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

The court considered a first instance judicial review challenge to ongoing immigration detention and to delay/refusal to provide accommodation under section 95 of the Immigration and Asylum Act 1999 (s.95 IAA 1999). The judge applied the principles governing immigration detention (including the Hardial Singh propositions and Lumba), the requirement of diligence and expedition when detention continues to facilitate release, and the Defendant’s duties under the adults at risk (AAR) policy and the Detention Centre Rules 2001 (Rule 35 and Rule 40). The court found that grounds alleging incompatibility with Article 5 ECHR (for excessive/unduly prolonged detention), misapplication of AAR policies, failure to discharge public sector equality duties, and unlawful delay/refusal of s.95 accommodation were arguable and granted permission to apply for judicial review on those grounds.

The court refused permission to amend the claim to add a proposed Article 3 ECHR ground (not arguable on the material before the court) and refused to admit medico-legal reports from a GP as expert evidence (insufficient specialist expertise and the court signalled any court-approved expert for a substantive hearing should be a consultant psychiatrist). The judge made interim relief ordering the Defendant to use best endeavours to offer s.95 accommodation in Scotland to the claimant to the claimant’s supervising criminal justice social worker (CJSW) by 4pm on 1 September 2025 and for the accommodation to be available by 8 September 2025, with a short re-listing pathway if release had not occurred by 8 September.

Background and parties: The claimant (BRO) is a Nigerian national detained under immigration powers while serving the effects of a Scottish criminal sentence; he has diagnoses including paranoid schizophrenia. The Secretary of State detained him with a view to removal and later reinstated his asylum claim. The First-tier Tribunal (FTT) granted conditional immigration bail repeatedly, conditional on suitable accommodation being provided. The claimant remained detained because suitable accommodation (and approval by his Scottish criminal justice social worker (CJSW)) was not in place. Essex County Council and NHS Suffolk and North East Essex Integrated Care Board were joined as Interested Parties because of duties under the Care Act 2014 and s.117 Mental Health Act 1983.

Nature of the claim and relief sought: This was a claim for judicial review challenging ongoing detention and delay/refusal to provide s.95 accommodation and alleging breaches of Article 5 ECHR, non‑compliance with Detention Centre Rules/AAR policies, failures under the Equality Act 2010, and unlawful s.95 decisions. The claimant sought permission for judicial review and an interim order to secure release from detention and provision of s.95 accommodation.

Issues framed by the court: (i) whether the claimant’s detention was compatible with Article 5 given the reinstatement of his asylum claim and subsequent grant of conditional bail; (ii) whether the Defendant properly applied the AAR policy and Detention Centre Rules (Rule 35), including classification at Level 3 where continued detention would worsen health; (iii) whether the Defendant discharged equality duties (section 149 Equality Act 2010 and related provisions) including reasonable adjustments and assistance to challenge detention; (iv) whether refusal or delay to provide s.95 accommodation was lawful; (v) whether an Article 3 ECHR ground was arguable; and (vi) whether expert medico-legal GP reports should be admitted.

Court’s reasoning and conclusions: The judge concluded there were arguable grounds on Article 5 (both the initial period after detention and the later period following the FTT grant of conditional bail), AAR policy application (Ground 2), Equality Act issues (Ground 3) and unlawful delay/refusal of s.95 accommodation (Ground 4). The judge applied the Hardial Singh propositions and Lumba principles on detention law, emphasising the duty to act with diligence and expedition when facilitating release and the need for anxious scrutiny of continued deprivation of liberty. The court refused permission for Ground 5 (duplicative Article 8/Article 5 pleading) and refused amendment to add Ground 6 (Article 3) as not arguable on the material available. The court refused to admit the GP’s medico-legal reports as expert evidence for lack of specialist forensic psychiatric expertise, but permitted reliance on the factual contents of medical notes and letters. Given an arguable unlawful detention and the inadequacy of damages as a remedy (and the claimant’s medical vulnerability), the judge made interim relief ordering the Defendant to use best endeavours to provide s.95 accommodation in Scotland to the claimant’s CJSW by 4pm on 1 September 2025 and to ensure it was available by 8 September 2025, with a fast-track re-listing if release had not occurred by that date. A case management hearing was listed in the week commencing 27 October 2025 to consider next steps.

This was a first instance judicial review hearing. The court granted permission to apply for judicial review on Grounds 1–4 (Article 5 incompatibility/undue delay, AAR/Detention Centre Rules non‑compliance, Equality Act failure, and unlawful s.95 refusal/delay). The court refused permission for Ground 5 (duplicative Article 8 claim) and refused leave to amend to add Ground 6 (Article 3) as not arguable. The court declined to admit the GP’s medico-legal reports as expert evidence but allowed reliance on medical records and communications. On balance the court concluded there was a serious issue to be tried and that damages would be an inadequate remedy; it therefore made interim relief requiring the Defendant to use best endeavours to provide s.95 accommodation in Scotland to the claimant’s CJSW by 4pm on 1 September 2025 and for that accommodation to be available by 8 September 2025, with provision for urgent re-listing if release had not occurred by 8 September. The judge’s rationale was that continued detention required anxious scrutiny and the Secretary of State had to act with diligence and expedition to facilitate release once bail was granted and when detention could no longer be justified for a deportation purpose.