HS, R (On the Application Of) v Secretary of State for the Home Department

Introduction and immigration bail legislation

By orders of Mrs Justice Nicola Davies dated 25 August 2017 and Mrs Justice May dated 1 September 2017 the claimant in these proceedings is to be known as “HS”. I stress that this means that no report of these proceedings may identify him. The reason for that order is that HS seeks asylum, and in that regard makes an assertion that he has been tortured by state agents in Pakistan. In November 2017 that assertion was rejected by the First-tier Tribunal

In February 2011 HS, who is a national of Pakistan and was then aged 22, arrived in this country with entry clearance for a limited period. His entitlement to be here was extended for some months when he made an application to stay here as a spouse. He remained here without permission when the spouse application was withdrawn.

In reality, even if (which he did not) HS had wanted to leave the UK, HS had little option but to stay here. During the period when he had permission to be here he was charged with rape. Bail conditions, imposed initially by the police and later by the court, continued after the date when he ceased to have permission to be here. Compliance with those conditions required him to remain here. Eventually the charge of rape was not pursued when he pleaded guilty to sexual activity with a girl under 16, leading to a sentence of 16 months’ imprisonment. While in prison he was served with a deportation order, and responded by claiming asylum.

A detention decision by the Home Secretary (“the September 2016 detention decision”), made under immigration detention powers, took effect from 12 September 2016 onwards. Detention began on that date because it was the date when the custodial part of HS’s sentence was complete. From that time, so far as his prison sentence was concerned, HS was on licence until his sentence expiry date of 13 May 2017.

As explained below, a person detained under immigration detention powers can be granted bail. For ease of exposition I have identified four material periods of time from 12 September 2016 onwards. During the period 12

At a contested hearing on 8 February 2017, by a decision which I say more about in sections A1.7 and B1.7 below, the First-tier Tribunal (“FTT”) granted bail to HS. This grant of bail expired 5 days later, on 13 February 2017, when under the FTT’s order HS was required to “appear before” (i.e. to surrender to) an immigration officer. HS duly did this on 13 February 2017. I shall refer to the period from HS’s conditional release on 8 February to his surrender on 13 February as “period 2”.

On 13 February 2017 when HS surrendered the Home Office gave him bail, specifying a further date on which he was to appear before an immigration officer. From then until 6 March 2017, Home Office officials gave HS further grants of bail. Each such grant of bail required HS to surrender on a specified date, the last of which was 6 March 2017. I shall refer to the period from 13 February until 6 March as “period 3”.

I explain below why it seems to me that there are two possible legal analyses of periods 2 and 3. The differences between these two analyses do not matter for present purposes.

HS surrendered, as required by his most recent grant of bail by the Home Office, on 6 March 2017. When he did so he was informed that he was detained under immigration detention powers. He was eventually released on 21 September 2017 in accordance with a High Court order made on 19

Period 4 is the period between 6 March and 21 September 2017. It is a period when HS was not on bail. In sections A1.8, B2 and B3 below I say more about the decision to detain HS on 6 March 2017. For reasons explained below, implicit in that decision was a decision not to renew HS’s bail that day.

As noted above, after being detained under immigration powers from 12 September 2016 onwards, HS was released on conditional bail by a decision of the FTT made at a hearing on 8 February 2017. This decision was embodied in a formal order dated 8 February 2017. I shall refer to it as “the February 2017 FTT bail decision”.

The February 2017 FTT bail decision is embodied in a written order signed by FTT Judge Mathews, who made the order. It was also signed by HS and by two sureties. As was then commonly the practice for grants of bail by the FTT, the February 2017 FTT bail decision did not give reasons for concluding that bail was appropriate, nor did it give reasons for concluding that the conditions it specified were appropriate.

As also noted above, in March 2017 a decision was taken to re-detain HS under immigration powers. I shall refer to it as “the March 2017 re-detention decision”. No written record of the final stage authorising that decision has been produced to the court. However, as described in section B2 below:

Mrs Justice May’s order dated 1 September 2017 was made at a time when period 4 was still continuing. Her order gave HS permission to rely on three grounds for judicial review. In their current form they can be summarised as asserting that:

A proposed fourth ground was notified by HS to the Home Secretary in March 2019. The Home Secretary has no objection to it being advanced. I accordingly grant HS permission to rely on it. In summary, it is:

In support of his claim HS has filed his own signed witness statements dated

On 8 May 2019 HS sought permission to rely on a fourth witness statement. I declined permission as the assertions in the proposed statement were not relevant to the issues which I had to decide.

At the hearing before me Mr Tim Buley QC, instructed by Bhatt Murphy Ltd, appeared for HS. Mr Neil Sheldon QC, instructed by the Government Legal Department, appeared for the Home Secretary. I am grateful for the assistance provided by the legal teams on both sides.

In sections A2 and A3 below I give an account of relevant legislation and legal analyses of the effect of that legislation in certain respects. Section B describes the history of events up to and including an order made in the Administrative Court on 19 September 2017 for the conditional release of HS. In sections C, D, E and F I discuss the four grounds for judicial review. Section G summarises my conclusions. Unless the context indicates otherwise, square brackets in quotations below indicate an abbreviation that I have used or explanatory material which I have inserted. On the same basis numbers or letters in square brackets have been added by me for ease of reference.

It is convenient to mention here that a manual for immigration officers, known as Enforcement Instructions and Guidance (“EIG”), sets out policies of the Home Secretary on various aspects of enforcement.

In summary I hold as follows:

The judgment of Hickinbottom LJ in R (Lucas) v Home Secretary [2018] EWCA Civ 2541 at paragraphs 8 to 12 gave an account of statutory provisions concerning immigration detention and bail. For ease of reference I repeat here the substance of relevant parts of that account, adapted to the circumstances of the present case. I return to the substance of the Lucas decision in section C1.2 below.

References in the present judgment to "Schedule 2" and "Schedule 3" are to Schedule 2and Schedule 3to the 1971 Act respectively, as they stood at all times material to the present case, i.e. before 15 January 2018, when they were extensively amended by Schedule 10(2) to the Immigration Act 2016(“the 2016 Act”).

Paragraph 2 of Schedule 3provided for "Detention or control pending deportation". At all material times, sub-paragraph 2(3) read as follows:

Sub-paragraph 2(4A) provided (so far as material) that:

These paragraphs thus extended the provisions of paragraphs 22to 25 of Schedule 2(which otherwise only concerned detention of persons falling into categories set out in paragraph 16, none of them applicable in the present case) to those detained under paragraph 2(3) of Schedule 3(which is applicable to HS).

Paragraphs22and 24 of Schedule 2(at the material time, so far as material to the present case and, in the light of paragraph 2(4A) of Schedule 3, replacing references to "paragraph 16" with "paragraph 2(3) of Schedule 3"), stated as follows:

For convenience I shall refer to release under paragraph 22(1A) of schedule 2 as the grant of “conditional bail”. Where granted by the FTT I shall refer to it as “FTT bail”. Where granted by an immigration officer not below the rank of chief immigration officer I shall refer to it as “CIO bail”.

Judicial review may be refused where the claimant has an effective alternative remedy. In R (Konan) v SSHD [2004] EWHC 22 (Admin)the Home Secretary advanced a submission that judicial review of Ms Konan’s detention was inappropriate since bail was an alternative remedy. This submission was robustly rejected by Collins J, who pointed out at paragraph 30 that a tribunal considering a bail application:

Subject to statutory intervention to the contrary, if it is demonstrated that a person has been unlawfully detained, then in the absence of a new and lawful detention decision that person must be released unconditionally. This was established by the decision of the Supreme Court in R (B (Algeria)) v Special Immigration Appeals Commission [2018] UKSC 5, [2018] AC 418, which I shall refer to as B (Algeria).

The Supreme Court’s judgment was delivered by Lord Lloyd Jones, with whom Baroness Hale PSC, Lord Mance DPSC, Lord Hughes and Lord Hodge JJSC agreed. At paragraph 41 Lord Lloyd Jones noted that it was unlikely that an applicant for bail would seek to challenge the tribunal’s jurisdiction to grant bail. He added, however, in this respect differing from an observation by Collins J in Konan, that as it was a matter of jurisdiction there may be cases in which the tribunal should properly take the point of its own motion. After examining arguments including contentions by the Home Secretary as to practical implications, Lord Lloyd Jones’s conclusion in paragraph 45 was clear, and was in outcome identical to that of Collins J in Konan:

It is here that it seems to me that two possible legal analyses might arise in relation to periods 2 and 3. Both analyses are, however, subject to a potentially important qualification described in section A3.3 below.

The first analysis, which seems to me implicit in the wording of Schedule 2, is that the term “detained person” refers not only to a person who has been wholly deprived of liberty but also to a person who, following a decision to detain (“the index decision”), is given conditional release under an order granting bail. The order granting bail would, for a defined period, partially

Thus on the first analysis there was no need for the March 2017 re-detention decision. When HS surrendered in the normal way that day the September

The second analysis says that once a detained person is released on bail that person would cease to be a “detained person” unless and until a power of detention was newly and lawfully exercised. On this analysis the March 2017 re-detention decision was an essential step if the “imperative” identified in the re-detention minute were to be achieved. As to this analysis:

On this second analysis the March 2017 re-detention decision was a necessary step to enable the Home Secretary, on expiry of HS’s most recent CIO bail, to take HS into custody.

For present purposes, however, it does not matter which analysis is correct: on either view HS’s detention from 6 March 2017 onwards was pursuant to the March 2017 re-detention decision.

It might be that both analyses in section A3.2 above could need reconsideration in the light of Section 61 of the 2016 Act. Section 61 provides in material part:

Section 61 was not yet enacted when the Supreme Court gave the Home Secretary permission to appeal in B (Algeria). At the hearing of that appeal no reliance was placed by the Home Secretary on section 61.

Neither side in the present case drew attention to, or relied upon, section 61. I have not attempted to analyse whether section 61 actually has an effect on the analyses of periods 2 and 3 set out in section A3.2 above. I proceed on the basis that it does not have any material effect on the arguments which arise in the present case in relation to period 4.

History of events

After arriving as a student in February 2011 HS entered into an arranged marriage in April 2012 with a woman resident here. The following month an application (“the spouse application”) was made for him to have further permission to remain as a spouse. Before that application was processed, however, on 15 August 2012 he was arrested on suspicion of sexual offending.

The spouse application was withdrawn on 27 July 2013. HS says that this was done without his knowledge. In the meantime HS’s student visa had expired on 27 September 2012. On and from 28 July 2013, at latest, HS was in the United Kingdom without permission to be here.

HS was eventually charged with rape. That charge, however, was withdrawn on 5 October 2015 when HS pleaded guilty to a single charge of sexual activity with a female under the age of 16.

When HS was arrested by the police on 15 August 2012, the police gave him unconditional bail. His first appearance in court was on 20 August 2013. From that date until his sentencing hearing on 14 January 2016 he was subject to bail conditions imposed by the court. He complied with all those conditions.

On 14 January 2016 HS was sentenced to 16 months in prison and placed on the sex offenders register for a period of 10 years. The sentencing remarks record that HS’s offending involved HS having a thirteen-year-old female child, “A”, perform oral sex on him, after which he engaged in full sexual intercourse with her vaginally. While he may not have been aware of her exact age, there was no doubt that he must have known that she was under 16. This child and another girl, “C”, had run away from a residential facility in which they had been placed because they were children at risk of sexual exploitation. A and C were thus both vulnerable children. HS and another adult male known as “Raza” met the two children at night time outside a pub as a result of a plan made by Raza and C. The sexual activity between HS and A took place in the back of a car. An aggravating feature was that this occurred in the presence of Raza and C. What happened took place with the consent of A. However, as the sentencing remarks pointed out, the legislation was designed to protect young girls from themselves, as well as from adults who willingly exploit them.

HS, in statement HS1, says that he accepted and continues to accept full responsibility for what he did and is truly sorry for it. He notes that at the sentencing hearing the judge described references showing clearly that HS made himself available to make his own community a better place and had done that selflessly over the years. HS adds that while serving his prison sentence he was a healthcare and substance misuse mentor, was designated a

“red-band” (a status given to the most trusted prisoners), and was regarded as a model prisoner.

On 20 May 2016 HS was served with a deportation decision and order under Section 32 of the UK Borders Act 2007. He claimed asylum in July 2016, giving details of his claim at a screening interview on 29 July and a full asylum interview on 12 August 2016.

The sentence of 16 months in prison had the consequence that HS became eligible for, and was granted, conditional release on 12 September 2016. On that day HS became subject to licence conditions imposed by the prison service. These conditions were applicable until 13 May 2017, when the full sentence of sixteen months was complete. The conditions included:

However HS did not leave the prison on 12 September 2016. The reason was that he had been detained by the Home Secretary under immigration powers, and the prison became his place of detention under those powers.

On 21 December 2016 the Probation Service conducted an OASys assessment of HS. The assessment identified four categories of risk to others:

The OASys assessment on 21 December 2016 was that if HS were in the community he would pose a medium risk to children and to the public.

As regards his immigration detention HS applied to the FTT for bail in December 2016. For this purpose he proposed a release address in Halesowen, Birmingham (“the Halesowen address”). The address was visited by a probation officer on 13 December 2016. An email from the probation service to Mr Lartey on 3 February 2017 stated that the Halesowen address “was assessed as suitable”.

The FTT bail hearing took place on 8 February 2017. The Home Secretary opposed bail. In the light of the 3 February 2017 email, however, no objection was taken by the Home Secretary to the suitability of the Halesowen address if bail were to be granted.

It can confidently be assumed that when making the February 2017 FTT bail decision the FTT judge found that such risk of harm, reoffending or absconding as existed could be acceptably managed by conditions, along with recognisances given by two sureties each in the sum of £1000. In the absence of such a conclusion the FTT judge would have been bound to refuse bail.

The formal FTT order, however, does not expressly record that conclusion. No written document gives the FTT judge’s reasons for that conclusion. Nor is there evidence of anything said orally by the FTT judge in that regard.

The FTT bail conditions comprised a primary condition, along with secondary conditions. The primary condition was to surrender bail to an immigration officer on 13 February 2017. It was expressed in these terms:

The secondary conditions included compliance with electronic monitoring by means of a tag between 2300 and 0530 each night, compliance with the terms of the licence imposed by the prison service, and a prohibition on entering employment, paid or unpaid, or engaging in any business or profession. In addition HS was to report to the probation service in Dudley on Monday 13 February, and was required to live and sleep at the Halesowen address.

On 13 February 2017, as required by the FTT bail primary condition, HS surrendered bail to an immigration officer. He was then given CIO bail. From that date until 6 March 2017 HS continued, in effect, to be at liberty subject to conditions.

It is not disputed that during the period from 14 February to 6 March 2017 HS was living at the Halesowen address in compliance with the terms of his CIO bail. Paragraph 7 of Lartey 1 deals with a telephone call which Mr Lartey received on 15 February 2017 from a person he describes as “the Offender Manager”. The person described this way was in fact the probation officer who had advised on the suitability of the Halesowen address on 3 February 2017: see section B1.6 above.

Later on 15 February 2017 the probation officer sent an email to PC Jo Baker of West Midlands Police, copied to Mr Lartey. It stated:

In paragraph 8 of Lartey 1 Mr Lartey confirmed that 15 February 2017 was the first occasion when the Home Office became aware of concerns about the suitability of the Halesowen address. In paragraph 11 Mr Lartey noted that he had requested the police to provide him with information which was declined.

In disclosure provided by the Home Secretary an account is given of a further email from PC Baker at about this time. So far as material, the email stated:

On 3 March 2017 Mr Lartey prepared on Form ICD.3079 a document entitled “Minute of a decision to detain a person under immigration powers” (“the redetention minute”). It identified a single outstanding barrier to deportation. This was that an emergency travel document (“ETD”) needed to be obtained from the Pakistani authorities. This was followed by a series of numbered paragraphs dealing with HS’s immigration history, a brief description of the offence leading to deportation being pursued, offending history, deportation casework status, medical conditions (described as “none raised”) and current barriers to removal (stating that an ETD was expected within one to three months).

Paragraph 7 of the re-detention minute dealt with risk of absconding, stating:

In paragraph 8 Mr Lartey made an assessment of the risk of reoffending in these terms:

Paragraph 9 was concerned with assessment of risk of harm to the public. Here Mr Lartey noted that HS had been convicted of sexual activity with a female child under the age of 16 and commented:

Paragraphs 10 and 11 of the re-detention minute need not be set out here.

Paragraph 12 of the re-detention minute set out Mr Lartey’s recommendations. It was in these terms:

Form ICD.3079 concludes with a section headed, “Quality assured officer’s comments …”. In the re-detention minute this section was completed by a Higher Executive Officer, Ms Diane Luff. Below I set out relevant parts of her comments, with paragraph numbers added in square brackets for ease of reference:

On 6 March 2017 HS reported in accordance with his then current CIO bail conditions, under which he had accepted a requirement to report that day. When he did so he was detained by an officer on behalf of the Home Secretary. He was given two documents.

As to the two documents given to HS on 6 March 2017, one was a notice of decision on form ICD. 4996. This document was a letter dated 6 March 2017 giving notice of a decision to refuse HS’s protection (i.e. asylum) and human rights claim. The letter also certified that HS’s asylum and human rights claims were clearly unfounded, with the consequence under section 94(1) of

The other document given to HS on 6 March 2017 was a notice on form IS.

The body of the 6 March detention reasons began with two numbered paragraphs stating that detention of HS had been ordered under powers in the 1971 and 2002 Acts, and that detention was only used when no reasonable alternative was available. Five tick boxes were then set out. Those relevant for present purposes are a, c, and e. Box a, saying “You are likely to abscond if given temporary admission or release”, was not selected. Box c, saying “Your removal from the United Kingdom is imminent”, was selected. So was box e, saying “Your release is not considered conducive to the public good”.

The next part of the form required the signatory to state that the decision to detain had been reached on the basis of one or more of a number of factors. Those selected in the 6 March detention reasons were:

For the purposes of his detention HS was taken to Morton Hall IRC. Shortly after arrival he was seen by a nurse, Mr Craig McKitterick, who conducted a reception health assessment. Mr McKitterick’s notes, made at 01.39 on 7 March 2017 include the following:

Later on 7 March HS was seen at the health centre by Dr Satyajit Datta. Notes made by him at 10:41 that day record HS telling him that mirtazapine had been prescribed for anxiety and depression, and helped HS in this regard. Dr Datta’s notes show that he prescribed mirtazapine for HS at a dosage of 15 mg daily.

Dr Datta also noted that HS was asking for a “Rule 35” [a torture assessment].

HS was transferred to Colnbrook IRC on 14 March, returning to Morton Hall IRC on 16 March 2017.

On 15 March 2017 HS participated in an interview with the Pakistani High Commission. The purpose of the interview was so that the High Commission could consider whether to agree to a request by the UK government for the issue of an ETD (see section B2.2 above) enabling HS to be returned to Pakistan.

Morton Hall IRC medical records indicate that during HS’s stay at Colnbrook IRC his daily dose of mirtazapine was increased to 30 mg.

On 29 March 2017 Dicksons Solicitors Ltd (“Dicksons”), acting for HS, lodged a claim for judicial review in the Upper Tribunal seeking to challenge the part of the 6 March asylum refusal which certified HS’s asylum claim as clearly unfounded.

On 3 April 2017 Mr Stephen Wyatt, a nurse at Morton Hall IRC, met HS and conducted a mental health review. Mr Wyatt made notes which included the following:

On 1 April 2017 Mr Lartey signed a document addressed to HS and headed,

“MONTHLY PROGRESS REPORT TO DETAINEES”. This was a document which used a standard format. As will be seen, despite the heading, in HS’s case it was prepared more frequently than monthly. I shall refer to it simply as a “progress report”.

The standard format for progress reports involved what I shall refer to as a number of sections. Those sections, and what was said in them in the first progress report of 1 April 2017, were:

On 3 April an authorising officer, on this occasion Senior Executive Officer L. Todd, commented on a first detention review prepared by Mr Lartey.

This, too, was a document with a standard format. Most of the document comprised a review set out in 14 numbered sections. Those sections are identified below, along with information about what was set out in relevant sections of the first detention review dated 3 April 2017 for HS:

The part of the document comprising the review ended with section 14. That section was headed:

In the first detention review authorised on 3 April 2017 Mr Lartey’s recommendation was in what I shall call paragraphs [14.1] to [14.5]:

The authorising officer’s comments stated in what I shall call paragraphs [AOC.1] and [AOC.2]:

Dr Dighe examined HS on 8 April 2017 in order to prepare a Rule 35 report. That report (“the first Rule 35 report”) described HS’s account of torture (“AOT”) in Pakistan. Section 6 of the report was headed “Assessment”. As to the consistency of his findings with HS’s allegations, and whether there might be other plausible causes for those findings, Dr Dighe stated:

As to the impact that detention was having on HS, Dr Dighe stated:

On 13 April 2017 there was a second mental health review. It was conducted by the same nurse who conducted the review on 3 April 2017, Mr Stephen

The Home Secretary’s response to the Rule 35 report (“the first Rule 35 response”) was prepared on 15 April 2017 in a document addressed to HS. It stated, after recording what had been said by Dr Dighe:

It is convenient here to set out “Level 2” as described in the AR policy:

The first Rule 35 response then set out HS’s immigration history, including that on 11 April 2017 the Pakistani High Commission had agreed to issue an ETD. It also set out details of HS’s conviction and sentence. The first Rule 35 response then continued:

Under the heading “Conclusion” the first Rule 35 response stated:

Meanwhile on 13 April 2017 the Home Secretary filed an acknowledgment of service in the Upper Tribunal judicial review claim. This document indicated that certification had been withdrawn, with the result that HS would have an in-country right of appeal against the decision to refuse his asylum claim.

On 21 April 2017 Dicksons wrote to Home Office officials, submitting that it was unreasonable to detain HS any further given the time it was likely to take for his asylum appeal to be determined. It was added that detention had worsened HS’s symptoms, requiring an increase in the dosage of his mirtazapine tablets, and that continuing detention was likely “to have an enormous impact on HS’s mental health”.

As had been noted in the letter of 21 April, withdrawal of certification by the Home Secretary now enabled HS to lodge an appeal against the 6 March asylum refusal. In the absence of a response to the 21 April letter, Dicksons duly did so on 27 April 2017.

Mr Lartey signed a second progress report on 26 April 2017. Section [1] and section [2], dealing with reason for detention and reasons for deportation, were unchanged from the first progress report of 1 April 2017. In section [3], dealing with immigration history, paragraphs [3.1] to [3.7] were unchanged. A new paragraph [3.8] was added:

Changes were also made in sections [4] and [5]. In section [4], dealing with the current barrier to removal, the previous paragraph [4.1] was replaced with the words, “Your accepted in-country right of appeal”. In section [5], dealing with progress since the last review, what was said in the previous paragraph [5.1] was replaced by a new paragraph [5.1]:

Paragraphs [5.2] and [5.3] were unchanged. So were sections [6], dealing with the FRS, and [7], identifying likelihood of absconding and high risk of public harm as reasons why HS should remain in detention to effect his removal from the UK. Section [8], identifying factors on the basis of which the decision had been reached, also remained unchanged. So did section [9], stating that consideration had been given to factors in favour of release. Similarly there was no change to sections [10], stating that detention would continue to be reviewed, and [11], dealing with bail rights.

On 28 April 2017 Assistant Director D. Hervey, a Grade 7 official, acted as authorising officer and signed HS’s second detention review. The review had again been prepared by Mr Lartey. In section 1, dealing with immigration history, paragraphs [1.1] to [1.7] were unchanged. A new paragraph [1.8] noted that on 12 April 2017 the Home Office had agreed that HS’s case should be reviewed and he should be afforded an in-country right of appeal.

There were no changes to sections 2, 3 and 4, dealing with the offence committed, offending history, and deportation casework status. In section 5, dealing with medical conditions, the previous paragraph [5.1] was replaced by a new paragraph [5.1]:

In section 6 the question as to when a travel document was expected to be issued was indicated not to be applicable, presumably for the reason given in a replacement paragraph [6.1]:

There were no changes to sections 7, 8 and 9, dealing with assessment of risks of absconding, reoffending and harm to the public. In section 10, dealing with the AR policy, the previous paragraph [10.1] was replaced new paragraphs [10.1] and [10.2]:

Paragraph 11, dealing with previous applications for bail, was unchanged. Paragraph 12, concerning action taken since the last review, comprised two paragraphs. In the material before the court, the first of these paragraphs was redacted. I shall call it [12.1]. The second paragraph, which I shall call paragraph [12.2], noted that there had been liaison for HS’s ETD to be issued. Section 13, the action plan for the next review period, also comprised two paragraphs. In the material before the court the second of these paragraphs was redacted. I shall call it [13.2]. As to the first, which I shall call paragraph [13.1], it stated:

Paragraphs [14.1] to [14.4] of Mr Lartey’s recommendation repeated the same paragraphs in his first review recommendation (see section B4.5 above). The last paragraph of that recommendation, however, was replaced by a new paragraph which, in the material before the court, contained a redacted passage followed by a reference to a process for Detained Immigration Appeals (“DIA”):

Assistant Director Hervey’s comments were:

Mr Lartey signed a third progress report on 4 May 2017. Sections [1] to [4] were unchanged from the second progress report. In section [5], dealing with progress since the last review, paragraphs [5.1], dealing with the judicial review and the acceptance that HS would be afforded an in-country right of appeal was unchanged. The previous paragraphs [5.2] and [5.3], which complained of failure to cooperate with the ETD process, were omitted. Paragraph [6] dealing with the FRS was unchanged. So was paragraph [7], identifying likelihood of absconding and high risk of public harm as the reasons why HS would remain in detention to affect his removal from the UK. Paragraph [8], identifying factors on the basis of which the decision had been reached, was altered so that the previous paragraphs [8.1] and [8.2], complaining of HS’s conduct in relation to the ETD, were omitted. The remaining paragraphs in section [8], formerly [8.3] to [8.7], now paragraphs [8.1] to [8.5], were unchanged. Paragraphs [9] to [11], dealing with factors in favour of release, continued review of detention, and bail rights, were unchanged.

Also on 4 May 2017 Mr Lartey wrote to Dicksons in reply to the letter of 21 April 2017. Mr Lartey’s letter began by stating that the request in the letter of 21 April 2017 had been treated as a request for a Temporary Release (“TR”). Among other reasons for rejecting that request, the letter of 4 May 2017 stated at paragraphs 7 and 8:

In paragraph 9 of the letter dated 4 May 2017 Mr Lartey made an observation about HS’s in-country appeal. Apparently unaware of the filing of the appeal

In a further paragraph, Mr Lartey added:

On 23 May 2017 Mr Lartey signed a fourth progress report. This document appears to be identical to the second progress report (see section B4.10 above). Thus it reinstated complaints about HS’s conduct in relation to the ETD which had been omitted in the third progress report (see section B5.2 above). The reason for doing this is unclear. It may have been a mistake.

After realising that HS’s appeal had already been lodged the Home Office emailed the FTT asking it to reject or strike out the appeal. The reason for this request was apparently because the Home Office wished to serve HS with a “correct decision letter” and appeal documents. Although the email did not say this, it seems likely that officials were planning to issue the “fresh decision” referred to by Assistant Director Hervey on 28 April: see section B5.1 above. It also seems likely that the “fresh decision” was intended to form part of the “appropriate appeal documents” referred to by Mr Lartey in paragraph 9 of the letter of 4 May 2017: see section B5.3 above.

In directions given on 23 May 2017 the FTT said that if the Home Secretary wished to serve a new decision then one possible course would be to withdraw the decision of 6 March 2017.

On 24 May 2017 HS made an application for support (“section 4 support”), including accommodation, under section 4 of the Immigration and Asylum Act 1999 (“the 1999 Act”).

Dicksons sent an email to PC Baker on 12 May 2017 asking why the

PC Baker replied the same day stating, among other things:

On 15 May 2017 Dicksons emailed PC Baker with details of a proposed address in Erdington (“the first Erdington address”). On 24 May PC Baker emailed Dicksons saying she was unable to approve the first Erdington address. She added:

In response to a request for further information PC Baker sent a reply email later on 24 May 2017. The reply email included the following:

On 26 May 2017 Ms Luff (see section B2.2 above), acting as authorising officer, signed HS’s third detention review. Again, the review had been prepared by Mr Lartey. Sections 1 to 11 were unchanged from the second detention review: see section B5.1. In section 12, dealing with action taken since the last review, paragraph [12.1] continued to be a redacted paragraph. Paragraph [12.2] was unchanged from the second detention review. New paragraphs [12.3] to [12.5] stated:

Section 13 consisted only of paragraph [13.1], which was a redacted paragraph.

In the recommendation section of the review paragraphs [14.1] to [14.4], as before, repeated what had been said in those paragraphs in the first detention review. Paragraph [14.5], subject to any change in the redacted passage, repeated what had been said in that paragraph in the second detention review.

Dicksons wrote to Mr Lartey on 1 June 2017 in connection with a potential release address. Details were given of an address in Cobridge Stoke-on-Trent

Mr Lartey signed a fifth progress report on 5 June 2017. It appears in all material respects to be identical to the third progress report (see section B5.2 above).

Mr Lartey signed a sixth progress report on 20 June 2017. It appears in all material respects to be identical to the fifth progress report: see section B6.3

On 21 June 2017 PC Baker (see section B2.1 above) forwarded to Mr Lartey information that had become available when PC Debra Marshall and a colleague from Staffordshire Police visited the first Cobridge address (see section B6.2 above). It appeared that H was currently detained at Morton Hall IRC with HS, and that W, who was living at the first Cobridge address, stated that she was not willing for HS to stay for more than a few nights.

A fourth detention review was signed by a Senior Executive Officer, Alex Lloyd, as authoring officer on 23 June 2017. The review was again prepared by Mr Lartey. Sections 1 to 11 were unchanged from the third detention review on 26 May 2017: see section B6.1 above. In section 12, action since the last review, what had previously appeared was replaced by paragraphs [12.1] and [12.2] as follows:

Section 13 of the fourth detention review again contained a single redacted paragraph [13.1]. The recommendation section comprised paragraphs [14.1] to [14.5]. Subject to what may have been in the redacted part of paragraph [14.5], these paragraphs were in identical terms to those in the recommendation sections of the second and third detention reviews. The authorising officer’s comments were as follows:

On 28 June 2017 HS saw Dr Sarah Fletcher at the Health Centre. Dr Fletcher increased HS’s mirtazapine dosage to 45 mg daily. In this regard Moreton Hall IRC electronic medical records describe HS’s presentation as:

The reason for this increase is described further in a second Rule 35 report on 2 September 2017: see section B8.4 below.

On 11 July 2017 the FTT adjourned the hearing of HS’s appeal, which had been fixed for 4 August 2017. In place of the scheduled hearing the FTT required the Home Secretary to attend on 4 August 2017 and explain the failure on part of the Home Secretary to serve the respondent’s bundle for the hearing.

Also on 11 July Mr Lartey was advised by other Home Office officials of

In a further development on 11 July 2017, West Midlands Police emailed

On 18 July 2017 Dicksons emailed PC Marshall of Staffordshire Police advising a second Cobridge address proposed by HS.

HS’s fifth detention review was signed by a Higher Executive Officer, Kailash Bhatt, as authorising officer on 24 July 2017. Again the review was prepared by Mr Lartey. Sections 1 to 11 were unchanged from the fourth detention review signed on 23 June 2017: see section B6.6 above. In section 12, dealing with actions since the last review, paragraph [12.1], concerning liaison with the police for assessment of bail accommodation suitability, was unchanged. In place of the former paragraph [12.2], new paragraphs [12.2] and [12.3] appeared:

Section 13 again comprised a single paragraph. However in the fifth detention review it was not redacted. As appearing in the fifth detention review, it stated:

The recommendation section comprised paragraphs [14.1] to [14.5]. Subject to what may have been in the redacted part of paragraphs [14.5] these paragraphs were in identical terms to those in the recommendation sections of the fourth detention review.

The authorising officer stated:

Also on 24 July 2017 Mr Lartey signed a seventh progress report. It was in identical terms to the sixth progress report dated 20 June 2017: see section B6.4 above.

On 28 July 2017 Mr Lartey sent HS a letter on form ICD.4996 (“the 28 July asylum/ deportation letter”) on behalf of the Home Secretary. It withdrew the 6 March 2017 refusal of asylum, replacing it with a new refusal set out in the letter. It also included a decision not to revoke his deportation order. The letter advised that HS had an in-country right appeal.

On 2 August 2017 Bhatt Murphy sent the Home Secretary a pre-action protocol letter alleging three grounds for judicial review. The first was breach of the AR policy, the second was breach of public law principles, and the third was “a litany of public law errors” in the reasons given for detention. The public law principles relied on for the second breach were said to concern detention when removal cannot be affected within a reasonable time, when a reasonable period for detention had been exceeded, and when there had been a lack of diligence by the Home Secretary. The letter required the Home Secretary to provide accommodation and support under section 4 of the 1999 Act and to release HS on bail.

Mr Lartey sent a pre-action reply to Bhatt Murphy on 15 August 2017. The reply included 25 sub-paragraphs rejecting assertions in Bhatt Murphy’s 2 August letter. Among other things the reply stressed that if there was information about the unsuitability of the address HS provided for bail release it was the duty of the Home Office to re-detain him due to risk of harm to the public.

Bhatt Murphy sent Mr Lartey a letter dated 17 August 2017 rejecting the preaction reply. Among other things, the letter of 17 August 2017 asserted that following the February 2017 FTT bail decision HS could only be detained if there were reasonable grounds to believe that he was likely to break, or had broken, any condition of bail.

On 21 August a sixth detention review was signed by a Higher Executive Officer, J Turner, acting as authorising officer. Again the review was prepared by Mr Lartey. In section 1, dealing with immigration history, paragraphs [1.1] to [1.8] were unchanged from the fifth detention review of 24 July 2017: see section B7.1 above. However a new paragraph [1.9] was added. Part of this new paragraph was redacted. The part that was not redacted made reference to the 28 July asylum/ deportation letter:

Sections 2 and 3 were unchanged. Section 4, dealing with deportation casework status, included an additional sentence. Part of the sentence was redacted in the material before the court. The part that was not redacted noted that the decision of 6 March 2017 was withdrawn and a new decision was served on HS on 28 July 2017. Section 5, dealing with medical conditions and section 6, dealing with current barriers to removal were unchanged. So were sections 7 to 11. The action since the last review, set out in bullet points in section 12, no longer listed liaising with the mental health team at Morton Hall IRC. In its place, reference was made to having addressed the pre-action protocol letter of 2 August 2017, and to having served HS with a deportation decision. In section 13 paragraph [13.1] was changed to read as follows:

Mr Lartey’s recommendation at paragraphs [14.1] to [14.4] was in identical terms to what was said in those paragraphs in all previous detention reviews. Paragraphs [14.5] and [14.6] stated:

The authorising officer’s comments were:

Also on 21 August 2017 Mr Lartey signed an eighth progress report. Sections [1] and [2] were unchanged from the seventh progress report dated 24 July 2017: see section B7.1 above. In section [3], dealing with immigration history, new paragraphs were added noting the 28 July asylum/deportation letter and the 2 August pre-action protocol letter. Section [4], as to current barrier to removal, was unchanged. Section [5], dealing with progress since last review, made reference to the pre-action protocol response letter of 15 August 2017. Sections [6] to [11] were unchanged.

PC Marshall sent an email to Dickinsons on 24 July concerning the second Cobridge address (see section B6.10 above). The email included the following:

Two further release addresses were then proposed, one in Tunstall, Stoke-onTrent and the other in Surrey. As regards the Tunstall address PC Marshall emailed Dicksons on 6 August 2017:

As regards the Surrey address, PC Baker emailed Dicksons on 10 August 2017, advising that Surrey Police had been informed that the room there was no longer available.

On 21 August 2017, an address in London Road, Stoke-on-Trent was proposed.

HS’s claim form was lodged on 25 August 2017. It was accompanied by an application for urgent consideration. This application was dealt with by Mrs Justice Nicola Davies on the papers. In her order dated 25 August 2017 she dealt not only with anonymity (see section A1 above), but also gave directions

In a letter to the court dated 31 August 2017 the Home Secretary stated that HS’s detention would be reviewed, as a matter of urgency, by a detention review panel. In the meantime a copy of the sixth detention review dated 21 August 2017 was supplied.

On 1 September 2017 Mrs Justice May made the order referred to in section A1 above after consideration of the matter on the papers. In addition to confirming anonymity, the order granted HS permission to proceed, and directed an expedited hearing on 19 September 2017.

On 2 September 2017 HS was seen again by Dr Fletcher, on this occasion for the purposes of a second rule 35 report. As noted in section B6.7 above, the second Rule 35 report included further information concerning the 28 June 2017 decision to increase HS’s daily dose of mirtazapine to 45mg. Section 5 of the second Rule 35 report stated:

The second Rule 35 report did not attempt to revisit the first Rule 35 report. It was confined to the provision of additional information. Other additional information provided in the second Rule 35 report was in section 6, as to the impact of detention on HS:

On 7 September 2017 a letter from a Home Office official was sent to HS. It said the second Rule 35 report had been considered. Among other things, it recorded what had been said in the second Rule 35 report and accepted that this met Level 2. As regards HS’s suitability for detention under the AR policy, the letter adopted a similar structure to that in the Home Secretary’s response to the first Rule 35 report (see section B4.8 above). When dealing with HS’s immigration history, the second response in what I shall call paragraph [17] repeated something which had been said in the first response:

In the section headed “Balancing risk factors against immigration control factors” the second response at paragraphs [20] to [22] repeated what had been said in paragraphs [18] to [20] in the first response. Paragraph [23] of the second response similarly repeated what had been said in paragraph [21] of the first response, replacing the words “the Doctor” with “the doctors”. Paragraph 24 of the second response stated:

Under the heading “Conclusion” the second response stated in paragraph [25]:

This was then followed by a paragraph [26] in identical terms to paragraph [24] of the first response.

On 12 September 2017 PC Baker sent an email to HS and Dicksons saying that the London Road address (see section B7.5 above) had been visited the previous day by Staffordshire Police. Her email continued:

On 13 September a seventh detention review was signed by an Acting Assistant Director, A Cockell, acting as authorising officer. Again the review was prepared by Mr Lartey. Section 1 repeated what had appeared in section 1 of the sixth detention review, adding paragraphs dealing with the FTT bail, the intelligence received on 15 February 2017, the 25 August 2017 papers, and in relation to HS’s appeal proceedings, a decision on 7 September 2017 that the matter should proceed to a full hearing that was yet to be listed.

Sections 2, 3 and 4, as set out in the material presented to the court, do not appear to have contained any material change. Section 5, dealing with medical conditions, referred to the second Rule 35 report and the second Rule 35 response.

In section 7 the previous assessment of risk of absconding as high was replaced by an assessment of medium risk as follows:

In section 8 the assessment of risk of reoffending remained at “medium”. The previous reasons for that assessment, however, were replaced by the following:

In section 9 the assessment of risk of harm to the public, previously described as “very high” was replaced with the following:

Section 10, concerned with the AR policy, supplemented what had been said previously by referring to the second Rule 35 response, and to the definition of “torture” adopted by the Home Secretary. Section 11, dealing with previous applications for bail or temporary release repeated what had been said before, adding a reference to the urgent relief sought on 25 August 2017. Section 12, concerned with action taken since the previous review, consisted of a single paragraph which was redacted in the material before the court. Section 13, listing action to be taken, included a proposal to request “to expedite the appeal date once listed”.

Mr Lartey’s recommendation at paragraphs [14.1] to [14.4] was in identical terms to what was said in those paragraphs in all previous detention reviews. In the remaining two paragraphs, Mr Lartey stated:

The authorising officer’s comments comprised three paragraphs. Paragraph [AOC.1] was redacted in the material before the court. Paragraphs [AOC.2 and [AOC.3] stated:

The hearing directed by Mrs Justice May took place on 19 September 2017 before Ms Leigh-Ann Mulcahy QC, sitting as a deputy High Court judge. Her order that day directed, among other things, that HS be released from immigration detention no later than 2pm on 21 September 2017 (paragraph 7). Paragraph 8 set out terms which included that HS was to live and sleep at a specified address. This address had been put forward by HS and agreed by the Home Secretary at the hearing on 19 September 2017.

JR ground 1: abuse of power

Ground 1 was reformulated in an amended statement of facts and grounds on 7

On 16 November 2018 Collins J’s decision in Lucas was reversed by the Court of Appeal in the decision cited in section A2 above. It is now common ground, in accordance with the Court of Appeal’s judgment, that the bail granted by the FTT on 8 February 2017 ceased to have effect when HS surrendered bail on 13 February 2017. It is also common ground that at the time of that surrender HS was a person detained under paragraph 2(3) of Schedule 3. Accordingly, paragraph 22 of Schedule 2 gave power for the grant of FTT bail and CIO bail: see section A2 above. It is similarly common ground that, in accordance with the Court of Appeal’s decision, the conditional bail applying to HS during the period 13 February to 6 March 2017 was CIO bail.

It is in this context that the current ground 1 falls to be considered.

HS’s current ground 1 relies on a proposition of law which I shall call “the extended honour obligation”. This proposition of law can be set out by quoting paragraph 58 of the amended statement of facts and grounds, inserting a word which I have placed in italics, and omitting words which I have placed in square brackets:

I have inserted the word “objectively” because HS contends that on judicial review of a CIO bail refusal it is for the court, not the Home Secretary, to decide whether there has been a clear and significant change of circumstances justifying detention.

I have placed the words “(and without the Defendant identifying)” in square brackets because they add to the extended honour obligation. They would only call for consideration if the extended honour obligation is a sound proposition of law.

There is no dispute that the Home Secretary must, unless there is a stay pending appeal, honour an FTT grant of bail by complying with its terms. Nor is it disputed that, subject to any discretionary or statutory bar, a later decision to detain can be successfully challenged by judicial review if it goes beyond the bounds of reasonableness in all the circumstances including the FTT decision.

I have referred to ground 1 as involving an “extended” honour obligation because it would not merely require the Home Secretary to do what the FTT has ordered. It asserts that after the FTT order has expired, when later exercising statutory powers of detention, an extended obligation arises in the sense that the Home Secretary will have no power in law to detain unless there is a clear and significant change of circumstance which objectively justifies this.

Submissions for the Home Secretary emphatically disputed the existence of any extended obligation of the kind which ground 1 asserts. They nevertheless accepted that departure from the FTT decision would have to be justified and could be susceptible to judicial review: see section C2.2 above.

In argument the parties cited a number of judgments in previous cases. Sections C3 to C7 below set out or summarise passages from judgments whose meaning or implications were in contest, along with relevant submissions and my observations on them. My overall analysis of the arguments, and their consequences in the present case, is set out in section C8 below. Before turning to those sections, however, I set out in section C2.4 below passages from judgments in a decision which was said by HS to have general significance as to the importance of the court making objective findings in cases concerning the liberty of the individual.

R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 involved an examination by the Court of Appeal (Toulson, Longmore and Keene LJJ) of principles of substantive law applicable to immigration detention. I shall refer to it as A (Somalia).

In the decision under appeal A sought judicial review of detention under paragraph 2(3) of Schedule 3 which began in September 2003 and was continuing throughout 2006. Calvert-Smith J applied a well-established principle that the power of detention in paragraph 2(3) of Schedule 3 may be exercised only during such period as is reasonably necessary for that purpose. It is one of the principles invoked by HS in the present case: see section D below. Applying that principle Calvert-Smith J held that a period of 15 months’ detention, from 3 September 2003 to 3 December 2004, was lawful because it was reasonably necessary to detain A while attempts were made to obtain travel documentation to enable him to be returned to Somalia. A second period from 4 December 2004 to 20 July 2006 (“the middle period”) was held to be unlawful because there was no carrier willing to take “enforced returns” to Somalia. From 21 July onwards, however, detention was held to be lawful again once an agreement with a carrier had been made for such returns.

On appeal by the Home Secretary Calvert-Smith J’s decision was reversed. Put shortly, the Court of Appeal concluded that risks of absconding and offending were so great that A’s detention in the middle period was reasonably necessary for the purposes of the deportation order. That being so it was not necessary to deal with an argument for the Home Secretary that, rather than the court deciding what was reasonably necessary, the court was limited to reviewing the reasonableness of the Home Secretary’s decision to exercise the power of detention during the period in question. Nonetheless important observations were made concerning that argument. One of the judgments referred to in those observations was the advice of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 (“Tan Te Lam”).

Toulson LJ, with whom Longmore LJ agreed, said at paragraph 62 of his judgment:

Keene LJ said at paragraphs 70 to 75:

Submissions for HS stressed what was said by Keene LJ about Lord Browne-

The court’s jailor control role has a central place in the common law. An important part of that role is exercised in claims for judicial review. If there is no other convenient and effective remedy (a point to which I shall return in section C8.4 below) then on ordinary public law principles a decision to detain, or a refusal of CIO bail can be challenged by judicial review under one or more of three heads: for failure to comply with the substantive law as determined by the court, for going beyond the bounds of reasonableness, and for failure to comply with procedural law as determined by the court. In immigration detention cases, for the reasons given by Toulson and Keene LJ, the Home Secretary, as part of the substantive law, must show objectively that detention complies with four principles identified in section D below. The question on judicial review ground 1 is whether, as regards a decision to detain, or refusal of CIO bail after FTT bail has expired, substantive or procedural law requires the court to decide objectively whether there has been a change of circumstances sufficient to warrant taking a different course from that taken by the FTT. HS submits that such a requirement is vital to fulfil the court’s jailor control role and to ensure the rule of law. The Home Secretary responds that a decision to detain, or CIO bail refusal can be challenged if it goes beyond the bounds of reasonableness in the circumstances, including the earlier FTT grant of bail. That being the case, the Home Secretary submits that immigration bail is not of such a nature as calls for objective inquiry by the

HS asserted that the extended honour obligation followed from two constitutional principles set out in R (Evans) v AG [2015] UKSC 21,[2015] AC 1787, by Lord Neuberger PSC in paragraph 52 of his judgment:

I shall refer to these constitutional principles as “the binding judicial decisions principle” and “the executive reviewability principle”. They are at the heart of the rule of law. The Home Secretary does not dispute them. Nor does the Home Secretary dispute their importance.

Before discussing these two principles it is necessary to say more about Evans. The background can conveniently be set out by quoting paragraphs 1 to 3 of Lord Dyson MR’s judgment in the Court of Appeal [2014] EWCA Civ 254, [2014] QB 855:

Mr Evans’s claim for judicial review of the Attorney General’s certificate failed in the Divisional Court. The certificate was quashed, however, in the Court of Appeal on the grounds that an accountable person could not issue a s.53(2) certificate merely because that person disagreed with the tribunal's decision. Something more was required, such as a material change of circumstances.

The Supreme Court by a majority upheld the outcome in the Court of Appeal. The minority, Lords Wilson and Hughes JJSC, considered that section 53 enabled the Attorney General to disagree as to the weight to be attached to competing public interests found by the tribunal, and that the certificate had done this by properly explained and solid reasons.

Lord Neuberger PSC, with whom Lords Kerr and Reed JJSC agreed, approached the matter in the light of the two principles set out above. He held that if section 53 were to entitle a member of the executive to overrule a decision of the judiciary simply because, on consideration of the same facts and arguments, the member of the executive does not like it, that meaning would have to be crystal clear from the wording of the Act. Section 53, however, fell short of being crystal clear, and could fairly be given a narrow range of potential application, such as where there is a material change of circumstances since the judicial decision. Given the detailed investigative processes by which a judicial decision is reached, the accountable person’s grounds would not be “reasonable” within the meaning of section 53 where, as here, those grounds simply involved disagreeing with the conclusions of a court or judicial tribunal on the same material as was before the court or tribunal.

Lord Mance JSC, with whom Baroness Hale DPSC agreed, accepted that section 53 enabled the Attorney General to disagree as to the weight to be attached to competing public interests found by the tribunal. However he considered that under section 53 disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification. That being so, the appeal fell to be dismissed because the Attorney General’s certificate had not engaged with or given any real answer to the closely reasoned decision of the Upper Tribunal but proceeded on the

Returning to Lord Neuberger’s judgment, it included paragraphs 53 and 59:

I can deal at once with the executive reviewability principle. I noted in section C2.4 above that on ordinary public law principles a decision to detain, or a refusal of CIO bail, including a decision after an FTT grant of bail has expired, can be challenged by judicial review. Nothing in the present case puts that in issue. In particular, if a decision to detain, or a CIO bail refusal is contrary to substantive law, then this will be a ground for judicial review. The argument over the extended honour obligation is not about reviewability. It is about what substantive or procedural law requires.

The binding judicial decisions principle has the consequence that the February 2017 FTT bail decision, having not been overruled by a higher court, binds both HS and the Home Secretary, and cannot be ignored or set aside by anyone. However in the present case the Home Secretary did precisely what the February 2017 FTT bail decision bound the Home Secretary to do. HS was released on 8 February 2017 as required by the February 2017 FTT bail decision. HS’s release on 8 February 2017 was on the bail terms set out in that decision: see section B1.8 above. In accordance with the express words of that decision, once HS appeared before an immigration officer on 13 February 2017 a chief immigration officer made a further bail decision.

Nothing done by the Home Secretary involves setting aside the February 2017 FTT bail decision. As to ignoring it, the February 2017 FTT bail decision said nothing about what anyone should do once it had expired.

If the Home Secretary had proceeded on the basis that the February 2017 FTT bail decision had never been taken, or on the basis that it did not bind the Home Secretary as to what it decided, then it could be said that the Home Secretary had ignored the February 2017 FTT bail decision. In such circumstances there would be a breach of the binding judicial decisions principle. But no such circumstances arise in the present case.

HS referred me in this regard to paragraph 53 of Lord Neuberger’s judgment. There Lord Neuberger postulated a proposition that the executive could overrule a judicial decision because the executive did not agree with that decision. He likened such a proposition to a suggestion in a previous case that “the executive obey the law as a matter of grace and not necessity” – something which would reverse the result of the Civil War. Again this does not advance HS’s arguments in support of the extended honour obligation. Nothing done by the Home Secretary involved overruling the February 2017 FTT bail decision.

I add that the present case does not fall within Lord Neuberger’s paragraph 59, quoted in section C3.1 above. The present is not a case where the tribunal’s decision is one for which “reasons have been given in a judgment”.

There are of course important principles of estoppel in private law proceedings under which a decision on an issue between two civil parties, or a failure on an earlier occasion to raise an issue, may bar a party from raising a point later. But HS does not invoke those private law principles. Nor could he: the issues which arise in the present case are issues of public law.

Thus my conclusion on Lord Neuberger’s principles is that they are not called into question in the present case. I add that:

In R (S) v SSHD [2006] EWHC 228 (Admin), which I shall refer to as “S”, Mr Justice Underhill was concerned with a claimant (“S”) who, like HS, had been in detention under paragraph 2(3) of Schedule 3. As explained in section A2 above, such detention engages the bail powers in paragraph 22 of Schedule 2. At that time relevant bail powers now conferred on the FTT were conferred on the Asylum and Immigration Tribunal (“the AIT”). For convenience I set out below para 22(1A) as it read at the material time, italicising words which Mr Justice Underhill described as central to the issues in that case:

On 19 January 2006 an AIT adjudicator made an order releasing S on bail. At that time a problem about travel documents had not been resolved and there was no predictable end to S’s detention. The order required S to appear before an immigration officer on 16 February 2016. Thus the period of bail specified in the order was a period from 19 January to 16 February 2006.

What then happened was that travel documents became available later on 19 January 2006. On 1 February 2006 removal directions were given, specifying a flight on 14 February. Two important events followed the giving of removal directions on 1 February 2006:

At a hearing on 13 February 2006 Mr Justice Underhill refused to grant an order of habeas corpus. In his judgment on 22 February 2006 he founded his refusal of habeas corpus on a conclusion that the 4 February notice had been an effective variation of the “appearance date” specified in the AIT order. He nevertheless considered it arguable that the re-detention on 27 January 2006 had been unlawful. Accordingly he granted permission to apply for judicial review “substantially concerned with damages”, but only in relation to the detention between 27 January and 4 February 2006.

In paragraph 9 of his judgment Mr Justice Underhill noted an argument advanced by the Home Secretary that re-detention on 27 January 2006 fell within a power to detain conferred by paragraph 16 of Schedule 2:

However in paragraph 11 of his judgment Mr Justice Underhill doubted that the power in paragraph 16 of Schedule 2 was engaged at all. He then added a more general observation which I shall return to below. The concluding sentence of paragraph 11 stated:

The consequence of this analysis was that S was given permission to apply for judicial review in relation to his re-detention on 27 January: see paragraph 18 of the judgment.

Mr Justice Underhill then turned to the position once the written notice had been served on 4 February 2006. He held that from that date onwards S had been lawfully detained. The reason was explained in paragraph 12 of the judgment: the notice had been an effective variation of the “appearance date” specified in the AIT order. It was effective because it was permitted under paragraph 22(1A) by the words italicised above.

On this aspect it is relevant to set out paragraph 13 of the judgment:

In support of the extended honour obligation HS relied on the general observation mentioned in section C4.2 above. It was in these terms:

To my mind this observation must be read in context. The AIT had conditionally released S on AIT bail until 16 February 2006. Mr Justice Underhill, at this stage, was considering a contention by the Home Secretary that, without there being any variation of the AIT’s order, it was lawful to detain S prior to the expiry of the period of AIT bail. In that context I share Mr Justice Underhill’s doubt. The re-detention on 27 January 2006 occurred only a week or so into the period of AIT bail, and denied S the full benefit of what the AIT had ordered – conditional bail for nearly three more weeks, until 16 February 2016.

There is an obvious and strong argument that the 27 January detention plainly sought to override the AIT order and to ignore the binding nature of that order.

HS also relied upon what was said in paragraph 13 of Mr Justice Underhill’s judgment: see section C4.3 above. Here, too, it is necessary to set what was said in context. The Home Secretary was relying on an express statutory power to vary the AIT’s order. I agree with Mr Justice Underhill that such a power cannot be untrammelled, and that it may not be used where the effect is to undermine the basis on which the AIT reached its decision. The reason for this is, in my view, so obvious as to go without saying: the power to vary is ancillary to the AIT’s power to grant conditional bail, with the consequence that while it may alter the time and place of reporting it may not do so in such a way as would run counter to the AIT’s purpose in granting conditional bail.

Here, too, it seems to me that this gives no support for HS’s proposed extended honour obligation. The analysis above does not involve extending the Home Secretary’s duty beyond honouring the terms of the AIT order: it is that very order which would not be honoured by a variation which undermines the basis on which the AIT reached its decision.

The next case relied upon by HS in support of the extended honour obligation was R (AR (Pakistan)) v SSHD [2016] EWCA Civ 807, [2017] 1 WLR 255, which I shall refer to as AR (Pakistan). AR was granted FTT bail by an order dated 7 October 2014. The primary condition required AR to appear before a chief immigration officer on 15 October 2014. Secondary conditions required AR to live and sleep at a specified address and to cooperate with arrangements for electronic monitoring (“tagging”) as set out in section 36 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. It seemed that an immigration officer imposed a condition as to curfew which may or may not have been properly authorised. It was not clear whether AR was informed of the curfew when he first reported on 15 October 2014. However he was undoubtedly notified of it prior to February 2015, when the FTT refused an application by him to vary his bail conditions so that he could attend prayers in the evening. That application was refused on 16 February 2015, and a further application was refused by the FTT on 14 July 2015. On 7 August 2015 AR filed a judicial review claim which was due to be heard by the Upper Tribunal on 12 October 2015.

However on 9 October the Home Secretary notified AR that “the conditions of your bail are hereby varied to cease immediately”. The parties came to the hearing on 12 October 2015 with a proposed consent order that AR had permission to withdraw his claim for judicial review. The Upper Tribunal considered that it would nevertheless determine issues raised in the claim owing to their “unusual and important nature” and the likelihood of the authority of the Home Secretary to relax bail conditions arising in future cases.

AR applied to the Court of Appeal for permission to appeal from the Upper Tribunal decision. That application was supported by the Home Secretary. Both sides contended that the Home Secretary did have power to relax or discharge the conditions applicable to AR’s bail. At a permission hearing the Court of Appeal directed the appointment of an amicus curiae for the purpose of supporting the Upper Tribunal judgment which would, otherwise, have had nobody to defend it. At the full hearing on 26 July 2016 Mr Sarabjit Singh of counsel fulfilled that role.

The Court of Appeal judgment, delivered on 29 July 2016, reversed the ruling of the Upper Tribunal. It held that the FTT bail conditions ceased when AR appeared before an immigration officer in accordance with the FTT order. In paragraph 26 of his judgment Longmore LJ, with whom Jackson and Voss LJJ agreed, quoted from the words used in paragraph 22 (1A) of schedule 2, referring to a detained person “entering into a recognisance … conditioned for his appearance before an immigration officer at a time and place named in the recognisance …”, and said:

In support of the Upper Tribunal decision, Mr Singh had submitted that if the view taken by the Court of Appeal were right, there would be no need for the FTT to impose secondary conditions, and that a question arose as to why the relevant procedure rules made it clear that adversarial argument about conditions was to be conducted in the FTT rather than at the time of surrender. As to these submissions, Longmore LJ said in paragraph 28 of his judgment:

HS placed reliance on what was said by Longmore LJ in the last sentence quoted above. This, HS submitted, was a clear statement that, while the FTT conditions came to an end when a detained person appeared before an immigration officer as required by the FTT order, nevertheless CIO bail would be likely to continue those terms, and any departure from them to the prejudice of the bailed person would have to be justified and could be amenable to judicial review. I agree.

However this passage, to my mind, says nothing to support the extended honour obligation. There is no reason to doubt that imposing an additional burden on the bailed person could be amenable to judicial review, in the absence of some more convenient and effective remedy. At a judicial review the additional onerous condition would have to be justified as lawful. On ordinary principles it would be lawful if, as set out in section C2.4 above, the decision maker has complied with substantive and procedural law, and does not go beyond the bounds of reasonableness. Longmore LJ’s observation does not expressly or implicitly support the proposition that an FTT decision granting bail is of a character which requires substantive law to introduce additional objective tests that must be satisfied by those considering detention and bail at a later stage.

In R (Lupepe) v SSHD [2017] EWHC 2690 (Admin), which I shall refer to as Lupepe, a judicial review claim before Mr Justice Lewis gave rise to a number of questions concerning immigration detention, bail, and the imposition of a curfew. Relevant for present purposes is that the claimant was granted bail after a hearing before the FTT on 27 January 2014. The primary condition of bail required him to appear before a chief immigration officer at a specified address on 3 March 2014. The secondary conditions required, among other things, that he cooperate with arrangements for electronic monitoring. Mr Justice Lewis held, at paragraph 19 of his judgment, that the FTT was not requested to consider, and did not specifically consider, whether bail should be subject to a condition of curfew. When the claimant was released on 27 January 2014, however, immigration officials served him with a notice of restrictions pursuant to paragraph 2(5) of schedule 3. These restrictions included a curfew. It was subsequently appreciated that paragraph 2(5) of schedule 3 did not in law enable the imposition of a curfew. The only way in which a curfew could be imposed was as a condition of bail. By letter dated 23 August 2016 the claimant was notified that the curfew in the restrictions imposed on 27 January 2014 was lifted. However the claimant was not regarded as presenting an acceptable risk of release without a curfew. When the claimant attended a reporting centre on 8 November 2016 he was redetained. At that point he was given a document indicating that he had been granted bail under paragraph 22 of schedule 2. This document contained conditions of bail which included a curfew.

The first issue identified by Mr Justice Lewis in his judgment was whether the CIO bail of 8 November 2016 could impose a curfew condition where no such condition had been imposed by the FTT. At paragraph 47 of his judgment Mr Justice Lewis described the contention for the claimant in this way:

Mr Justice Lewis then made reference to cases cited to him:

It had been contended for Mr Lupepe that it was matter of choice for the Home Secretary to seek, or not to seek, a curfew condition, and if the Home Secretary for any reason did not seek such a condition, the Home Secretary could not thereafter, in effect, circumvent the process and impose such a condition. In paragraph 53 of his judgment Mr Justice Lewis rejected that characterisation. It was not, he concluded, appropriate in circumstances where the reasons why a curfew condition had not been sought arose from a view of the law which had been thought to be correct until a decision of the Court of Appeal otherwise.

Mr Justice Lewis added at paragraphs 54 and 55:

HS relies upon Lupepe as supporting the extended honour obligation. In that regard, however, HS acknowledges that Mr Justice Lewis had held that CIO bail could supplement bail conditions imposed by the FTT where the FTT had not itself addressed the condition in issue. As to this, HS said that the present case was concerned with overturning bail altogether, which was much more serious than merely supplementing the bail conditions. In any event, HS added that it was implicit in Mr Justice Lewis’s reasoning that the binding judicial decisions principle was applicable.

I cannot accept that these submissions assist HS. I agree that Mr Justice Lewis adopted an approach which assumed that the principles discussed in the cases cited to him were applicable as principles, albeit that when applied to the facts of Lupepe they did not assist Mr Lupepe. It seems to me clear, however, from Mr Justice Lewis’s judgment that he was not asked to consider the argument advanced for the Home Secretary before me that immigration bail is not of such a nature as calls for objective inquiry by the court as to what has happened between an FTT grant of bail and a CIO refusal of bail once the FTT bail has expired. In any event I find no support in Lupepe for the central feature of the extended honour obligation, under which it would be for the court to determine whether at the time of the new decision there had been a clear and significant change of circumstance which justified that decision. On the contrary, Mr Justice Lewis seems to me to have regarded the approach taken in Warwickshire County Council, in S, and in AR (Pakistan), as akin to the approach in Danaei, where the test was unreasonableness “in the public law sense”. Certainly in Lupepe Mr Justice Lewis did not consider that there was any need for the court objectively to assess whether a curfew condition was required: however the relevant legal tests were expressed, Mr Justice Lewis regarded them as satisfied in circumstances where arguments relied upon to justify the new course of action had not been advanced before the FTT and did not circumvent the tribunal process.

In R (Gafurov) v SSHD [2018] EWHC 3656 (Admin), a judicial review claim which I shall refer to as “Gafurov”, Mr Phillip Mott QC, sitting as deputy judge of the High Court, was concerned with a period of immigration detention which began on 29 June 2018. This had the consequence that, as noted in section A2 above, the statutory regime applicable to the present case was no longer in force: on 15 January 2018 schedule 10 to the 2016 Act came into force, resulting in extensive amendments.

The factual basis to the case was that on 14 May 2018 the FTT, knowing that the claimant was scheduled to be removed on 14 July 2018, granted bail which made no provision for his re-detention prior to the date of removal. In that regard, however, there was an express statutory provision, in para 1(6) of Schedule 10 to the 2016 Act, that a grant of immigration bail did not prevent subsequent detention under, among other things, a provision for detention pending deportation.

On 29 June 2018 the claimant was re-detained. The approach taken by the deputy judge was to consider, first, whether the re-detention was “reasonable in all the circumstances”. The deputy judge noted at paragraph 25 of his judgment that the reasons relied upon for re-detention were “really the same” as the matters that had been relied upon when opposing bail at the hearing before the FTT on 14 May 2018. Unsurprisingly, in those circumstances he concluded that detention had not been reasonable in all the circumstances. At paragraph 26 he said this:

At the conclusion of his judgment the deputy judge referred to an additional submission that had been made on behalf of the claimant. This was that the relevant statutory provision permitting detention “must be read as subject to an implied limitation allowing re-detention only where there has been a material change of circumstances”. It was not necessary for the deputy judge to decide whether that submission was correct. He expressed a provisional view in these terms:

HS acknowledged that the deputy judge, by referring to a test of whether the decision to re-detain was “rational”, was using the language of a public law unreasonableness challenge. Despite this, HS submitted that the deputy judge’s discussion had not taken the approach that could be expected in such a challenge. I disagree. The deputy judge’s reference to “a change sufficient to found a rational decision to re-detain” seems to me to connote a standard public law requirement that there must be something which could enable a reasonable decision maker to conclude that a new approach should be taken which differed from the FTT’s decision.

To my mind the matters discussed in the cases cited to me involve three different contexts, each of which calls for separate consideration. The first, dealt with in section C8.2 below, is administrative action which disobeys, or interferes with, an order made by a tribunal. The second, dealt with in section C8.3 below, concerns the proper interpretation of powers enabling the executive to override or vary an order made by a tribunal. The third, dealt with in section C8.4 below, concerns circumstances where the executive, after a tribunal order has taken effect and fulfilled its purpose, acts in a manner that calls into question the tribunal’s reasoning when making the order.

The Home Secretary is party to an FTT bail decision. Indeed the only reason for the matter coming before the FTT is that the Home Secretary has refused bail. If the FTT grants bail then the binding judicial decisions principle requires the Home Secretary to ensure that detention of the detained person ceases for the period specified in the FTT’s order. This is subject only to such legal power as the Home Secretary may have to override or vary the provisions in the FTT’s order: see section C8.3 below.

A decision falling within this context was the Home Secretary’s re-detention of S on 27 January 2006: see section C4.1 above. It was the context for Mr Justice Underhill’s general observation relied on by HS: see section C4.4 above. Re-detention at a time when S had been given conditional liberty, and had not breached any condition of that liberty, was in defiance of the tribunal’s grant of bail.

Re-detention may have occurred because the Home Secretary considered that paragraph 2(3) of Schedule 2 enabled a fresh detention decision to be made even though FTT bail had not yet expired. On the application of relevant principles of interpretation, however, I explain in section C8.3 why it is difficult to see how any such reading of paragraph 2(3) of Schedule 3 could be justified.

Paragraph 22(1A) of Schedule 2 requires the tribunal, if it grants bail, to include in the order for bail a power enabling an immigration officer to vary the time and place for surrender. In S it was held that this power was lawfully exercised on 4 February 2006. For the reasons given in section C4.4 above I agree with Underhill J that there is a mechanism of court control. It is this: the power is ancillary to the tribunal’s decision, and it is accordingly implicit that it cannot be used where the effect is to undermine the basis on which the tribunal reached its decision. The implication is needed because variation may deprive an individual of liberty granted by the FTT order. This is such a serious consequence that in my view the power must be interpreted as only permitting variation if the Home Secretary can objectively demonstrate that the variation will not operate to undermine the basis of the FTT order.

I noted in section C8.2 above that in S the Home Secretary may have considered that paragraph 2(3) of Schedule 2 enabled a fresh detention decision to be made even though FTT bail had not yet expired. This interpretation would be so drastic in its effect as to amount to an overriding of the tribunal’s decision. In Evans, as it seems to me, all members of the Supreme Court approached the matter on the basis that a drastic effect of this kind can only come about if the language used in the statute is crystal clear. Unlike section 53 of the Freedom of Information Act, nothing in paragraph 2(3) of Schedule 3 expressly contemplates that a decision to detain might override an extant grant of FTT bail. That being so, it seems to me that there can be no room for such an interpretation.

This can be contrasted with paragraph 1(6) of Schedule 10 to the 2016 Act: in Gafurov all agreed that this was a clear provision that immigration bail would not prevent detention under the provisions mentioned in that paragraph.

In a different context the Supreme Court in Evans was split on how section 53 could be read. A majority concluded that it could not be read as narrowly as Lord Neuberger proposed. However two of that majority concluded that it could and should be read as requiring a more stringent review by the court than would normally be adopted on a reasonableness challenge. It was because the certificate did not survive more stringent review that the appeal failed.

It can be seen from Evans that there may nevertheless be a statutory power to override a tribunal decision. If there is then it may, as a matter of statutory interpretation, be held to be exercisable subject only to reasonableness review, subject to a more stringent review, or subject to an objective requirement of, among other things, material change of circumstances. In the present case, however, I am not concerned with any of this, for there is no question in the present case of there being any relevant statutory power of override.

Having concluded that the present case does falls neither within the first nor the second contexts discussed above, I come to the context that it does fall within: the third context. I preface my discussion with a note of caution: my discussion concerns a bail regime which is now out of date. The 2016 Act changes to bail are numerous, and I do not attempt to analyse them here.

As explained above, in the present case HS asserts that an FTT bail decision should restrict future action by the Home Secretary even though the FTT decision has been given full effect and has expired. The action which HS identified as being restricted was HS’s re-detention.

I do not think that that precise identification can possibly be right. The February 2017 FTT decision was a decision on bail. If it is to have a continuing effect, that continuing effect will be on future decisions as to bail, not as to detention. Detention will ordinarily be the precursor to bail, and the circumstances in which it can be challenged are well established: see section D below.

Moreover, as it seems to me, the February 2017 FTT bail decision was consistent with a conclusion that HS should be a “detained person”. What the February 2017 FTT bail decision implicitly finds is that such risks as are posed by HS can adequately be managed by a combination of bail conditions and the giving of sureties. Such a finding gives no support to a conclusion that relevant risks can be discounted if HS is given complete liberty. Indeed it seems to me that the February 2017 FTT bail decision runs counter to any such conclusion. The FTT ought not, in principle and subject to any relevant legislative provision, to impose conditions which are unnecessary. By imposing the conditions in the February 2017 FTT bail decision, the FTT was concluding that bail conditions were needed to protect against relevant risks. The logical conclusion is that detention of HS, so as to make him a “detained person” who could be made subject to bail conditions, was an appropriate course.

Thus, as it seems to me, the appropriate target for HS’s abuse of process claim is not the March 2017 re-detention decision as such, but rather the decision implicit in it that HS would not be granted bail until such time as he had an appropriate release address. Once this is recognised there are two immediate potential hurdles for HS to surmount. The first, noted in a broader context by the Home Secretary, is that the February 2017 FTT bail decision was not concerned with what would or would not be an appropriate address. The present case thus becomes akin to Lupepe, where the claimant failed because the Home Secretary’s decision did not seek to question or depart from the FTT decision on the matters which it specifically addressed.

The second hurdle is that the court will not normally grant judicial review to a claimant who has an effective alternative remedy. As regards the decision not to grant bail, HS throughout period 4 had the option of seeking bail from the FTT. The availability of that remedy was stressed in argument by the Home Secretary. It is a speedy and highly effective remedy. There was a special reason in Konan for concluding that the effective alternative remedy principle did not apply, for there the true challenge was to the decision to detain. Where the challenge is in truth to a refusal of bail, it may well be that the challenge should be stopped at the permission stage on the basis that the appropriate place for it to be determined is in the FTT. However no submission was made to that effect in the present case, perhaps because of what was said in Konan, and I say no more about it.

There was, rightly, no suggestion by HS that private law principles of issue estoppel would operate to bar a refusal of CIO bail.

In the present case I turn to Longmore LJ’s observation in AR (see section C5 above) that if CIO bail is more onerous than prior FTT bail this would have to be justified and could be amenable to judicial review. For the reasons given in section C5 above this does not, however, indicate that an FTT bail decision is of a character which requires substantive law to introduce additional objective tests that must be satisfied by those considering detention and bail at a later stage. Nor, for reasons given in sections C6 and C7 above, do Lupepe or Gafurov offer support for such a contention. What is demonstrated by Gafurov is that, on a reasonableness review, refusal of CIO bail may be unlawful if the reasons are essentially the same as those which were rejected by the FTT, and the circumstances have not changed. I note that there was no suggestion in that case that the FTT’s decision had been reached on the basis of a misunderstanding of the law, or was in any way legally flawed.

In the present case the FTT bail decision involved no distinct analysis of any particular issue of law or fact. It amounted to no more than a conclusion that such evidence as had been put before the FTT warranted a conclusion that risks associated with release could be adequately managed by requiring sureties and by setting appropriate conditions.

In these circumstances I consider that it would be undesirable to impose an additional objective test. The following considerations appear to me to have the consequence that the court’s role of jailor control does not call for such a course:

For the reasons given above I conclude that in the present case there is no extended honour obligation of the kind advanced on behalf of HS. There is, as

I add that in the circumstances of the present case it would not matter whether the test was reasonableness or an additional objective test of change in material circumstances. In this regard I put on one side complaints about the reasons given to HS for his re-detention, and complaints that HS should have had prior notice of relevant concerns to enable him to answer them. As explained in the remainder of this judgment, the reason for HS’s re-detention and non-renewal of bail lay in new information that persons linked to the Halesowen address had convictions for sexual offences and that other criminal behaviour was perpetrated by HS’s associates in the area. This was a material change of circumstances which objectively warranted prompt action to redetain HS. I do not accept that the new information was “thin”: it identified two specific areas of concern, and why they were of concern. Objectively, as it seems to me, prompt protection of the public militated in favour of taking those concerns at face value rather than risk delay by pressing the police for the underlying intelligence material.

JR ground 2: legal principles governing detention

In this section I describe, based on an account given by HS, “core principles” for the purposes of JR ground 2. The Home Secretary did not take issue with this account.

As a matter of general principle, it is for a detaining authority to satisfy the court as to the legality of detention: R (Lumba) v SSHD [2012] AC 245 at §65, albeit the concept of “burden of proof” is inapt when considering matters such as reasonableness: R (Saleh) v SSHD [2013] EWCA Civ 1378at §§42-46.

Legal requirements as to the use of immigration powers of detention were examined by Woolf J in R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704. In R (I) v SSHD [2003] INLR 196 what was said by Woolf J was discussed by Dyson LJ by reference to four propositions. In Lumba at paragraph 22 the four propositions were repeated by the same judge, now Lord Dyson JSC. All members of the Supreme Court sitting on that occasion, with the exception of Lord Phillips of Worth Matravers PSC, agreed with these four propositions. I shall refer to them as “the Lumba principles”:

The prospects of removal may be relevant to the reasonable period. Richards LJ in R (MH) v SSHD [2010] EWCA Civ 1112 said at paragraph 65:

Thus, on the one hand, there is no hard and fast rule that the Home Secretary must be able to point to a specific point in time by which the Home Secretary

I stress that when deciding whether detention complies with the Lumba principles, save as regards incidental questions of fact in certain circumstances, it is for the court to assess the position objectively: see the citations from A (Somalia) in section C2.4 above.

HS’s judicial review ground 2 alleged breaches of Lumba principles (2) and (4). I consider the arguments in relation to those principles in sections D3 and D4 respectively.

In the course of argument on JR ground 2 HS criticised the Home Secretary’s assessment of HS’s status under the AR policy, and criticised the Home Secretary for not giving advance warning of concerns about the suitability of the Halesowen address. I deal with those matters in sections E and F respectively.

HS invoked Lumba principle (2) when criticising the March 2017 re-detention decision. HS submitted that approaching the matter objectively, it was plain on 6 March 2017 that if HS were detained then more than a reasonable time would elapse before he could be returned to Pakistan. HS advanced a contention that when making that objective assessment it was highly relevant that the February FTT bail decision “judged that [HS] posed a low risk” of absconding or reoffending.

I readily accept that risks of absconding and re-offending may be relevant.

Next in this regard HS noted that it had not been until November 2017 that the hearing of HS’s appeal took place. While HS acknowledged that there was no fixed date for this hearing, HS said that a delay until November 2017 before the hearing could take place was “entirely predictable”. In a context where reoffending, should it take place, will involve a very serious sexual offence on a vulnerable child, and the most recent OASys report identified a medium risk to children, I do not consider that a predicted period of 8 months in detention is unreasonable in length.

HS noted that the March 2017 re-detention decision had originally been justified on the basis that certification of his asylum claim prevented an incountry appeal. That, however, was not something which the Home Secretary could rely on in circumstances where, once challenged, the certification was withdrawn. So far as Lumba principle (2) is concerned, it seems to me that this is neither here nor there. As indicated above, it does not seem to me that the period necessary to allow for an in-country appeal was such as to make detention unreasonable.

Of overriding importance, as it seems to me, was the new information from the police and probation service expressing serious concern about HS’s release address. It is common ground that there is no mechanism by which the Home Secretary could return to the FTT and ask it to review HS’s bail. In those circumstances, objectively, it was in my view plainly reasonable to re-detain HS on the footing that, subject to any grant of bail, the period of detention involved was likely to be in the region of 8 months.

HS said that the Home Secretary had failed in three respects to act with reasonable diligence and expedition to effect removal. The first respect was that the decision to certify HS’s claim necessarily caused delay since an incountry appeal could not be lodged until the certificate was withdrawn. The second was that the Home Secretary had failed to file a bundle with the FTT which led to adjournment of the hearing which had been fixed for 4 August 2017. Third, it was said that by reason of that adjournment or a subsequent default a further case management review had to be fixed for early September. It seems to me, however, that none of these defaults made any appreciable difference to the date on which the appeal could be heard. The reason is that the Home Secretary, during the period from late April to late July 2017 was concerned that the 6 March asylum refusal was unsatisfactory and needed to be reconsidered. That reconsideration resulted in the highly detailed 28 July asylum/deportation letter. Thus, as it seems to me, even if there had been no certification, and no failing in relation to the lodging of a bundle in time for a

For the reasons given above, I conclude that objectively there was no breach by the Home Secretary of the Lumba principles.

JR ground 3: the AR policy

In this section I describe, based on an account given by HS, relevant aspects of the AR policy. The Home Secretary did not take issue with this account.

The AR policy replaced para 55.10 of EIG, which was previously the basis on which the Secretary of State assessed the suitability for detention of persons with conditions or circumstances which made them particularly vulnerable or made detention unsuitable. The general policy in Chapter 55 EIG, applicable to all detainees, includes, for example, a presumption in favour of release in all cases. The AR policy adds to this and affords a greater level of protection to those recognised to be particularly vulnerable to harm in detention.

The AR policy is primarily to be found in statutory guidance, laid before

The AR Statutory Guidance requires the assessment of factors which I shall call “vulnerability risk factors”. These are factors which are relevant to the vulnerability of detainees, and their suitability for detention. The AR Statutory Guidance then requires the weighing of identified vulnerability risk factors against what it calls “immigration factors”. Key passages from the AR

The next section is headed “Principles” and comprises paragraph 6, which includes:

The AR Statutory Guidance then continues:

The next section of the AR Statutory Guidance is headed “Assessment of whether an individual identified as being at [vulnerability] risk should be detained”. In this section para 9 of the AR Statutory Guidance identifies three “levels” of evidence and the weight that should be afforded to it:

Also in this section is paragraph 10:

The next section, headed “Indicators of [vulnerability] risk”, comprises paras 11 and 12 of the AR Statutory Guidance. Paragraph 11 gives a list of conditions or experiences which will indicate that a person may be particularly vulnerable to harm in detention. This list includes (a) those suffering from a mental health condition or impairment and (b) having been a victim of torture.

Paragraph 12 adds, among other things:

In the next section, headed “Assessment of immigration factors”, para 13 of the AR Statutory Guidance explains that, where vulnerability risk is identified, it will be necessary to balance that risk against “immigration factors”. Paras 14 and 15 add:

I add that the guidance for caseworkers included a section concerned with vulnerability risk factors emerging after the point of detention. So far as material for present purposes, it included the following, with paragraph numbers added by me in square brackets:

The guidance for caseworkers also noted that the purpose of Rule 35 of the Detention Centre Rules is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining, and reviewing detention. The guidance summarised Rule 35 in this way:

The breaches of the AR policy relied on by HS are grouped under three broad headings. The first concerns failure to apply the AR policy prior to the Rule 35 report. HS points out that as part of his asylum claim he had given account of torture in Pakistan. This had the consequence that he fell within Level 1 for the purposes of the AR policy. Nothing in the material before the court suggests that this was identified, and taken account of, when reaching the March 2017 re-detention decision and in the period prior to receipt of the first Rule 35 report on 8 April 2017.

I accept that HS’s account of torture was a vulnerability factor with the consequence that HS fell within level 1, and that this was overlooked. I do not, however, accept that overlooking HS’s Level 1 status had any causative effect. HS’s asylum claim did not include professional evidence stating that a period of detention would be likely to cause harm. In those circumstances, even if the

Second,HS submits that the first Rule 35 response was seriously inadequate and contained numerous legal errors, any one of which was sufficient to make it fundamentally flawed. One such “legal error” was said to be that the response treated HS as Level 2, whereas “this was a Level 3 risk where the [doctor] had indicated that detention was detrimental” to HS. This assertion was emphatically denied by the Home Secretary.

No elaboration was given in opening oral submissions for HS. In reply submissions, however, reliance was placed on a passage in the judgment of Mr Justice Burnett in R. (EO) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin) at paragraph 59:

This citation does not assist HS. It will not necessarily be the case that a past experience of torture will have the consequence that a period of detention would be likely to cause harm. It is no doubt for that reason that under the AR Statutory Guidance Level 3 is achieved only where there is professional evidence to this effect.

I have set out material parts of the first Rule 35 report in section B4.6 above. Nowhere in that report is there any statement that detention was having, or would be likely to have, a detrimental effect on HS’s mental health. In these circumstances the first Rule 35 response rightly categorised HS as Level 2.

The remaining criticisms of the first Rule 35 response have more force. The Home Secretary accepts that the first Rule 35 response proceeded on a mistaken premise that the “only barrier” to HS’s removal was the outstanding judicial review concerning certification of HS’s asylum claim – when two days earlier the Home Secretary’s acknowledgment of service stated that certification would be withdrawn. The first Rule 35 response said that there was nothing to demonstrate that HS would comply with any restrictions placed on him, whereas HS had fully complied with restrictions prior to his trial and with the FTT bail conditions. The first Rule 35 response assumed, plainly unjustifiably, that past offending in and of itself showed a future risk. There was no reference to the enhanced presumption, arising from Level 2 status, that detention was inappropriate.

These flaws in the first Rule 35 response are lamentable. As with the first breach of the AR policy, however, it does not seem to me that they are material. The concerns arising in relation to the release address were so serious that there can, in my view, be no doubt that it was right to ensure that

The third breach relied on by HS was an allegation that applicability of the AR policy to HS was not kept under review. I am not persuaded that there was a failure by the Home Secretary in this regard. I note that on 28 June 2017 Dr Fletcher increased HS’s mirtazapine dosage to 45mg daily. There is nothing to suggest that the Home Secretary was informed of this at the time, or that there was any notification of anything else prior to the second Rule 35 report, to indicate that detention was harming HS’s mental health.

In oral reply submissions for HS it was said that HS’s vulnerability status ought to have been reconsidered at each detention review. I would agree if at the time of any such review there was reason to think that there had been or might be a change in HS’s vulnerability factors or the weight to be given to those factors. This leads to the question whether, at the time of the detention reviews on 28 April, 26 May, 23 June, 24 July and 21 August, Home Office officials had reason to think that there had been or might be a change in HS’s vulnerability factors or the weight to be given to those factors? On the material before the court, the answer to that question is, “No”.

For the reasons given above judicial review ground 3 is unsuccessful.

JR ground 4: reasons for detention

In this section I deal with HS’s complaint that his detention was unlawful because incorrect reasons were given for that detention. In oral submissions HS sought to add a further contention that he ought to have been warned of those reasons in advance so that he could respond and thereby show that detention would not be necessary. For reasons given in section F4 below I need not consider whether HS should be given permission to rely upon this new contention.

Judicial review ground 4 involves the application of principles as to the giving of reasons for arrest. It is not disputed that these principles apply to detention under paragraph 2(3) of Schedule 3.

At common law, subject to qualifications which do not arise in the present case, a person arresting another must inform that other in substance of the true reason for arrest. I shall refer to this as “the true reason principle”. The great importance of this principle was stressed in Christie v Leachinsky [1947] AC 573 by Viscount Simon, with whom Lords Thankerton, Macmillan, Simmonds and du Parcq agreed.

Viscount Simon’s speech added at p. 587 an additional proposition: the arresting person is not entitled to give a reason which is not the true reason.

Lord Simmonds, with whom Lords Thankerton and Macmillan agreed, said at p. 591:

HS says that the same obligations arise under article 5(2) of the European Convention on Human Rights. He adds that they also arise because the Home Secretary’s own policy in EIG 55.6 provided for the giving of written reasons at the time of detention and at regular intervals during detention. It is not necessary to examine these separate legal bases for judicial review ground 4. The reason is that on aspects relevant for present purposes neither side suggests that they involve additional obligations to those identified above.

I consider that there is a single question which it is appropriate for me to decide. This is whether HS’s re-detention on 6 March was unlawful because it was in breach of the principle identified above. If it did not breach the true reason principle, then HS has no claim to damages under this head. If it did breach that principle then, unless they can be agreed, there must be an assessment of damages. At that assessment factual questions, and associated legal questions, may arise. Such questions may include whether and if so when HS was informed as to the true reason for detention. They may also include whether and if so when, in the absence of information from the Home Secretary, HS independently became aware of the true reasons, and whether in those circumstances his detention ceased to be unlawful. Similarly such questions may include whether there may be a defence if it be the case that provision of the true reason would have made no difference to HS, and, if in law there is such a defence, whether this was such a case. Such legal questions as may arise in these respects are in my view best determined in the context of facts found by the court as part of the assessment process.

To my mind it is as plain as a pikestaff that the true reason for re-detention was new information that persons linked to the Halesowen address had convictions for sexual offences and that other criminal behaviour was perpetrated by HS’s associates in the area. It was that new information that led the police and the probation officer to advise that the Halesowen address was not suitable as a bail address for HS: see section B2.1 above.

This new information gave cause for grave concern. It would have been astonishing if it had not prompted swift action by the Home Office. Lartey 1 give Mr Lartey’s account of receipt of the new information, and continues:

Lartey 1 identifies one reason only for concern about risk to the public at this stage: the new information. In the re-detention minute, when making his recommendations in paragraph 12, Mr Lartey put this at the forefront. As set out in section B2.2 above, paragraph 12[2] noted that the Home Office had been advised of “reservations about the address not being suitable”. This was clearly a reference to the new information.

Thus the new information was crucial to the justification for recommending detention. Indeed Mr Larty made plain not only that the new information made it “imperative” for HS to be re-detained, but also that detention would only be required during such period as concerns about HS’s bail address persisted. In this regard the final sentence of paragraph 12[2] stated:

The quality assured officer’s comments by Ms Luff (also recorded in section B2.2 above) similarly put the new information at the forefront: see paragraphs [2] and [3] of those comments as set out in section B2.2 above.

There was no other reason which caused Mr Lartey to recommend redetention. Section 7 of the re-detention minute referred to a high risk of absconding. However it is clear from paragraph 12[2] that if the Halesowen address had been, as previously thought, an appropriate bail address then the risk of absconding would not have resulted in re-detention. Paragraph 12[3] of the re-detention minute noted that HS’s asylum application had been concluded and certified. It did not suggest that the resulting imminence of HS’s removal was such as to warrant detention. Paragraphs 12[3] and [5] made reference to further steps to be taken to proceed with the ETD application. There was, however, no suggestion by Mr Lartey that re-detention was desirable for that purpose. Paragraph 12[4] expressly stated that what outweighed the presumption of liberty was “the imperative to protect the public from the risk of harm and re-offending”. This was clearly a reference back to paragraph 12[2].

The Home Secretary’s skeleton argument conceded that HS was not initially told about the new information. However it was submitted that the substance of the new information was sufficiently communicated to HS by checking box e and box 12 on form IS.91R, which was given to HS on 6 March 2017.

As set out in section 3.3 above, checking box e on form IS.91R informed HS that his release was not considered conducive to the public good. This was true, so far as it went, but it did not go very far. Checking box 12 told HS that a factor in reaching this decision was his “character, conduct or associations”. This was far too broad a range of options to give HS much useful information.

There is a stark contrast between the detention minute and the completed form IS.91R. As I have noted above, it is clear from the detention minute that the true reason for re-detention was new information that persons linked to the Halesowen address had convictions for sexual offences and that other criminal behaviour was perpetrated by HS’s associates in the area. Form IS.91R gave no space to say this. It may be speculated that, faced with the limitations of the form, whoever was filling it in may have felt that checking box 12 was the best that could be done. 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.”

The probation officer asked the police and the Home Office not to share the new information with HS. As set out in section B2.1 above, the probation officer’s email of 15 February 2017 put the request in this way:

The Home Secretary advanced a submission that this could be a relevant factor justifying the omission in form IS.91R to set out the new information. However I do not need to consider whether in law a request to keep intelligence confidential might give rise to a qualification to the true reason principle. In my view the submission necessarily fails on the facts. The request was only not to share the new information “at this stage”. The concern was that on realising that the police were aware of these matters HS might abscond. Once HS had been detained, however, there was no longer a risk of absconding, and nothing in that concern would warrant the failure to tell HS the true reason for his detention.

The Home Secretary accepts that checked boxes 7 (previous failure/refusal to leave the UK when required) and 10 (personal direction of the Secretary of State) were incorrect. It was submitted that checking box 6 (no satisfactory evidence of identity, nationality or lawful basis to be in the UK) was justified because HS had previously not co-operated with the ETD process. I doubt whether any such non-cooperation falls within the wording of box 6. It was presumably considered by the Home Secretary, once the asylum claim had been rejected, that HS had not produced evidence of a lawful basis to be in the UK. There is no evidence that this played any material part in deciding to re-

The giving of each of these untrue reasons was a breach of the true reasons principle: see Viscount Simon’s additional proposition cited in section F1 above. Any issue as to whether these breaches give rise to additional claims for damages must be decided as part of the assessment process.

For the reasons given above judicial review ground 4 succeeds. HS’s redetention on 6 March 2017 was in breach of the true reasons principle, and for that reason was unlawful. It is accordingly unnecessary for me to consider whether I should allow HS to argue that his re-detention was additionally unlawful because he was not given advance warning of the concerns which led to his re-detention.

Overall conclusion

While HS’s first three grounds for seeking judicial review fail, his fourth ground succeeds. I ask counsel to seek to agree consequential orders. Unless there is good reason to the contrary, those orders should include a transfer to the Central London County Court for that court to give directions for the assessment of damages.