YH (China) Secretary of State for the Home Department

Immigration detention is lawful only where it serves the statutory removal purpose and remains reasonable in all the circumstances. The Secretary of State must establish a realistic prospect of removal within a reasonable time, assessed without hindsight. Risk of absconding and reoffending are relevant, but neither automatically justifies detention.

Where detention is governed by a published vulnerability policy, the decision-maker must apply that policy correctly and rationally. For an adult at risk, the immigration factors must outweigh the identified risk factors. Material errors concerning the prospect of removal, compliance history, public protection and the claimant’s asylum claim may render continued detention unlawful.

The claimant, a Chinese national and former student, sought judicial review of her immigration detention from 4 January to 21 April 2017. She had been convicted of dishonesty offences, had claimed asylum, and was detained after completing the custodial part of her sentence.

The claim challenged detention under the second and third Hardial Singh principles and alleged breach of the Secretary of State’s Adults at risk in immigration detention policy after a Rule 35 report identified her as an adult at risk. The central issues were whether removal had a realistic prospect within a reasonable time, whether the risks of absconding and reoffending justified detention, and whether the policy had been lawfully applied.

1. The detention from 4 January to 21 April 2017 was unlawful under the second and third Hardial Singh principles. The relevant question was whether, viewed at the time, there was a realistic prospect of removal within a period reasonable in all the circumstances. No fixed removal date or finite period was required, but the evidence did not establish a sufficient prospect of removal within a reasonable time.

2. The asylum claim was not obviously compelling, but there was insufficient evidence that it was hopeless or likely to be certified as clearly unfounded. The references in detention reviews to certification under section 96 were erroneous, and certification under section 94 was not shown to be likely. The mere possibility of certification could not justify potentially prolonged detention.

3. The evidence did not establish a high risk of absconding. The claimant had complied consistently with reporting requirements after March 2016, had not absconded after arrest, and had complied with criminal bail. Her conviction did not logically establish that she had subsequently become unlikely to comply with reporting conditions.

4. The evidence established some risk of reoffending, but not a high risk. The court attributed only moderate weight to that risk. The claimant’s previous offences did not, without more, justify assuming that she would offend again to support herself.

5. Following the Rule 35 report, the claimant was accepted as a Level 2 adult at risk. The decision to continue detention was unlawful because it assumed, without proper enquiry, that refusal of the asylum claim would be certified and removal would occur within six weeks. It also wrongly treated the whole asylum claim as based on events preceding the visa, wrongly characterised the claimant as having gone to ground, and failed to apply the policy rationally. The detention was therefore unlawful from 8 March 2017, allowing a two-day grace period.

6. In any event, the detention from 14 April 2017 was unlawful. By then the evidence indicated that the claimant was due to be released, and the Secretary of State provided no satisfactory evidence justifying further detention beyond a reasonable grace period.