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

Immigration detention must remain directed to removal and must be justified as reasonable and proportionate in the circumstances. The Secretary of State may take account of risks of absconding, reoffending and harm to the public. A statutory appeal which means removal is no longer realistically imminent may make continued detention unlawful. Published detention policies must be applied unless there is good reason to depart from them. A detailed and reasoned Rule 35 medical report may constitute independent evidence of torture where it corroborates the detainee’s account. Continued detention of such a person requires exceptional circumstances.

The claimant, a Slovakian national, was detained under immigration powers after serving a sentence for conspiracy connected with a sham marriage. The Secretary of State intended to deport her under the Immigration (European Economic Area) Regulations 2006 while her protection claim was considered.

She challenged the lawfulness of her detention, alleging breach of the Hardial Singh principles and failure to apply the detention policy. The Secretary of State initially rejected and certified the protection claim without considering later evidence, then withdrew that decision and issued a fresh, uncertified refusal. The issues were whether detention remained lawful after the claimant acquired a statutory right of appeal and whether later Rule 35 reports constituted independent evidence of torture.

1. Lawfulness and initial detention. The burden lay on the Secretary of State to justify detention. The four Hardial Singh principles required an intention to deport, detention for no longer than a reasonable period, release when removal could not be achieved within that period, and reasonable diligence and expedition.
2. The initial detention from 28 February 2015 was reasonable and lawful. The Secretary of State had applied the presumption in favour of release in Chapter 55 EIG, assessed the relevant risks, and treated the imminence of deportation and proportionality as central considerations. The claimant’s serious immigration offence and the resulting risks reasonably displaced the presumption of release.
3. Delay and statutory appeal. The Secretary of State acted appropriately until the protection claim was considered, but failed to take account of material supplied on 18 September 2015. Once the claimant exercised her statutory appeal right, removal could no longer reasonably be regarded as imminent or achievable within a reasonable time. Detention became unlawful from 12 October 2015.
4. Rule 35 evidence. The first Rule 35 report was insufficiently detailed and reasoned to constitute independent evidence of torture. The second report described systematic and repeated assaults, documented injuries consistent with the claimant’s account, and gave a professional opinion that they were unlikely to be accidental. Applying Secretary of State for the Home Department v BA (Nigeria) [2016] EWCA Civ 458, the report provided corroboration and constituted independent evidence of torture. The Secretary of State acted irrationally by rejecting it without proper regard to its contents.
5. Under paragraph 55.10 EIG, continued detention of a person supported by independent evidence of torture required exceptional circumstances. No such circumstances existed. The detention from 12 October 2015 to 4 March 2016 was unlawful. The parties agreed damages of £25,000.

First-instance judicial review. The judgment does not state a prior appellate decision in this litigation.