Yogaraja, R (on the application of) v Secretary of State for the Home Department

The Secretary of State may refuse consent to release following a tribunal grant of immigration bail under paragraph 22(4) of Schedule 2 to the Immigration Act 1971 where she rationally disagrees with the tribunal’s assessment, including on absconding risk and the management of the detainee’s health before removal.

Article 3 requires detention conditions compatible with human dignity and adequate medical assistance. Medical deterioration caused or aggravated by detention breaches Article 3 only where it reaches the required minimum level of severity. A fresh claim under paragraph 353 of the Immigration Rules requires a realistic prospect that an immigration judge, applying anxious scrutiny, would allow the claim; the Secretary of State’s own view of the merits is only the starting point.

The claimant, a Sri Lankan national subject to a deportation order, challenged three decisions concerning his detention in 2016. The Secretary of State had refused consent to the First-tier Tribunal’s grant of bail under paragraph 22(4) of Schedule 2 to the Immigration Act 1971.

He also alleged that his immigration detention breached Article 3 of the European Convention on Human Rights, relying on evidence of depression, PTSD, suicidal ideation and deterioration in detention. Finally, he challenged decisions dated 8 and 9 October 2016 concluding that further representations did not amount to a fresh claim under paragraph 353 of the Immigration Rules.

The central issues were whether the refusal of consent was rational, whether the detention attained the Article 3 threshold, and whether the Secretary of State had applied the fresh-claim test lawfully.

1. Refusal of consent to bail. The claim challenging the refusal was dismissed. Following R (Roszkowski) v Secretary of State for the Home Department [2017] EWCA Civ 1893, the power under paragraph 22(4) of Schedule 2 to the Immigration Act 1971 is not confined to cases involving a material change of circumstances, an error in the tribunal’s reasoning or separately identified reasonable grounds. The Secretary of State may rationally disagree with the First-tier Tribunal’s assessment after considering its reasons.
2. The Secretary of State rationally concluded that the claimant’s condition could be managed in detention during the short period before removal. The most recent information from the healthcare team stated that he was fit to remain detained and that his condition could be managed by medication. The Secretary of State was also entitled to take a different view from the tribunal on absconding risk, having regard to the claimant’s immigration history and previous absconding. An inaccurate reference to the judicial review claim having been accepted did not render the decision irrational in the circumstances.
3. Article 3. The detention claim was dismissed. Applying the principles identified in R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 57, Article 3 imposes both negative and positive duties. Detention must respect human dignity, avoid distress or hardship exceeding the unavoidable level inherent in detention, and provide requisite medical assistance. The claimant’s pre-existing mental health difficulties were probably aggravated to some degree, but the evidence showed that he received close mental-health attention and treatment. The deterioration did not reach the minimum level of severity required by Article 3.
4. The authorities concerning risks arising from removal to Sri Lanka did not establish that detention in the United Kingdom breached Article 3. The present claim concerned the effect of detention, not the lawfulness of removal or conditions after return.
5. Fresh claim. The Secretary of State had applied the correct test under paragraph 353 of the Immigration Rules. The question was whether the new material, considered with the existing material, created a realistic prospect that an immigration judge applying anxious scrutiny would find in the claimant’s favour. The representations did not identify sufficiently significant new material or substantiate the asserted risk of mental-health collapse during removal.
6. The claim was dismissed in its entirety.

This was a first-instance judicial review. Permission was granted on three grounds on 14 August 2018. The claim was dismissed.