BRO, R (on the application of) v Secretary of State for the Home Department [2025] EWHC 2231 (Admin)

[2025] EWHC 2231 (Admin)Case No AC-2025-LON-001896
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday 26 August 2025
Before
ALAN BATES(sitting as a Deputy Judge of the High Court)
Between
THE KINGClaimant
Camila Zapata Besso (instructed by Wilson Solicitors LLP) for Claimant.Matthew Howarth (instructed by the Government Legal Department) for Defendant.No appearance of behalf of the First Interested PartyKatherine Hampshire (instructed by Kennedys Law LLP) for Second Interested Party.Hearing Hearing date: 20 August 2025
Approved JudgmentThis judgment was handed down remotely at 2pm on 26 August 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.This version is an amended version of the judgment containing minor amendments made by the Court under the Slip Rule on 27 August 2025 and released to the National Archives on that date..............................

THE DEPUTY JUDGE:

[1]This is my judgment following an expedited hearing of an application by the Claimant for an interim order. The Claimant is a man from Nigeria who is being detained in prison by the Defendant in exercise of her immigration detention powers. The Claimant seeks an interim order requiring the Defendant to release the Claimant from immigration detention and to provide him with accommodation under section 95 of the Immigration and Asylum Act 1999 (“IAA 1999”).[2]During the hearing, I indicated that I would be:(a) granting permission to apply for judicial review on four of the Claimant’s five grounds of challenge;(b) refusing permission for the Claimant to amend his Statement of Facts and Grounds (“SFG”) so as to add a sixth ground of challenge; and(c) making an interim order requiring the Defendant to make accommodation under section 95 of the IAA 1999 (“s.95 accommodation”) available for the Claimant, located within Scotland, with a view to his being released from immigration detention by no later than the 19th day after the hearing.[3]Although I gave briefly indicated my reasons during the hearing, I reserved judgment so as to provide fuller reasons by way of a published public judgment. I considered the provision of my reasons in that way to be appropriate given the public interest significance of this case, relating as it does to a Claimant whose suitability for release into the community has sometimes been doubted because of the risks he has been thought to pose to others. A further public interest element relates to the complexities of this case arising from the interactions between the legal regime for immigration and asylum (including immigration detention and the provision of s.95 accommodation), and:(i) the criminal law regime of Scotland, under which the Claimant remains subject to a sentence of imprisonment passed by a Scottish court;(ii) the duties of an NHS Integrated Care Board (“ICB”) in England under section 117 of the Mental Health Act 1983 (“MHA 1983”); and(iii) the duties of local authorities in England under the Care Act 2014 (the “Care Act”). A published judgment will provide added transparency to the public regarding such interactions.[4]It is not, however, my role to conclusively determine, by way of this judgment, any points of law regarding such interactions. The matters I need to decide at this stage require me only to:(a) assess whether each of the Claimant’s grounds of challenge is arguable; and(b) decide what, if any, interim relief to grant.

Factual background

[5]The Claimant, whose name has been anonymised using the cipher “BRO”, is a young male who was encountered in the United Kingdom in July 2021 when he claimed asylum. At that time, he was claiming to be under 18 years of age, but he was assessed to be an adult. If his date of birth, as recorded by the Defendant, is correct, then he is now 25 years old. He says that he is from Nigeria. It appears, from the papers I have read, that he travelled to the United Kingdom from another European country by hiding himself in the back of a lorry which came through the Port of Dover.[6]He has been diagnosed as having paranoid schizophrenia with psychotic features, and anti-social personality disorder. This appears to have, at times, led him to act in ways which have posed significant risks to himself or others.[7]Between July 2021 and April 2024, he was accommodated by the Defendant at various locations within England under Part VI of the IAA 1999. During that period, he was under the care of various mental health services, and he was twice detained under the MHA 1983. He also received criminal convictions in England for various offences, such as being in possession of a knife in a public place, damaging property, assaulting an emergency worker, and using threatening words or behaviour.[8]In October 2024, he was convicted of offences by a Scottish court. From the papers I have read, it appears that those offences were committed on a day in August 2021, at which time he was being accommodated by the Defendant at an asylum seekers’ accommodation facility in Wolverhampton. On that day, he had boarded a train from Wolverhampton, without having a train ticket or the means of paying for one. He then changed from train to train, eventually ending up in Pitlochry, Scotland. In Pitlochry, he had visited a shop where he got into an argument with the shopkeeper, whom he threatened with a broken bottle. He was also abusive towards police officers who were called to the incident.[9]The Claimant was required to attend the Scottish court in April 2024 to answer for those matters, but he failed to attend, apparently because he lacked the means to travel to Scotland. In consequence of his failure to attend, a warrant was issued for his arrest, and he was then remanded into custody in a Scottish prison. In October 2024, the Scottish court convicted him of the offences. In November 2024, he was sentenced by the Scottish court to 18 months imprisonment for those offences and therefore continued to be held in prison in Scotland. The Scottish court’s sentence specified that he would be released on conditional licence after the halfway point in that sentence, under the supervision of a criminal justice social worker (“CJSW”) (an officer of a Scottish local authority whose role, under the Scottish system, includes supervising offenders who have been released on licence). Amongst the licence conditions specified by the Scottish court was that the Claimant must live only at an address that has been approved by the CJSW.[10]As the Claimant had already served time in prison on remand since April 2024, the halfway point of his 18-month sentence was reached in January 2025. He was not, however, released from the Scottish prison at that time. That is because, on 20 January 2025, he was detained in the Scottish prison by the Defendant under immigration powers, pursuant to section 36(1) of the UK Borders Act 2007. The Defendant’s detention of the Claimant was said to be with a view to effecting his removal from the United Kingdom to Nigeria, and to prevent him from absconding in the meantime. At that time, there was no extant asylum claim by the Claimant that required determination prior to the Defendant being able to remove him, since he has signed a letter in December 2024 withdrawing his asylum claim.[11]On 20 January 2025 (the first day of immigration detention), however, the Claimant’s then solicitors made representation to the Defendant to the effect that the Claimant had not understood what he was signing and that he had not wished to withdraw his asylum claim. As a result of this, on 22 January 2025, the Defendant agreed to reinstate the Claimant’s asylum claim. The Defendant nevertheless continued to detain the Claimant with a view to removing him, taking the position that it was realistic to estimate that he could be removed within a reasonably short period.[12]On 6 February 2025, the Defendant transferred the Claimant from the Scottish prison to Brook House Immigration Removal Centre in England, where his detention under the Defendant’s immigration control powers was maintained. Over the course of the rest of that month, various concerns were raised regarding the Claimant’s mental state. On 21 February, for example, a medical doctor (a GP at Brook House) completed a ‘Rule 35’ report raising concerns that the Claimant might be a victim of torture, and that there was a risk that ongoing detention would worsen his psychological health. Staff at Brook House also raised concerns regarding the Claimant’s erratic behaviour, and two blades were found in his room. The Defendant determined, after considering the Rule 35 report, that the Claimant fell within the ‘Level 2’ category under its ‘adults at risk in immigration detention’ (“AAR”) policies, and thus not the higher ‘Level 3’ category, and that his detention should be maintained. At that time, the Defendant was estimating that the Claimant could be deported within the next 8-10 weeks, and therefore his continued detention, in order to facilitate that deportation and prevent him from absconding, was deemed by the Defendant to remain proportionate.[13]It appears that the Claimant’s mental state may have stabilised to a degree after 28 February, from which date he was given periodical injections of slow-release aripiprazole (a medication used to manage and treat schizophrenia and certain other conditions). Notwithstanding this partial improvement, however, his behaviour continued to be a cause for concern. During March 2025, he was repeatedly placed in segregation, pursuant to Rule 40 of the Detention Centre Rules 2001. His behaviour at Brook House during that month included fire-setting, threatening to set fires, and inappropriate sexualised behaviour towards female staff. The latter behaviour included, for example, exposing himself to female staff members whilst making sexualised comments towards them.[14]On 2 April 2025, the Claimant was transferred from detention at Brook House to being detained at Lewes Prison. The reason for the transfer to the prison estate appears to have been that his behaviour could not be adequately managed within the style of regime at an immigration removal centre.[15]On 7 May 2025, the First-tier Tribunal (“FTT”) granted the Claimant conditional immigration bail. The bail conditions included what was effectively a specific pre-condition that needed to be satisfied prior to the grant of bail taking effect, namely that he be provided with, or otherwise obtain, suitable accommodation at which he would then reside:
“The applicant will reside at an address provided by the respondent or whatever accommodation is most suitable to the applicant’s mental health needs. By virtue of para 3(8) of schedule 10 of The Immigration Act 2016 this grant of bail will not commence until such address has been provided.”
[16]That grant of conditional immigration bail has subsequently been renewed by the FTT on several occasions, most recently on 24 July 2025, on essentially the same terms. Despite all those grants of immigration bail, the Claimant has not been released on bail. As at the date of the hearing before me, the Claimant has thus remained in detention for around 15 weeks during which he has had the benefit, on paper, of conditional bail granted to him by a judicial body. The reason why he has remained in detention throughout that period is essentially that he has not been provided with, or otherwise been able to access, a suitable accommodation address in the community. His lack of an accommodation address outside detention has rendered him unable to meet the pre-condition to his release specified by the FTT.[17]The Claimant’s lack of an accommodation placement has persisted despite his having requested s.95 accommodation from the Defendant. On 23 May 2025, the Defendant agreed that she would provide him with support for under section 95 IAA 1999, following his release from detention, so as to protect him from destitution to which he would otherwise be exposed. Yet the Claimant’s practical situation, as at the time when this judicial review claim was filed on 12 June 2025, was that he remained in detention at Lewes Prison. That continues to be his situation today.[18]It is obviously a matter of concern that the Claimant has remained in immigration detention for 15 weeks after having been granted conditional bail. In fairness to the Defendant, however, the making of appropriate arrangements for the Claimant’s release from detention is not without practical complexities, for reasons that include the following: i) The Claimant remains subject to the sentence of imprisonment passed on him by the Scottish court in October 2024. Although, as far as the Scottish criminal justice system is concerned, the Claimant has been released ‘on licence’ (to use the terminology of the criminal justice system of England and Wales), he is required to comply with the conditions of his licence. Those conditions require that he reside only at an address pre-approved by his CJSW. Accordingly, if the Claimant were released from immigration detention to accommodation that had not already been approved by the CJSW, then the Claimant would immediately be in breach of the licence conditions imposed by the Scottish court. ii) It would not be practicable for a Scottish CJSW to supervise the Claimant in the community in England. Therefore, an accommodation address provided for the Claimant in England would not be acceptable to the CJSW unless the relevant local authority or another government agency had agreed to provide the necessary supervision, effectively doing so on behalf of the CJSW. iii) The Claimant’s psychological health, and his ability to behave appropriately in the community, is likely to be substantially dependent upon his continuing to receive, without interruption, appropriate mental health care and support, including regular injections of slow-release anti-psychotic medication. It is therefore necessary to ensure that appropriate arrangements are made, prior to the Claimant being released, for ensuring that such support will be provided to him in the place where his accommodation is located. Pursuant to section 117 of the MHA 1983, the bodies which retain the duty to ensure he is provided with support to avoid his having to be re-admitted to detention in a mental healthcare facility are the ICB and the local social services authority covering the place where the Claimant was resident at the time of his first detention under section 3 MHA 1983. That place was Colchester in Essex, and the ICB covering that area is the Second Interested Party, the ICB for the Suffolk and North East Essex area of England (the “SNEE-ICB”). The local social services authority is Essex County Council (“ECC”) (the First Interested Party’). iv) It has, at least in the recent past, reasonably been thought that the Claimant might be entitled to care and support from a local authority under the Care Act, and that such support might include accommodation. It was believed that the local authority responsible for providing any Care Act support to which the Claimant was entitled might be ECC. ECC was asked to assess the Claimant’s needs under the Care Act, in addition to considering what support he might require under section 117 MHA 1983.[19]In early June 2025, the Defendant proposed a s.95 accommodation address for the Claimant in Glasgow. On 20 June 2025, however, the CJSW decided that the proposed accommodation was unsuitable.[20]On 26 June 2025, the Defendant proposed a further s.95 accommodation address in Scotland, this time in Alloa, Clackmananshire. That address was approved by the CJSW on the following day. But the Claimant’s release to that accommodation did not proceed. That is because, on 3 July 2025, a multi-disciplinary meeting took place at which it was said that the Claimant would be detained on mental health grounds under section 3 MHA 1983. On that date, the Defendant withdrew her decision to provide support for the Claimant under section 95 IAA 1999, reasoning that the Claimant would not be destitute if he was being detained in a mental health facility where accommodation and meals would be being provided to him.[21]On 14 July 2025, however, the Claimant was assessed by a consultant forensic psychiatrist, who concluded that Claimant did not meet the criteria for detention under section 3 MHA 1983. The Healthcare Mental Health Unit at Lewes Prison sought to challenge that assessment by requesting that it be reviewed by a Medical Commissioner, because of concerns as to whether the Claimant could be released to the community without this giving rise to unacceptable risks.[22]On 29 July 2025, this judicial review claim came before Deputy High Court Judge Karen Ridge for consideration of the Claimant’s application for an interim order that he be released from immigration detention. Earlier in the morning of that day, a multi-disciplinary meeting had taken place at Lewes Prison, the outcome of which was that it was agreed that the Claimant did not meet the criteria for detention under section 3 MHA 1983. Judge Ridge decided to adjourn the interim relief application, so that further information could be obtained regarding the options available in terms of accommodation and other support for the Claimant post-release. ECC and SNEE-ICB were joined to the proceedings as Interested Parties.[23]On 5 August 2025, a social worker from ECC or the local mental health provider, Essex Partnership University NHS Trust, undertook an assessment of the Claimant under section 117 MHA 1983. The assessment concluded that the Claimant’s needs, for the purposes of section 117, were essentially to be provided with periodical injections of slow-release psychotropic medication and for his mental health medication plan to be kept under review. This could be achieved by SNEE-ICB referring the Claimant to the local mental health team in whatever area of the UK his post-release accommodation was located. That local team would in any case make their own assessment of the Claimant and could potentially identify additional needs that ECC or SNEE-ICB might then have a duty to fund or meet under section 117. The ECC social worker also considered the Care Act, but did not, at the time, find the Claimant to have any specific care or support needs under the Care Act. Accordingly, the assessment made by the ECC social worker did not hold out any prospect of either ECC or SNEE-ICB providing accommodation for the Claimant, whether under section 117 MHA 1983 or the Care Act.[24]I note, in passing, that it is anyway not clear to me that ECC would be the local authority responsible for providing any care and support to which the Claimant might be entitled under the Care Act. As Ms Hampshire, who appeared before me for SNEE-ICB explained, there are specific rules that apply for determining which ICB and local social services authority are responsible for providing support under section 117 MHA 1983 to a person who has previously been detained under section 3 of that Act. The rules and guidance for determining which local authority is responsible for providing care and support to which a person is entitled under the Care Act are not the same.[25]By the time of the hearing before me, around two weeks had passed since the ECC social worker had communicated her assessment. But the Defendant had still not reverted to agreeing to offer support, including accommodation, for the Claimant under s.95 IAA 1999. The Defendant’s position was that it would be premature for her to do so, given that, pursuant to s.95, such support can be provided only where the asylum-seeker is “destitute” in the sense that he has no other means of obtaining accommodation and/or meeting essential living needs. Mr Howarth, Counsel who appeared before me on behalf of the Defendant, drew attention to two lines of enquiry relating to the Claimant’s potential entitlement to accommodation which he said remained unresolved:(1) a concern that ECC had not properly assessed whether the Claimant had “accommodation-related needs” for the purposes of the Care Act; and(2) an offer of private accommodation in a shared flat in Bournemouth, England, which had been made to the Claimant by a private individual, in respect of which approval from the CJSW had been requested.

Preliminary issue: admissibility of medical notes and reports by Dr Bourdillon-Schicker

[26]The Claimant has applied for permission to rely on expert evidence in the form of two medico-legal reports from Dr Bourdillon-Schicker, a GP working with the charity Medical Justice. That application is opposed by the Defendant, for essentially two reasons. First, that Dr Bourdillon-Schicker, as a GP (rather than a consultant forensic psychiatrist or similar), does not have the expertise to be able to provide expert evidence in this case. Secondly, that Dr Bourdillon-Schicker is not sufficiently impartial, as he works with a charity which is opposed to immigration detention.[27]In considering this application, I have considered Kennedy v Cordona (Services) LP (Scotland) [2016] UKSC 6, where guidance was provided, at [44], as to the factors to be considered by a court when deciding whether to admit skilled evidence. The starting point is, of course, to understand the purpose for which the proposed expert evidence would be relied upon, and precisely what issues it opines upon. As I clarified with Ms Besso, the Claimant is seeking to rely on the reports from Dr Bourdillon-Schicker to support the Claimant’s case, not only that he was suffering from schizophrenia (as he clearly was), but that his mental health was worsened, or was likely to be worsened, by his remaining in detention.[28]I am not persuaded that Dr Bourdillon-Schicker’s reports should be admitted. In my view, although he has some experience of providing mental healthcare as a GP, he does not have the specialist knowledge or experience necessary to be able to provide expert opinion evidence as to whether detention is likely to have been, or to be, causative of worsening of the Claimant’s mental health. Such an assessment would necessarily involve considering what the Claimant’s mental health would have been in the counterfactual situation in which he was not detained. In my view, if expert evidence on that matter is required later in these proceedings (i.e. for the purposes of a substantive hearing), then such evidence should come from an independent expert whose instruction has been pre-approved by the Court, and the expert should be a consultant psychiatrist or similar.[29]I emphasise that I do not in any way doubt his professional independence, albeit that, if the Court were being asked to approve the appointment of an expert under CPR Part 35, it might be desirable to appoint someone who was not working in an NGO which might conceivably be seen as ‘pro-detainee’.[30]My refusal of the Claimant’s application for Dr Bourdillon-Schicker’s medico-legal reports to be admitted as expert evidence does not prevent the Claimant from relying on the fact of that doctor’s letters and other communications to the Defendant which raised concerns about the Claimant’s mental state or the effects that continuing detention might be having on him. It is open to the Claimant to rely – as he has done at this hearing – on the various medical notes and records, from Dr Bourdillon-Schicker and other medically qualified people who have come into contact with the Claimant – which have been available to the Defendant. The lawfulness of the Defendant’s treatment of the Claimant can, in my view, be assessed on the basis of the information that was available to her at the relevant times, which will have included medical records and notes, as well as any letters or representations from Medical Justice or individual medical practitioners.

Permission to apply for judicial review on the pleaded grounds (Grounds 1 to 5)

[31]Ground 1 (‘the period of detention is, or has been, unlawful by reason of incompatibility with Article 5 of the Convention Rights’) I have concluded that permission to apply for judicial review should be granted for this Ground, which I accept is arguable.[32]The starting point for consideration of this Ground is that detention of a person will not be compatible with Article 5 of the Convention Rights in Schedule 1 to the Human Rights Act 1998 unless that detention both:(a) has a legal basis in, and is authorised by, national law; and(b) is proportionate as a means of pursuing a legitimate aim (see Lumba v Secretary of State for the Home Department [2011] UKSC 12). In R (I) vSecretary of State for the Home Department [2003] INLR 196 at [46], Dyson LJ identified four distinct propositions governing the legality of Immigration Act detention emerging from Woolf J’s judgment in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 All ER 983: (1) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (2) the person may only be detained for a period that is reasonable in all the circumstances; (3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, she should not seek to exercise the power of detention; and (4) the Secretary of State should act with reasonable diligence and expedition.[33]In my assessment, when considering the Claimant’s Ground 1, it is appropriate to distinguish between two different periods, each of which raises different issues.[34]The “First Period” is one that began on or after 20 January 2025 (the date when the Defendant first detained the Claimant under immigration powers) and ended no later than 7 May 2025 (the date when the Claimant was granted conditional bail by the FTT). Following that grant of conditional bail, the Defendant acknowledged that the Claimant should be released from immigration detention, and she was seeking to make arrangements for facilitating this. The Defendant’s position up to that time, however, was that detention of the Claimant was a deportation purpose.[35]The Claimant’s case under Ground 1 in relation to that First Period is essentially that the Defendant maintained the immigration detention of the Claimant in circumstances where it was not realistic to think that he could be deported within the next few months.[36]In my view: i) It is arguable that, once the Secretary of State had agreed to reinstate the Claimant’s asylum claim (as she did on or around 22 January 2025), she should have recognised that she was unlikely to be able to deport him in the near future, given that his because his asylum claim would need to be determined first. I am not satisfied that the evidence so far provided by the Secretary of State shows beyond reasonable contradiction that it was reasonable for her to believe that the asylum claim could be determined swiftly within a reasonably short period. ii) Further and in any event, it is arguable that, sometime during the First Period, the combination of the reinstated asylum claim and the accumulating indicators of the Claimant’s psychosis and inappropriate behaviours should have led the Secretary of State to recognise that it would not be possible to deport him in the near future. iii) It is also arguable that, even if it was realistic for the Defendant to think that the Claimant’s reinstated asylum claim could be determined swiftly, the Defendant did not then act with the degree of diligence and expedition that would have been necessary for achieving that result.[37]The Claimant’s case under Ground 1 in respect of the “Second Period” (running from the grant of conditional bail on 7 May, through to the present day) is essentially that, notwithstanding that the Defendant’s position during that period was that she accepted in principle that the immigration detention of the Claimant should be ended, she failed to act with the requisite diligence and expedition for facilitating his release. In that regard, there have (the Claimant says) been avoidable delays in releasing him, primarily because the Defendant has not acted promptly to provide him with appropriate s.95 accommodation to which he could be released.[38]In my view, it is arguable that the Defendant’s detention of the Claimant during the Second Period has, at least at times, been incompatible with Article 5 of the Convention Rights. I have come to that view notwithstanding the following points, which were rightly made by Mr Howarth and which I have no doubt are correct: i) Paragraph 17A(5) of Schedule 2 to the Immigration Act 1971 (as amended by section 12 of the Illegal Migration Act 2023) expressly empowers the Secretary of State to continue detaining a person where this is “reasonably necessary to enable such arrangements to be made for the person’s release as the Secretary of State considers to be appropriate”. ii) The continued detention of a person for a short additional period after the detention has ceased to be justified for a deportation purpose, so as to facilitate the making of reasonably necessary arrangements for the person’s release, must be capable of being compatible with Article 5. It is in the interests of detained persons that they be released with the benefit of arrangements having been put in place for their accommodation, healthcare and subsistence needs to be met post-release, also taking account of any risks they pose to public safety. iii) The FTT recognised the need for appropriate arrangements to be in place for the Claimant before he could be released. The conditional bail granted to the Claimant was conditional on suitable accommodation having been made available to him. iv) The putting in place of such arrangements for the Claimant has been complicated by multiple requirements and considerations which were not attributable to the Defendant but with which she has nevertheless needed to grapple – see paragraph 18 above. v) At least for a period in July 2025, the Defendant reasonably believed that the Claimant might qualify to be detained under a different legal regime, namely section 3 MHA 1983. The continued detention of a person in immigration detention pending anticipated transfer to mental health detention in a hospital does not breach the Hardial Singh principles: R (RSK and MDA) v Secretary of State for the Home Department [2019] EWCA Civ 1239 at [231].[39]In my view, it is necessary to keep in mind that Article 5 requires that a continuing detention of a person under immigration powers be kept under review, and justified, on an ongoing basis. The Secretary of State, as the public authority exercising power to detain the Claimant, had a duty to act with appropriate diligence and expedition when making arrangements for facilitating his release, pursuant to the grant of conditional bail by the FTT. Deprivation of liberty is a context in which the Court will apply “anxious scrutiny” when assessing whether the public authority’s actions have been lawful.[40]Against that background, it is, in my view, arguable that, during the Second Period, the Defendant has not always acted with the appropriate diligence and expedition in relation to arrangements for facilitating the release of the Claimant, and that this has led to the Claimant remaining in detention for a longer time than necessary. By way of example, after 29 July 2025 (by which time, it was clear that the Claimant would not be detained under section 3 MHA 1983), the Claimant’s release from immigration detention appears to have been delayed as a result of the Defendant’s determination to wait for all possible lines of enquiry as to potential alternative sources of accommodation provision for the Claimant to be explored and conclusively resolved before the Defendant would be willing to restore her previous agreement to provide s.95 accommodation for him. In my view, it is arguable that this was incompatible with an Article 5-compliant approach to her responsibilities as a public authority that was holding the Claimant in detention.[41]In that regard, whilst I accept that s.95 support is intended to be ‘residual’ and thus the very bottom tier of public support safety nets (R (TMX) v London Borough of Croydon [2024] EWHC 129 (Admin)), the Defendant’s exploration of other potential sources of accommodation arguably should not go beyond what is reasonable and realistic in the circumstances. It may not be proportionate to continue detaining a person whilst ‘turning over every stone’ to look for accommodation options for him, in circumstances where the Defendant has the ability to bring about the person’s release by offering s.95 accommodation (perhaps doing so on a temporary basis whilst the person’s possible entitlement to other accommodation support is explored).[42]The Defendant’s position as at the start of the hearing before me was that she could not yet offer s.95 accommodation because she was still awaiting the definitive outcomes of the two lines of enquiry which, in her view, had not yet been resolved (see para 25 above). In my view, it is arguable that: i) ECC had already carried out an assessment that reached conclusions that effectively ruled out any entitlement of the Claimant to be provided with accommodation by either ECC or SNEE-ICB, and so it was unlikely that the Claimant would be provided with accommodation by either of those bodies in the near future; and ii) the Bournemouth flat was plainly unsuitable – and was anyway very unlikely to be approved by the CJSW as an appropriate address for the Claimant – given that the Claimant would be having to share that flat with a vulnerable adult who was already living there. A proposed placement of someone with the Claimant’s mental health and criminal offending history into a flat with a vulnerable adult might be thought obviously likely to give rise to significant safeguarding concerns.[43]Had Ground 1 related only to the First Period, or had I found it to be arguable only in respect of the First Period, then I would have considered whether I should refuse permission for that Ground, by reason of the Claimant having an alternative remedy available to him. Insofar as the Claimant considered that his detention for a deportation purpose had ceased to be justified, then he could have sought a remedy by making an application to the FTT for bail, as he successfully did in May 2025. Further and in any event, if his claim was simply that his detention during the First Period was unlawful, then he might have an adequate alternative remedy by way of an action in the county court for damages for unlawful detention.[44]Given, however, that I have found Ground 1 also to be arguable in relation to the Second Period (which is ongoing), the right course is, in my view, for me to simply grant permission for Ground 1. Ground 2 (‘failure to comply with Detention Centre Rules 2001 and/or policies relating to AAR’)[45]Ground 2 raises a complaint that the Defendant failed to adhere to her own policies and guidance on AAR when she continued holding the Claimant in immigration detention despite accumulating evidence that the detention was, or might be, contributing to a deterioration in his mental health.[46]In my view, this complaint is relevant predominantly to the First Period, i.e. the period of detention up to 7 May 2025. That is because, following the grant of conditional bail on that date, the Defendant’s position was that the Claimant should be released from immigration detention, and she was seeking to make arrangements for facilitating this. I do not think that evidence that an immigration detainee’s mental health was deteriorating because of his continuing detention could reasonably be said to generate a duty for the Secretary of State to release that person immediately, without having put appropriate arrangements in place.[47]Ground 2 may, however, also have salience in relation to the Second Period. That is because, if there was evidence that the Claimant’s mental health was being worsened by being in detention, then this could arguably be a material factor when a court is assessing whether the Defendant acted with an appropriate degree of diligence and expedition in making arrangements for facilitating the Claimant’s release.[48]The Defendant’s AAR guidance documents on which the Claimant places reliance for the purposes of this complaint make provision for individuals to be categorised by reference to the level of evidence that they are ‘at risk’ in immigration detention. The Defendant considered the Claimant to fall into Level 2. The Claimant claims that he should have been recognised as falling into Level 3, which applies to cases where there is professional evidence (e.g. from a social worker, medical practitioner or NGO) stating that the individual is at risk, and that a period of detention or continued detention will increase the severity of the symptoms or condition that have led to the individual being regarded as an AAR. The policy documents effectively require that a higher threshold be met, or at least particularly careful consideration, for justifying the detention of individuals who fall within Level 3.[49]In my view, it is arguable that the Defendant should have recognised the Claimant as falling within Level 3 and that, had the Defendant done so, then the Claimant might have been released earlier. As noted above, on 21 February 2025, a GP at Brook House completed a report under Rule 35(3) of the Detention Centre Rules raising concerns that the Claimant might be a victim of torture, and adverting to “an increased risk that ongoing detention will worsen [his] psychological health”. Subsequently, on 31 March 2025, Brook House received a letter from Dr Bourdillon-Schicker, who opined that the Claimant’s mental health had already deteriorated significantly in immigration detention and was likely to decline further if detention was continued. I therefore find Ground 2 to be arguable.[50]I have so concluded despite there being some reasons for doubting that immigration detention has been responsible for worsening the Claimant’s mental health. In that regard, I have noted the body of evidence indicating that the predominant cause of the deterioration in the Claimant’s mental health may have been that he was not taking the oral antipsychotic medicines that had been prescribed for him. There appears to have been a degree of stabilisation in the Claimant’s mental health since the times when:(a) he started being given periodical injections of ‘depot’ slow-release antipsychotic medication, so that his consumption of such medication was not dependent on his ongoing compliance with an oral medication regime; and(b) he was being held within the medical wing of Lewes Prison (rather than in a cell where, it appears, he may have been being exposed to a cellmate taking the synthetic opioid Spice). These are, however, points of factual detail and evidence which may need to be explored at a substantive hearing. They do not, in my view, suffice to enable me to conclude at this stage that Ground 2 is unarguable.[51]I will therefore grant permission to apply for judicial review on Ground 2. Ground 3 (‘breach of the Equality Act 2010’)[52]Ground 3 complains that the Defendant breached the public sector equality duty in section 149 of the Equality Act 2010, and/or section 20 or 29 of that Act, by failing to make proper enquiries as to the Claimant’s mental health conditions/mental capacity, and to ensure that safeguards were in place that would avoid the disadvantages faced by the Claimant as a detainee with a disability.[53]The main element of this complaint, as set out in the Claimant’s SFG, is that the Defendant failed to take appropriate steps for ensuring that the Claimant was provided with an advocate, or other support, to enable him to challenge his continuing detention, or to pursue such a challenge on his behalf in circumstances where he may not have had capacity to give instructions for this to be done. In my view, this element of the complaint is arguable. Although the Defendant had solicitors acting for him at the time when he was placed in immigration detention on 20 January 2025, those solicitors informed the Defendant on 6 February 2025 that they were no longer acting for the Claimant. I note that 6 February was also the date of the Brook House GP’s Rule 35 report. Subsequent correspondence from Dr Bourdillon-Schicker had raised concerns about the Claimant’s psychosis, and specifically as to whether he had capacity. In my view, it is arguable that the Defendant should, in these circumstances, have done more to assist the Claimant in challenging his detention and that, had that been done, the overall period of detention might have been shorter.[54]A further element of Ground 3 alleges essentially that the continued detention itself constituted a failure to make reasonable adjustments to take account of the Claimant’s schizophrenia or other mental health related disability. It may be that this element of Ground 3 does not, on analysis, add much of substantive value to the matters already covered by Ground 2. Further, the Defendant has made adjustments for the Claimant during his detention – such as by reviewing and improving his antipsychotic medication regime, and by holding him within the prison’s medical wing – which appear to have assisted in stabilising his mental health to a degree. Nevertheless, the Claimant may be able to show that, even if his continued detention was compatible with the Defendant’s AAR policies, the making of reasonable adjustments by the Defendant to take account of the Claimant’s mental health status could have involved finding a way to release him from detention earlier. At this stage in the proceedings, it would not be proportionate for me to take such a fine-grained approach to determining whether permission should be granted on Ground 3 that I take upon myself the task of ‘editing down’ the content of the relevant section of the SFG. I will therefore grant permission to apply for judicial review on Ground 3 as a whole, i.e. in the full form in which it is set out in the SFG at paras 125-131. Ground 4 (‘unlawful Section 95 accommodation refusal and delay’)[55]In my view, Ground 4 is arguable for essentially the same reasons as I have found Ground 1 to be arguable insofar as it relates to the Second Period. It is arguable that the Defendant has not shown sufficient diligence and expedition in relation to the making of an offer of an accommodation address under s.95 IAA 1999. I will therefore grant permission on this Ground.

(f) and Article 8 of the Convention Rights’)

[56]It is not apparent to me why Ground 5 has been included in the SFG. That Ground is set out in the SFG by way of just two paragraphs (paras 137-138), which essentially just cross-refer to what has already been said under Ground 1 and states that, “[f]or the same reasons”, the detention has been incompatible with Article 5 and Article 8. I note, however, that the section of the SFG addressing Ground 1 does not include any substantive explanation of why the detention is said to be contrary to Article 8. Nor is there any explanation in the SFG of why the Claimant’s detention could be contrary to Article 8 even if it was not contrary to Article 5 (as already alleged under Ground 1) and/or to a proper application of, and adherence to, the AAR policies which are the focus of Ground 2. The AAR policies must, of course, be operated by the Defendant in such a way as to secure compliance with Convention Rights, including both Article 5 and Article 8, pursuant to section 6 of the Human Rights Act 1998.[57]After having heard Ms Besso’s oral submissions in response to questions from me on this point, I remain unconvinced that Ground 5 adds anything of value to the claim. It is not appropriate for grounds for judicial review to proliferate without good reason. A claimant’s representatives should seek to formulate grounds of challenge with economy and avoiding duplication. In my view, to the extent that Ground 5 has been set out with any material substantiation in the SFG and is arguable, it is unnecessary by reason of its being duplicative of matters already raised by other Grounds. I will therefore refuse permission for Ground 5.[58]In doing so, I emphasise that, in my view, the scope of Ground 1 includes, not only the argument that detention during the First Period was not reasonably justified and proportionate for a deportation purpose, but also the argument that detention has been unduly long under the Second Period. In other words, Ground 1 includes the allegation that detention in the period after 7 May 2025 has continued for longer than lawful, as a result of a failure by the Defendant to act with appropriate diligence and expedition in making arrangements so as to release the Claimant. Further, the indicators that the Claimant’s detention might be operating to the detriment of his mental health will be relevant to the proportionality of the detention during that period, and thus to the degree of diligence and expedition to be expected of the Defendant in seeking to secure the Claimant’s release. Further, Ground 2, which is concerned with the Defendant’s application of her AAR policies to the Claimant, is to be considered having regard to the Defendant’s duty to apply those policies in such a way as to secure compliance with Articles 5 and 8.[59]Notwithstanding that I have refused permission for the Claimant to rely upon the medico-legal reports of Dr Bourdillon-Schicker as expert evidence in these proceedings, I have considered his reports as effectively forming part of the submissions on behalf of the Claimant. I have done so because his reports include a convenient summary of the various information from various medical professionals which has been available to the Defendant regarding the Claimant’s mental health.[60]In my view, that information, even seen in its totality, does not come close to establishing any breach of Article 3 of the Convention Rights. The threshold for establishing a breach of Article 3 is a high one. This is a case in which the Claimant appears to have suffered some deterioration in his mental health prior to his being in immigration detention, since there was a long interruption to his receiving slow-release anti-psychotic medication by ‘depot’ injections whilst he was in prison in Scotland pursuant to orders of the Scottish criminal court. After the Claimant entered immigration detention, his mental health and medication has been reviewed and he has been provided with a more effective medication regime. He has also been moved to the prison’s medical wing. It is not surprising that it took time to find the right medical regime for the Claimant, partly through a necessary process of ‘trial and error’. These steps have gone some way to improving the Claimant’s mental health, such that his current solicitors are satisfied that he has capacity. He has been found not to cross the threshold for detention under section 3 MHA 1983. In my view, the medical evidence does not suffice to establish an arguable case of breach of Article 3.[61]Whilst Ms Besso, on behalf of the Claimant, makes the point that not all of the Claimant’s medical records have yet been disclosed by the bodies that have provided mental healthcare for him, it would not, in my view, be appropriate for me to grant permission for the proposed Ground 6 on the basis that ‘something may turn up’. There is already a wealth of medical records in the bundles, and they are sufficient to enable me to have a good level of insight into the assessments made by medical professionals of the Claimant’s mental health during his detention.[62]I therefore refuse the Claimant’s application to amend his SFG so as to add proposed Ground 6. As that proposed Ground is not arguable, it is not in the interests of justice to permit the amendment. Moreover, had I permitted the amendment, I would have gone on to refuse permission to apply for judicial review on Ground 6.

Interim relief

[63]As set out above, I have granted permission to apply for judicial review on grounds which allege that the Claimant’s ongoing detention is unlawful. I am satisfied that there is a serious issue to be tried as to whether the ongoing detention is unlawful.[64]To the extent that I can form any preliminary view (within the time limitations of the hearing before me, and without seeking to prejudice consideration at a substantive hearing) of the strength of the Claimant’s case on that issue, I will set out that view in this paragraph. There appears to me to be a strong case that the Defendant has not acted with appropriate diligence and expedition, at least after 29 July 2025, to put arrangements in place for releasing the Claimant. In that regard, I refer to my observations at paras 40-42 above. For the purposes of assessing whether to grant interim relief, it is appropriate that I focus primarily on that recent period, leading up to the present day, rather than on whether the Defendant has been acting lawfully during earlier times.[65]Although the Claimant can seek damages for unlawful detention, damages would not be an adequate remedy. That must be right as a matter of principle, but it is especially so in the circumstances of this case, given that there is some evidence that detention may be worsening, or at least impeding improvement in, the Claimant’s mental health.[66]Turning to consider the balance of convenience, I bear in mind that the Defendant accepts that the Claimant must be released. He has had the benefit of grants of conditional bail by the FTT for the past 15 weeks. What is preventing his release is the non-availability to him of suitable accommodation, i.e. accommodation that has been made available to him and which has been approved as suitable by his CJSW. If the Defendant provides s.95 accommodation to the Claimant now, then there will be some associated financial cost to the Defendant of doing so, but she will save the costs of continuing to detain the Claimant in prison. If such accommodation is in Scotland, then this would remove the need to seek agreement from a local authority in another part of the United Kingdom to supervise the Claimant on behalf of the CJSW. In the event that, at some later date, it is established that the Claimant has entitlement to accommodation provided by another public body (whether under the Care Act or otherwise), then he can be moved to that accommodation. Given that s.95 support is ‘residual’, a court order requiring the Defendant to provide s.95 accommodation for the Claimant should not prejudice any assessment by a local authority or ICB as to whether the Claimant has an entitlement to accommodation under either the Care Act or section 117 MHA 1983.[67]I am therefore satisfied that it is right to grant interim relief directed at ensuring that the Claimant is released from detention. I am not, however, prepared to make an order requiring that he be released immediately. In my view, this would not be in his interests, as he would need to be immediately placed in s.95 accommodation which might not be suitable for him, might not have been approved by his CJSW (thus putting the Claimant immediately in breach of the terms of his release on licence by the Scottish court), or might create a risk of interruption to his programme of ‘depot’ injections. Releasing the Claimant in such circumstances could also increase the level of risks he poses to other people.[68]I have therefore fashioned an interim order which I consider appropriate for ensuring that the Claimant will be released, but in a managed way which respects the licence conditions set by the Scottish court. I will invite Counsel to assist me in finessing the precise terms of the order, but the substance of it will be as follows: i) The Defendant shall use best endeavours to, by 4pm on Monday 1st September 2025, provide to the CJSW who is responsible for supervising the Claimant’s release on licence a firm offer of s.95 accommodation for the Claimant at an address in Scotland which shall be available for him to move into by no later than Monday 8th September 2025. The address must be one which the Defendant reasonably anticipates is likely to meet the accommodation element of the conditions of the Claimant’s release on licence in Scotland and the immigration bail granted to the Claimant by the FTT. ii) If the Claimant has not been released from detention by midnight on Monday 8th September 2025, the Claimant has leave to make an urgent application to the Court for this case to be re-listed for a hearing within 2 working days, with a time estimate of 1 hour. The hearing will be reserved to me if I am available but otherwise may be heard by another judge.

Case management: next steps

[69]It may be that, following the Claimant’s release, these proceedings can be transferred to the county court to continue as a claim for damages for unlawful detention. In order to ensure that the possible appropriateness of that step is focused upon by the parties, I will list a case management hearing in the week commencing 27 October 2025 when I will be available to hear it. That hearing will also provide an opportunity to consider any applications regarding disclosure of medical records or other documents which the Claimant has not yet received. The listing can be vacated if the parties are able to agree a set of directions.[70]I am grateful to all Counsel – including Ms Hampshire, who appeared for SNEE-ICB – for the considerable assistance they provided to me at the hearing.