GVA, R (on the application of) v Secretary of State for the Home Department

Interim relief in judicial review requires a serious question to be tried, which generally means a real prospect of success at the substantive hearing, followed by consideration of the balance of convenience. Where permission is refused because the claim is unarguable, the court need not consider the balance of convenience.

In assessing a modern slavery reasonable grounds decision, the decision-maker may assess credibility and material inconsistencies, provided the statutory guidance is taken into account and the evidence is rationally assessed. In immigration detention cases, the Hardial Singh principles require a genuine intention to deport, detention for a reasonable period, a reasonable prospect of removal within that period, and reasonable diligence and expedition.

Risk of absconding is of paramount importance but cannot justify indefinite detention. An application for immigration bail should ordinarily be made to the First-tier Tribunal.

The claimant, an Albanian national detained pending automatic deportation after a conviction for supplying Class A drugs, sought interim relief and immigration bail. He challenged a fresh negative reasonable grounds decision under the National Referral Mechanism and the lawfulness of his detention.

He argued that the modern slavery decision failed to account for trauma, relevant records and expert evidence, and that his detention was unlawful because of vulnerability, barriers to removal, delay and an insufficient risk of absconding. The court treated the interim relief hearing as an oral permission hearing. The central issues were whether either judicial review ground had a real prospect of success and, alternatively, whether the High Court should grant immigration bail.

1. Interim relief and permission. The principles in American Cyanamid Company v Ethicon Ltd [1975] AC 396 apply, modified as appropriate for public law. The claimant had to show a serious question to be tried, generally requiring a real prospect of success. Only if that threshold was met would the court consider the balance of convenience. Permission was refused on both grounds, so interim relief could not be granted and the balance of convenience did not arise.
2. Modern slavery decision. The decision-maker was entitled to consider credibility and material inconsistencies under the statutory guidance. The inconsistencies concerning the duration of the work and payment were material because they went to the heart of the claim and there was no supporting witness or contemporaneous documentary evidence. The sentencing remarks, which described autonomy and sophistication rather than forced work, were material evidence that the decision-maker was entitled to treat as reliable. The decision-maker considered the relevant records, expert evidence and guidance. The speed of the fresh decision did not establish a failure to give the matter anxious scrutiny. Ground 1 was unarguable.
3. Detention. The principles described in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, approved in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, governed the pre-amendment position. The defendant intended to deport the claimant, detention remained reasonable and proportionate, there was a realistic prospect of removal within a reasonable timescale, and the defendant acted with reasonable diligence and expedition. The high risk of absconding was of paramount importance, although it could not justify detention of any length. The reviews properly considered vulnerability, the presumption of release and removal barriers.
4. The amendments made by section 12 of the Illegal Migration Act 2023 were not retrospective. The court did not need to resolve their wider meaning, but concluded that detention after 28 September 2023 was lawful under the amended statutory provisions on the facts.
5. The alternative application for immigration bail was refused. The appropriate forum was the First-tier Tribunal, which provided a suitable statutory alternative remedy.