The High Court rejected Kuldeep Singh’s Article 40 application challenging his detention at Cloverhill Prison, holding that the detention instrument disclosed no apparent invalidity. Mr Justice Max Barrett said any alternative challenge to the decision to detain Singh should be brought by judicial review.
The Governor of Cloverhill Prison provided an affidavit and certificate stating that Singh had been detained there since 16 April 2019 under section 5 of the Immigration Act 1999. Singh did not challenge the detention instrument itself. He argued that the conditions of his detention breached regulation 19 of the European Communities (Reception Conditions) Regulations 2018 and that he should therefore be released.
The judge said Article 40 inquiries focus on whether an apparent defect in the detention documentation justifies the detention, or whether the procedure used to obtain it was fundamentally defective. The Governor had produced the instrument, and the court found no flaw in it or in how it was obtained. On that basis, Barrett J said the Article 40 application had to fail.
The judge also gave three reasons why Singh could not rely on regulation 19. First, he said the regulation did not arise in an Article 40 inquiry where the detention instrument was not defective. Second, the judge said Singh was not an “applicant” within the intended scope of the EU Directive that the 2018 regulations implemented. Third, he said Singh was not a “detained applicant” covered by regulation 19(1), and regulation 19(2) did not extend its protections to him.
Barrett J described the latter two points as obiter, meaning they were not necessary to the decision. He concluded that Singh’s detention was lawful. The judgment records the court’s view on the legality of detention in this proceeding; it does not set out a separate order quashing the detention or directing release.