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

Immigration detention must remain justified throughout the period of detention. A high risk of absconding is important, but it does not automatically outweigh vulnerability, the presumption of release under the Adults at Risk guidance, or the requirement that removal be achievable within a reasonable period.

Where new information indicates that removal may be delayed, detention officers must investigate its significance and reassess detention promptly. A review which simply repeats an earlier removal estimate, without enquiring into a material change of circumstances, may breach the third Hardial Singh principle and the applicable policy.

The claimant, an Indian national, was detained at Heathrow while travelling from South Africa to Canada. He claimed asylum and was identified as a victim of torture and serious sexual abuse. His asylum claim was rejected on the basis that he could safely relocate within India, and an Emergency Travel Document was requested.

The claimant accepted that his initial detention was lawful but challenged detention from 24 November 2016 onwards. He argued that the Defendant had failed to apply the Adults at Risk in Immigration Detention Guidance and Chapter 55b of the Enforcement Instructions and Guidance, and had breached the second and third Hardial Singh principles. The central questions were whether the risk of absconding outweighed the risk of harm and when it should have become apparent that removal would not occur within a reasonable period.

1. Detention on 24 November 2016. The power to detain arose under section 4(2) and Schedule 2, paragraph 16 of the Immigration Act 1971. The Secretary of State bore the burden of showing that detention was justified. The Hardial Singh principles applied, including the requirements that detention last no longer than reasonable and cease when removal within a reasonable period is no longer achievable.
2. The claimant was an adult at risk at Level 2 under the AAR guidance. The guidance created a presumption of release, which could be displaced only where immigration factors outweighed the risk factors. The greater the evidence of vulnerability, the weightier the immigration factors had to be. The reviews inadequately recorded the nature and recentness of the torture and sexual abuse, but that recording error would not have changed the decision.
3. The Defendant was entitled to consider the claimant’s previous deception, use of false documents, failure to claim asylum in other safe countries and diminished incentive to co-operate after refusal of his asylum claim. The guidance was not confined to an actual history of absconding, and its examples were non-exhaustive. The conclusion that the claimant was highly likely to abscond if released was justified. Risk of absconding was important, but not a trump card capable of justifying detention indefinitely.
4. By 20 December 2016, the Defendant knew that the Indian High Commission required verification checks. That information indicated a potential material delay. The reviewing and authorising officers should have investigated its consequences rather than assuming that the original six-to-eight-week estimate remained valid. Their failure to do so was a failure to act with reasonable diligence.
5. It should have been apparent by 20 December 2016 that removal would not occur within a reasonable period. Continued detention was therefore inconsistent with the AAR guidance and the third Hardial Singh principle. The claimant was unlawfully detained from 20 December 2016, or as soon thereafter as release could have been effected, until 27 January 2017.

First-instance judicial review. No prior appellate decision was stated in the judgment.