The High Court has provided helpful guidance in relation to immigration detention powers post Illegal Migration Act 2023 in an interim relief decision on bail. There are two written decisions, these are IS (Bangladesh) v Secretary of State for the Home Department [2023] EWHC 3353 (Admin) and [2023] EWHC 3130 (Admin). The court emphasised that detention powers are not absolute and that the Home Secretary must comply with his own policy when reviewing detention decisions.

Background

The claimant’s immigration history in this case is fairly complex. He arrived in 2011 with his mother and sister from Bangladesh. His family were granted indefinite leave to remain in 2016 but his application was refused due to a conviction of sexual assault dated 2015.

He was then held in immigration detention continuously for 28 months from 28 July 2016 to 30 November 2018. This was despite concerns being raised by various professionals that detention was having a serious impact on his mental health. In October 2019, the High Court found that he had been detained unlawfully for five months between June and November 2018, in light of the medical evidence that had been provided showing the impact that detention was having on his mental health.

In November 2020, the claimant lodged further submissions, both on asylum grounds and on articles 3 and 8 ECHR grounds, based on his mental health. These were refused with a right of appeal in December 2021. In January 2022 the claimant was charged with a drug offence and remanded into custody. In June 2023, he was sentenced to three years’ imprisonment.

In July 2023, when he was due to be released on licence, he was placed in immigration detention. He had been detained ever since.

At the time of the hearing, the claimant’s asylum appeal was still pending before the First-tier Tribunal and a case management hearing had yet to be listed.   

Medical evidence and rule 35 reports

The claimant was diagnosed with post-traumatic stress disorder, severe depression and ADHD. In the latest reports before the court, various doctors had confirmed that the claimant was unfit for detention due to his poor mental health.

In addition to this, the court noted that the claimant had made various suicide attempts and had self-harmed in numerous occasions after being placed in immigration detention. All of these issues had also been raised in two separate rule 35 reports, dated October and November 2023, with a doctor stating that the claimant was “at high risk of impulsively attempting to commit suicide” in detention.  

In response to the rule 35 reports, the Home Secretary accepted that the claimant fell within level 3 of the Adults at Risk policy. Nevertheless, the Home Secretary also found that his continued detention was justified on the basis of the risk of him absconding, his previous convictions and public safety and the fact that he could be removed to Bangladesh within four to six weeks, if his asylum appeal was to be dismissed by the First-tier Tribunal.

The court’s decision

As a starting point, the court made it clear that section 12 of the Illegal Migration Act 2023 applies to all periods of detention from 28 September 2023, meaning that this provision applied in the claimant’s case, even though his detention had started before the section came into force. Accordingly, the court acknowledged that it is was for the Home Secretary to decide whether the claimant’s detention continued to be reasonable.

Nevertheless, the court emphasised that the Home Secretary must exercise this power in accordance with his own policy. The court placed weight on the Adult at Risk policy and in particular to the fact that once an individual is assessed at level 3 (and they have not been subject to a custodial sentence in excess of four years) detention is only appropriate where removal has been set for a date in the immediate future and there are no barriers to removal.

The court found that while the initial detention of the claimant following his release from prison was arguably lawful, his continuing detention was unlawful and he should be granted bail for a number of reasons.

Firstly, the court noted that there were significant barriers to the claimant’s removal. His asylum appeal was ongoing and he was awaiting for a case management review hearing and there was no indication as to when the substantive hearing was due to take place. The court found that:

there were repeated flawed assessments of the factors for and against detention, because of the failure to make an accurate, informed assessment of the likely hearing date of the claimant’s appeal hearing and the persistent mistaken assertions that the appeal would be concluded in November 2023.

In the final decision, issued after the hearing was adjourned, the court also noted that there had been a positive reasonable grounds decision (i.e. the first decision in the two stage decision making process to identify a victim of trafficking) issued in favour of the claimant. This also constituted a barrier to his removal, in line with section 61 of the Nationality and Borders Act 2022.

Secondly, the court found that the Home Secretary acted in breach of his Adult at Risk Policy by continuing to detain the claimant despite his history of mental illness as well as his current mental health illness and the high risk of suicide and self-harm. Here the court gave significant weight to the medical evidence that had been provided and the fact that this had not been properly considered. The court said that there was “convincing evidence” that the claimant was not fit for detention in his current mental health state.

Finally, the court found that public protection concerns could be addressed by bail conditions together with the existing license conditions imposed by the probation service.

On this basis, the court found the claimant’s vulnerabilities and the existing barriers to his removal outweighed any public safety concerns and risk of him absconding and the claimant should be granted bail.

Interestingly, the court also found that there had been an arguable breach of article 5 ECHR, even after section 12 of the Illegal Migration Act 2023 coming into force. This was due to the Home Secretary’s serious failure to consider the medical evidence and carry out a proper assessment in line with his policy. It was said that the claimant “has a real prospect of success” in arguing that his detention had been unlawful on this basis.   

Conclusion

The Illegal Migration Act 2023 has increased the detention powers held by the Home Secretary. It is now for the Home Secretary to establish what is a reasonable period of detention, under section 12 of the Act. However, courts can still grant immigration bail in cases where the Home Secretary fails to comply with his own policy. This case provides some useful guidance for legal representatives assisting particularly vulnerable clients in detention and provides some interesting reflections around the much-litigated Adult at Risk policy.