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

For interim relief in a public-law claim, the court applies the American Cyanamid test as adapted to public law. It first asks whether there is a good arguable case, then assesses where the balance of risk of harm lies. Where an adult at risk remains in immigration detention because suitable accommodation has not been provided, the court may compel the Secretary of State to act where continued detention is not justified by imminent removal or a sufficiently high risk of harm to the public. Immigration detention cannot properly be used to protect a detainee from self-harm. Practical difficulties, including the COVID-19 pandemic, probation approval and accessibility requirements, may inform the timetable but do not necessarily justify a further period of grace.

The claimant, an Australian national, had completed the custodial part of a sentence and remained in immigration detention at HMP Lewes following a deportation decision. The First-tier Tribunal had granted bail in principle, which had been extended three times. The Secretary of State accepted that he was entitled to Schedule 10 accommodation but had not secured suitable wheelchair-accessible accommodation approved by the Probation Service.

The claimant sought interim relief because of continuing detention, deteriorating mental health, physical disabilities and the absence of an imminent removal date. The central issues were whether there was a strong arguable case, where the balance of risk of harm lay, and whether the Secretary of State should be given further time to obtain accommodation.

1. Interim relief granted. The court found a strong arguable case, which the Secretary of State did not dispute. The relevant approach was the American Cyanamid test adapted for public-law claims: the court considered the arguability of the claim and then where the balance of risk of harm lay.
2. The balance of risk clearly favoured the claimant. He was an adult at risk whose mental health had deteriorated and whose physical difficulties required suitable accessible accommodation. The failure to provide accommodation meant that he remained detained when neither of the reasons identified in the statutory guidance for continuing detention was established. There was no imminent removal date, and the detention records assessed him as presenting a medium risk of harm and a low risk of re-offending.
3. Immigration detention is directed to the purpose of removal. Following AA v Secretary of State for the Home Department [2010] EWHC 2265, using immigration detention to protect a person from themselves, however well intentioned, is an improper purpose. The claimant’s mental-health difficulties and potential danger to himself therefore did not justify continued detention.
4. The Secretary of State’s explanation relied on pandemic-related accommodation pressures, the need for Probation Service approval and the limited supply of suitable wheelchair-accessible accommodation. Those matters were relevant to the timetable, but the court found that there had been at least four weeks when adequate efforts had not been made. A further period of grace was therefore inappropriate.
5. The Secretary of State was ordered to find suitable accommodation by 4 p.m. on 30 April 2021. The order included liberty to apply so that she could notify the court of any difficulties.

First-instance application for interim relief in the Administrative Court. No earlier judicial decision is stated beyond the First-tier Tribunal’s grants of bail in principle.