ML (Morocco) v Secretary of State for the Home Department

At the permission stage, the court should decide whether an arguable issue exists but should not undertake the detailed merits analysis reserved for the substantive judicial review. Whether immigration detention became unreasonable under the Hardial Singh principles should ordinarily be determined by the judge hearing the substantive claim. Permission may therefore be granted on a limited temporal basis without deciding when detention became unlawful.

The appellant challenged the refusal of permission to bring judicial review proceedings concerning his immigration detention. He argued that removal had never been reasonably foreseeable because of uncertainty concerning his nationality and the availability of emergency travel documents.

Nicholas Padfield QC, sitting as a Deputy High Court Judge, refused permission on 3 March 2015. The Court of Appeal was subsequently asked whether permission should be granted and, if so, for what period. The appellant was released from detention on 17 November 2015.

1. Permission granted in part. The judicial review could proceed in respect of detention from 23 January 2015, when the emergency travel document application was resubmitted to Western Sahara.
2. The court declined, at the permission stage, to determine whether detention became unreasonable when a proper application was later made to the Moroccan consulate. That required the detailed assessment appropriate to the substantive judicial review under the Hardial Singh principles.
3. The claim was not confined to the shorter period between January 2015 and the date in May or early June 2015 when the Moroccan application was made. The substantive judge was to determine whether detention became unreasonable during the permitted period, up to release on 17 November 2015.

• Court of Appeal (Civil Division): On 16 March 2016, permission to appeal was granted to the limited extent that the judicial review could proceed in respect of detention from 23 January 2015.
• High Court of Justice, Queen's Bench Division, Administrative Court: Nicholas Padfield QC, sitting as a Deputy High Court Judge, refused permission on 3 March 2015.
• Court of Appeal (Civil Division): Elias LJ refused permission on paper on 21 July 2015. Tomlinson LJ adjourned the matter on 5 November 2015 for further inquiries.