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

In a deportation case, immigration bail and an electronic monitoring condition depend on the claimant remaining liable to detention. Where there is no prospect of deportation, the claimant is not liable to detention and cannot lawfully be granted or remain on immigration bail under Schedule 10 to the Immigration Act 2016. The existence of a deportation order is not conclusive. Whether any prospect of removal exists is a jurisdictional fact for the court.

Quarterly reviews of electronic monitoring must be conducted within three months and in accordance with paragraph 7(2) of Schedule 10. Reviews must address relevant matters, including the time already spent monitored and the expected time until removal. A short delay may establish unlawfulness without necessarily producing substantive relief. A challenge brought after the relevant monitoring has ended may be refused for delay, particularly where the claimant previously considered and declined to challenge the condition.

The claimant, a stateless Turkish national subject to a deportation order, challenged electronic monitoring imposed on his immigration bail in February 2023 and sought permission to amend his claim to challenge monitoring imposed in September 2018. The Secretary of State had not identified any steps taken since March 2020 to secure an emergency travel document or otherwise facilitate removal to Turkey.

The court considered whether the claimant remained liable to detention for Schedule 10 purposes, whether the 2023 condition and its reviews complied with the statutory and policy framework, and whether the proposed challenge to the 2018 condition should be admitted out of time.

1. 2023 condition. The claim succeeded on the principal ground. Under paragraph 1 of Schedule 10 to the Immigration Act 2016, a person who is no longer liable to detention cannot lawfully be granted or remain on immigration bail. The continued existence of a deportation order did not itself establish liability to detention.
2. The question whether there was some prospect of deportation was a jurisdictional fact for the court. The claimant had been stateless since 2017; the only previously identified route through the EURA had ended when Turkey suspended participation; and the Secretary of State provided no evidence of any later prospect or efforts to secure removal. The court therefore found that, on 10 February 2023, there was no prospect of deportation. The 2023 EM condition was unlawful from the outset.
3. Alternative review observations. Had ground 1 failed, the condition would also have been unlawful during periods when quarterly reviews were late. The reviews had to occur within three months. They addressed proportionality in substance, and no detailed consideration of impracticality was required absent an evidential issue. However, the records failed to account for the claimant’s earlier monitoring and misstated the barriers to removal, so failed to consider relevant matters and considered irrelevant ones.
4. The Secretary of State was not required to give the claimant reasons for quarterly review decisions under the policy considered. The Article 8 claim succeeded because the unlawful condition was not in accordance with the law.
5. 2018 condition. Permission had not previously been granted to challenge its imposition or maintenance. Permission to amend was refused. The challenge was substantially out of time, introduced a challenge to distinct decisions, and followed an earlier informed decision not to challenge the condition. The application to amend was dismissed.

First-instance judicial review. The judgment records earlier case-management decisions by Sheldon J and Lang J, but no appeal from this judgment.