AC-2025-LON-001896 - [2025] EWHC 2231 (Admin)

I have concluded that permission to apply for judicial review should be granted for this Ground, which I accept is arguable.

The starting point for consideration of this Ground is that detention of a person will not be compatible with Article 5 of the Convention Rights in Schedule 1 to the Human Rights Act 1998 unless that detention both: (a) has a legal basis in, and is authorised by, national law; and (b) is proportionate as a means of pursuing a legitimate aim (see Lumba v Secretary of State for the Home Department [2011] UKSC 12). In R (I) vSecretary of State for the Home Department [2003] INLR 196 at [46], Dyson LJ identified four distinct propositions governing the legality of Immigration Act detention emerging from Woolf J’s judgment in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 All ER 983: (1) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (2) the person may only be detained for a period that is reasonable in all the circumstances; (3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, she should not seek to exercise the power of detention; and (4) the Secretary of State should act with reasonable diligence and expedition.

In my assessment, when considering the Claimant’s Ground 1, it is appropriate to distinguish between two different periods, each of which raises different issues.

The “First Period” is one that began on or after 20 January 2025 (the date when the Defendant first detained the Claimant under immigration powers) and ended no later than 7 May 2025 (the date when the Claimant was granted conditional bail by the FTT). Following that grant of conditional bail, the Defendant acknowledged that the Claimant should be released from immigration detention, and she was seeking to make arrangements for facilitating this. The Defendant’s position up to that time, however, was that detention of the Claimant was a deportation purpose.

The Claimant’s case under Ground 1 in relation to that First Period is essentially that the Defendant maintained the immigration detention of the Claimant in circumstances where it was not realistic to think that he could be deported within the next few months.

In my view:

The Claimant’s case under Ground 1 in respect of the “Second Period” (running from the grant of conditional bail on 7 May, through to the present day) is essentially that, notwithstanding that the Defendant’s position during that period was that she accepted in principle that the immigration detention of the Claimant should be ended, she failed to act with the requisite diligence and expedition for facilitating his release. In that regard, there have (the Claimant says) been avoidable delays in releasing him, primarily because the Defendant has not acted promptly to provide him with appropriate s.95 accommodation to which he could be released.

In my view, it is arguable that the Defendant’s detention of the Claimant during the Second Period has, at least at times, been incompatible with Article 5 of the Convention Rights. I have come to that view notwithstanding the following points, which were rightly made by Mr Howarth and which I have no doubt are correct:

In my view, it is necessary to keep in mind that Article 5 requires that a continuing detention of a person under immigration powers be kept under review, and justified, on an ongoing basis. The Secretary of State, as the public authority exercising power to detain the Claimant, had a duty to act with appropriate diligence and expedition when making arrangements for facilitating his release, pursuant to the grant of conditional bail by the FTT. Deprivation of liberty is a context in which the Court will apply “anxious scrutiny” when assessing whether the public authority’s actions have been lawful.

Against that background, it is, in my view, arguable that, during the Second Period, the Defendant has not always acted with the appropriate diligence and expedition in relation to arrangements for facilitating the release of the Claimant, and that this has led to the Claimant remaining in detention for a longer time than necessary. By way of example, after 29 July 2025 (by which time, it was clear that the Claimant would not be detained under section 3 MHA 1983), the Claimant’s release from immigration detention appears to have been delayed as a result of the Defendant’s determination to wait for all possible lines of enquiry as to potential alternative sources of accommodation provision for the Claimant to be explored and conclusively resolved before the Defendant would be willing to restore her previous agreement to provide s.95 accommodation for him. In my view, it is arguable that this was incompatible with an Article 5-compliant approach to her responsibilities as a public authority that was holding the Claimant in detention.

In that regard, whilst I accept that s.95 support is intended to be ‘residual’ and thus the very bottom tier of public support safety nets (R (TMX) v London Borough of Croydon [2024] EWHC 129 (Admin)), the Defendant’s exploration of other potential sources of accommodation arguably should not go beyond what is reasonable and realistic in the circumstances. It may not be proportionate to continue detaining a person whilst ‘turning over every stone’ to look for accommodation options for him, in circumstances where the Defendant has the ability to bring about the person’s release by offering s.95 accommodation (perhaps doing so on a temporary basis whilst the person’s possible entitlement to other accommodation support is explored).

The Defendant’s position as at the start of the hearing before me was that she could not yet offer s.95 accommodation because she was still awaiting the definitive outcomes of the two lines of enquiry which, in her view, had not yet been resolved (see para 25 above). In my view, it is arguable that:

Had Ground 1 related only to the First Period, or had I found it to be arguable only in respect of the First Period, then I would have considered whether I should refuse permission for that Ground, by reason of the Claimant having an alternative remedy available to him. Insofar as the Claimant considered that his detention for a deportation purpose had ceased to be justified, then he could have sought a remedy by making an application to the FTT for bail, as he successfully did in May 2025. Further and in any event, if his claim was simply that his detention during the First Period was unlawful, then he might have an adequate alternative remedy by way of an action in the county court for damages for unlawful detention.

Given, however, that I have found Ground 1 also to be arguable in relation to the Second Period (which is ongoing), the right course is, in my view, for me to simply grant permission for Ground 1.

Ground 2 raises a complaint that the Defendant failed to adhere to her own policies and guidance on AAR when she continued holding the Claimant in immigration detention despite accumulating evidence that the detention was, or might be, contributing to a deterioration in his mental health.

In my view, this complaint is relevant predominantly to the First Period, i.e. the period of detention up to 7 May 2025. That is because, following the grant of conditional bail on that date, the Defendant’s position was that the Claimant should be released from immigration detention, and she was seeking to make arrangements for facilitating this. I do not think that evidence that an immigration detainee’s mental health was deteriorating because of his continuing detention could reasonably be said to generate a duty for the Secretary of State to release that person immediately, without having put appropriate arrangements in place.

Ground 2 may, however, also have salience in relation to the Second Period. That is because, if there was evidence that the Claimant’s mental health was being worsened by being in detention, then this could arguably be a material factor when a court is assessing whether the Defendant acted with an appropriate degree of diligence and expedition in making arrangements for facilitating the Claimant’s release.

The Defendant’s AAR guidance documents on which the Claimant places reliance for the purposes of this complaint make provision for individuals to be categorised by reference to the level of evidence that they are ‘at risk’ in immigration detention. The Defendant considered the Claimant to fall into Level 2. The Claimant claims that he should have been recognised as falling into Level 3, which applies to cases where there is professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk, and that a period of detention or continued detention will increase the severity of the symptoms or condition that have led to the individual being regarded as an AAR. The policy documents effectively require that a higher threshold be met, or at least particularly careful consideration, for justifying the detention of individuals who fall within Level 3.

In my view, it is arguable that the Defendant should have recognised the Claimant as falling within Level 3 and that, had the Defendant done so, then the Claimant might have been released earlier. As noted above, on 21 February 2025, a GP at Brook House completed a report under Rule 35(3) of the Detention Centre Rules raising concerns that the Claimant might be a victim of torture, and adverting to “an increased risk that ongoing detention will worsen [his] psychological health”. Subsequently, on 31 March 2025, Brook House received a letter from Dr Bourdillon-Schicker, who opined that the Claimant’s mental health had already deteriorated significantly in immigration detention and was likely to decline further if detention was continued. I therefore find Ground 2 to be arguable.

I have so concluded despite there being some reasons for doubting that immigration detention has been responsible for worsening the Claimant’s mental health. In that regard, I have noted the body of evidence indicating that the predominant cause of the deterioration in the Claimant’s mental health may have been that he was not taking the oral antipsychotic medicines that had been prescribed for him. There appears to have been a degree of stabilisation in the Claimant’s mental health since the times when: (a) he started being given periodical injections of ‘depot’ slow-release antipsychotic medication, so that his consumption of such medication was not dependent on his ongoing compliance with an oral medication regime; and (b) he was being held within the medical wing of Lewes Prison (rather than in a cell where, it appears, he may have been being exposed to a cellmate taking the synthetic opioid Spice). These are, however, points of factual detail and evidence which may need to be explored at a substantive hearing. They do not, in my view, suffice to enable me to conclude at this stage that Ground 2 is unarguable.

I will therefore grant permission to apply for judicial review on Ground 2.

Ground 3 complains that the Defendant breached the public sector equality duty in section 149 of the Equality Act 2010, and/or section 20 or 29 of that Act, by failing to make proper enquiries as to the Claimant’s mental health conditions/mental capacity, and to ensure that safeguards were in place that would avoid the disadvantages faced by the Claimant as a detainee with a disability.

The main element of this complaint, as set out in the Claimant’s SFG, is that the Defendant failed to take appropriate steps for ensuring that the Claimant was provided with an advocate, or other support, to enable him to challenge his continuing detention, or to pursue such a challenge on his behalf in circumstances where he may not have had capacity to give instructions for this to be done. In my view, this element of the complaint is arguable. Although the Defendant had solicitors acting for him at the time when he was placed in immigration detention on 20 January 2025, those solicitors informed the Defendant on 6 February 2025 that they were no longer acting for the Claimant. I note that 6 February was also the date of the Brook House GP’s Rule 35 report. Subsequent correspondence from Dr Bourdillon-Schicker had raised concerns about the Claimant’s psychosis, and specifically as to whether he had capacity. In my view, it is arguable that the Defendant should, in these circumstances, have done more to assist the Claimant in challenging his detention and that, had that been done, the overall period of detention might have been shorter.

A further element of Ground 3 alleges essentially that the continued detention itself constituted a failure to make reasonable adjustments to take account of the Claimant’s schizophrenia or other mental health related disability. It may be that this element of Ground 3 does not, on analysis, add much of substantive value to the matters already covered by Ground 2. Further, the Defendant has made adjustments for the Claimant during his detention – such as by reviewing and improving his antipsychotic medication regime, and by holding him within the prison’s medical wing – which appear to have assisted in stabilising his mental health to a degree. Nevertheless, the Claimant may be able to show that, even if his continued detention was compatible with the Defendant’s AAR policies, the making of reasonable adjustments by the Defendant to take account of the Claimant’s mental health status could have involved finding a way to release him from detention earlier. At this stage in the proceedings, it would not be proportionate for me to take such a fine-grained approach to determining whether permission should be granted on Ground 3 that I take upon myself the task of ‘editing down’ the content of the relevant section of the SFG. I will therefore grant permission to apply for judicial review on Ground 3 as a whole, i.e. in the full form in which it is set out in the SFG at paras 125-131.

In my view, Ground 4 is arguable for essentially the same reasons as I have found Ground 1 to be arguable insofar as it relates to the Second Period. It is arguable that the Defendant has not shown sufficient diligence and expedition in relation to the making of an offer of an accommodation address under s.95 IAA 1999. I will therefore grant permission on this Ground.

It is not apparent to me why Ground 5 has been included in the SFG. That Ground is set out in the SFG by way of just two paragraphs (paras 137-138), which essentially just cross-refer to what has already been said under Ground 1 and states that, “[f]or the same reasons”, the detention has been incompatible with Article 5 and Article 8. I note, however, that the section of the SFG addressing Ground 1 does not include any substantive explanation of why the detention is said to be contrary to Article 8. Nor is there any explanation in the SFG of why the Claimant’s detention could be contrary to Article 8 even if it was not contrary to Article 5 (as already alleged under Ground 1) and/or to a proper application of, and adherence to, the AAR policies which are the focus of Ground 2. The AAR policies must, of course, be operated by the Defendant in such a way as to secure compliance with Convention Rights, including both Article 5 and Article 8, pursuant to section 6 of the Human Rights Act 1998.

After having heard Ms Besso’s oral submissions in response to questions from me on this point, I remain unconvinced that Ground 5 adds anything of value to the claim. It is not appropriate for grounds for judicial review to proliferate without good reason. A claimant’s representatives should seek to formulate grounds of challenge with economy and avoiding duplication. In my view, to the extent that Ground 5 has been set out with any material substantiation in the SFG and is arguable, it is unnecessary by reason of its being duplicative of matters already raised by other Grounds. I will therefore refuse permission for Ground 5.

In doing so, I emphasise that, in my view, the scope of Ground 1 includes, not only the argument that detention during the First Period was not reasonably justified and proportionate for a deportation purpose, but also the argument that detention has been unduly long under the Second Period. In other words, Ground 1 includes the allegation that detention in the period after 7 May 2025 has continued for longer than lawful, as a result of a failure by the Defendant to act with appropriate diligence and expedition in making arrangements so as to release the Claimant. Further, the indicators that the Claimant’s detention might be operating to the detriment of his mental health will be relevant to the proportionality of the detention during that period, and thus to the degree of diligence and expedition to be expected of the Defendant in seeking to secure the Claimant’s release. Further, Ground 2, which is concerned with the Defendant’s application of her AAR policies to the Claimant, is to be considered having regard to the Defendant’s duty to apply those policies in such a way as to secure compliance with Articles 5 and 8.