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

Immigration detention must remain justified throughout the period of detention. Under the Hardial Singh principles, detention is lawful only for a reasonable period and must end when it becomes apparent that removal cannot be achieved within a reasonable period. The assessment is forward-looking and must account for the likely timescale of removal, risks of absconding and reoffending, public protection, and the detainee’s vulnerabilities. Serious mental illness which is worsened by detention is a material consideration. A previous sentence of four years or more is, under the Adults at Risk policy, sufficient to permit consideration of detention at Level 3; a separate significant public-protection concern is not required. On the interim-relief application, the court applied a serious-issue threshold and the balance of convenience or justice, and ordered release on bail.

The claimant, a Jamaican national with indefinite leave to remain, was detained pending deportation after serving a 90-month sentence for possession of Class A drugs with intent to supply. His removal had been deferred, and he had made an outstanding protection claim which had not yet been interviewed or decided. The First-tier Tribunal refused bail on 17 December 2020.

He sought judicial review of his continued detention and interim relief by release on bail. The issues included whether detention was unlawful under the Hardial Singh principles, whether the Adults at Risk policy had been followed, and the relevance of his mental health, bail compliance, risks of absconding and reoffending, and the uncertain prospect of removal.

1. Interim relief. The court applied the approach in R (Adams) v Secretary of State for the Home Department, asking whether there was a serious issue to be tried and then applying the modified balance of convenience or balance of justice in light of the public-law context.
2. Hardial Singh principles. The second and third principles were particularly relevant: detention must be reasonable in all the circumstances, and it must not continue once it becomes apparent that removal cannot be effected within a reasonable period. The assessment must look forward, including the likely future effect of detention and the realistic timescale for removal. The principles apply, with appropriate modification, to automatic deportation under section 36(1) of the UK Borders Act 2007, as explained in R (Rashid Hussein) v Secretary of State for the Home Department and approved in JS (Sudan).
3. Application. The outstanding protection claim, the absence of an interview, possible appeals or judicial review, and the absence of evidence that a March charter flight was a realistic prospect made removal highly uncertain. The claimant’s previous compliance with bail conditions was relevant to the risks of absconding, reoffending and harm, although those risks remained important. His serious depression and suicide risk, accepted by the defendant and worsened by detention, materially strengthened the case against continued detention.
4. Adults at Risk policy. The court observed that Level 3 was not breached merely because the claimant lacked a public-protection concern. A previous custodial sentence exceeding four years was itself sufficient to permit consideration of detention under the policy.
5. The claimant had a strong prima facie case that continued detention was unlawful. The balance of justice favoured release despite the seriousness of his offending and the relatively short period of detention. Interim relief was granted, with release to be effected under the defendant’s statutory bail powers and subject to conditions identified by her.

The judgment does not state an appellate history for this claim. It records that the First-tier Tribunal refused bail on 17 December 2020, but this was not an appeal from that decision.