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Immigration detainees must be given the “true reason” for their detention


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A real mammoth of a case: R (HS) v Secretary of State for the Home Department [2019] EWHC 2070 (Admin). The claimant took what looks like a kitchen sink approach to his unlawful detention claim, succeeding on the fourth ground: that he wasn’t given the “true reason” for his arrest and detention.

Most of the 300+ paragraphs of the judgment cover familiar territory, in legal terms, and probably aren’t worth wading through. The most interesting bit relates to the Evans principles and whether the Home Office can overrule an First-tier Tribunal grant of bail. HS was released on tribunal bail in February 2017 and re-detained by the Home Office a month later. But, as with the case highlighted by Alex last week, the High Court didn’t see a problem with the Home Office brushing aside the judge’s decision.

In fairness to the Home Office, Mr Justice Walker found that it was “as plain as a pikestaff that the true reason for re-detention was new information that persons linked to [HS’s bail address] had convictions for sexual offences and that other criminal behaviour was perpetrated by HS’s associates in the area”.

The problem was that officials did not inform him that this was the reason behind his re-detention, instead merely ticking several boxes on the IS.91R form to indicate generic reasons such as “character, conduct or associations”. Walker J said that

In my view Form IS.91R, if it is still in the format used in March 2017, needs to be reconsidered: in order to comply with the true reason principle it may be necessary to do more than check boxes. At the very least in the present case what was needed was to add something along the lines of “Your current bail address is at a location where you are associating with sexual and other criminal offenders”.

According to Home Office detention guidance, officials must prepare a “properly evidenced and fully justified explanation” of the reasons to detain, for internal use. It seems a little unfair to give detainees only the barest of facts when a proper explanation is on file anyway.

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Larry Lock

Larry works at Bhatt Murphy Solicitors. He previously managed the Prisons Project at Bail for Immigration Detainees, and was a senior caseworker in the immigration department at Wilson Solicitors LLP.