Gasztony, R (on the application of) v Secretary of State for the Home Departmemt & Anor

Immigration detention of an adult at risk must be justified by a realistic prospect of removal within a reasonable timeframe and must comply with the published Adults at Risk policy and the Hardial Singh principles.

Where safe release requires accommodation, hospital transfer or a care package, the Secretary of State must take reasonable steps within a reasonable time. The duty becomes more stringent as detention continues. Mental-health resource constraints may be relevant, but they do not excuse unnecessary delay. Detention may remain lawful temporarily where release would positively harm the detainee, provided reasonable arrangements are pursued. Breach of these duties may also engage Article 8 ECHR.

The claimant, a Hungarian national with autism spectrum disorder and a history of offending, was detained under immigration powers for just over 16 months. He challenged his detention and failure to release him under the Adults at Risk policy, the second and third Hardial Singh principles, and Articles 3 and 8 ECHR.

The Secretary of State sought first to secure Schedule 10 accommodation, later to arrange transfer to a secure mental-health unit, and ultimately to establish a community care package. The issue was whether the detention remained lawful during successive periods of delay.

1. Applicable principles. Immigration detention is prima facie unlawful and must be justified. The detention power may be used only for the purpose of removal or deportation. It cannot generally be used to protect a person from himself once removal within a reasonable time is no longer possible, subject to a reasonable period pending safe transfer or release.
2. Where a detainee requires hospital treatment, or accommodation and support necessary for safe community release, the Secretary of State must take reasonable steps within a reasonable time to secure that outcome. The relevant period and steps depend on the clarity and unanimity of the medical evidence, the harm caused by continued detention, available resources and all the circumstances. The longer detention continues, the more stringent the duty becomes.
3. For a Level 3 adult at risk, the Adults at Risk policy requires a careful assessment of the likely length and health impact of detention, balanced against removal, compliance and public-protection factors. The policy’s reference to detention only in specified circumstances strongly indicates that detention will otherwise be difficult to justify.
4. GKG’s detention was unlawful from 23 March to 11 April 2018 because, after deciding that release should occur once Schedule 10 accommodation was sourced, officials took no concrete steps for 20 days. It was also unlawful from 24 May to 12 July 2018 because the process of identifying and securing accommodation took too long, and from 9 March to 26 June 2019 because the case was not progressed with the urgency required after multiple assessments supported community release.
5. Detention from 12 July to 6 November 2018, while transfer to a secure unit was pursued, was lawful because the delay was attributable to the unavailability of a suitable bed and the Secretary of State had taken reasonable steps. Detention from 7 November 2018 to 20 January 2019 was also lawful while further clinical assessments were obtained.
6. Article 3 was not breached. However, detention in circumstances where medical evidence showed a risk of harm to the claimant’s psychological integrity engaged Article 8. The periods of unlawful detention therefore also violated Article 8. The claim succeeded to that extent, with damages to be assessed after further directions.

The claim for judicial review was issued on 16 November 2018. Permission was granted on 1 March 2019 and again on 4 March 2019. Interim relief applications were made during the proceedings. This judgment determined liability at first instance and deferred assessment of damages.