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

Immigration detention must remain lawful, proportionate and under continuing review. After conditional bail has been granted, the Secretary of State must act with appropriate diligence and expedition to arrange release. It may be reasonable to retain a person briefly while suitable accommodation, healthcare and public-safety arrangements are made, but the search for alternative support must remain reasonable and realistic. It may be arguable that detention becomes unlawful where release is delayed while every possible accommodation option is explored, despite the availability of residual support under section 95 of the Immigration and Asylum Act 1999. Evidence that detention may worsen mental health can bear on proportionality and the diligence required. Interim relief may properly require managed release arrangements rather than immediate release.

The claimant, a Nigerian national detained under immigration powers following a Scottish custodial sentence, had been granted conditional immigration bail. His release depended on suitable accommodation being provided and approved by the Scottish criminal justice social worker. The Secretary of State had accepted in principle that he should be released but had not provided accommodation under section 95 of the Immigration and Asylum Act 1999.

The claimant sought judicial review on grounds including unlawful detention, failure to follow adults-at-risk policies, discrimination, unlawful refusal or delay in providing accommodation, and breaches of Articles 3, 5 and 8. The central issues were whether the grounds were arguable, whether permission to amend should be granted, and whether interim relief should secure his release.

1. Permission. Permission to apply for judicial review was granted on Grounds 1 to 4. Permission was refused on Ground 5 because the Article 8 complaint added no distinct value and duplicated the other grounds. Permission to amend to add an Article 3 ground was refused because the medical evidence did not establish an arguable breach and the Article 3 threshold was high.
2. Article 5 and immigration detention. Detention had to have a legal basis and pursue a legitimate aim proportionately. The Hardial Singh principles required an intention to deport, detention for a reasonable period, release when deportation could not be achieved within that period, and reasonable diligence and expedition. It was arguable that the first period of detention became unlawful after the asylum claim was reinstated or when the medical and behavioural evidence made near-term deportation unrealistic.
3. During the second period, continued detention could be justified briefly to make reasonably necessary release arrangements. The Secretary of State nevertheless had to keep detention under review and act with appropriate diligence and expedition. It was arguable that waiting for all possible alternative accommodation routes to be resolved, after it was clear that mental-health detention would not occur, unlawfully prolonged detention.
4. Accommodation and proportionality. Section 95 support was residual, but enquiries into other possible accommodation should not exceed what was reasonable and realistic. Temporary section 95 accommodation could be offered while entitlement to support under other regimes was investigated. The claimant’s mental-health risks and the possibility that detention was worsening his condition were relevant to proportionality and the required expedition.
5. Adults at risk and equality. It was arguable that the claimant should have been placed in Level 3 under the Secretary of State’s adults-at-risk policy, given professional evidence that continued detention might worsen his psychological health. It was also arguable that more should have been done to assist him in challenging detention when concerns existed about psychosis and capacity.
6. Interim relief. There was a serious issue to be tried and damages would not be an adequate remedy. The balance of convenience favoured managed release, but immediate release might breach Scottish licence conditions, disrupt medication, or create safeguarding risks. The Secretary of State was ordered to use best endeavours to provide, by 1 September 2025, a firm offer of Scottish section 95 accommodation available by 8 September 2025. The claimant could seek urgent relisting if not released by then.

Not stated in the judgment.