Angus McCullough QC appeared for Abu Qatada as his Special Advocate in this bail hearing. He is not the author of this post.
Mitting J has ruled that in the light of the recent Strasbourg ruling that the appellant could not be returned to Jordan, his detention could not continue. Under the so-called “Hardial Singh” principles, the Secretary of State must intend to deport the person and can only use the power to detain for that purpose, and the deportee may only be detained for a period that is reasonable in all the circumstances:
If before the expiry of the reasonable period it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.
The Strasbourg test also requires that detention should only be for the purpose identified in Article 5(1)(f): removal or deportation. And in Lumba Lord Dyson observed at para 119 that there was
a close analogy between the Hardial Singh principles and the article 5 requirement that detention for the purposes of deportation must not be of excessive duration (see our post in this case)
Applying this reasoning to Othman’s case, Mitting J could “not conceive of circumstances –
arising in a SIAC case in which detention might be unlawful on Hardial Singh principles, but deprivation of liberty permissible under article 5. It seems to me that, in practice, the two stand or fall together.
So although he found that in view of the threat to national security posed by the appellant, that the long period of detention had not in itself been unlawful, the Strasbourg Court’s recent finding that he could not be deported to Jordan meant that for the time being at least one of the key Hardial Singh requirements was not fulfilled, i.e. detention for the purpose of deportation.
Unless the United Kingdom Government is prepared to accept the political and reputational cost of defying a judgment of the Strasbourg Court, deportation would not be possible
There who some who argue, persuasively and correctly in the view of the author, that such a step would only have reputational consequences, not legal ones. That controversy apart, Miting J took a very interesting view on the likelihood of the appellant’s deportation. One was the possibility of the Strasbourg Fourth Section’s judgment being reversed in the Grand Chamber. The other was the negotiations undertaken after that judgment was handed down by the British government with Jordan in order to secure Othman’s safety if he were to be deported.
Those factors mean, in my judgment, that, as of today, it is not apparent that the Secretary of State will be unable to effect deportation within a reasonable period. The chances of her doing so are clearly slimmer than they were before the Fourth Section delivered its judgment, but they are not negligible….Accordingly, applying Hardial Singh principles, in my judgment, all four of the propositions required to be established to justify continued detention exist. It also follows that, under article 5, because to all intents and purposes the conditions are the same, the continued deprivation of liberty remains lawful.
However, the judge had to acknowledged that the time would arrive “quite soon” when continued detention or deprivation of liberty could not be justified under either domestic or article 5 principles. Therefore he was bound to readmit the appellant to bail on highly restrictive terms. If after the elapse of three months the Secretary of State is not able to provide evidence of demonstrable progress in negotiating satisfactory assurances with the Government of Jordan, which satisfy the reservations of the Fourth Section, then it is “very likely” that Mitting J would conclude that continued deprivation of liberty would no longer be justifiable.
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