MAR v Director of Immigration
Court of First Instance
Constitutional and Administrative Law List No 132 of 2013
McWalters J
Administraive Law
14 February 2014

Administrative law — Director of Immigration — application for release from detention pending leave application for judicial review — unreasonable time taken for exercise of power under s. 36 — order for costs appropriate — Immigration Ordinance (Cap. 115) s. 36

X applied for leave to judicially review the decisions of the Director of Immigration (the “Director”) and the Torture Claims Appeals Board relating to his claim under the Convention Against Torture (“CAT”). X was released on recognizance, but failed to report as required. On 2 February 2014, he was arrested and detained. X applied for ancillary relief seeking his release. At the present hearing on 14 February 2014, the Director conceded that by 6 February 2014 at the very latest, he was aware that because the litigation concerning X’s CAT claim was unresolved, he could not in the reasonably foreseeable future exercise his removal power against X and that under the Hardial Singh principles he would have to release him.

Held, making no order on the application as the parties had agreed the terms of X’s release, but ordering costs against the Director, that assuming the original detention was lawful under s. 32(3)(a) of the Immigration Ordinance (Cap. 115), the exercise by the Director of the power under s. 36 between 6 February and 14 February 2014 to make enquiry, require X to enter a recognizance and provide a surety should not have taken as long it did in the present circumstances. Accordingly, the Director had not acted reasonably in detaining X for the lengthy period of time that occurred here (R v Durham Prison, ex p Hardial Singh [1974] 1 WLR 704 applied).

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