AT (Guinea)), R (On the Application Of) v Secretary of State for the Home Department & Anor

Immigration detention remains lawful where there is a realistic prospect of removal within a reasonable period, assessed in all the circumstances. The assessment is fact-sensitive and must be made without hindsight. Relevant matters include the length of detention, obstacles to removal, the Secretary of State’s diligence, the detainee’s vulnerability, and the risks of absconding and reoffending.

Conditional grants of bail, recommendations for release, and delays in obtaining accommodation are relevant but do not determine lawfulness. The absence of accommodation does not itself make detention unlawful where the detainee is not eligible for statutory accommodation support and could obtain mainstream benefits. The Hardial Singh principles and applicable detention policies were satisfied throughout.

The claimant, a Guinean national with indefinite leave to remain, was detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 following a deportation order made after serious criminal offending. His deportation appeal and subsequent appeal to the Upper Tribunal delayed removal. He was eventually released on 22 March 2019 after accommodation was secured.

He challenged the lawfulness of detention from 29 March 2018 to 22 March 2019, alleging breaches of the Hardial Singh principles, public law errors and Article 5. He also challenged decisions concerning accommodation under sections 4 and 95 of the Immigration and Asylum Act 1999 and Schedule 10 to the Immigration Act 2016. The central issues were whether detention remained justified and whether he was entitled to statutory accommodation or asylum support.

1. Grounds 2 to 4. The renewed applications for permission were dismissed. While the deportation appeal was pending, the claimant remained an asylum-seeker for the purposes of section 94 of the Immigration and Asylum Act 1999, so section 4 accommodation was not available. He retained indefinite leave to remain under section 79(4) of the Nationality, Immigration and Asylum Act 2002 and was not excluded from mainstream benefits by section 115 of the 1999 Act. He therefore had the means of obtaining accommodation and was not destitute under section 95(3)(a).
2. The claimant was not entitled to support under regulation 4 of the Asylum Support Regulations 2000. However, the First-tier Tribunal’s additional conclusion on that regulation was wrong because the claimant’s non-exclusion from benefits did not arise by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000. That error did not affect the outcome.
3. Schedule 10, paragraph 9 of the Immigration Act 2016 was not engaged. The claimant was not on immigration bail subject to residence at a specified address and, in any event, his entitlement to benefits meant that he could support himself at such an address.
4. Unlawful detention. The Hardial Singh principles, stated in [2011] UKSC 12, required an intention to deport, detention only for a reasonable period, release when removal could not reasonably be effected within that period, and reasonable diligence and expedition. The Secretary of State bore the burden of justification, and the court formed its own assessment on the facts as they appeared at the relevant time.
5. At the start of detention there was a realistic prospect of removal. The deportation appeal and emergency travel documentation were genuine obstacles, but neither was expected to take an inordinately long time. The claimant’s medium risk of absconding, risk of reoffending, lack of approved accommodation, and the absence of professional evidence that detention was causing harm outweighed the presumption of release.
6. The position had to be assessed throughout the detention, taking account both of elapsed time and realistic anticipated developments. Conditional bail grants and Case Progression Panel recommendations were relevant but not determinative. Continued detention remained justified in May, July and November 2018 and thereafter. The appeal process and travel-document process progressed, and accommodation was provided within a reasonable time after the claimant became eligible for section 4 support.
7. The detention complied with the published policies, involved adequate engagement with relevant factors, and did not breach public law principles or Article 5. The claim for judicial review of detention was dismissed.

First-instance judicial review. The court dismissed the renewed applications for permission on grounds 2 to 4 and dismissed the substantive claim concerning detention.