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

There is no principled objection to the Administrative Court considering interim relief seeking release from immigration detention, rather than requiring an application for immigration bail. The claimant must show a strong prima facie case. In assessing that case, substantial weight may be given to senior detention-review recommendations that removal is not imminent, particularly where the Secretary of State provides no evidence explaining their rejection. Detention must be lawfully authorised; it is no answer that the decision-maker believed it could later be justified. A failure to comply with the published adult-at-risk policy may also support the case that continued detention is unlawful. Any period allowed for arranging release must be justified by the particular circumstances, rather than generic administrative difficulties.

The claimant, an Egyptian national who had arrived in the United Kingdom as a minor, sought interim release from immigration detention pending judicial review. He alleged breaches of the Hardial Singh principles, unlawful detention caused by failures to authorise detention, and breach of the Secretary of State’s adult-at-risk policy.

The Secretary of State relied on risks of absconding and reoffending, and argued that immigration bail before the First-tier Tribunal was the more appropriate remedy. The court also considered the Secretary of State’s late compliance with an earlier case-management order and the period required to arrange release.

1. Interim relief. The court held that there was no principled objection to considering an interim application for release from detention. Judicial review examines the lawfulness of detention, which is distinct from an immigration-bail application. The claimant therefore could seek interim release in these proceedings.
2. Threshold and evidence. The claimant had to show a strong prima facie case. The Secretary of State’s own detention records repeatedly recorded that there was no imminent prospect of removal and recommended release. In the absence of evidence that those recommendations had been properly considered and rejected, they were entitled to considerable weight. The evidence justified immediate release.
3. Apparent unlawfulness. The claimant had established a strong prima facie case that the Hardial Singh principles 2, 3 and 4 had been breached. He had also shown a strong prima facie case that detention had not been authorised on relevant occasions. Applying Kambadzi v Secretary of State for the Home Department [2011] 1 WLR 1299, the court rejected the submission that failure to authorise made no difference: imprisonment infringed a legally protected right and had to be lawfully justified.
4. The Secretary of State had relied on language from the superseded Chapter 55 guidance concerning a stable and adequately managed health condition. The court accepted, for present purposes, that the continued detention breached the published adult-at-risk policy.
5. Release arrangements and procedure. Generic factors, including the COVID-19 crisis, did not justify a three-week grace period. The appropriate period was 48 hours. The court also granted relief from sanctions under CPR 3.9, granted permission for the claim to proceed, and ordered expedition.