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FAM v SSHD: Duncan Lewis Solicitors granted permission to challenge imposition of bail conditions on individuals that cannot be lawfully detained (30 April 2019)

Date: 30/04/2019
Duncan Lewis, Main Solicitors, FAM v SSHD: Duncan Lewis Solicitors granted permission to challenge imposition of bail conditions on individuals that cannot be lawfully detained

A client of Duncan Lewis Solicitors has been granted permission to challenge the continued imposition of conditional bail against him in circumstances where he can be neither lawfully removed nor lawfully detained pending the outcome of various investigations and civil proceedings into abuse and mistreatment he suffered in immigration detention.

In an order by Sir Ross Cranston, the High Court determined that an ‘authoritative ruling’ was required on whether an individual can remain on Home Office immigration bail, under Schedule 10 of the Immigration Act 2016, where that individual cannot be lawfully detained. The hearing will be heard on an expedited basis and will give guidance on the extent of the limitations on the Home Office’s powers to grant immigration bail and its compatibility with Article 5 of the European Convention on Human Rights (ECHR).

Our client, anonymised as FAM, was an asylum seeker detained at Brook House IRC where he was subjected to serious mistreatment, including being strangled by a detention officer. The abuse was captured on film by an undercover reporter and broadcasted in September 2017 in a BBC Panorama documentary. His vulnerability was well known by the Home Office, having obtained independent evidence of torture whilst detained through a Rule 35(3) report, and subsequently providing a psychological report which confirmed that detention was significantly worsening his mental health.

He was released at an interim relief hearing pursuant to unlawful detention proceedings in 2017. He was subsequently placed on conditional bail by the Home Office, with restrictions on his right to work, requirements of residence and reporting, as well as - originally - electronic tagging.

In the aftermath of the broadcast of the BBC Panorama documentary, our client went on to challenge the Home Office’s failure to institute an Article 3 compliant inquiry into the abuse and mistreatment he and other detainees suffered at Brook House. He additionally brought a civil damages claim for false imprisonment, assault, battery, and misfeasance in public office. In September 2018 the Home Office appointed the Prisons and Probation Ombudsman (PPO) to undertake a ‘Special Investigation’ into the mistreatment at Brook House. Our client is currently one of two detainees challenging whether this is sufficient to meet the UK government’s obligations under Article 3 ECHR, with a final hearing on that issue starting in May.

In 2018, FAM made a fresh claim for asylum and then an application for discretionary leave pending the outcome of the various investigations and litigation. His discretionary leave application was originally refused in September 2018 where the Home Office stated that his fresh claim would not be considered until the outcome of ongoing litigation and that he would not be removed whilst all these issues remained outstanding. Further correspondence in February 2019 from the Home Office again made assurances that he would not be detained or removed prior to the conclusion of his ongoing litigation action.

Judicial Review proceedings were brought on 12 March 2019 on the following basis:

  1. It was unlawful to maintain bail conditions. Bail cannot be imposed under Schedule 10 to the Immigration Act 2016 on a person who cannot lawfully be detained. The Claimant would not be lawfully detained for a breach of his bail, there was no longer any prospect of removal and he could not be left in a legal limbo meaning that he must be granted leave to remain.

  2. That Schedule 10 was required by the Human Right Act 1998 to read compatibly with Article 5 ECHR as to authorise the restrictions on liberty authorised by bail only where this is a subsisting lawful power to detain and/or which can be lawfully exercised in breach of bail.

  3. Alternatively, a declaration of incompatibility under the Human Rights Act was required in respect of Schedule 10, which is incompatible with Article 5 ECHR.

  4. That the Claimant was entitled to a decision on his outstanding asylum and human rights claim.


Permission has been granted on grounds 1-3 with an expedited hearing meaning the case is likely to be listed in summer 2019. An application has been made to renew ground 4 and is likely to be heard at the same time.

The Claimant is represented by solicitor Lewis Kett, assisted by Nicholas Hughes, both of the Harrow Public Law Team. They have instructed Stephanie Harrison QC of Garden Court Chambers and Alex Goodman of Landmark Chambers.



Duncan Lewis Public Law Solicitors

The Duncan Lewis Public Law department continues to be recommended by The Legal 500 with the 2019 edition reporting its 'strong presence in this area of the law, making a particularly dominant contribution in immigration, asylum and prison law.'

The Public law team has experience in all aspects of judicial review claimant work, including obtaining emergency orders and other interim relief to prevent breaches of human rights, following up judicial reviews with actions for damages in both the County and High Court and successfully pursuing judicial review matters to the Court of Appeal and Supreme Court. A particular focus is the team’s work handling cases of the deprivation of British citizenship and deportation threats, with a niche specialism in challenging the treatment of immigration detainees and other marginalised communities.

To contact a specialist member of the public law team, call 033 3772 0409.

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