Tabassum, R (on the application of) v Secretary of State for the Home Department

Under section 3(8) of the Immigration Act 1971, a person asserting British citizenship bears the burden of proving it. Where the claimant has repeatedly used false identities, the court may require independent evidence before accepting unsupported identity evidence.

Immigration detention pending deportation remains lawful only while deportation is intended, removal is pursued with reasonable diligence, detention lasts no longer than is reasonable, and there remains a realistic prospect of removal within a reasonable time. A detainee’s failure to co-operate is relevant to that assessment, including risk of absconding, responsibility for delay and the possibility that the detainee holds information capable of resolving removal difficulties. It is not, however, a conclusive justification for indefinite detention.

The claimant, detained as a foreign criminal pending deportation to Pakistan, sought judicial review on two grounds. He asserted that he was a British citizen born in England and therefore was not liable to deportation. Alternatively, he argued that detention for more than two years was unlawful under the Hardial Singh principles because Pakistan had not issued an emergency travel document.

The Secretary of State disputed the claimant’s identity and relied on his history of false identity documents and lack of reliable evidence. The central issues were whether the claimant had proved British citizenship and, if not, whether there remained a realistic prospect of deportation within a reasonable time.

1. Disposition. Permission to apply for judicial review was granted, but the substantive claim was dismissed. The claimant failed to prove that he was a British citizen and was liable to deportation and detention as a foreign criminal.
2. Citizenship. Section 3(8) of the Immigration Act 1971 placed the burden of proof on the claimant. Although a person named Tarrick Anthony Kance had been born in Lancashire to a British mother, the evidence did not establish that the claimant was that person. His repeated use of false identities, implausible explanations and lack of independent records from almost 30 years in Pakistan justified giving little or no weight to his unsupported evidence. A court was entitled to require independent corroboration in those circumstances.
3. Hardial Singh principles. Detention under Schedule 3 was lawful only if the Secretary of State intended to deport the claimant, detention was for that purpose, the period was reasonable, removal was pursued with reasonable diligence, and there was a realistic prospect of removal within a reasonable time. The factors included the length of detention, the obstacles to removal, official diligence, detention conditions, its effects, risk of absconding and risk of further offending.
4. Non-co-operation. The claimant’s refusal to co-operate and persistence in a false citizenship claim were relevant to the assessment of risk, responsibility for delay and whether he possessed information which could assist the Pakistani authorities. Such conduct was not a conclusive justification for detention; continued detention still required a realistic prospect of removal within a reasonable time.
5. Application. Although detention exceeding two years required anxious scrutiny and there was no immediate prospect of return, further inquiries could establish the claimant’s identity or resolve the identity of Tarrick Anthony Kance. The Secretary of State had acted with reasonable diligence, and the claimant presented high risks of absconding and using false documents. There was therefore enough of a realistic prospect of deportation within a reasonable time for continued detention to remain lawful.