AA, R (on the application of) v Secretary of State for the Home Department & Anor

Immigration detention remains lawful only while it is reasonably necessary to fulfil the purpose of removal. The court must assess all relevant circumstances, including the prospect and likely timing of removal, the detainee’s cooperation, risks of absconding and reoffending, the effect of detention on health, and the Secretary of State’s diligence. No single factor automatically determines the outcome. Even where absconding or reoffending risks are significant, continued detention may still become unlawful. On an interim relief application, the court must undertake its own provisional balancing exercise. A short expected period before removal may weigh against release, but the Secretary of State must proceed with haste and keep detention under careful review.

The claimant, an Afghan national detained under immigration powers since August 2017, sought permission to challenge his continued detention and interim release to accommodation approved by the National Probation Service. He had protected status in Italy and had repeatedly expressed a wish to return there, but the arrangements for removal had progressed slowly. He had also made an asylum claim in the United Kingdom and relied on evidence of torture, depression and the adverse effects of detention.

The proposed grounds concerned the Hardial Singh principles, article 5 of the ECHR, the adults-at-risk detention policy, procedural fairness and delay in providing accommodation. By the hearing, Italy had confirmed that it would accept him, suitable accommodation had been identified, and he had alternated between wishing to remain in the United Kingdom and agreeing to return to Italy.

1. Permission. Permission was granted on the challenges based on the Hardial Singh principles and article 5 of the ECHR, and on the wider challenge under the adults-at-risk policy. The challenge to the Level 2 categorisation itself was unarguable. The procedural fairness and accommodation grounds were academic, although the underlying matters could remain relevant to the detention challenge.
2. The power to detain for immigration purposes is limited to the period reasonably necessary to facilitate removal. The Secretary of State must intend removal, detention must remain reasonable in all the circumstances, detention must cease when removal within a reasonable period is no longer achievable, and the Secretary of State must act with reasonable diligence and expedition. The court determines whether those principles have been met, and the burden lies on the Secretary of State.
3. Relevant considerations include the detainee’s cooperation, the risk of absconding, the risk and potential seriousness of reoffending, the effect of detention on physical or psychiatric health, the likely time before removal, and the Secretary of State’s conduct. The list is not exhaustive. No factor is necessarily decisive and there is no automatic rule that a high risk of absconding or reoffending requires continued detention.
4. For interim relief, the court made its own provisional assessment. The risk of absconding was high; continued detention was likely to worsen severe depression; the risk and likely seriousness of reoffending could not reliably be assessed as high; removal was likely within weeks; and the Secretary of State’s diligence was uncertain. The balance nevertheless favoured continued detention because removal was expected shortly and the application could be reconsidered promptly.
5. Interim relief was refused. The Secretary of State was required to proceed with haste, keep detention under careful and regular review, and permit renewal of the release application if a removal date was not set within the prescribed period or circumstances materially changed.

This was a first-instance judicial review application. High Court (Administrative Court): Lewis J directed a response to the permission application; May J listed the matter for determination of interim relief and, if appropriate, permission. The claim was then heard by Nicholas Vineall QC, sitting as a Deputy High Court Judge, who granted permission in part and refused interim relief.