Short and sweet is the best way to describe the High Court’s decision in BS v Secretary of State for the Home Department [2018] EWHC 454 (Admin). It comes as a useful reminder that whether detention is “reasonable” depends on all the circumstances of the case. In particular, the risk of a detainee absconding is by no means a determinative factor. The case is also useful for its discussion of the second and third Hardial Singh principles when considering vulnerable adults.

The facts were unusual and so I think it is appropriate to set them out at some length.

Detained for two months after a report indicated torture

BS was a national of India. He had previously attempted to apply for entry clearance as a student but was refused for the use of forged documentation. In 2015, he became involved with organisations promoting LGBT rights in India. On his account, he was twice detained, assaulted and persecuted for his affiliations. On the second occasion, he says he was raped whilst being photographed and subsequently hospitalised.

Using a false passport, BS fled India, intending to fly to relatives in Canada via Heathrow. Not a wise choice, it turns out.

At Heathrow, he claimed asylum and was put into detention at the end of October 2016. Within a few weeks, his claim was refused and certified as “clearly unfounded”.

Strangely, whilst his account was accepted in its entirety, it was said that BS could internally relocate within India to escape persecution. An emergency travel document was requested from the Indian High Commission.

On the same day as the refusal, BS was examined by the detention centre doctor who issued a Rule 35 report. The doctor’s view was that the scarring on BS’s body was consistent with claims he was a victim of torture. He was identified as an “adult at risk” for the purposes of the policy of that name. At that stage, it was anticipated removal would take place within six to eight weeks.

A few weeks later, an email was received from the Indian High Commission advising that “verification” checks were required. The Home Office knew this would take around three months.

At the end of December 2016, a further review was carried out without consideration of the email from the High Commission. An application for judicial review was brought challenging the certification and decision to detain. A third review took place and, on 26 January 2017, BS was released.

Risk of absconding is no trump card

The challenge was to BS’s detention from time of refusal to time of release (about two months). He argued that the Secretary of State was in breach of the Adults at Risk policy or alternatively in breach of the second and third Hardial Singh principles as set out in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at paragraph 22.

The Secretary of State argued that she was entitled to decide that the risk of absconding outweighed the presumption of release, given BS’s imminent removal.

The High Court reiterated that what amounts to a reasonable period depends on all the circumstances of the case. Relevant factors would include:

• the length of the period of detention
• the nature of the obstacles to removal
• the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles
• the effect of detention on the detainee
• the risk of absconding

In particular, referring to the Court of Appeal’s judgment in Fardous v SSHD [2015] EWCA Civ 931, the High Court said that:

Risk of absconding is an important factor but not a trump card which justifies detention over other factors.

(NB: the hyperlink in BS incorrectly leads to not Fardous but to a different case with a similar neutral citation.)

Andrew Thomas QC, sitting as a deputy High Court judge, also said that the Secretary of State should follow her relevant published policies unless there is a good reason to depart from them (a point which I made recently). Detention was liable to disproportionately affect those at risk.

In short, the court found that the email from the High Commission brought about a change of circumstances which was likely to affect the length of BS’s detention. This was completely ignored in the December 2016 bail review despite the relevant officials being well aware of the email.

That failure to re-assess the timescales was fatal to the Secretary of State’s case. The judge found that BS had been unlawfully detained from the date of the December review, 20 December 2016, until his release on 27 January 2017.

Sad but unsurprising

Does this come as a surprise? No.

It is unfortunately common for the Home Office to work at a leisurely pace regardless of how urgent or serious matters are. One can only imagine the psychological impact of being held in a detention centre for months on end. As I highlighted previously, the bail system is failing those who are mentally ill or who are identified as being at risk. A detention centre is the last place someone like BS should have been.

I think this case could have reasonably gone either way. The judge appeared to take a very heavy-handed approach when knocking out the remainder of BS’s arguments. If it had gone against BS, its difficult to see what remedy he could have employed. As Greg Ó Ceallaigh has pointed out, regrettably, the courts have said that “not every” breach of the Hardial Singh principles will found a claim for false imprisonment. That seems like an impossible situation. Hardial Singh should properly act as a constraint on the Home Office’s power.

Whilst Parliament has conferred upon immigration officials a power to detain, that power must be subject to strict limitations and boundaries.

I strongly suspect a claim for compensation will now be followed up by BS’s lawyers. Statistics show that from 2012-2015, the Home Office paid out £13.8 million to 573 claimants for unlawful detention (an average of just over £24,000 each). Let that sink in for a minute. That’s £13.8 million of taxpayer’s money. But ministers just say it’s the detainee’s fault for launching unnecessary legal action. The Home Office is like a dodgy handyman who charges extortionate fees, turns up late, breaking everything in the process and has the cheek to say it’s all your fault.

Diane Abbott has vowed to end indefinite detention. But in the current political climate, vindicating the rights of detainees and putting in place procedural safeguards seems to be low down on the “to do” list.