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

Interim relief in public law proceedings requires a real prospect of obtaining final relief, followed by consideration of the balance of convenience and the public interest. Where the relief sought is effectively final and mandatory, a particularly strong case is required.

Under the Immigration Act 2016 and the Hardial Singh principles, detention does not become unlawful immediately when a receiving country temporarily stops accepting removals. The Secretary of State is entitled to a short period to review detention and decide what action is required.

The court reviews legality rather than second-guessing legitimate operational choices. Measures addressing health risks in immigration detention during the COVID-19 pandemic did not establish an arguable systemic breach of articles 2 or 3 of the Convention.

Detention Action and Mikhail Ravin sought interim relief in judicial review proceedings challenging the Secretary of State’s response to COVID-19 in immigration detention. They sought orders requiring the release of detainees facing removal to countries not accepting returns, additional health assessments and disclosure, and the release and accommodation of Mr Ravin.

The claim relied on the Immigration Act 2016, the principles in R v Governor of Durham Prison, ex parte Hardial Singh, and articles 2 and 3 of the Convention. The central issues were whether detention became immediately unlawful when removal was temporarily impracticable, and whether the detention system created an unacceptable systemic risk to life or of ill-treatment.

1. The application for interim relief was refused. The court also ordered that the Secretary of State was entitled to her costs, assessed on the standard basis if not agreed.
2. The applicable public law approach was that stated in Smith v Inner London Education Authority and R (on the application of Medical Justice) v Secretary of State for the Home Department. The claimants had to show a real prospect of obtaining final relief at trial. The balance of convenience and the public interest were then relevant. Because the relief sought was practically final and mandatory, a particularly strong case was required.
3. The claim based on the Hardial Singh principles was not arguable. When removal ceases to be possible within a reasonable period, the power to detain ends. However, a temporary refusal by a receiving country to accept returns does not make detention immediately unlawful. The Secretary of State is entitled to a short period to review affected cases and determine what steps to take, particularly in exceptional circumstances affecting many countries.
4. The Secretary of State’s distinction between new detention and existing detention was lawful. The policy of not initiating detention for persons whose removal was presently impossible did not mean that all persons already detained for removal to those countries had to be released immediately.
5. The measures addressing COVID-19 risks, including reductions in detention, case-by-case review, prioritisation of detainees in increased-risk groups, isolation arrangements, healthcare support and hospital transfer where necessary, did not give rise to an arguable systemic breach of articles 2 or 3. The evidence did not establish a real risk of death or article 3 ill-treatment.
6. The court’s function was to assess legality, not to second-guess legitimate operational choices. The pandemic was unprecedented and rapidly changing, and the Secretary of State was entitled to anticipate and respond to events within sensible bounds.
7. Mr Ravin’s proposed release order was refused. His release had been agreed in principle, but suitable accommodation had not yet been identified and the circumstances of his deportation following conviction made an immediate mandatory order inappropriate.