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

Immigration detention cannot lawfully continue where there is no realistic prospect of removal in the near or foreseeable future. An interim order for release and accommodation may be made even where those remedies form part of the substantive judicial review claim, provided the balance of convenience justifies it. Where the Secretary of State accepts a power and duty to provide accommodation under paragraph 9 of Schedule 10 to the Immigration Act 2016, practical difficulties, including procurement arrangements, cannot prevent performance of that duty. Accommodation must nevertheless take account of relevant health risks and any supervision conditions requiring approval by a probation officer.

The claimant, a recognised refugee from Eritrea, had been detained under immigration powers after completing the custodial part of a sentence for sexual assault. The Secretary of State considered him liable to deportation, but no deportation decision had been made and removal was not realistically foreseeable.

The claimant sought interim orders for release and accommodation under paragraph 9 of Schedule 10 to the Immigration Act 2016. The court considered the legality of continued detention, the need for suitable accommodation in light of respiratory conditions and Covid-19 risk, and the requirement that accommodation be approved by the claimant’s Offender Manager.

1. Interim relief granted. Applying the principles in Hardial Singh, the Secretary of State could not lawfully continue detaining the claimant because there was no realistic prospect of removal in the near or foreseeable future. The claimant had been detained for too long after it became clear that removal could not take place.
2. The court rejected the submission that an interim order should not be made because release and accommodation were important parts of the substantive claim. Interim relief could be granted where justified by the balance of convenience. The claimant’s heightened respiratory risk from Covid-19 made release particularly pressing.
3. The Secretary of State accepted that paragraph 9 of Schedule 10 to the Immigration Act 2016 imposed both a power and a duty to provide appropriate accommodation. The accommodation had to be sole occupancy, suitable having regard to the claimant’s respiratory condition, and capable of approval by his Offender Manager. Public procurement considerations could not prevent performance of the accepted statutory duty.
4. The defendant was ordered to release the claimant from immigration detention into suitable self-contained accommodation by 29 July 2020. The longer period, compared with the seven-day period ordered in R (Merca) v Secretary of State for the Home Department [2020] EWHC 1479 (Admin), reflected the need for probation approval and the particular circumstances of this case. The order contained liberty to apply, but success would require effectively demonstrating that accommodation was impossible to obtain.
5. Permission to amend was granted. Subject to the claimant’s release, the claim was transferred under CPR 54.20 to the county court as a claim for damages for unlawful detention, and permission to apply for judicial review was refused. The Secretary of State was ordered to pay the costs of the interim application and the judicial review claim up to the date of judgment.

The judgment records that Henshaw J directed on 2 July 2020 that the urgent interim application be listed for an oral hearing. This was a first-instance decision in the Administrative Court.