The High Court has ordered the release on bail of a detainee who is subject to deportation action but suffers from serious mental health problems. Full judgments at the interim relief stage are relatively unusual so R (RS) v Secretary of State for the Home Department [2021] EWHC 54 (Admin) is a useful insight into how such decisions are made.

RS had committed several criminal offences culminating in a conviction for possessing Class A drugs with intent to supply, which resulted in a seven and a half year prison sentence and a deportation order. After serving his sentence he was released and mostly complied with bail conditions. In January 2020 he was detained but released in April in light of legal action preventing removal and the findings of a Rule 35 report which corroborated his account of torture and detailed the negative effect of detention on his mental health. RS was re-detained in November 2020 and has commenced a judicial review of his detention. In the meantime, he wanted to be released on bail.

Interestingly, even though the judicial review claim is primarily based on a breach of the Adults at Risk policy, Timothy Corner QC (sitting as a deputy High Court judge) chose to analyse the application for interim relief by focusing on the Hardial Singh principles. The judgment does not explain why, but it may suggest a preference for applying clear rules of law developed by judges and applied in hundreds of cases — which might be thought of as a relatively safe task — rather than construing and interpreting a policy which there are fewer previous court decisions on. Ultimately release was ordered, so it’s not hugely important, but it is odd that the court didn’t analyse the case using the Adults at Risk policy given that it is meant to provide a higher level of protection for vulnerable detainees.

Having said that, the judge’s application of the Hardial Singh principles is helpful. He identifies the factors in favour of detention, but ultimately places greater weight on RS’s previous good record of compliance with bail conditions and the seriously negative effect of detention on his mental health:

I turn finally to the overall balance of convenience, or balance of justice. Plainly, the Claimant was convicted in 2016 of a very serious criminal offence, which led to the imposition of a long custodial sentence. I accept also that the risks of him absconding and/or reoffending and/or causing harm are factors of paramount importance. However, I think his record while on bail, while not spotless, suggests some limit on the extent of those risks. Further, his mental health is very seriously impaired and detention is making it worse. In those circumstances, despite the fact that his period of custody so far has been limited, I think that the lack of a clear timescale for his deportation means that he should be released.

Lawyers representing detainees frequently encounter Home Office estimates of removal dates which are vague and unsupported by evidence, so it is good to see release being ordered for lack of a clear timescale for removal.

Free Movement training course — immigration bail: