TO, R (On the Application Of) v Secretary of State for the Home Department

The court refused permission to apply for judicial review of immigration detention. The detained asylum casework process was materially different from the former detained fast-track scheme and was not inherently unfair. Detention remained lawful where the decision-maker applied the relevant detention policy, considered the asylum claim and assessed the risk of absconding. An asylum claim based on sexual orientation did not, without more, make detention unlawful or establish that removal could not occur within a reasonable period. Rule 35 evidence identifying an adult at risk did not preclude detention where there were strong indicators of non-compliance and no significant risk of harm from continued detention. Once detention ended, declarations were academic and damages claims had an adequate alternative remedy in the County Court.

The claimant, a Nigerian national, sought permission to bring judicial review proceedings concerning his immigration detention and the treatment of his late asylum claim based on alleged sexual orientation and fear of persecution by the Ogboni cult. He challenged the detained asylum casework process, the application of detention policy, the lawfulness of detention under the Hardial Singh principles, the treatment of LGBT detainees, and the response to a rule 35 report identifying him as an adult at risk.

Permission had previously been refused on the papers. By the oral hearing the claimant had been released from detention. The central issues were whether any ground was arguable and, alternatively, whether permission should be refused because the declaratory claims were academic and damages could be pursued in the County Court.

1. Application refused. Permission to apply for judicial review was refused on every ground. The court also stated that permission would have been refused in the exercise of discretion because the declaratory claims had become academic and damages could be pursued by an alternative County Court action.
2. The detained asylum casework process was not equivalent to the former detained fast-track scheme. The former scheme detained asylum seekers because their claims could be determined speedily, even without a risk of absconding. Under the detained asylum casework process, detention was governed by the general detention criteria in the Detention Interim Instruction and Chapter 55 of the Enforcement Instructions and Guidance, including a presumption in favour of release unless relevant detention criteria were met. The analysis in Hossain [2016] EWHC 1331 (Admin) was adopted. The challenge based on the distinction between the two schemes was therefore unarguable.
3. The claimant’s reliance on Z.A. [2017] EWHC 850 (Admin) did not assist him. The permission granted in that case was limited, and the case turned on its own facts. It did not establish that detention of an LGBT asylum claimant under the detained asylum casework process was unlawful.
4. The argument that the complexity of an asylum claim based on sexual orientation made removal impossible within a reasonable period was also unarguable. J.B. (Jamaica) [2014] 1 WLR 836 was distinguishable because it concerned a different detention policy and circumstances in which the claim could not be determined within the policy’s approximately two-week period.
5. The defendant had considered the relevant policy and the possibility that an outstanding asylum claim might encourage compliance. The claimant’s late claim, previous adverse immigration decisions, prolonged unlawful presence and failure to engage with the authorities supplied significant negative indicators of compliance and compelling reasons for detention.
6. Detention of an LGBT detainee was not unlawful merely because the general detention policy did not require different treatment. There was no sufficient evidence of significant harm or mistreatment. An allegation of homophobic verbal abuse by other detainees, taken at its highest, did not establish a failure to secure substantive equality.
7. The rule 35 report amounted to Level 2 evidence that the claimant was an adult at risk, but it did not itself prevent detention. In the presence of strong non-compliance indicators and no indication that detention was likely to cause a significant risk of harm, detention remained permissible. When the later psychiatric report indicated that continued detention might cause deterioration, the defendant reviewed the case and released the claimant.

High Court (Administrative Court): Permission had been refused on the papers by a deputy High Court judge on 18 May 2017. HHJ Curran QC refused the renewed application on 21 June 2017.