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

Permission for judicial review requires an arguable ground with a realistic prospect of success. Immigration detention of a recognised trafficking victim is not automatically unlawful. For a foreign national offender, the public interest in deportation may generally outweigh the risk of harm associated with detention, subject to the governing policy and the Hardial Singh principles.

Adults-at-risk guidance requires an evidence-based, case-specific assessment. Professional evidence must show the relevant risk and, for the highest level, that detention is likely to cause harm. The decision maker must balance that evidence against removal prospects, public protection, absconding, compliance and other immigration-control considerations. A later appellate decision does not retrospectively invalidate detention where the Secretary of State promptly reviews the case and adjusts the removal timetable.

BT, a Vietnamese national and accepted victim of human trafficking, was detained under immigration powers after completing a sentence for cannabis production. His asylum and human-rights claims had been refused and certified, but he later obtained permission to appeal and succeeded before the Upper Tribunal, resulting in remission to the First-tier Tribunal.

He sought permission for judicial review, alleging unlawful detention, failures under the adults-at-risk policy and Rule 34 of the Detention Centre Rules 2001, failures concerning trafficking support and investigation, and failure to grant discretionary leave. The application also sought interim release, which ceased to be pursued after his proposed release. The central issues were whether any ground was arguable and whether the detention had become unlawful on a rolling basis.

1. Permission and interim relief. Permission was refused on all grounds because none disclosed an arguable claim capable of succeeding at a substantive hearing. The application for interim relief was no longer pursued after the claimant’s proposed release.
2. Trafficking status and detention. The policy contained a general expectation that a potential trafficking victim in immigration detention would normally be released, unless detention was justified by public order or exceptional circumstances. That expectation did not make detention of a foreign national offender automatically unlawful. The claimant had not shown an arguable failure to follow the policy, given the statutory deportation framework, his conviction for cannabis production, the recorded risks of absconding and reoffending, and the public interest in deportation.
3. Adults at risk. The Pagella report did not clearly state that immigration detention was unsuitable or that detention would create a specified risk of significant harm. The claimant’s health had been considered in detention reviews, and the report was considered once brought to the relevant officer’s attention. The policy therefore did not make the detention arguably unlawful.
4. Hardial Singh and Kiarie & Byndloss. The chronology, including the asylum timetable and the availability of travel documents, supported a reasonable prospect of removal within a reasonable period. The later decision in Kiarie & Byndloss did not make detention unlawful from the outset. The Secretary of State had promptly reviewed the detention, recognised the in-country appeal position and taken it into account in assessing the future timetable.
5. Other grounds. The Rule 34 complaint was not arguable because the claimant was medically assessed after transfer and later referrals resulted in examination. The trafficking-support ground was not shown to affect the legality of detention. The investigation and discretionary-leave grounds were brought out of time and, in any event, were not arguable. The claim was dismissed in substance by refusal of permission.