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

In assessing whether continued immigration detention is justified, the court must balance vulnerability and the likely impact and duration of detention against immigration-control and public-protection considerations. The Adults at Risk policy requires detention only where the immigration factors outweigh the risks, and there must be a realistic prospect of removal within a reasonable period. Where removal is delayed by legal or practical barriers, prolonged detention may become unreasonable. Public-protection concerns may be addressed by bail conditions, licence requirements and probation supervision. Accommodation under Immigration Act 2016 Schedule 10 is a distinct route from support under section 95 of the Immigration and Asylum Act 1999, and is not limited to cases of destitution.

The claimant, a foreign national offender detained pending deportation, sought release from immigration detention. He had significant mental-health problems, a history of self-harm and suicidal ideation, and had been detained for nearly five months. His deportation was impeded by a pending First-tier Tribunal appeal and an outstanding Conclusive Grounds decision under the National Referral Mechanism, following a positive Reasonable Grounds decision that he was a potential victim of modern slavery.

The court considered whether the balance of convenience favoured continued detention, having regard to the claimant’s vulnerability, the prospects and likely duration of removal, public-protection concerns, and the availability of bail and suitable accommodation.

1. The court proposed granting bail subject to conditions. The claimant’s deteriorating mental illness and the evidence that detention increased the risks of self-harm and suicide outweighed the public-protection risks.

2. The Adults at Risk policy strengthened the presumption against detention of particularly vulnerable persons. Detention required a realistic prospect of removal within a reasonable period, and the immigration factors had to outweigh the identified risks. At Level 3, immediate removal was unavailable because barriers remained, including the pending appeal and the unresolved modern-slavery process.

3. Under section 61 of the Nationality and Borders Act 2022, removal could not take place until the Conclusive Grounds decision had been made. The remaining uncertainty and likely delay meant that, having regard to the claimant’s vulnerability and the period already spent in detention, continued detention would be unreasonably long.

4. Public-protection concerns could be adequately managed through agreed bail conditions, the claimant’s licence conditions and probation supervision. The Probation Service should assess the suitability of accommodation, including possible Level 2 or Level 3 bail accommodation under paragraph 9 of Schedule 10 to the Immigration Act 2016.

5. Schedule 10 accommodation support was a separate power from accommodation and support under section 95 of the Immigration and Asylum Act 1999. Destitution could justify Schedule 10 support, but it was not the only possible basis. The difficulties in obtaining accommodation and risk assessments justified joining the Probation Service as a defendant or interested party if necessary.

First-instance judgment. No appellate history is stated in the judgment.