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

A certificate permitting removal pending an appeal must address the statutory question whether removal would breach the Human Rights Act 1998, not merely whether serious irreversible harm would result. Immigration detention remains exceptional and must satisfy the Hardial Singh principles. A risk that a person cannot be located may justify short-term detention, but not detention for an unreasonable period. Where release onto the streets would create an imminent prospect of serious suffering through denial of basic necessities, accommodation may be necessary to avoid breach of Article 3, notwithstanding that the statutory accommodation power is discretionary.

The claimant, a Polish national and recognised victim of trafficking, challenged three decisions by the Secretary of State: certification under regulation 24AA of the Immigration (European Economic Area) Regulations 2006, his detention pending deportation, and refusal to provide accommodation under section 4 of the Immigration and Asylum Act 1999. His deportation appeal remained pending before the First-tier Tribunal. The issues were whether the certification was lawfully made, whether continued detention complied with the principles governing immigration detention, and whether release without accommodation would breach Convention rights.

1. Certification. The regulation 24AA certificate was unlawful. The Secretary of State considered only the serious irreversible harm wording in regulation 24AA(3), but failed to address the primary question under regulation 24AA(2): whether removal pending appeal would be unlawful under section 6 of the Human Rights Act 1998. The Secretary of State also breached her published guidance. The claimant would have been imprisoned in Poland and could not effectively pursue his appeal in person. The error was immaterial in practice because removal did not occur and the certificate was not implemented.
2. Detention. The substantive deportation decision provided a lawful basis for detention, notwithstanding the invalid certificate. Applying the principles in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, as summarised in R (on the application of I) v Secretary of State for the Home Department [2002] EWCA Civ 888, detention was initially justified. The absence of a fixed address, missed appointments and difficulty locating the claimant could support short-term detention even without deliberate evasion. Detention nevertheless became unlawful by 14 July 2017, when it was apparent that deportation could not occur within a reasonable period.
3. Accommodation. Section 4(1) of the 1999 Act confers a discretionary power. However, the power had to be exercised to avoid an incompatibility with Convention rights. Following R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396, release without shelter, food or basic necessities would expose the claimant to an imminent prospect of serious suffering and breach Article 3. Reasonable endeavours should therefore have been made to provide accommodation from 14 July 2017. The obligation would not continue if the claimant lost accommodation through misconduct of his own.
4. The claim accordingly succeeded to the extent that the certification was unlawful, detention after 14 July 2017 was unlawful, and accommodation should have been provided from that date.

First-instance judicial review. The claimant’s separate deportation appeal remained pending before the First-tier Tribunal and was not determined in these proceedings.