AT (Guinea)), R (On the Application Of) v Secretary of State for the Home Department & Anor

This is an application for judicial review. The Claimant is AT (“the Claimant”). He is anonymised within this judgment because I shall refer to confidential medical matters concerning his mental health. He brings a number of challenges against the Secretary of State for the Home Department (“Secretary of State”) and against the First-tier Tribunal (Social Entitlement Chamber, Asylum Support) in relation to his immigration detention. Specifically, he challenges:

The claim was brought on 5 December 2018 whilst the Claimant was still in immigration detention. Mrs Justice Cheema-Grubb expedited the claim by abridging time for acknowledgement of service but did not grant interim relief. On 15 January 2019 John Howell QC sitting as a Deputy High Court Judge gave permission for judicial review on ground 1 (unlawful detention) but refused permission on the other grounds and ordered that the hearing be expedited. The Claimant was released from detention on 22 March 2019 and so the need for expedition fell away. I have to consider the claim on ground 1 and the renewed applications for permission in relation to grounds 2 to 4 and, if permission is given, whether judicial review should be granted on any of those grounds. If the Claimant succeeds such that damages should be assessed, then directions to allow for agreement of damages or the court’s assessment will be required.

The Claimant was kept in immigration detention following a deportation order made after his conviction and imprisonment for an offence of robbery, the last of a series of criminal offences he had committed over a period of several years. He was transferred into immigration detention upon the conclusion of the custodial sentence. As discussed below, having appealed his deportation the Claimant found himself in the unusual position of being in immigration detention whilst at the same time retaining indefinite leave to remain. There was some confusion as to the statutory mechanism by which he might be eligible for accommodation support in the event of his release from detention. He was granted bail in principle by the First-tier Tribunal on three occasions, subject each time to a condition that suitable accommodation was made available. On each occasion no accommodation was forthcoming and so bail was then refused. The legislation is complex and was not clearly understood by all those involved in his case. The overall period of detention was nearly 12 months.

Nevertheless, for the reasons given in this judgment, I am satisfied that his detention was at all relevant times lawful and that permission has been rightly refused for the other grounds of challenge.

In order to make sense of the history of events and decisions in this case, it is necessary first to consider the applicable legislation. There are a large number of relevant provisions.

I have been provided with evidence in three volumes with an additional witness statement from Christine Hooper , Executive Officer in the Criminal Casework Team 11 within the Home Office. The documents within the three volumes include a witness statement from Mr Poulter, the Claimant’s solicitor. Page references within this judgment are to the volume number, divider and page.

The Claimant is a citizen of Guinea who was born on 31 December 1986 and so is now aged 32. He applied for asylum in the UK on 4 September 2006 claiming he had entered the UK two days earlier. He was refused asylum and his appeal rights were exhausted on 5 April 2007. As recorded at paragraph 14 of the judgment of the Asylum and Immigration Tribunal promulgated on 23 February 2007, the Claimant’s asylum claim was found to have been a “complete fabrication” [1/D10]. Nevertheless, following further submissions, and under the government’s “legacy exercise” at the time, on 27 September 2010 he was granted indefinite leave to remain.

Between 2 April 2012 and 11 April 2017, the Claimant was convicted of a number of criminal offences including theft, burglary and robbery. He received various sentences of imprisonment as well as community-based sentences. He was convicted of failing to surrender to custody on 10 September 2014. The seriousness of his offending appeared to escalate over this period and on 11 April 2017 he was given a sentence of 2 years 5 months imprisonment for robbery and breach of a community order which had been given for burglary only four weeks before the commission of the robbery. The Claimant’s offending during this period had persisted notwithstanding that he had been warned about the possibility of deportation.

On 8 August 2017, in the light of the offending behaviour, the Secretary of State decided to deport the Claimant. On 17 November 2017 the Secretary of State received confirmation from the Healthcare team at HMP Huntercombe that the Claimant suffered from schizophrenia and was on medication, namely Fluoxetine and

On 30 November 2017 the deportation order was signed [1/C37]. It clearly states that the order was made under section 32(5) of the UK Borders Act 2007, being an order in respect of a foreign criminal.

At the time of the deportation order the Claimant remained in prison. He appealed against the decision to the First-tier Tribunal on 18 December 2017. Amongst his grounds was a reliance on Article 3 of the European Convention on Human Rights.

On 29 March 2018 the Claimant was taken into immigration detention by the Secretary of State on completion of his last custodial sentence. He remained in immigration detention until 22 March 2019. To understand the history of his detention, and the consideration given to his continued detention during that period, it is necessary to consider the detention notices and reviews, the General Casework Information Database notes (“GCID”), including recommendations of the Case Progression Panel (“CPP”), and the bail applications made to the First-tier Tribunal.

The Minute of a Decision to Detain a Person Under Immigration Powers, dated 5 March 2018, is at [2/A9]. It shows that the legal basis of detention was under paragraph 2(3) of Schedule 3 of the 1971 Act. Whilst a box is marked to indicate that the risk of the Claimant absconding was high, the body of the record shows that the risk was in fact assessed as medium. Several subsequent detention reviews repeated the same error but it is quite clear that throughout the Claimant was regarded as a “medium” risk for absconding. The Minute also records that the Claimant was a medium risk for re-offending and causing harm. He does not contend that these assessments of risk were unreasonable. His offending history is set out in the Minute alongside the sentencing remarks of the judge who dealt with the robbery offence.

The Claimant’s appeal to the First-tier Tribunal had in fact been struck out for nonpayment of the fee. On application the appeal had been re-instated on 16 March 2018 [1/D29].

The Claimant was taken into immigration detention on 29 March 2018. The first Detention and Case Progression Review was completed on 26 April 2018 [3/A/15]. The record of the Review repeats much of the content of the Minute of Decision to Detain. Under “Case Progression Actions” it is noted that a further ETD pack had been completed for submission and a further medical report requested. In relation to the appeal, notice of a pre-hearing review on 26 July 2018 and a full hearing on 9 August 2018 had been given by HM Courts and Tribunals Service on 11 April 2018 [1/D31]. Continued detention was authorised.

The Claimant applied to the First-tier Tribunal for bail, claiming that “bail should be granted in principle and an address provided by the Home Office under Section 10 without delay”. [1/F8] The reference to Section 10 should have been to Schedule 10 (of the 2016 Act). The Claimant had solicitors acting for him and that remained the case throughout his detention. The Secretary of State opposed the application and noted [1/F15 paragraph 15] that the Claimant did not qualify for Schedule 10

accommodation but that a Schedule 10 accommodation referral form had been sent and a response was awaited. On 16 May 2018 the First-tier Tribunal granted bail subject to the condition that the Claimant was,

“offered schedule 10 accommodation and such accommodation being approved by the Offender manager within two weeks. Such accommodation must be suitable in particular for easy access to community psychiatric care.” [1/F18]

On 1 June 2018 the Defendant wrote to the Claimant that he did not meet the criteria for Schedule 10 accommodation. This had been the view taken prior to the bail hearing and recorded in the Secretary of State’s response to the bail application. The letter of 1 June 2018 also stated that the “CCAT Application Team have advised the

Also on 1 June 2018, a second Detention and Case Progression Review was completed [3/A23]. This noted the bail application proceedings and outcome. No further progress with the ETD was recorded. The Authorising Officer recorded that given the timeframes for appeal and ETD a release referral should be drafted ahead of the next review.

On 13 June 2018 a Case Progression Panel (“CPP”) reviewed the Claimant’s detention. There is a record within the General Casework Information Database Notes at [3/B108] dated 16 June 2018. These panels have been in operation since February 2017 and provide an internal independent review of detention and case progression. I have been provided with guidance published by the Home Office in April 2019 entitled “Detention Case Progression Panels” which, whilst post-dating the events in question, provides helpful information about the work of these panels. On 13 June 2018 the CPP did not note any factors in favour of maintaining detention, noted that bail had been granted in principle, and recommended release. The record indicates that the CPP was unsure whether the Claimant was eligible for Schedule 10 support. It did not note that bail had ultimately been refused.

On 14 June 2018 the Claimant applied for s.4 accommodation and made another bail application to the First-tier Tribunal.

There was a further Detention and Case Progression Review on 29 June 2018 [3/A31]. It was noted that “Removal is not imminent but is considered to be within 36 months”. Another ETD pack had been completed for submission on 16 June 2018. The Authorising Officer commented that “Removal is not imminent but is currently considered to be within 6 months depending on the progress of his appeal and ETD. A release referral should be considered.” A note was made to monitor the appeal and ETD closely.

The Secretary of State again opposed the Claimant’s bail application. On 4 July 2018 the First-tier Tribunal granted bail “conditional on the applicant being offered section 4 accommodation and such accommodation being approved by the Offender Manager within two weeks. Such accommodation must be suitable in particular for easy access to community psychiatric care.”[1/F39]. In a document dated 5 July 2018 at [1/F41] the same First-tier Tribunal Judge who granted bail on 4 July, refused bail noting that the Home Office had not been able to provide suitable accommodation. The date on this document must be incorrect. The Judge noted, “There is at present no reasonable alternative to detention, and in the circumstances I consider detention to be proportionate.”

On 18 July 2018 the Secretary of State refused s.4 support [1/E59]. The principal reason given was that it was not accepted that the Claimant was destitute as he still had indefinite leave to remain and so was able to secure access to other forms of public or private support. The Claimant appealed the Secretary of State’s decision of 18 July whereupon the decision was withdrawn.

The next Detention and Case Progression Review took place on 27 July 2018 [3/A40]. It was noted that the ETD pack had been re-submitted to the Guinean Embassy and that a face to face interview there had been arranged for 7 August 2018. The history of the most recent bail application was noted. The Authorising Officer noted the forthcoming Tribunal hearings and face to face interview, and commented that “Removal is not imminent but is currently considered to be within 6 months depending on the progress of his appeal and ETD. A release referral should be considered once ongoing time scales for his appeal and ETD are obtained.”

The next Review was on 24 August 2018 [3/A50]. It was noted that progress with both the appeal and the ETD had been delayed. The appeal had been adjourned at the Claimant’s request. The ETD interview had been postponed because the relevant official at the Guinean Embassy was on leave until the end of August. In fact, the appeal had been re-listed for 21 August at the pre-hearing review, and then vacated at the Claimant’s request and adjourned to 5 October 2018. That order was made on 24 August [1/D53] and so was not known to the officers conducting the review on the same date. Continued detention was authorised for a further 28 days.

On 18 September 2018 a further CPP recommendation was made for release [3/B120]. The reason for the recommendation was said to be because “there is no prospect of imminent removal.” On the same date the Claimant applied for asylum support under section 95 of the Immigration Act 1999 [1/E83]. Initially the Secretary of State refused the application on the grounds that the Claimant was not an asylum seeker. He was in fact an asylum-seeker within the meaning of s.94 of the 1999 Act because he had a pending appeal before the First-tier Tribunal at that time which included an Article 3 ground. The Secretary of State withdrew her decision and produced a fresh decision on 5 October 2018 [1/E147] refusing support under section

Three days after the CPP recommended release, a further Detention and Case Progression Review took place [3/A60]. It was noted that in fact the relevant official from the Guinean Embassy had not been available until mid-September and that a date for the face to face interview was awaited. It was noted that the appeal hearing before the First-tier Tribunal was now listed for 5 October 2018. Again, the decision was to continue detention but to monitor the appeal and ETD closely.

On 19 October 2018 there was a further Detention and Case Progression Review [3/A70]. It is noted that the Claimant’s appeal against the deportation order had been heard by the First-tier Tribunal on 5 October and that the outcome was awaited. On 11 October a release referral had been submitted for consideration. A face to face interview at the Guinean Embassy had been arranged for 22 October 2018. Continued detention was authorised.

The Claimant’s appeal against deportation was dismissed by the First-tier Tribunal on 19 October 2018. The judgment [1/D57] shows that the Claimant had applied unsuccessfully for an adjournment at the start of the hearing.

The First-tier Tribunal heard the Claimant’s appeal against the refusal of s.95 support and gave its decision on 30 October 2018 [1/E163]. The Tribunal Judge, Ms Sally Verity Smith, found that until such time as the Claimant’s appeal rights were exhausted in terms of his deportation, he would, and so did, continue to enjoy indefinite leave to remain. As such, the benefits attached to that status took the Claimant outside the definition of destitution under Section 95(3) of the 1999 Act. The Claimant was entitled to social security benefits and so had the means to obtain accommodation and was not destitute. She also held that regulation 4(4) of the Asylum Support Regulations 2000 applied so as to exclude the application of s.95. The appeal was therefore dismissed.

The Claimant applied for permission to appeal the earlier decision dismissing his appeal against the deportation order, by written application dated 1 November 2018.

The next Detention and Case Progression Review was dated 16 November 2018 [3/A80]. It was noted that the Claimant’s appeal against deportation had been dismissed by the First-tier Tribunal but that he had sought permission to appeal which had been granted. The ETD interview had not yet taken place because of cancellation by the Guinean Embassy but it was being re-scheduled. Detention for a further 28 days was authorised.

The Claimant attended a face to face interview at the Guinean Embassy on 21

The CPP reviewed the Claimant’s detention for a third time, on 27 November 2018 [3/B137] and again recommended release, this time on the grounds that “there are factors which suggest that removal within a reasonable time frame, in the particular circumstance of this case, may not be possible”.

The Claimant brought the judicial review claim now before this court on 6 December 2018 with the order for expedition made by Mrs Justice Cheema-Grubb on 6 December.

A Detention and Case Progression Review was completed on 12 December 2018 with a further authorisation for continued detention. It was noted that the Upper Tribunal was due to hear the appeal on 17 December. The Judicial Review claim and order were noted. The ETD interview was also noted. Continued detention was authorised.

The Upper Tribunal heard the appeal on 17 December 2018 and promulgated its decision to dismiss the appeal on 7 January 2019 [1/D81].

A further Detention and Case Progression Review was completed on 14 January 2019 [3/A100]. It was noted that the ongoing Judicial Review prevented removal but had been expedited. Continued detention was authorised.

As already noted, the Claimant’s appeal rights in respect of his deportation were exhausted on 22 January 2019. On the same date the Claimant brought at fresh application for s.4 accommodation [1/E171]. On 28 January 2019 the First-tier Tribunal granted immigration bail in these terms: “Bail is granted in principle. The applicant is not to be released until the Home Office has found accommodation. Such accommodation to be provided by Monday 18 February 2019 or the decision lapses.”

On 31 January 2019 the Secretary of State granted s.4(2) support which was for the

It is not disputed that once the Claimant appealed the deportation decision on 18

The deportation decision of 30 November 2017 was made under s.32(5) of the UK Borders Act 2007. The Claimant’s appeal against the decision to deport was an appeal under s.82(1) of the 2002 Act, and so, whilst the appeal was pending, s 79 (4) of the 2002 Act applied and the deportation order did not invalidate the Claimant’s indefinite leave to remain. Again, it is not disputed that whilst the appeal against deportation was pending, and until 22 January 2019, the Claimant continued to have indefinite leave to remain.

Being an asylum-seeker during the period identified, s.95 of the 1999 Act applied, but only if (i) the Claimant appeared to the Secretary of State to be a person who was destitute or who would be likely to become destitute within the prescribed period, and (ii) the Claimant was not a person who was excluded from s.95 provision because of “prescribed circumstances”. If the Claimant had adequate accommodation or the means of obtaining it, then he was not destitute.

The Claimant was, until 22 January 2019, a person with indefinite leave to remain. Accordingly, whilst the appeal against his deportation order was pending, he was not under “immigration control” for the purposes of the 1999 Act, and therefore he was not excluded from eligibility to benefits under s.115 of the 1999 Act. Those benefits included housing benefit. Thus, the Claimant was, at all relevant times, not excluded from eligibility for housing benefit and other social security benefits. As such he had the means of obtaining adequate accommodation upon his release from detention, were that to occur. Under s.95(3)(a) of the 1999 Act he was not destitute. Accordingly, he was not entitled to the provision of support under that section.

I have seen little evidence that the Claimant took steps to secure benefits or accommodation support to which he was entitled. Some correspondence has been provided from after the First-Tier Tribunal’s decision that s.95 did not apply, but there is generally a lack of evidence of timely or sustained engagement with the local authority or other authorities and agencies. It was not argued before me that the

A more difficult point is whether the Claimant was also disentitled to provision of support under s.95 because the Claimant was in “prescribed circumstances” within the meaning of s.95(2). Under regulation 4 of the Asylum Support Regulations 2000,

“prescribed circumstances” under s.95(2) of the 1999 Act are defined. For the purpose of this case, a person is within those prescribed circumstances if they are applying for asylum support for themselves alone and they fall within regulation 4(4). The Claimant was applying for support for himself and would have fallen within regulation 4(4)(b) if at the time of the determination of his application he was a person “to whom social security benefits apply”. For the purposes of regulation 4(4) a person is a “person to whom social security benefits apply” if (as relevant to the present case) he is a person who “by virtue of regulation 2 of the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000 is not excluded by section 115(1) of the Act from entitlement to” a range of benefits.

The Claimant had indefinite leave to remain and so was not excluded from the range of benefits by reason of section 115 of the 1999 Act. However, that non-exclusion did not arise “by virtue of regulation 2” of the specified 2000 Regulations because he did not fall within the Schedule to those Regulations. Accordingly, in my judgement, he was not a person in prescribed circumstances within the meaning of s.95(2) of the 1999 Act.

Nevertheless, for the reasons given, at all relevant times up to 22 January 2019, the Claimant was not excluded from benefits, including housing benefit, and so he had the means of obtaining adequate accommodation if released and therefore was not destitute.

This was also the express finding of the First-tier Tribunal on 30 October 2018 [1/E167 at paragraph 22]. I respectfully disagree with the Tribunal Judge that the operation of Regulation 4 of the Asylum Support Regulations 2000 also excluded the Claimant from asylum support, but that does not assist the Claimant. It is clear that he did not meet the all the conditions necessary to allow for the provision of support under s.95 of the 1999 Act. The Tribunal Judge included the following within her judgment, “The appellant should contact the welfare services within his detention centre to establish how he might apply for mainstream benefit and assistance with housing benefit before he is released.” She pointed out that the Secretary of State had confirmed the Claimant’s status as continuing to have indefinite leave to remain on a number of occasions.

The Claimant’s solicitor did contact the Welfare department for assistance, which was an appropriate step to take. Two days after the First-tier Tribunal’s decision the Claimant’s solicitors also wrote to the Secretary of State seeking an end to his detention but also seeking reconsideration of the Claimant’s “eligibility for Immigration Act 2016 Schedule 10(9) accommodation”. This was not the approach that had been advocated by the Tribunal Judge. Moreover, Schedule 10, paragraph 9 applies when a person “is on immigration bail subject to a condition requiring the person to reside at an address specified in the condition” and “ the person would not be able to support himself or herself at the address unless the power [to give support] were exercised”. As of 1 November 2018, when the Claimant’s solicitors wrote their

For the avoidance of doubt, it is clear in my judgement that Schedule 10 did not apply at the earlier date of 16 May 2018. At that time the Claimant was granted bail on condition of being offered schedule 10 accommodation. He was however entitled to benefits and so would have been able to support himself at an address if one had been specified. Further, since no specific address was identified in the bail application or grant of bail, it is difficult to see how Schedule 10 would be engaged, notwithstanding the reference to it in the condition for bail granted by the First-tier Tribunal.

Mr Khubber sought to construct an argument that the Secretary of State was under a duty to provide accommodation support on a temporary basis pending the receipt of benefits. He relied on page 55 of the Home Office guidance on Immigration Bail, published August 2018, where it states, “The power under paragraph 9 may be used to provide temporary accommodation pending a local authority’s assessment of whether it has a duty to provide accommodation.” He argued that there was no reasonable basis to exclude the ability to grant temporary accommodation whilst the Claimant is seeking to secure advice to obtain assistance. In fact, the Claimant and his advisors did not, so far as I am aware, approach the local authority and so there was no pending assessment. Furthermore, the Secretary of State may only exercise a power under paragraph 9 of Schedule 10, even on a temporary basis, if the conditions under paragraph 9 are met. They were not met in this case.

For these reasons I am quite satisfied that grounds 2 to 4 are not arguable and do not have a realistic prospect of success. Applications for accommodation and support, including the request made on 1 November 2018, were properly and lawfully dealt with by the Secretary of State. The First-tier Tribunal properly dismissed the Claimant’s appeal against the First Defendant’s refusal of the Claimant’s application for s.95 support. Deputy High Court Judge John Howell QC was right to refuse permission on those grounds and I dismiss the renewed application for permission.

The Secretary of State’s power to detain the Claimant was under paragraph 2(3) of Schedule 3 to the 1971 Act which allows for detention of a person in respect of whom there is a deportation order in force, pending his removal or departure from the United Kingdom. The exercise of the power to detain is subject to well-established limitations. Known as the Hardial Singh principles, they were set out clearly by the Supreme Court in Lumba v Secretary of State for the Home Department [2012] 1 AC 245, [2011] UKSC 12; 1 AC 245 per Lord Dyson at [22]:

“(i)

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances;(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal.”

Lord Dyson set out how those principles are to be applied, stating at [103]:

“A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place … there may be situations where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention…if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.”

He referred to those factors that are relevant to the determination of a reasonable period at [104]. The non-exhaustive list included the length of the period of detention, the nature of the obstacles which stand in the path of the Secretary of State so as to prevent a deportation, the diligence, speed and effectiveness of steps taken by the Secretary of State to surmount the obstacles, the conditions of detention and effect of detention upon the detainee and his or her family, the risk that if released they would abscond, and the danger that if released they would commit criminal offences.

At [121] of his judgment Lord Dyson said, “The risks of absconding and re-offending are always of paramount importance.” When a person is in detention and pursuing an appeal then,

“… in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”

In R(MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, at

An assessment of the lawfulness of detention, and continued detention, has to be conducted on a case by case basis and depending on the facts of each case. The Secretary of State bears the burden of proof to justify detention. The court must form its own judgment rather than reviewing on Wednesbury grounds a decision or judgment made by the Defendant. There are no absolute time limits. The Court should make its assessment on the basis of circumstances as they presented themselves to the Secretary of State at the time, rather than with the benefit of hindsight – Fardous v Secretary of State of the Home Department [2015] EWCA Civ 231 at [42].

The courts have recognised that there may be a lapse of time between the point when it becomes clear that detention is no longer required to effect removal and the end of detention. The Secretary of State must act reasonably, but there will be allowance for the need for decision-making and to make arrangements – FM v Secretary of State for the Home Department [2011] EWCA Civ 807.

The Claimant contends that the second and third Hardial Singh principles have been breached in his case, that his detention was unlawful under public law principles, and that it was contrary to Article 5 of the European Convention on Human Rights. The Claimant does not challenge the detention on the first or the fourth Hardial Singh principles.

Mr Khubber, Counsel for the Claimant, submits that the detention was unlawful from the beginning because there was a slender hope of removal rather than a realistic prospect, there was known to be an appeal process ongoing, and difficulties with the ETD, the Claimant was suffering serious mental ill health, the Claimant had a clear incentive not to abscond, namely to pursue his appeal and, in any event, the risk of absconding could be met with stringent conditions such as residence and reporting. All these matters were relevant to the second Hardial Singh principle. Additionally, in relation to the third Hardial Singh principle, Mr Khubber submits that it should be have been evident that there was not a realistic prospect of removing the Claimant within a reasonable time.

In the alternative, Mr Khubber submits, detention became unlawful by 18 May 2018, which was 48 hours after the first conditional grant of bail. If not then, detention became unlawful by 7 July 2018, again shortly after the further conditional grant of bail. In the further alternative, the detention became unlawful by 1 November 2018, 48 hours after the Claimant had lodged his application for permission to appeal to the Upper Tribunal.

Two Home Office policy documents are relevant to consider. The first is known as

The Home Office “Immigration Act 2016: Guidance on adults at risk in immigration detention, July 2018” states at paragraph 3,

“The clear presumption is that detention will not be appropriate if a person is considered to be “at risk”. However it will not mean that no one at risk will ever be detained. Instead, detention will only become appropriate at the point at which immigration control considerations outweigh this presumption. Within this context it will remain appropriate to detain individuals at risk if it is necessary in order to remove them.”

At paragraph 9 of the Guidance three levels of evidence of risk are identified. Level 1 is where there is a self-declaration of being an adult at risk. This should be afforded limited weight. Level 2 is where there is professional or official documentary evidence indicating that the individual is an adult at risk. This should be afforded greater weight. Level 3 is appropriate where there is additional professional evidence that a period of detention would be likely to cause harm. This should be afforded significant weight.

As noted, the evidence of the Claimant’s immigration history shows that he fabricated his initial asylum claim. After his initial asylum claim was dismissed he did not leave the jurisdiction.

The evidence also clearly shows a pattern of escalating criminal offending beginning in 2012 and culminating in an offence of robbery in 2017 for which he received a substantial prison sentence. His offending included failure to abide by communitybased sentencing.

Whilst there is some evidence of a claim to a relationship and child within the UK, the weight of the evidence is that the Claimant had no family ties in the United Kingdom. It was not suggested at the hearing that he had any such ties.

The Claimant has a history of mental health difficulties. His medical records are within Volume 2 of the hearing bundle. They show problems with sleeping and with auditory hallucinations. Inconsistent self-reports of past drug use are recorded [2/A273 and 2/A275] and he had admitted to smoking “spice” whilst in detention [A2/266]. There is in fact some dispute, within the medical records, as to his true diagnosis. For example, on 27 July 2018 Dr Hillier, Psychiatrist records that he did not have a history of schizophrenia, but rather had psychotic depression. Counsel at the hearing did not take me to these records and it was not disputed that the Claimant had schizophrenia and was taking prescribed medication. I am content to accept that premise for the purposes of this judgment.

The Detention and Case Progression Reviews are detailed documents but they contain a great deal of repetition from previous reviews and the original Minute of a Decision to Detain. The Authorising Officer’s comments appear also in the GCID case records, for example at [3/B109], sometimes following minutes of the case progression panel. Given that the CPP recommended release on three occasions whereas the Authorising Officers did not authorise release during the period of detention, there ought to have been specific reference to the CPP recommendations in the Authorising Officer’s comments. This is what the Home Office guidance on Detention Case Progression Panels says should happen. However, the quality of the reasoning set out in the Detention and Case Progression Reviews is far better than that recorded for the CPP reviews.

Counsel for the Secretary of State, Mr Malik submitted, and I agree, that the Detention and Case Progression Reviews consistently show an engagement with the following matters:

The appeal process and ETD were the obstacles to removal. Having careful regard to all the evidence I make the following findings in relation to those matters.

The Claimant complied with the process for completion of ETD at all relevant times.

In other cases there might be general information or awareness that a particular country will typically delay producing documentation after an interview or at other stages of the procedure, but I have not been provided with such evidence that delay can usually be expected from the Guinean authorities.

The Claimant’s appeal against his deportation was delayed following an adjournment granted at his request. He applied unsuccessfully to adjourn it again at the First-tier Tribunal hearing. The evidence does not suggest that the Secretary of State knew that adjournment was likely. The Claimant’s appeal failed. It was not obviously without merit but neither was it obviously a strong appeal. He was given permission to appeal to the Upper Tribunal and so it would be wrong to conclude that that appeal was without merit, although the Upper Tribunal ultimately dismissed it without much hesitation. Overall I would assess his prospects on his deportation appeal as being neither strong nor hopeless. The appeal ultimately failed and so it would be difficult to describe it as having merit. It should not necessarily have been assumed that the Claimant would appeal to the Upper Tribunal or bring this claim for judicial review. It was foreseeable that he might do so, but equally it was possible that he might choose not to do so. The length of time for the appeal process to be completed could not be predicted with precision. In fact, the appeal process was completed by 7 January 2019 and all appeal rights were exhausted by 22 January 2019, which was just less than 10 months after the start of immigration detention.

Detention began on 29 March 2018. In considering whether detention was lawful from the beginning, I take into account the following factors and, as indicated, further findings.

In my judgment the decision to detain was reasonable and in accordance with the Hardial Singh principles. Detention was justified and the evidence clearly shows that the Secretary of State recognised the factors relevant to the decision to detain from 29 March 2018, engaged with them and weighed them in the balance, reasonably coming to her decision. The decision-making was in accordance with the policy documents.

Many of the considerations set out above continued to be relevant to the Claimant’s continued detention until 22 March 2019.

In considering the lawfulness of continued detention at certain fixed points identified by Mr Khubber on the Claimant’s behalf, I am mindful of three risks which I must avoid:

Bail was granted by the First-tier Tribunal on 16 May 2018 but it was conditional on the Claimant being offered Schedule 10 accommodation approved by the Offender Manager within two weeks. As I have already determined, the Claimant was not eligible for accommodation support under Schedule 10 in May 2018. The Secretary of State had indicated as much when opposing the bail application. The fact that the Secretary of State did not provide accommodation and that the condition was not met, did not render the detention unlawful. Indeed the very fact that the Claimant was not eligible for accommodation provision under Schedule 10 meant that bail was refused. The First-tier Tribunal was therefore of the view, then, that continued detention was appropriate.

Mr Khubber did not contend that the fact that the First-tier Tribunal granted bail “in principle” rendered the detention unlawful. He submitted that it was a relevant consideration. I accept that. Likewise, the recommendations of the CPP were relevant to the decision to continue to detain. However, these were factors to be weighed alongside all the other relevant circumstances. I need not repeat the list of relevant factors that are set out above. They continued to be relevant as the detention continued. However, there were also changes that had to be taken into account.

By 18 May 2018 the appeal to the First-tier Tribunal had been set down for hearing on 9 August 2018. There does not appear to have been further progress in relation to the ETD but in my judgement there remained a sufficient prospect that the appeal and ETD would be concluded within the next few months. Having regard to all the relevant circumstances there was a sufficient prospect of removal within a reasonable time as at 18 May 2018. The period of detention remained reasonable and continued detention was justified.

Unfortunately, the Secretary of State had floated the possibility of an application for accommodation/support under s.4 of the 1999 Act. For the reasons given, the Claimant was not eligible for such support. Nevertheless, he applied for it and, on 5 July 2018, the First-tier Tribunal granted bail conditional on his being offered s.4 accommodation and the accommodation being approved within two weeks. The accommodation was not provided because he was not eligible for it under that provision. It is unfortunate that this was not recognised earlier by all concerned. Bail was accordingly refused. I have already noted that the First-tier Tribunal judge recorded, when refusing bail, that she considered detention to be proportionate. In doing so she took into account matters such as the immigration history, risk of absconding, the Claimant’s schizophrenia and his lack of family ties in the United Kingdom. The absence of suitable accommodation in which to release the Claimant was clearly a relevant factor in determining whether his continued detention was justified.

The CPP had made its first recommendation on 13 June 2018. Early in July a further ETD pack was sent to the Guinean Embassy. Later in July an interview appointment was made for 7 August.

By early July 2018 the Claimant had been in immigration detention for over three months.

Again, the continuing factors such as risk of absconding pertained. Acknowledgement of a presumption against detention was recognised throughout. The continuing factors to be considered were repeated in the Detention and Case Progress Review on 29 June 2018. The fact that the Authorising Officer did not agree with the CPP recommendation does not mean that the detention was unlawful. Indeed, the CPP records do not show the same level of detailed engagement with all the relevant factors as do the Review records. The CPP record at [3/B108] identifies no factors at all in favour of maintaining detention, which was clearly not the case given, amongst other factors, the risk of absconding. In those circumstances, it is difficult to give the CPP’s recommendation much weight. Whilst bail had been granted in principle, it was later refused and the First-tier Tribunal Judge held that continued detention was proportionate.

In my judgement continued detention from early July 2018 was justified and lawful bearing in mind all the factors, and the period of detention was reasonable. The Secretary of State gave proper consideration to them and to the balancing exercise that it was necessary to perform. Progress had been made in relation to the appeal and the ETD. There was sufficient prospect of removal within a reasonable time. Whilst removal was not imminent and was likely be several months away, the risks of absconding and re-offending, and the absence of specified and approved accommodation to which the Claimant could be released, were, when weighed alongside all the circumstances, factors that rendered reasonable the time within which there was a realistic prospect of effecting removal.

By 1 November 2018 the First-tier Tribunal had promulgated its decision to dismiss the Claimant’s appeal against his deportation but he had applied for permission to appeal to the Upper Tribunal. It was not inevitable that he would be granted permission. The face to face interview at the Guinean Embassy had been delayed. On 6 November it was re-scheduled for later that month. The Claimant had remained in immigration detention for just over seven months. The CPP had twice recommended release.

Again, I am satisfied that the Authorising Officer(s) conducting the Detention and Case Progression Reviews to this point, consistently engaged with all the relevant issues, the presumption for release, and the developing situation. Delays to the appeal process had been at the Claimant’s instigation. Delays in the ETD process had been due to the Guinean Embassy but the fact that they had occurred was something that had to be taken into account. Nevertheless, in my judgement, as at the beginning of November, whilst mindful of the time that had elapsed, and that it had already been longer than had been anticipated at the beginning of the period of detention, there were sufficient grounds for believing that the obstacles to removal could soon be surmounted, within a matter of weeks.

The CPP’s second recommendation for release was given on the basis that there was no prospect of “imminent release”, a test which sets the bar somewhat lower than the Hardial Singh principles, and the Chapter 55 guidance, indicate. There was no obligation on the Secretary of State to adopt that recommendation, particularly since the Authorising Officer(s) had continued to engage much more thoroughly in the balancing exercise required to justify continued detention. As before there was no accommodation into which the Claimant could be released. That continued to be relevant to the risk of absconding. Again, I find that the period of detention was reasonable and that there was sufficient prospect of removal within a reasonable time. The continued detention of the Claimant from the beginning of November was justified and lawful.

The Claimant’s appeal to the Upper Tribunal was dealt with promptly. The face to face interview at the Guinean Embassy took place on 21 November 2018. The Claimant chose to bring this judicial review claim which presented an additional obstacle, but an order was made to expedite it.

Throughout the period of detention, up until 22 March 2019, proper consideration was given by the Secretary of State to the justification of continued detention. The records of the Reviews demonstrate that. They are detailed and they show an engagement with the relevant issues.

Once the Claimant’s appeal rights were exhausted on 22 January 2019, he became eligible for accommodation support under s.4 of the 1999 Act. Within a reasonable time bail was granted and accommodation identified and approved. He was then released from detention on reporting and residence conditions. Those conditions were relevant to the risk of absconding and were clearly material to the decision of the First-tier Tribunal to grant bail.

I can identify no undue delay nor any breach of the Hardial Singh principles during the last weeks of the Claimant’s period of immigration detention. There was no identified accommodation into which to release the Claimant until towards the end of that period. The risk of absconding remained high. Indeed, as it became more likely

Considering the whole period of detention, and bearing in mind the burden of justification lies with the Defendant, I do not find detention to have been unlawful at any stage. Whilst it continued for just under one year, there were unanticipated delays in securing ETD and concluding the appeal process. It is true that there was confusion on the part of various parties about the Claimant’s eligibility for accommodation support, but in fact he was not eligible for the reasons set out above. Without bail to a specified and approved address, the risk of absconding was very real. The continued detention was justified throughout the period having regard to the balance of factors that ought to have been, and were, taken into account.

A public law error bearing directly on the decision to detain will render the detention unlawful even where there has been no breach of the Hardial Singh principles: R (Kambadzi) v Secretary of State for the Home Department[2011] 1 WLR 1299. Departures from published policy may render detention unlawful

For the reasons already given, in my judgement, the Secretary of State acted in accordance with the Chapter 55 EIG and the Adults at Risk published policies. The Claimant’s vulnerability was recognised throughout and the Secretary of State engaged in the balancing exercise that is set out in the policies.

The Claimant’s grounds for judicial review do not rely on published policy in relation to the functioning of the Case Progress Panels, but during the hearing it was observed that the detention Reviews did not expressly refer to the CPP’s recommendations. That is so, but the Authorising Officers’ reasons for maintaining detention appear in the GCID records alongside the CPP recommendations and can be read as expressing a different view from the CPP having regard to all the circumstances, and with an awareness of the CPP’s position. I have already commented that the level of reasoning and engagement with the relevant factors was better shown in the Reviews than in the CPP records. The Authorising Officers engaged with the factors that the CPP had raised but simply came to a different, and in my judgment, justified view. In doing so they fully complied with the published policies on detention.

The delay in providing accommodation was not unlawful. The policies were followed, and the decisions on detention were made on the basis of detailed reasons which were recorded. The detention was not unlawful on public law grounds.

For the same reasons as set out above, the Claimant’s detention was not contrary to Article 5 for the European Convention on Human Rights.

The renewed application for permission to claim judicial review on grounds 2 to 4 relied on by the Claimant is dismissed.

The Claimant’s claim for judicial review on the grounds of his unlawful detention between 29 March 2018 and 22 March 2019 is dismissed.

I would like to record my gratitude to the Claimant’s solicitors for the preparation of the papers in the case and to both Counsel for their helpful submissions.