Sharma, R (on the application of) v The Secretary of State for the Home Department

Simon Tinkler sitting as a Deputy Judge of the High Court Introduction

1. The claimant is an Indian national. He is currently detained by the Defendant in an immigration detention centre. He applies for: i) A Court order to release him to appropriate accommodation; and ii) Damages for periods when he has been detained unlawfully.

2. The hearing before me related solely to his application to be released from immigration detention. Any question of damages was to be determined later. Given the urgency of the situation, I made an order on 13 November 2025 after the hearing and after receiving written submissions on the form of order. These are the written reasons for the order I made. Legal Test

3. The parties agree that the correct test to be applied as to whether to grant interim relief is the three limb test in American Cyanamid .

4. The special feature of the test in public law cases is that: “ other things being equal, it is likely to be in the public interest to allow a defendant public authority to enforce the law (as it understands it) or exercise powers in what it considers to be a lawful manner. The weight to be accorded to this public interest will vary from context to context, but may be considerable. In many cases, the claimant will need to point to something very compelling to outweigh it. In deciding whether a claimant has done so, the court will consider both the prima facie strength of the claim and the gravity of the consequences that would follow if interim relief were not granted.” R(FTDI Holding Ltd) v Chancellor of the Duchy of Lancaster [2025] EWHC 241 (Admin) at 17.

5. The three limbs are: i) Whether there is a serious issue to be tried; ii) Whether damages would be an adequate remedy; iii) Where the balance of convenience lies;

6. I set out below my conclusions on each limb of that test, as well as the arguments raised by each party.

7. The parties agreed that in assessing the balance of convenience it is necessary to consider the relative strengths of the arguments of each party as to the lawfulness of the current and intended detention of the claimant. In assessing that detention, the parties agreed that the test regarding immigration detention powers is that set out in Re Hardial Singh and subsequently restated in [1984] 1 WLR 704 R(I) v Secretary of State for the Home Department at §46; and [2002] EWCA Civ 888 ; [2003] INLR 196 Lumba v Secretary of State for the Home Department at §22. They are that: [2011] UKSC 12 ; [2012] 1 AC 245 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 that reasonable period, he should not seek to exercise the power of detention; and iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.

8. The parties also agreed that once a person should be released from detention in the light of the Hardial Singh principles then there may need to be a short “grace period” in which arrangements are made for the actual release from detention and associated compliance with any conditions to be attached to such release.

9. The position was set out by Irwin LJ in R(AC (Algeria)) v Secretary of State for the Home Department [2020] EWCA Civ 36 : “38. ….It cannot be lawful to detain until two or more of the Hardial Singh principles are breached, or to fix period of grace with such further breaches in mind. Once any of the second, third or fourth principles are breached, then the question arises whether any further detention is lawful. Such further detention can be lawful, in my judgment, only for a reasonable period to put in place appropriate conditions for release.

39. The duration of such a period of grace must be judged on the facts of the case. The relevant facts include the history, as well as the risks to the public. I fully accept that the risk to the public is a highly important factor, but it cannot justify indefinite further immigration detention.”

10. In R(Humnyntskyi) v Secretary of State for the Home Department Johnson J reviewed the caselaw on grace periods. I am however, mindful that this is in essence a decision that must be made in each case on the specific facts. [2020] EWHC 1912 (Admin) ,

11. It is also clear from R (Habeb) v SSHD [2021] EWHC 177 (Admin) at paragraph 17 that, in cases such as these, the fact that the claimant could apply for immigration bail is not in itself a barrier to this court granting interim relief. Facts

12. The material facts are as follows. They are derived from witness statements provided by Adrian Duffy (on behalf of the defendant) and Olivia Whitehorn (a solicitor acting for the claimant). The documentary evidence provided included emails between the defendant and the Indian High Commission (“IHC”), as well as records relating to the claimant’s various applications to remain in the UK and his criminal convictions. There was no witness statement from the claimant himself.

13. The claimant came to the UK in 2009 on a student visa. That expired in 2010 and he became an overstayer. As far as I can tell from the papers before the court, he did not make any application at all to remain on a lawful basis. Some seven years later he was detained by immigration officials. In the period after his detention he made several applications to remain on what he said was a lawful basis. None of his applications were successful. His advocate confirmed at the hearing that the claimant has no current applications that are undecided. In other words, the claimant has no right to be in this country and no ongoing application for any such right. He has had no such right since his student visa expired in 2010. He appears to have made no attempts to leave the country voluntarily at any point when he was here unlawfully.

14. He has also committed criminal offences in Scotland. Those were, most seriously, sexual activity with a child and supply of Class B drugs. He denied these offences but was convicted in August 2024 following a jury trial. He was sentenced to 36 months in prison. His time in prison after sentence was reduced to reflect time spent in custody before his conviction. He was therefore released on licence from prison in November 2024, although he was immediately transferred into immigration detention. The release on licence would have imposed conditions on him had he not been in immigration detention. Those conditions included restrictions on where he could live. Any proposed accommodation had to be approved in order, in essence, to ensure that it was not too close to schools, parks and other places where children were likely to be. That obviously restricts the number of places that are likely to be suitable. It also had to be in Scotland. As a consequence of his conviction, he is subject to indefinite notification requirements under Part 2 of the Sexual Offences Act 2003 . Those licence and notification requirements continue to apply to him. He also seems to have failed to comply with bail conditions on several occasions, including committing criminal offences whilst on bail.

15. It is not entirely clear what steps were taken in the early part of his immigration detention to effect his removal but he seems to have remained in detention whilst arrangements were made to effect his deportation. There is reference to him allegedly failing to comply with the process to obtain the papers for that deportation. I made no determination of the facts regarding that and took no account of that allegation.

16. After several failed bail applications, he was granted release on conditional immigration bail on 15 May 2025. The conditions in essence related to compliance with the licence conditions, as well as electronic tagging.

17. The defendant took some steps to provide accommodation that complied with the licence conditions. They proposed various accommodation options but it seems none have been satisfactory to the bodies in Scotland that need to approve them. The detailed chronology is set out at paragraph 9 of the witness statement of Adrian Duffy.

18. The interested party confirmed that if accommodation was proposed within the Dundee area then they envisaged being able to approve it (or not) within a week or a little longer. If it were in another part of Scotland it would probably take longer due to the need to seek approval from other parties.

19. The claimant was served with notice of intended deportation on 23 June 2025. That deportation did not take place as the IHC failed to issue the required, and requested, emergency travel documentation (“ETD”). The IHC said this was due to “ Mr Sharma’s custodial sentence and multiple names ”. It is not clear to me what the issue was regarding the custodial sentence or the multiple names, nor who caused it. The defendant invited me to conclude that the claimant was at least partially responsible for this issue. As this was an interim hearing I did not, however, make any determination on this matter.

20. A second attempt to deport him was made on 23 September 2025. The claimant attempted to thwart this deportation by swallowing a vape battery so that he had to be taken to hospital. In any event, the IHC had not issued the ETD, so the deportation was not carried out.

21. On 30 September 2025 the IHC confirmed that it had approved the issue of the IHC. A deportation was fixed for 6 November 2025. In light of the impending removal, his grant of conditional bail was terminated by the First Tier Tribunal. The defendant appears to have continued to try and find appropriate accommodation for the claimant after this time, notwithstanding the termination of his conditional bail.

22. That removal did not go ahead as again the IHC failed to issue the ETD. They explained by email that the person responsible for issuing the ETD was away but would return on 10 November 2025. The IHC did not give any indication that they had altered their decision to grant the ETD. The defendant has therefore provisionally identified the date of 2 December 2025 for removal, with an earlier date of 27 November 2025 if the ETD is received in time. The claimant remains in immigration detention pending removal. Arguments and conclusions

23. The first limb of the test in American Cyanamid is whether there is a serious issue to be tried. The issue in dispute at the hearing was whether the current and intended detention of the claimant was lawful. The parties disagreed as to whether or not the detention was currently lawful. Both parties accepted, however, that there was a serious issue to be tried in relation to that question, and that the first limb was satisfied.

24. The second limb is whether damages would be an adequate remedy. Both parties accepted that damages were not an adequate remedy in a claim regarding the lawfulness of detention of the claimant.

25. The third limb is whether the balance of convenience is in favour of the grant of the relief sought.

26. The defendant acknowledged in its “Note for Hearing” that the claimant would “ in all likelihood be admitted to immigration bail ”. It was initially not clear to me exactly what the defendant intended the implications of this statement to be. At the hearing, they clarified that they maintained that the current detention was lawful under the Hardial Singh principles, but accepted that if the claimant were not removed imminently then the detention would cease to be lawful. In other words, the defendant accepted that at some point in the near future it would no longer be reasonable to detain the claimant under principle 2 of Hardial Singh as his deportation would no longer be sufficiently imminent.

27. Upon the deportation becoming not sufficiently imminent to justify ongoing detention there was, the defendant said, a “grace period” in which practical arrangements would need to be made for his release to suitable accommodation to occur, and appropriate notifications to be given.

28. In summary, the defendant accepted that the balance of convenience would on 3 December 2025 be in favour of granting interim relief with a grace period to follow, but that at the date of the hearing the balance of convenience still favoured refusal of interim relief.

29. The claimant on the other hand argued that the time had already arrived when the claimant should be released under the Hardial Singh principles. He said the only matter to be resolved was the grace period to be allowed to the defendant to source suitable accommodation. The strength of his claim on this point weighed, he said, heavily in favour of the grant of interim relief now. Indeed, if it was clear that the detention was not currently lawful then the claimant must be released. The claimant said that it was no longer credible to believe that the IHC would issue an ETD.

30. The claimant invited me to disregard any risk of the claimant trying to avoid deportation because he would be electronically tagged if released, and thus easily located for any removal that would occur. The claimant also emphasised that the consequence of his continued detention was that his liberty would be seriously curtailed. It would also be curtailed if he were released and electronically monitored, and subject to licence conditions, but the curtailment would be less onerous.

31. In my judgment, however, the defendant has by far the stronger of the argument that the current detention is in compliance with the principles in Hardial Singh and is thus lawful.

32. This is due to the likely imminence of removal: a) the IHC has now confirmed that it will issue an ETD b) the IHC has explained that the person who will issue it is back from leave on 10 November c) the internal documents of the defendant refer to an IHC taking some 60-90 days or 1-2 months, and those periods are consistent with an ETD approved in June or September being issued in the imminent future; d) there are specific dates within the next three weeks when removal can be effected

33. It is also due to the following additional factors which reinforce the current detention until the planned deportation on 2 December 2025 being reasonable in all the circumstances under the second principle in Hardial Singh: i) The claimant has a history of material and repeated non-compliance both with the immigration rules and with the criminal law of this country. This includes staying in this country unlawfully for over 15 years, multiple breaches of bail conditions, and his criminal convictions for supply of drugs and sexual offences with children. These together weigh in favour of it being reasonable to detain him at the moment pending deportation as he has shown little regard for restrictions lawfully imposed on him, giving rise to a risk of non-compliance in the future with bail conditions and a risk to the public from repeated criminality; and ii) He has made a wilful attempt to prevent his lawful removal by swallowing a vape battery; it will be significantly easier to prevent him making similar attempts to prevent removal if he is in detention rather than on immigration bail, even if electronically tagged.

34. Given the strength of the case currently that the detention is lawful, and the public interest in allowing the defendant to carry out their operations in the way they best see fit to maintain law and order in this country, I am satisfied that the balance of convenience today is clearly in favour of refusing the application for immediate release from detention. The gravity of the detention of the claimant for the period to 3 December 2025 is outweighed by the need to uphold the law and facilitate the defendant complying with its public law obligations to remove the claimant from the country without facing unnecessary risk of him absconding or committing further breaches of law or regulation, or repeating the active steps he took to prevent his deportation.

35. If the IHC fails again to issue an ETD and the claimant is not removed on 2 December then I accept that it would be reasonable to infer, as the claimant invited me to, that the likelihood of the IHC issuing the ETD promptly will have receded significantly. The prospect of the claimant’s imminent removal will have therefore become more remote. Accordingly, the strength of his case that his detention is no longer lawful under the Hardial Singh principles would increase significantly. The defendant implicitly, if not explicitly, accepted that proposition.

36. In this case, when the strength of the argument moves heavily in favour of the continued detention being unlawful then balance of convenience will, in my judgment, have moved in favour of granting interim relief. That will be on 3 December 2025 when it will be clear whether or not the claimant has been removed. This is without prejudice to the lawfulness of detention if it became apparent to the defendant prior to 3 December 2025 that removal is no longer imminent, given the third principle in Hardial Singh .

37. There was some argument about whether the decision to order the release of the claimant was the court (a) exercising a primary jurisdiction to order release or (b) determining as a matter of administrative law that the decision to detain had become unlawful. I need not address that point in this case as the parties did not identify any material difference between the outcome that would follow or the reasons for it.

38. I therefore ordered that if the removal was not effected by 4pm on 3 December then the defendant was to release the claimant, subject to there being a “grace period” to make the necessary practical arrangements to ensure that the release was in accordance with the prison licence conditions.

39. The claimant invited the court to order a very short period after 3 December 2025 for this to occur. The defendant indicated that a number of the matters that need to be resolved were outside their control, but that they would in any event continue to seek accommodation even whilst the plans for removing the claimant were progressing. They indicated that they did not have a formal position on the “grace period” that should be allowed. The interested party indicated that the period would be impacted by whether the proposed accommodation was in Dundee or not.

40. It seemed to me appropriate in the interests of justice for there to be a time period for sourcing accommodation with which compliance was reasonable and likely, rather than unnecessary court hearings being required due to too short a grace period being allowed. I also note that the reason the release will be delayed is because the claimant has a much more limited range of accommodation options available than other people who should be released; he has committed criminal offences which mean it is not safe for him to be housed near children. That impacts, in my judgment. on the reasonable period to be allowed to source accommodation.

41. Bearing in mind the need for any person to be released as soon as possible if their detention is unlawful, and the steps the defendant had confirmed it would continue to take whilst deportation was still pending, it seemed to me that the defendant should therefore have a relatively short period of up to 5 days if the claimant is not removed from the country to identify accommodation which it believed would be suitable. There would then be a period of 9 days for the interested party and the defendant to finalise the approvals and arrangements for release. The defendant invited the court to provide that the release conditions should include the condition as to electronic tagging that had been conditionally imposed by the First Tier Tribunal. The claimant had, at the hearing, emphasised that there would be electronic tagging to ensure that his whereabouts were known, and I ordered an electronic tagging condition should he be released.

42. I record, finally, one point that was raised in the hearing which related to bail. The claimant accepted that FTT had determined on 30 October 2025 that his conditional bail should cease. The claimant also accepted that this was effectively a mandatory decision as removal was scheduled within 21 days. The claimant initially invited me to determine that the bail should fall away, and be treated as never having been granted, as the removal had not taken place. After some discussion, the claimant did not pursue the point.

43. I directed the parties to inform the court as to whether or not the claimant had been removed.

44. This decision is without prejudice to any claim the claimant may have that some or all of the period of detention was unlawful. Any such claim is, however, only for damages. 02 December 2025