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

Temporary separation of family members for immigration detention or removal must be lawful, necessary and proportionate, having regard to ECHR Article 8 and the applicable policy guidance. A decision-maker may separate spouses where effective immigration control justifies it and reunion remains realistically available, including through voluntary action. A failure to communicate the proposed arrangements for reunion, contrary to guidance, does not necessarily invalidate the detention or removal where the circumstances made the arrangements sufficiently apparent and the substantive decision was rational and proportionate. Medical concerns must be assessed on the evidence available; absent a medical report, the decision-maker may reasonably conclude that a minor illness creates no bar to removal.

The claimant, an Indian national and overstayer, sought judicial review of her detention from 14 March to 1 June 2017 and her temporary separation from her husband pending removal. Both spouses had exhausted their immigration appeal rights and had been refused leave to remain on Article 8 grounds. The claimant argued that separation breached Article 8, failed to comply with the Secretary of State’s family-separation guidance, and inadequately addressed her husband’s tuberculosis and need for her support.

The Secretary of State accepted that Article 8 was engaged and relied on the claimant’s outstanding removal, the absence of an emergency travel document for her husband, the prospect of his imminent removal or voluntary reunion in India, and the assessment that his illness was minor. The central issues were whether detention and separation were necessary and proportionate and whether the guidance had been followed.

1. Claim dismissed. The decision to detain the claimant and separate her temporarily from her husband was lawful, rational and proportionate. She had no lawful basis to remain, had frustrated removal arrangements, and could reasonably be detained once the necessary emergency travel documents were available.
2. The Secretary of State had considered the relevant Article 8 and separation factors, including the claimant’s family and cultural ties in India, the prospect of reunion there within weeks, and the proportionality of temporary separation. The claimant’s husband could not yet be detained because an emergency travel document had not been provided for him, but this did not prevent the claimant’s separate detention.
3. The husband’s tuberculosis did not make detention or removal unlawful. In the absence of a medical report establishing a material obstacle, and having regard to the available healthcare letter indicating a minor illness and treatment due to end shortly, the Secretary of State was entitled to conclude that there was no medical bar, that the claimant was not required as his sole carer, and that separate removal remained proportionate.
4. The completed Family Separation Pro-Forma recorded that reunion could occur through the couple’s own actions within weeks. Although there was no evidence that the claimant had been informed when, where and under what circumstances reunion could occur, as required by the guidance, that omission did not render the detention, separation or removal unlawful in the circumstances. The couple knew they were both being removed to India and could reasonably contemplate reunion there.
5. Serving the completed pro-forma on persons temporarily separated would nevertheless be good practice, ensuring compliance with the guidance and removing doubt about the proposed arrangements. The claimant was ordered to pay the defendant’s costs.

The judgment does not state an appellate history. It records that permission for judicial review of an earlier refusal of leave to remain was refused on 29 September 2016.