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

A previous grant of immigration bail must be honoured during the period specified by the tribunal. After that bail has expired, it does not impose an additional requirement that the court objectively find a clear and significant change of circumstances before detention or refusal of further bail is lawful. The ordinary public law standard is reasonableness, although the earlier bail decision must be properly taken into account.

Immigration detention must satisfy the Lumba principles, including reasonable duration and reasonable diligence towards removal. Where detention is lawful in substance, the detainee must nevertheless be told the true reason for detention. Incorrect or materially inadequate reasons breach that principle.

HS, a Pakistani national subject to a deportation order, was detained under immigration powers after completing the custodial part of a sentence for a sexual offence involving a child. The First-tier Tribunal granted bail on 8 February 2017, subject to conditions including residence at a specified address. After HS surrendered and received chief immigration officer bail, police and probation information emerged indicating that the address was unsuitable because of links with sexual and other criminal offending.

HS was re-detained on 6 March 2017 and remained detained until his release following a High Court order. He sought judicial review on four grounds: abuse of power, breach of the principles governing immigration detention, breach of the Adults at Risk policy, and failure to give the true reasons for detention.

1. Ground 1 dismissed. The February 2017 FTT bail decision bound the Home Secretary during the period for which it operated. It did not prevent a later detention decision or refusal of chief immigration officer bail after the FTT bail had expired. The court rejected the proposed extended honour obligation requiring an objectively established clear and significant change of circumstances.
2. The correct standard was ordinary public law reasonableness. The earlier FTT decision had to be properly considered, but it was not a reasoned determination that particular risks were low or that the proposed address would remain suitable. The new information about persons linked to the address and associated criminal behaviour objectively justified prompt re-detention and non-renewal of bail. A fresh application to the FTT was a speedy and effective remedy against refusal of bail.
3. Ground 2 dismissed. The Lumba principles required a genuine intention to deport, detention for no longer than reasonable, release if removal could not be achieved within that period, and reasonable diligence and expedition. Objectively, detention for the anticipated period was not unreasonable, given the serious risk of harm and the realistic prospect of removal. The Home Secretary’s procedural defaults did not materially delay the appeal or removal.
4. Ground 3 dismissed. HS’s torture account placed him at level 1 under the Adults at Risk policy, which had initially been overlooked. The first Rule 35 response contained serious errors, but those errors were immaterial because the address-related public protection concerns outweighed the vulnerability factors. There was no evidential basis requiring a level 3 assessment or showing that later reviews should have reached a different balance.
5. Ground 4 allowed. The true reason for detention was new information concerning the suitability of HS’s bail address and links with sexual and other criminal offenders. The form given to HS did not communicate that reason and included several incorrect reasons. Detention on 6 March 2017 was therefore unlawful. Consequential orders, including transfer for assessment of damages, were to be agreed.