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The public law team have recently been working with a number of Chinese nationals who are being detained under Immigration Powers for excessive periods (ranging between 12 months to 24 months), where the client has no prospect of removal under the R(Hardial Singh) v Governor of Durham Prison  EWHC 1 (QB) principles. There is a commonality between the clients immigration history; most arrived in the UK using clandestine means, either claiming asylum on arrival or at a later date which was subsequently refused, they were then convicted for non violent criminal offences often in the course of their employment, following the completion of their criminal sentence they are then detained under Immigration powers, until an Emergency Travel Document can be obtained for their return to China.
The Hardial Singh principles have been summarised accordingly, most recently in the case of Walumba Lumba & Kadian Mighty v Secretary of State for the Home Department  UKSC 12;
The pivotal point in assessing and applying these principles should focus on effecting deportation within a reasonable period, and is the basis of our challenge to the unlawful detention of these clients. For the Secretary of State to take up to 2 years to effect the return of someone to their country of origin certainly demonstrates that removal has not, and most likely cannot, be effected within a reasonable period. It also brings into doubt the other three aspects of the principles, notably the question of the expediency with which the Secretary of State has acted. To compound the ineffectual nature of the Secretary of State’s actions, many of our clients have also expressed an intention to return to China-evidenced by their participation in the Voluntary or Facilitated Returns Schemes, and yet still there remains some barrier to their removal. A number of the clients have been accused of frustrating their own return under these schemes, by failing to provide accurate information on their residence in China, or false addresses that the Returns Liaison Officer has been unable to locate. Basic Google map searches by our team have revealed that this can be explained by just a simple failure to accurately translate between Chinese and English!
Why, then, has it taken so long to return these clients to China? It seems incomprehensible (Google Maps aside) that someone would wish to remain in a country in which they have spent years in detention and have no formal or emotional links to, to the extent that they would persistently and deliberately obstruct their return to their mother land. In a recent oral permission hearing, Counsel to the Secretary of State argued that removal of a client could be effected within a month of the hearing, due to a Memorandum of Understanding between China and the UK which purports to expedite the acquisition of the necessary travel documents for people to return to China. More than a month later, no evidence was to be found of a travel document for the client. We also made a Freedom of Information request for the full details of the Memorandum, which shed little light on the terms of the agreement. It seems that the obstacle to a removal runs deeper than non-compliance on the part of the Claimant. We know that all the clients have in common their criminal convictions, generally committed in a bid for economic survival whilst in the UK, and for which they have completed their sentences. We sense a reluctance on the part of Chinese authorities to accept back into the country, nationals with criminal convictions. We have approached a number of MPs with particular areas of interest in asylum and immigration issues, to engage their help in raising issues such as China-UK relations, and the number of successfully returned asylum seekers to China, in House of Commons debates.
As a consequence of being unable to return to China, serious issues are being either overlooked or ignored. A basic tenet of human rights is being breached-that of the right to liberty, enshrined in multiple international conventions to which the UK is a party, and implemented in domestic law through the Human Rights Act ’98.These clients are serving, what appear to be, extrajudicial sentences, for failures in the diplomatic system that are beyond their remit to change. Furthermore, the legal system has thus far been unwilling to help them. To date, applications for permission to seek Judicial Review challenging these unlawful detentions have remained unsuccessful. The Administrative Court judges have been swayed by arguments of ‘imminent removal’ and ‘uncooperative claimants’ and significant weight has been placed on the protection of public safety in justifying continued detention. Insufficient consideration is given to the damaging effects of long term detention; emotionally, physically and mentally, as well as the haunting thought that this may be affecting many more people than we are aware of, left forgotten in a detention centre, housing China’s unwanted.
By Gimhani Eriyagolla