Balasundram, Kabilraj and ors. v. Derek Been, Director of Immigration and The Attorney General of the TCI (CL 44 of 2020)  TCASC 11 (01 May 2020);
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 TCASC 11
On 31 March 2020, on the application of Mr Prudhoe, Simons J (Ag) made an order for a writ of habeas corpus ad subjiciendum to issue, returnable 24 April 2020, to produce the applicants to the Court.
It had come to the attention of Litigation Paralegal of Prudhoe Caribbean, Mikhail Charles, during his work with one Chelliah, a Sri Lankan charged with immigration offences, that there were 29 Sri Lankan nationals detained at the Immigration Detention Centre, (“IDC”), since 10 October 2019.
The first respondent had alleged that 15 of these detainees had signed Voluntary Departure Forms (“VDFs”) declining legal advice. Mr Prudhoe requested a visit to speak with the detainees. He was not granted access. Further, the first respondent gave no explanation of the legality of the detention but simply detailed logistical difficulties in respect of repatriating any of the Sri Lankan detainees.
It was the Applicants case that they were being held in poor conditions with inadequate food and that they did not want to return to Sri Lanka as they believed that their lives would be in danger.
It was the Respondents’ case that the 29 had been lawfully detained as illegal immigrants when Immigration Officers intercepted a Haitian sloop in TCI waters. They remained lawfully detained pending repatriation which had been gravely hampered by the COVID-19 pandemic and the resulting restrictions on flights. In addition 6 of the Applicants were needed as prosecution witnesses in the case against Chelliah, and wished to be repatriated after they were done with their testimony, when they would be provided with witness protection facilities. 12 had signed VDFs. The Respondents maintained that the conditions at the IDC were proper and healthy.
Headnote and holding:
The delay in repatriating the applicants was justified.
The power to detain pending deportation must only be exercised for a reasonable period, R v Governor of Durham Prison ex parte Hardial Singh  1 WLR 704 (CONSIDERED), R (I) v Secretary of State for the Home Department  EWCA Civ 888 (APPLIED)
It was common ground that the 15 Applicants were all illegal immigrants and the Respondents had demonstrated that they were still lawfully detained pending their repatriation, given the restrictions on air travel raised by the COVID-19 pandemic and their active and continuing efforts to effect the repatriation under s 54(2) of the Immigration Ordinance. The delay was for just cause. If the detention continued even after the restrictions on air travel had eased in both TCI and Sri Lanka it would at that point become unlawful.
The legality of the continued detention was not affected by the fact that 6 of the detainees were to be used as prosecution witnesses as long as the prosecution is conducted without undue delay. Should there be undue delay if, as a result, they were not repatriated within a reasonable time their continued detention at that point would be unlawful.
The Respondents had demonstrated on the preponderance of the probabilities that the accommodation arrangements at the IDC were adequate.