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

Interim relief in a judicial review claim requires a serious question to be tried, involving a real prospect of success at the substantive hearing, followed by an assessment of the balance of convenience. The threshold is generally higher than the arguable case required for permission.

Immigration bail is ordinarily sought from the First-tier Tribunal. The High Court retains a residual discretionary power to grant bail where necessary to give effect to a judicial review remedy, including where referral to the Tribunal would cause significant delay.

For immigration detention, the Adults at Risk policy requires vulnerability, medical evidence, removal prospects, absconding risk and public protection concerns to be assessed accurately and cumulatively.

The claimant sought permission to apply for judicial review of his continuing immigration detention and urgent interim relief requiring release or High Court bail. He was subject to a deportation order and had been detained after completing a custodial sentence. His protection and human rights appeal remained outstanding.

The claimant relied on the Hardial Singh principles, the Adults at Risk policy, rule 35 of the Detention Centre Rules 2001, and Articles 5 and 8 of the ECHR. The Secretary of State relied on the claimant’s criminal convictions, public protection concerns, absconding risk and the anticipated imminence of removal. The central issues were whether there was a real prospect that the detention was unlawful and, if so, whether the balance of convenience favoured interim release.

1. Interim relief. The governing principles were those in American Cyanamid Company v Ethicon Limited (1975) AC 396, modified as appropriate for public law. The claimant had to show a serious question to be tried, assessed by reference to a real prospect of success at the substantive hearing, and the court then had to balance the competing harm and public interest considerations.
2. Prospect of success. The claimant had a real prospect of establishing that his detention was unlawful, both before and after the amendments made by section 12 of the Illegal Migration Act 2023. The detention reviews and the rule 35 response repeatedly proceeded on the false premise that his appeal would be heard on or shortly after 14 November 2023. That error materially affected the assessment of removal prospects and the balancing exercise.
3. The claimant had been assessed at Level 3 under the Adults at Risk policy. The decision-maker arguably failed to apply the Level 3 guidance in light of his serious mental illness, deterioration in detention, self-harm, suicide risk, previous unlawful detention and medical advice that he should be released.
4. The Secretary of State also appeared to have breached the rule 35 policy by taking two weeks, rather than two working days, to respond to the report dated 19 October 2023. The significance of that delay would depend on the outcome at the substantive hearing.
5. Balance of convenience and bail. The medical evidence convincingly indicated that the claimant was not fit for detention. The risks of reoffending, absconding and harm to the public nevertheless required consideration. The practical questions were whether suitable accommodation, approved by probation, and appropriate medical treatment could be secured through bail conditions alongside licence conditions. The hearing was adjourned so that the parties could address those matters. No final order granting or refusing interim relief is stated.