Samson Bello, R (On the Application Of) v The Secretary of State for the Home Department

In deciding interim relief against immigration detention, the court must assess both the strength of the underlying claim and the balance of convenience. Uncertainty about whether removal will occur on the proposed date is relevant to the reasonableness of continued detention under the second and third Hardial Singh principles. Repeated lawful challenges to deportation do not, without more, establish a risk of absconding, although a family’s previous unlawful obstruction of removal may support that risk. The court must assess the competing risks over the period before the substantive hearing, including health risks, detention conditions, the prospect of removal and the public interest in deportation. Where the claim is arguable but not overwhelmingly strong, and the balance favours continued detention for a short period, an urgent rolled-up hearing may be appropriate instead of interim release.

The claimant, a Nigerian national with serious mental and physical health conditions, challenged his continued immigration detention pending deportation. Several removal directions had been cancelled, and further removal directions were set for 25 May 2020. He relied on the second and third Hardial Singh principles, the Secretary of State’s Adults At Risk policy, and Articles 2 and 3 of the ECHR. The Secretary of State relied principally on the claimant’s alleged risk of absconding and the imminent substantive removal date.

The application sought urgent interim relief or, alternatively, an urgent rolled-up hearing. The central issues were whether there was a serious issue to be tried and whether the balance of convenience favoured release before the substantive claim was determined.

1. Interim relief. The court had to assess the strength of the claim and the balance of convenience. The assessment of strength informed the balance, but the decisive question concerned the competing risks until the substantive hearing.
2. Reasonableness of detention. The four-week period in the Enforcement Instructions and Guidance was only a guide. The proposed removal date being five weeks away did not make removal necessarily non-imminent. However, considerable uncertainty about the likelihood of removal had to be factored into the overall assessment of whether continued detention was reasonable under the second and third Hardial Singh principles. This was consistent with R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112.
3. Risk of absconding. Repeated and unsuccessful use of lawful legal routes to challenge deportation did not, without more, show that the claimant would use unlawful means to abscond. His family’s previous physical obstruction of removal did provide some support for the Secretary of State’s assessment that unlawful steps might be taken again.
4. Adults At Risk policy. The claimant was at least a level 2 risk. Whether vulnerability arising from comorbidities necessarily meant that continued detention was “likely to cause harm”, so as to amount to level 3 risk, raised an important interpretative issue. The court declined to resolve it on an interim application without fuller submissions and an approved transcript of the judgment in the Detention Action proceedings.
5. Balance of convenience and order. The claim had a real prospect of success and plainly raised a serious issue, but it was not overwhelmingly likely to succeed. The health risks were material but were not shown to justify release for the short period before a rolled-up hearing. The public interest in deporting a person convicted of serious offences, together with the risk of absconding, carried considerable weight. Interim relief was refused and an urgent rolled-up hearing was directed for the week commencing 27 April 2020.