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

Where a judicial review claim seeks release from immigration detention under a policy, permission should be refused if subsequent events mean that the claimant has no realistic prospect of obtaining that remedy. A later determination that the claimant is not a refugee and is not at risk of torture may remove the practical basis for release under a policy concerning the detention of persons who provide evidence of torture. Any complaint about historic detention may require a private law claim for wrongful imprisonment, although the availability and merits of that remedy depend on the policy and the circumstances.

The claimant sought permission to bring judicial review proceedings concerning his continued immigration detention. He had arrived in the United Kingdom as a visitor, overstayed, used a false passport, and was detained after serving a custodial sentence imposed following a guilty plea. He later made an asylum claim, supported by medical evidence recording scars said to be consistent with ill-treatment.

The claim was based on an alleged policy that persons who produced evidence of torture should not be detained. After the judicial review claim was lodged, the Asylum and Immigration Appeal Tribunal rejected the asylum claim, rejected the claimant’s credibility, and found that he had not been tortured. The central issue was whether the subsequent tribunal decision left any realistic prospect of obtaining release through judicial review.

1. Application dismissed. The application for an adjournment was refused and permission to bring judicial review proceedings was dismissed.
2. The claim was framed as seeking release from immigration detention under the defendant’s policy after the claimant produced medical evidence of scars. Subsequent events materially altered the position: the asylum appeal had been determined adversely, the claimant had not been accepted as a refugee or as a person at risk of torture, and the tribunal had found that he had not historically been tortured.
3. In those circumstances, even on the most generous interpretation of the policy, there was no reasonable prospect that judicial review would result in the claimant’s release. The only possible complaint concerned historic detention for approximately a month or less between transmission of the medical report and determination of the appeal. That issue could not affect the claimant’s present detention or treatment.
4. The court observed that, if the historic detention had been unlawful and in breach of policy, the claimant could pursue a private law action for wrongful imprisonment. The court did not encourage that course because the policy was not absolute and remained subject to the particular circumstances, which might well have justified detention in this case.
5. The defendant’s lack of opposition to an adjournment did not bind the court. Whether to adjourn remained a matter for the court, and no further adjournment was justified because no submissions that could assist the claim were realistically identified.