The High Court has issued a damning interim relief decision with a laundry list of Home Office failures in a case challenging the detention of a potential victim of trafficking with mental health issues and several criminal convictions. The case is R (ER) v Secretary of State for the Home Department [2023] EWHC 3187 (Admin).

Background

ER has a “very large number of criminal convictions” and was served with a deportation decision in June 2022. Despite his making representations against it, a deportation order was signed in April 2023. After his prison sentence was completed on 13 April 2023, ER was detained under immigration powers. ER was referred as a potential victim of trafficking on 29 May and received a positive first stage (“reasonable grounds”) decision on 14 August 2023.

ER applied for bail on 17 August 2023 and this was granted in principle on 24 August 2023, subject to appropriate accommodation, electronic tagging and reporting conditions. The Salvation Army was asked to provide accommodation but this was refused on 29 August on the grounds of the risk posed by ER.

On 2 September 2023 an application was made for accommodation under Schedule 10 of the Immigration Act 2016. Several requests for a legal visit were made to Harmondsworth immigration removal centre by ER’s lawyers. These were ignored for two weeks after which an appointment was offered on 2 November 2023.

Also on 2 November 2023 there was another bail hearing in the First-tier Tribunal. The Home Office presenting officer said that a Schedule 10 address could not be offered as it was possible that the Probation Service might offer accommodation. The First-tier Tribunal judge said that this did not affect the grant of bail in principle and said that a suitable address for the Probation Service to approve must be found.

The judicial review

ER saw his lawyers on 3 November 2023 by which time his mental state had deteriorated to the point that he was having hallucinations telling him to harm himself. Pre action letters went unanswered and a judicial review was lodged on 14 November 2023 along with an application for urgent interim relief asking that the Home Secretary be ordered to release ER to a suitable bail address within seven days.

In the meantime, a further bail hearing took place in the First-tier Tribunal on 24 November 2023 and the decision to grant bail in principle was maintained.

The interim relief hearing in the High Court took place on 28 November 2023. At the interim relief hearing, it was submitted on behalf of ER that because of the reasonable grounds decision there was no prospect of removal within a reasonable time. This was because ER was waiting for a final (“conclusive grounds”) decision on his trafficking case and there are currently delays of 600 days or more in these decision being made.

It was also argued that due to his vulnerabilities ER was a level 3 or at the least a level 2 under the Adults at Risk policy, meaning that there was a strong presumption that he should be released.

The Home Secretary served evidence showing that Schedule 10 accommodation had been refused in decisions dated 10 and 16 October. These decisions had not been served on ER or his lawyers and were based on the incorrect assertion that bail had not been granted at all.

The Home Secretary argued that ER’s criminal record and mental health problems were the reasons for the delay in finding suitable accommodation. It was also argued that a fresh Schedule 10 application could be made in light of the second grant of bail in principle dated 24 November 2023.

In response to the argument that ER was currently being unlawfully detained, the Home Secretary sought to rely on section 12 of the Illegal Migration Act 2023, commenced on 28 September 2023. Specifically, reliance was placed on the provision at new paragraph 17(5) of Schedule 2 to the Immigration Act 1971.

“Five very concerning features”

The judge identified “five very concerning features” of the case. The first was the difficulties experienced by ER’s lawyers in arranging a legal visit, the lack of a proper system to respond to such requests was described by the judge as “wholly unacceptable”.

Secondly, the lack of response to the pre action letters. The judge said that a “detailed letter from a solicitor claiming that a client is being unlawfully detained requires a prompt response, not a shrug of the shoulders”.

The third point of concern was the lack of a substantive response from the Home Secretary to the contention that ER was being unlawfully detained as well as the Schedule 10 refusals that had not been sent to his lawyers or to ER. No explanation was provided for this.

Next was the suggestion made on behalf of the Home Secretary in a skeleton argument dated 24 November 2023 that a fresh Schedule 10 application should have been made in circumstances where the refusals of 10 and 16 October had not been sent to ER’s lawyers until 23 November 2023. It had also been argued that a grant of interim relief would have been unwarranted due to the length of time ER had already been detained. This was described by the judge as “to say the least, a surprising suggestion”.

Finally, the judge said that it appeared to be “strongly arguable” that the refusals of 10 and 16 October 2023 were unlawful, the first for the assertion that bail had not been granted, and the second for the assertion that there was no residence condition attached to the bail grant. Both were incorrect and Humnyntskyi is authority for the position that bail grants made in those terms do trigger the power to provide accommodation under Schedule 10.

Overall, the judge described this as “a very compelling case” that the Home Secretary had acted unlawfully to date. No evidence had been provided that any attempt had been made to obtain suitable accommodation, beyond the initial referral to the Salvation Army that had been rejected in August.

The judge made a mandatory order for accommodation to be found within a week and ER released to it within three days of that. In doing so, the judge stated that “the history of this case supplies no reason to believe that there is any prospect of a lawful decision within a reasonable time without an order of the court”.

Conclusion

I think this may be the first time we have seen a decision that mentions the new detention powers in the Illegal Migration Act 2023. The judge said when saying that there was a very compelling case that detention had been unlawful “to date” (i.e. including the period where the new provisions were in force) and that:

That is so even if, as the Home Secretary contends, the new provisions inserted by the 2023 Act have the effect that the underlying power to detain remains even if detention no longer complies with the Hardial Singh principles. I will say a little more once I have completed this interim relief judgment about that contention.

There is nothing more in this judgment on this point. It may be that if there is a substantive hearing and decision we will get a better indication of how the courts intend to deal with these new powers.