The High Court struck out an Article 40 inquiry concerning Bao Feng Nian’s detention after he was released, declining to decide whether the detention had been lawful. The court also ruled that it could not grant stand-alone declaratory relief in the inquiry and adjourned the question of costs for one week.
Mr Justice Richard Humphreys gave judgment on 10 February 2020. Nian had been arrested on 4 February on an allegation that he failed to comply with a requirement in a notification under section 3 of the Immigration Act 1999. On 7 February, a judge directed an inquiry into the lawfulness of his detention, returnable on 10 February. Nian was being released later that evening.
At the hearing, counsel for Nian asked the court to examine the legality of his detention between 4 and 7 February. He accepted that the court could not order Nian’s release because it had already happened, but argued that the court could make a declaration or reach conclusions about the detention. The respondent’s counsel opposed the requested approach.
Humphreys J held that Article 40 did not give the court jurisdiction to grant stand-alone relief such as a declaration; a party seeking that relief would need separate proceedings. He also declined to examine the detention’s merits because the case had become moot following Nian’s release. The court said there was no developed evidential record, and that whether the required notification had been given was a fact-specific question. The judgment noted that Nian appeared to be contemplating separate civil proceedings for damages, but said that did not justify deciding the moot issue.
The court addressed the respondent’s failure to produce a certificate justifying the detention. The respondent’s counsel accepted responsibility for the decision not to provide one. Humphreys J said the obligation to certify had implicitly ended when Nian was released, explaining that this did not establish that the detention had been unlawful; it meant only that the detention was over.
The order struck out the proceedings, clarified that the certification obligation ended on release, and adjourned costs for one week. The respondent was given until 13 February 2020 to deliver a further affidavit on costs. The court made no finding on whether Nian’s detention was lawful.