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

Unlawful immigration detention does not confer an automatic right to release, but bail may be appropriate where continued detention is disproportionate and effective safeguards are available. Relevant considerations include the period already detained, the prospects and timing of removal or appeal, health and vulnerability, compliance incentives, accommodation, supervision, reporting arrangements and sureties. The Secretary of State’s detention policy, including its presumption in favour of temporary release and consideration of alternatives to custody, is a material consideration. Bail may be granted subject to tailored conditions where those safeguards sufficiently address the risks relied upon to justify detention.

The claimant, a Nigerian national detained in immigration custody after a criminal conviction and recommendation for deportation, challenged the legality of her detention and sought permission for judicial review, interim relief by way of bail, and a declaration concerning an appeal in her asylum claim.

The Secretary of State accepted that the legality of the detention under paragraph 2.2 of Schedule 3 to the Immigration Act 1971 was arguable, withdrew the earlier deportation documentation and issued a fresh notice of intention to deport. Permission was refused on the proposed declaration. The principal issue was whether the claimant should receive bail pending the further immigration and asylum process.

1. Permission and declaration. Permission was granted on the arguable unlawful-detention ground. The claimant’s proposed declaration concerning an effective right of appeal in relation to her asylum claim was conceded to have no basis and did not proceed.
2. Bail. Unlawful detention for approximately a year did not create an automatic right to release. The court nevertheless had to assess whether continued detention was justified in the circumstances. Relevant matters included the claimant’s length of detention, the likely further delay, her forthcoming appeal rights, her incentive to remain and pursue the appeal, the possibility of damages, and the absence of a deportation order.
3. The claimant’s mental-health difficulties, history of self-harm and suicide concerns, evidence consistent with torture, and trafficking status were material. The Secretary of State appeared not to have properly considered those matters. The Secretary of State’s own operational policy stated that temporary release should be presumed and alternatives to custody sought where possible.
4. The risks relied upon by the Secretary of State, including deception, non-compliance and flight, could be addressed by a structured release package. The claimant had accommodation at the Medaille Trust with continuous supervision, reporting support and notification arrangements. A reliable surety was available.
5. Bail was therefore granted on conditions requiring residence at the Medaille Trust, a £1,500 surety and weekly reporting to the local immigration office. Electronic tagging was unnecessary. The defendant was directed to complete its checks promptly so that release could occur that day.