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

Immigration detention is lawful only while removal remains a realistic prospect within a reasonable period. The assessment is fact-specific and must account for the length and conditions of detention, obstacles to removal, administrative diligence, the effect on the detainee, the risk of absconding and public protection concerns. The court must assess lawfulness as primary decision-maker, using information known at the relevant time and avoiding hindsight. A level 3 adult-at-risk may nevertheless be detained where a significant public protection concern justifies detention under the applicable policy. Compliance concerns alone will rarely justify detention at that level. A short period of grace may be allowed to arrange release once detention becomes unlawful.

The claimant, an Albanian national, challenged his immigration detention by judicial review. He had claimed asylum and had been referred into the National Referral Mechanism as a potential trafficking victim. A medical report under rule 35(3) of the Detention Centre Rules 2001 assessed him as a level 3 adult at risk and stated that continued detention might worsen his mental health.

The claim alleged breaches of the Hardial Singh principles and of the defendant’s policies concerning vulnerable detainees. The central issues were whether removal remained realistically achievable within a reasonable period, and whether the claimant’s criminal history constituted a sufficient public protection concern to justify continued detention.

1. Claim dismissed. The claimant’s detention did not breach the Hardial Singh principles. The court assessed each challenged period by reference to the information known to the Secretary of State at that time, without hindsight.
2. The anticipated expedited timetable for the trafficking-related Conclusive Grounds decision, followed by a prompt asylum decision, meant that it was not apparent during the relevant periods that removal could not be effected within a reasonable time. The ordinary delays in the National Referral Mechanism did not alter that conclusion because the defendant knew of an anticipated expedited timetable for the cohort of migrants, which included the claimant.
3. In assessing reasonableness, the court weighed the claimant’s detention-related psychiatric deterioration and level 3 vulnerability against the high risk of absconding and the serious public protection concerns arising from his murder conviction and other criminal history. The court accepted that these latter factors, particularly the public protection concern, justified continued detention while the expedited timetable remained realistic.
4. The court also considered an alternative period based on an alleged six-month timetable. With hesitation, it concluded that detention would still not have been unlawful at that stage because removal remained a sufficient prospect within a reasonable period in all the circumstances.
5. The defendant’s policies did not require release. Compliance issues alone were insufficiently exceptional to justify continued detention of a level 3 adult at risk. However, the claimant’s lengthy custodial sentence, murder conviction, supporting Albanian documentation and other offences gave the defendant an open basis for finding a significant public protection concern under the guidance and policy. The decision was therefore within the proper limits of the policy and was not unlawful.
6. The court confirmed that failure to follow a published policy is ordinarily an error of law absent good reason, while the meaning of the policy is for the court and the exercise of discretion is reviewable on ordinary public law grounds.