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Removal to Afghanistan “most unlikely” in the next six months, says High Court


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A High Court judge has granted immigration bail to an Afghan detainee and made findings which will be helpful to those representing other detainees seeking release during the COVID-19 crisis. The short judgment in (R) Khan v SSHD CO/1366/2020 provides an example of how judges should proceed in light of the decision in Detention Action.

Mr Justice Robin Spencer reviewed the situation with removals to Afghanistan and concluded:

The uncertainties of the crisis created by the current pandemic make it inevitable, in my judgment, that the prospect of removal to Afghanistan within the next six months is most unlikely.

He went on to explain that although, following Detention Action, COVID-19 related barriers to removal do not automatically render anyone’s detention unlawful, on the individual facts of the case detention may well be unlawful. Having considered all the relevant factors, including a significant risk of petty offending, the judge concluded that the claimant had a strong case for unlawful detention and proceeded to grant permission and interim relief.

Frustratingly, though, Spencer J was only prepared to grant bail in principle. He was concerned about the lack of certainty about the friends with whom the claimant might reside if released immediately. The judge also commented that being released to an unstable address would be unsatisfactory due to the requirements of the COVID-19 regulations.

This illustrates how COVID-19 can be a double-edged sword in detention cases. It clearly provides a strong basis for claiming that removal is not possible within a reasonable time, but it may also make judges reluctant to order release unless they are really sure that the detainee has an address at which they can self-isolate. Of course, that is an understandable concern, but Spencer J’s hope that the Home Office will quickly provide accommodation to detainees so they can be released looks misplaced in light of the persistent delays, even during normal times, in obtaining Home Office accommodation.

With thanks to Lewis Kett of Duncan Lewis Solicitors for providing a copy of the judgment transcript.

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Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers