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

A person granted conditional immigration bail by the First-tier Tribunal may be re-detained, or not released, only where there has been a material and genuine change of circumstances since the bail decision. A change may arise where removal has become realistically imminent, but it must significantly affect matters relevant to bail. The detainee must be notified of the decision and given adequate reasons, both under applicable detention policy and, in appropriate cases, at common law. A decision rejecting further submissions cannot remove the barrier to removal unless those submissions have been lawfully and properly considered with anxious scrutiny. Generic evidence is insufficient where the issue requires assessment of the claimant’s particular circumstances.

The claimant, a Somali national and foreign criminal subject to a deportation order, had been detained under immigration powers since February 2018. The First-tier Tribunal granted conditional immigration bail on 2 April 2019, subject to the Secretary of State identifying suitable accommodation in Approved Premises. A suitable place became available on 30 April 2019, but the claimant was not released because the Secretary of State had rejected his further submissions the previous day and considered removal no longer barred.

The claim challenged the continued detention. It concerned the failure to follow Case Progression Panel recommendations, the failure to release the claimant after the bail condition was met, and the legality of the decision rejecting his further submissions, including claims based on his mother’s alleged killing and the humanitarian conditions he might face on return to Somalia.

1. Ground 1 dismissed. The Case Progression Panel recommendation of 15 January 2019 had been superseded by its later decision. The 27 March recommendation to release was given significant weight and consideration at the 1 April review. The reasons for disagreeing with it were sufficiently recorded and explained. Even if there had been a breach, it would not have affected the period of detention because suitable accommodation was unavailable until 30 April.
2. Under paragraph 1(6) of Schedule 10 to the Immigration Act 2016, the Secretary of State may re-detain a person granted bail by the First-tier Tribunal. The power is subject to the public-law requirement identified in R (Mahmood) v Secretary of State for the Home Department and R (Shote) v Secretary of State for the Home Department: there must be a material and genuine change of circumstances justifying departure from the tribunal’s decision. The change must significantly alter an assessment relevant to bail. Removal becoming imminent can satisfy that requirement.
3. A person who meets the conditions for conditional bail and is then immediately re-detained is entitled to notification and reasons. This followed from Chapter 55 of the Enforcement Instructions and Guidance and from common-law requirements of liberty, fairness and access to justice. Fresh IS91 and IS91R forms were required, although their late service caused no substantive unfairness in this case.
4. The rejection of further submissions could constitute a material change only if the rejection was lawfully made. The Secretary of State failed to consider the submissions of 6 September 2018 and breached the legitimate expectation created by the consent order requiring their reconsideration.
5. The Secretary of State also failed to apply anxious scrutiny to the humanitarian-conditions claim. The question was whether, having regard to the claimant’s individual circumstances, there was a realistic prospect of an Immigration Judge finding a real risk of Article 3 ill-treatment. Generic evidence concerning successful returnees to Mogadishu did not answer that question.
6. The supplementary decision of 10 June 2019 remedied the failure to consider the 6 September 2018 material but not the failure to assess the claimant’s particular prospects on return. The claimant therefore remained subject to extant further submissions which had not been lawfully considered.
7. The continued detention from 30 April 2019 was unlawful. A declaration was granted. The Secretary of State was required to seek suitable Approved Premises accommodation and release the claimant pursuant to the First-tier Tribunal’s bail order unless a further proper change of circumstances arose. The question of damages was left for submissions.

First-instance judicial review in the Administrative Court. The court granted a declaration that the claimant had been unlawfully detained from 30 April 2019 and declined at that stage to direct immediate release.