Updates, commentary, training and advice on immigration and asylum law

High Court bail for vulnerable detainee


Older content is locked

A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more


By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;

  • Single login for personal use
  • FREE downloads of Free Movement ebooks
  • Access to all Free Movement blog content
  • Access to all our online training materials
  • Access to our busy forums
  • Downloadable CPD certificates

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:

Module 1Introduction to immigration bail
Unit 1Immigration detention 
Unit 2Immigration bail 
Unit 3When can immigration bail be granted? 
Unit 4Removal directions 
Unit 5Bail conditions 
Module 2Immigration bail applications
Unit 1Who can grant immigration bail? 
Unit 2Detainees held in prison under immigration powers 
Unit 3Legal aid 
Module 3How to apply for Secretary of State bail
Unit 1Procedure 
Unit 2Bail grounds 
Unit 3Decision 
Module 4How to apply for First-tier Tribunal bail
Unit 1Procedure 
Unit 2Bail hearing 
Unit 3Legal submissons 
Unit 4Supporters and finances 
Unit 5Final points 
Module 5After bail is granted
Unit 1What happens if bail is granted? 
Unit 2Forfeiture hearings 
Unit 3Bail in the Upper Tribunal, High Court and Court of Appeal 
Unit 4Unlawful detention claims 
Module 6Review
Unit 1Podcast interview with Pierre Makhlouf 
Unit 2Conclusion and final quiz 
Relevant articles chosen for you
Picture of Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers