O & Ors, R (On the Application Of) v Secretary of State for the Home Department

Interim release from immigration detention requires a real prospect of success at trial and a favourable balance of convenience, taking account of the public interest in effective immigration control. Where release would substantially provide final or mandatory relief, the claimant must show a particularly strong case on the merits.

In assessing compliance with detention policy, the decision-maker must examine the substance of relevant risks and circumstances, rather than rely solely on pro-forma risk ratings. A potential victim of modern slavery whose reconsideration process is pending may have a real prospect of showing that continued detention breaches policy, particularly where accommodation and support would be available on release.

Three immigration detainees sought interim orders requiring their release pending determination of claims that their detention was unlawful. The first and second applications became academic after the Secretary of State agreed to release them.

The third claimant remained detained pending deportation to Greece. She relied on her status as a potential victim of modern slavery, her claim to have suffered historic torture, and an alleged heart condition increasing the risk of serious harm from COVID-19. The central issues were whether she had a real prospect of establishing that continued detention breached the Secretary of State’s policies and whether the balance of convenience favoured conditional release.

1. The applications of the first and second claimants were no longer live following their release. The third claimant’s application was determined by reference to the latest decision continuing her detention for 28 days.

2. The court applied the American Cyanamid principles, modified for the public law context, as explained in Medical Justice, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1425 (Admin). The claimant had to show a real prospect of obtaining an order for release at trial. The balance of convenience had to include the public interest in effective immigration control. Because the relief sought was mandatory and might in practical terms be final relief, a particularly strong case on the merits was required.

3. There was a real prospect that the third claimant would establish that her detention breached the policy applicable to potential victims of modern slavery. The reconsideration of the negative conclusive grounds decision meant that she should be treated consistently with a person benefiting from a positive reasonable grounds decision. The likely duration of that reconsideration process was relevant to the detention assessment.

4. The court accepted from TT (Vietnam) v Secretary of State for the Home Department [2019] EWCA Civ 248 that risks of absconding or reoffending could support the public order basis for continued detention. The assessment had to consider the substance of the position, not merely the boxes ticked on a detention-review form. On the facts, accommodation, support and completion of methadone treatment materially reduced the risks.

5. The torture and medical-condition grounds, considered separately, did not themselves establish the required real prospect of success. However, the Secretary of State should take reasonable steps promptly to investigate the alleged mitral valve prolapse and determine whether the claimant fell within Evidence Level 2 or Evidence Level 3 of the Adults at Risk Policy. The failure to investigate did not itself render detention unlawful.

6. The balance of convenience favoured release because accommodation would be provided through the National Referral Mechanism and reporting conditions could mitigate the risks of absconding and reoffending. Release was ordered subject to ordinary reporting conditions and the availability of Salvation Army accommodation.

This was a first-instance application for interim relief in judicial review proceedings. No appellate history is stated in the judgment.