Does the risk of absconding outweigh the presumption of release?
In the recent ruling of BS v Secretary of State for the Home Department  EWHC 454 (Admin), it is made clear that the reasonableness of detention should be monitored on a case by case basis.
BS was a national of India who had applied to enter the United Kingdom as a student using forged documentation. In 2015, BS was involved with organisations who promoted LGBT rights in India. BS was detained and assaulted for his affiliation with the LGBT groups. BS was then raped and hospitalized.
BS arrived at Heathrow where he claimed asylum and was placed into detention at the end of October 2016. His asylum claim, was then refused and certified under s94 as clearly unfounded. BS was then examined by Healthcare at the detention centre. The doctor found that the scarring on his’s body was consistent with the claim that he was a victim of torture. BS was identified as an “Adult at Risk” in accordance with the Adults at Risk Policy.
Having his asylum claim certified, an emergency travel document was requested from the Indian High Commission (IHC). It was anticipated at this stage that BS’s removal would take place within 6 – 8 weeks. A few weeks after making a request to the IHC, an email was received from the IHC advising that “verification” checks were required. It was made clear that these checks would take around 3 months.
In December 2016, a further review was carried out without having considered the email from the IHC. An application for Judicial Review was lodged challenging certification and the decision to maintain BS’s detention. A final review took place on 26 January 2017 and BS was released from detention.
It was argued that the Secretary of State for the Home Department (SSHD) was in breach of the Adults at Risk Policy or the Second and Third Hardial Singh Priciples which were set out in R (Lumba) v Secretary of State for the Home Department  UKSC 12, it states:
- It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department  EWCA Civ 888,  INLR 196 para 46 correctly encapsulates the principles as follows:
- The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
- The deportee may only be detained for a period that is reasonable in all the circumstances;
- 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.
SSHD argued that she was entitled to make a decision that the risk of absconding outweighed the presumption of release given the imminence of BS’s removal from the United Kingdom.
The High Court reiterated that what amounts to a reasonable period depends on all the circumstances of the case. Relevant factors would include:
- the length of the period of detention
- the nature of the obstacles to removal
- the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles
- the effect of detention on the detainee
- the risk of absconding
The Court found that the email from the IHC brought about a change in circumstance which was to affect the length of detention for BS. This was completely ignored in the December 2016 bail review despite the relevant officials being well aware of the email.
The failure to re-assess the timescales was fatal to the Secretary of State’s case.
It was ruled that BS had been unlawfully detained form the date of December review till he was released on 27 January 2017.