 2021, although the actual criminal charge was now behind him, MA’s immigration status in the Islands remained that of a person who had entered the country unlawfully. Indeed, the Chief Magistrate had recommended his deportation on this basis.

 

60. In these circumstances, as it seems to me, MA remained a person subject to examination by an immigration officer under section 50 or section 51, directions under sections 52 and 53, and, accordingly, liable to detention under section 54. He was therefore a fit person for temporary admission under section 58(1), “without being detained”, which is precisely what happened when the Notice was issued to him on 30 March 2021. And, as a person to whom temporary admission had been granted, section 59(3) expressly made him subject to “such restrictions as to residence and as to reporting to the police or an immigration officer as may be notified to him in writing”.

 

61. If this analysis is correct, then the next question is whether the post-release conditions were such as to amount in effect to continued detention. I accept that, as the authorities show, and Ms Hippolyte conceded, “an individual’s right to live and to come and go as he or she pleases [may be] restricted even though there is no confinement within a given perimeter”[37]. However, I also think that it must always be the case that, as the European Court observed in Guzzardi v Italy, “[t]he difference between deprivation and restriction upon liberty is … one of degree or intensity, and not one of nature or substance”[38].

 

62. In this case, in my view, the requirements that MA should reside at the Airport Inn and report once weekly to the police or immigration authorities were purely minimal incursions on his otherwise complete freedom to come and go as he pleased. Certainly, there was nothing coming from him to suggest anything to the contrary. I would therefore reject the submission that, as a result of the post-release conditions, MA effectively remained in detention in the period after 30 March 2021.

 

63. In arriving at this conclusion, I have not lost sight of Mr Prudhoe’s final point, that as a person in respect of whom an application for asylum is pending, MA was the beneficiary of exceptional leave to remain in the Islands under section 83(1) of the Ordinance. But I think we can safely pass over the point on the ground that (i) there is absolutely no evidence that MA satisfied any of the conditions for the grant of exceptional leave set out in section 83(2)[39], or that (ii) the Minister had in fact granted him any such leave.  

 

64. For the reasons which I have attempted to state, I have therefore come to conclusion that the judge erred in finding that, as at 22 March 2021, MA was no longer a person liable to detention and that, as a result of this, his detention between 22-30 March 2021 was unlawful. It follows from this that the judge’s resort to the Hardial Singh principles as a means of validating the post-release conditions, was misplaced: those conditions were entirely in keeping with the Director’s statutory powers under section 58(3).

 

65. So, as it turned out, save perhaps in relation to MA’s detention for the 22-30 March 2021 period (as to which Mr Prudhoe made no complaint), it seems to me that the Hardial Singh principles had no role to play in the case at all. Had MA’s detention continued indefinitely after his conviction and sentence with a view to his deportation, then he would obviously have been able to invoke those principles to ensure that his detention was not limitless. However, as we have seen, that is not what happened, as MA’s period of detention came to an end with the issuance of the Notice granting him temporary admission under section 58(1).

 

66. In the final result, therefore, while I agree with Mr Prudhoe that the judge erred in his reliance on the Hardial Singh principles in the circumstances of this case, I also agree with Ms Hippolyte that, on the basis that the post-release conditions were entirely within the Director’s statutory powers, the judge’s dismissal of the writ for habeas corpus was nevertheless correct.

 

     Disposal

 

67. I would therefore dismiss the appeal. However, in recognition of what the judge described as “Mr. Prudhoe’s continued pro bono position in these matters”[40], I would make no order as to costs.

 

7th April, 2022

 

 

Morrison P

 

I agree.

 

Stollmeyer JA

 

 

I also agree.

 

John JA

    

 

 


[1] Affidavit of Edward Claude sworn to on 15 April 2021, para 6

[2] Affidavit of Derek Been, sworn to on 6 April 2021, para 8.

[3] Application No CL27/2021

[4] Although, as Mr Prudhoe pointed out, the space on the document for the address at which MA was to reside was left blank, there is no real issue that he was required to remain at the Airport Inn Hotel to which he was released from detention.

[5] Action No CL31/2021

[6] [1984] 1 WLR 704

[7] As Mr Prudhoe pointed out, rule 14(4) of the Court of Appeal Rules provides that a respondent’s notice should be filed and served within 14 days after service of the notice of appeal on the appellant. In this case, the respondents’ notice, though filed on 21 October 2021, was not served until 11 November 2021. However, Mr Prudhoe did not object to the grant of leave for the late service.

[8] Advisory Opinion, page 2

[9] At page 706

[10] [2012] 1 AC 245, at para 22

[11] (2020) 97 WIR 521, 534

[12] [2005] UKHL 39

[13] Page 562, para [54]

[14] Page 580, para [33]

[15] [2011] EWCA Civ 807

[16] [2020] 1 WLR 2893

[17] Per Irwin LJ at para 40

[18] See Immigration Acts Law and Practice: Denham and Dunlop, 1st edn (2015), referred to by Irwin LJ at para 32.

[19] Section 50(1)

[20] Section 50(2)

[21] 3rd edn, by Judith Farbey and R.J. Sharpe, page 184

[22] [1923] 2 KB 361, 398

[23] [1985] 1 SCR 613, 644

[24] [1988] 1 SCR 640, 649

[25] [2020] ONCA 264, para [36]

[26] Appellant’s Reply Skeleton Argument, para 7

[27] [2018] IKSC 5, para [29]

[28] [2005] UKHL 39

[29] For the purposes of this summary, I have borrowed liberally from paras 14-18 of the judgment of Lord Brown of Eaton-Under-Heywood

[30] Per Lord Brown, at para 32

[31] [2021] EWCA Civ 1875, para 66

[32] See for instance R v Secretary of State for Home Department, ex parte Launder (No 2) [1998] QB 994, 1000-1001, and Pomiechowski v District Court of Legnica, Poland [2012] UKSC 20, [2012] 1 WLR 1604.

[33] Respondents’ Skeleton Arguments, para 39

[34] (1980) 3 EHRR 33, para 92

[35] Para 93

[36] See also R (on the application of Jalloh) v Secretary of State for the Home Department [2020] UKSC 4  

 

[37] See para 45 above

[38] See para 48 above

[39] See para 28 above

[40] Judgment, para 19