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Detention Under Immigration Powers
DVD248
LEONIE HIRST
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DETENTION UNDER IMMIGRATION POWERS
LEONIE HIRST
Barrister, Tooks Chambers
Introduction
1. Hello, I’m Leonie Hirst. I’m a barrister at Tooks Chambers and I have a broad-
based civil practice which includes both public law and immigration and asylum
law.
2. I’m going to talk to you today about detention under immigration powers.
Before I start, I want to give you an idea of the factual context. According to the
Home Office, in the year ending March 20131, over 28,000 people both entered
and left immigration detention. Of those leaving detention, 60% were removed
from the UK. As at the end of March 2013, just over 2,800 people were held in
immigration detention. The majority of those who are held in immigration
detention are detained for relatively short periods. In the first quarter of 2013,
for example, 62% of detainees were held for 29 days or less, and only 8% were
held for over four months. 74 detainees had been held for over a year. These
figures only relate to detainees within what’s called the ‘immigration estate’,
that is removal centres, short term holding facilities and pre-departure
accommodation, so they do not include those people detained under immigration
powers who remain in prison at the end of their criminal sentence. You can see
from this that immigration detention affects large numbers of people.
3. The right to liberty is of fundamental importance. The courts have repeatedly
emphasised the need to construe powers of detention narrowly, to ensure that the
power to detain is not exercised unlawfully or improperly and that fundamental
common law and human rights are not infringed.
1 Home Office statistics, published 23
rd May 2013
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4. Immigration detention is an increasingly complex area of law and one which is
developing quite quickly. It’s a difficult area to cover in just one hour, and this
talk is intended to give you a broad overview of the relevant areas. The talk is in
three sections:
4.1 First, I set out the statutory powers of detention;
4.2 I will then go on to outline the constraints on the exercise of the power to
detain. These include common law principles (known as the Hardial
Singh principles), public law duties, and human rights.
I start with consideration of the power to detain.
The power to detain
5. When we talk about ‘detention under immigration powers’, we are referring to a
broad set of powers contained in various statutes. The majority of the statutory
provisions authorising immigration detention are contained in Schedules 2 and 3
to the Immigration Act 1971, but there are also powers to detain in s62
Nationality, Immigration and Asylum Act 2002 and in s36 UK Borders Act
2007. The power to detain can be exercised in several different contexts.
6. The first situation in which there is a power to detain is on arrival to the UK,
which is covered by paragraph 16 of Schedule 2 to the 1971 Act. Paragraph
16(1) allows an immigration officer to detain someone pending examination or
pending a decision on whether he should be granted leave to enter the UK. An
example of this would be where someone arrives in the UK from a country
which does not require entry clearance for a visitor’s visa, but where the
immigration officer at the airport suspects that the visitor has really come to
work in the UK. The immigration officer may detain under paragraph 16(1) in
order to interview the person before deciding whether to grant leave to enter as a
visitor.
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7. Where someone has previously had leave to enter which is suspended on arrival,
paragraph 16(1A) permits them to be detained pending examination and a
decision on whether to cancel their leave. An example of this might be someone
who arrives with leave to enter as a student or visitor, but where the immigration
officer at the port or airport suspects the real motive for coming to the UK is not
the one stated in the visa, such as settlement or claiming asylum. The
immigration officer may detain such a person in order to interview them and
make the necessary checks in order to verify that their leave is valid.
8. The second context in which there is a power to detain is pending administrative
removal from the UK, which is also covered by paragraph 16 of Schedule 2 to
the 1971 Act. Where someone is refused leave to enter on arrival, paragraph
16(2) permits an immigration officer to detain them pending directions for their
removal from the UK. For example, where an immigration officer suspects that
someone is using a forged passport, he may refuse leave to enter and detain the
person until arrangements are made to return him or her to the country from
which he or she arrived.
9. Paragraph 16(2) of Schedule 2 also allows the Secretary of State to detain
individuals pending administrative removal. Where there are reasonable grounds
for suspecting a person is someone in respect of whom removal directions may
be given, paragraph 16(2) allows the Secretary of State to detain someone
pending (i) a decision on whether or not to give removal directions, or (ii)
removal pursuant to such directions. This is a broad provision which covers
illegal entrants, overstayers, deserters from aircraft or ship crews and anyone
subject to administrative removal under s10 Immigration and Asylum Act 1999.
10. In addition to the power to detain pending removal directions under paragraph
16(2) of Schedule 2 to the 1971 Act, there is a parallel free-standing power
under s62 Nationality, Immigration and Asylum Act 2002 for the Secretary of
State to detain in any case where there is the power to set removal directions.
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11. The third main context in which there are powers to detain is pending
deportation. Powers of detention pending deportation can only be exercised by
the Secretary of State, and are set out in Schedule 3 to the 1971 Act and in s36
UK Borders Act 2007.
12. Where an individual has been recommended for deportation by a court and is no
longer detained under his or her criminal sentence, paragraph 2(1) of Schedule 3
to the 1971 Act allows the Secretary of State to detain that individual pending
the making of a deportation order. Paragraph 2(2) allows the Secretary of State
to detain where someone has been given notice of the intention to make a
deportation order, and paragraph 2(3) allows detention where a deportation
order is in force. This includes deportation orders made both under the 1971 Act
and under s32 UK Borders Act 2007.
13. Where someone is subject to the so-called ‘automatic deportation’ provisions in
s32 UK Borders Act 2007, s36 of that Act permits the Secretary of State to
detain them following their criminal sentence while she considers whether the
automatic deportation provisions apply, and where she thinks that they apply,
pending the making of a deportation order.
14. This section has set out the various powers under which immigration officers or
the Secretary of State can detain individuals. The next section looks at the
constraints on those powers and how they may be lawfully (and unlawfully)
exercised.
CONSTRAINTS ON THE POWER TO DETAIN
15. The previous section looked at the contexts in which the power of detention
arises. Where there is a power to detain, an individual will remain ‘liable to
detention’ even if it would be unlawful or improper to exercise the power of
detention.
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16. However, for detention under immigration powers to be lawful, it is not simply
sufficient for there to be a power to detain. The power must also be exercised
lawfully. This section looks at the constraints on the power of detention, which
govern when it can be lawfully exercised. It focuses on the power to detain
pending removal, rather than the power to detain pending examination, but the
principles are applicable in both contexts.
17. To give you a broad summary, in order for detention under immigration powers
to be lawful, it must comply with several requirements. There must, of course,
be a valid power to detain. But the exercise of that power is also subject to
constraints. It must be used only to effect removal and not for any other purpose.
It must be used as a last resort and for as short a period as possible. It must
comply with public law and in particular with the Secretary of State’s published
policy. And it must be in accordance with the European Convention on Human
Rights.
18. It is important to emphasise that the burden throughout is on the Secretary of
State to justify the use and lawfulness of immigration detention. There is a
presumption of liberty; it is not for the immigration detainee to show why he or
she should not be detained, but for the Secretary of State to show why detention
was justified and lawful in the circumstances.
Hardial Singh
19. The first major constraint on the lawful exercise of powers of immigration
detention is what are known as the Hardial Singh principles. As we’ve seen, the
Secretary of State has broad powers to detain individuals liable to removal or
deportation pending the making of removal directions or a deportation order.
The statutory powers do not impose any limits on the length of time for which
an individual may be kept in immigration detention, so that detention under
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immigration powers could in theory last indefinitely. Most cases do not involve
detention where there is no power to detain, but where the power is or may be
exercised unlawfully, so that detention is or becomes unlawful.
20. At common law immigration detention must comply with the principles set out
in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 at
[706] as summarised by Lord Justice Dyson as he then was in R (I) v Secretary
of State [2003] INLR 196 at [46].
21. The first Hardial Singh principle is that the Secretary of State must intend to
deport or remove the detainee and can only use the power to detain for that
purpose. This is very important – immigration detention can only be used by the
Secretary of State to effect removal. It cannot be used to prevent criminal
offending, or to prevent someone absconding, or to protect the detainee or the
public – while those may all be relevant factors in the decision to detain, the
primary purpose of immigration detention must always be to effect removal.
22. The second Hardial Singh principle is that the individual may only be detained
for a period that is reasonable in all the circumstances. What constitutes a
‘reasonable period’ depends on the circumstances of the individual case. In I,
Lord Justice Dyson set out a list of relevant factors to be considered in
determining what constitutes a reasonable period. These include: the length of
period of detention; the nature of the obstacles which stand in the path of the
Secretary of State preventing a deportation; the diligence, speed and
effectiveness of the steps taken by the Secretary of State; the conditions in
which the detained person is being kept; the effect of detention on him and his
family; the risk that if released from detention he will abscond and the danger
that if released, he will commit criminal offences. The list in I is non-exhaustive
and there may be other factors in a particular case which are relevant in
determining what constitutes a reasonable period of detention under Hardial
Singh. However, in each case what determines a ‘reasonable period’ of detention
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are factors relevant to that particular individual; broader considerations of public
policy, for example, do not play a part.
23. The question of what constitutes a ‘reasonable period’ under Hardial Singh is
for the court itself to determine – it is not simply a question of reviewing the
Secretary of State’s decision on Wednesbury principles2. The court must decide
for itself whether detention has continued for longer than a reasonable period, on
the basis of the material available to the Secretary of State3.
24. There has been a significant amount of caselaw looking at the factors which
determine a ‘reasonable period’ of detention. In many detention cases the
detainee has a history of criminal offending or of breaches of immigration law,
and so many cases have focused on the relevance and weight given to
absconding and reoffending as factors relevant to the ‘reasonable period’ under
Hardial Singh.
25. In the case of Lumba4, the Supreme Court recognised that the risks of
absconding and re-offending were “always of paramount importance” to the
determination of a ‘reasonable period’ of detention, because absconding
frustrates the deportation or removal which is the purpose of immigration
detention.
26. Of course, in most (if not all) cases detainees will be resisting removal. Usually
this is by exercising legal rights of appeal through the First Tier and Upper
Tribunals. In some cases resistance may take the form of non-cooperation with
removal, whether by refusing to cooperate with travel documentation procedures
or by active resistance to removal attempts.
27. It is common for the Secretary of State to seek to justify detention by referring
to a risk of absconding because of a detainee’s refusal to return to his or her
2 R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804
3 R (on the application of MH) v SSHD [2009] EWHC 2506 (Admin) at [105]
4 Lumba v Secretary of State for the Home Department [2011] UKSC 12 at [121]
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country of origin voluntarily. However, the Supreme Court in Lumba cautioned
against inferring a risk of absconding in every case, and emphasised that it is
always necessary to have regard to the history and specific circumstances of the
detained person. This echoes similar comments made by Lord Justice Dyson in
I5 where he stated that the relevance of absconding should not be overstated.
Where someone is pursuing an appeal against deportation or removal, and the
appeal is not ‘abusive’ in the sense that it is completely without merit, then it is
entirely reasonable for him or her to remain the UK to pursue the appeal, and in
those circumstances the refusal to accept voluntary return is irrelevant6. Even
where there is no outstanding appeal or legal challenge to removal, a refusal to
accept voluntary return is not a ‘trump card’ and the Secretary of State cannot
rely on it to justify indefinite detention7.
28. In R (NAB) v SSHD [2010] EWHC 3137 (Admin), the claimant detainee refused
to sign a disclaimer which would have facilitated his removal to Iran. Mr Justice
Irwin held that even though there was a prospect of rapid deportation if the
claimant had signed the disclaimer, his detention, given the full expectation that
he would not sign, had ceased to be detention for the purpose of deportation and
was consequently unlawful [76].
29. This approach was followed in R (ota Sino) v SSHD [2011] EWHC 2249
(Admin), a case where the detainee had obstructed removal attempts for a
significant period of time. John Howell QC sitting as a deputy High Court judge
commented (at [56]) that even where an individual has “only himself to blame”
for his prolonged detention, his conduct cannot be regarded as providing a trump
card justifying his detention indefinitely. The Secretary of State may not detain a
person pending deportation for more than a reasonable period even in the case of
an individual who is deliberately seeking to sabotage any efforts to deport him.
5 R (I) v Secretary of State [2003] INLR 196 at [53]
6 Lumba at [127]
7 Lumba at [128]
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30. Even physical resistance of a detainee, as opposed to passive non-cooperation,
will not automatically render detention lawful. In R (ota Badjoko) v SSHD
[2003] EWHC 3034 (Admin), the claimant had been physically disruptive as
well as non-cooperative with attempts to identify him. Whilst his detention was
found to be lawful, this was largely on the basis that the claimant’s removal was
scheduled on a flight some two weeks from the date of the judicial review
hearing, and accordingly removal was imminent [22]. Mr Justice Leveson
commented that he would have been prepared to take a different view had this
not been the case [22].
31. In every case, the burden is on the Secretary of State to show that the risk of
absconding or reoffending justifies detention in the individual circumstances of
the case. The adoption of a ‘blanket’ policy, such as one which identifies a risk
of absconding or reoffending based on categories of offence, precludes the
consideration of individual circumstances and will therefore be unlawful: R v
Secretary of State ex p Venables [1998] AC 407 at [496G].
32. Further, when considering the risk of absconding, the reviewing court must
consider whether there are or have been conditions of release which would
provide a proportionate measure of security against the risk. In the case of A
(Iraq)8 for example, despite a significant risk of absconding and a failure to
cooperate with removal, detention was held to be unlawful because the risk
could be controlled by appropriately restrictive conditions, including electronic
tagging, and the High Court granted bail with appropriate restrictions.
33. It must be emphasised that the risks of absconding and reoffending should not
be overstated and do not provide a ‘trump card’ justifying indefinite detention.
Further, the factors relevant to a ‘reasonable period’ depend on the individual
circumstances, and the individual risk posed by, the particular detainee in
question.
8 R (on the application of A (Iraq)) v SSHD [2010] EWHC 625 (Admin) at [65]
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34. Other cases looking at the ‘reasonable period’ of detention under the second
Hardial Singh principle have focused on the effects of detention on the
particular detainee. This is a relevant factor in determining a reasonable period
of detention, because if someone is particularly vulnerable to the effects of
detention, a ‘reasonable period’ of detention will be much shorter than it would
otherwise be. Usually these cases involve detainees with mental or physical
illnesses and I will address these cases in more detail when I turn to the
application of the Secretary of State’s policy on detention.
35. The third Hardial Singh principle is that 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. This means that in order for continued detention to be
lawful, there must be what is often referred to as ‘a reasonable prospect of
removal’. Again, it is for the court itself to determine whether it is or should be
apparent that removal cannot be effected within a reasonable period; it is not
simply a Wednesbury review of the view taken by the Secretary of State.
36. There have been a significant number of cases in which the courts have
considered this principle. It is not possible to examine them all within this talk,
so the following is simply an outline. The first thing to emphasise is that the
statutory powers refer to detention ‘pending’ removal or ‘pending’ deportation.
The courts have repeatedly confirmed that ‘pending’ means no more than ‘until’
– there is no time limit within which removal or deportation must be carried
out9. In Khadir, the House of Lords held that as long as the Secretary of State
remains intent on removal and there is what was referred to as “some prospect”
of removal being achievable, there was a power to detain under paragraph 16 of
Schedule 2.
9 R(Khadir) v SSHD [2006] 1 AC 207
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37. In the recent case of Muqtaar10
, the Court of Appeal considered the third
Hardial Singh principle in the case of a Somali detainee where a Rule 39
indication had been made by the European Court of Human Rights that he
should not be deported pending the Court’s decision in another case. The
appellant had been detained for a very long period following that rule 39
indication, and in all had been detained for nearly 41 months. However, the
Court of Appeal held that there had been throughout sufficient prospect of his
removal to justify his continued detention. Lord Justice Richards, giving the
judgment of the court, stated that “apparent” within the meaning of Hardial
Singh should not be taken to cover situations in which it was merely uncertain
when removal would take place. There could be a realistic prospect of removal
without it being possible to specify or predict the date or period by which
removal would occur. More importantly, it was not necessary for there to be any
certainty that removal would take place at all. Although it had not been possible
to say when the European Court proceedings would be concluded, there was
none the less a realistic prospect of their being concluded and of removal being
effected within a period that was reasonable in all the circumstances.
38. The rather extreme position taken by the Court of Appeal in Muqtaar suggests
that it is likely in most cases to be difficult to show that the third Hardial Singh
principle has been breached.
39. The fourth Hardial Singh principle is that the Secretary of State should act with
reasonable diligence and expedition to effect removal. This can be viewed as an
aspect of the second principle, since efforts made by the Secretary of State are
relevant to the length of the ‘reasonable period’ of detention. Again, the
question of what is meant by ‘reasonable diligence and expedition’ depends on
the individual circumstances of the case. In a case where removal is
straightforward – for example, removal of an EEA national with a valid passport
– it will of course be relatively easy to arrange removal by air. In such a case
relatively little is required of the Secretary of State prior to the actual removal.
10
R (Muqtaar) v SSHD [2013] 1 W.L.R. 649
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There will be other cases where removal is significantly more difficult. For
example, the detainee may not be documented, or the authorities of the country
of origin may not cooperate with the UK authorities to document or accept
individuals. In those cases, it will usually require significant effort by the
Secretary of State over a relatively long period of time to confirm the detainee’s
identity as a national of that country, to obtain travel documents for the detainee,
and to arrange removal. Similarly, where a detainee has resisted previous
removal attempts, it may not be possible to remove him or her on a scheduled
flight and it will be necessary for the Secretary of State to arrange a charter
flight. Where it is or should be obvious at an early stage that removal will not be
straightforward, the onus is on the Secretary of State to take reasonable steps to
bring removal about. Where the detainee is not cooperative, the Secretary of
State must have what was referred to in Sino as ‘plan B’ – the Secretary of State
cannot simply continue detention and wait for the detainee to change his or her
stance. A failure to take reasonable steps to bring about removal will render
detention unlawful under Hardial Singh.
Public law errors
40. The Hardial Singh principles are in essence a statement of the common law
constraints on the exercise of the power to detain. A breach of the Hardial Singh
principles will render detention unlawful. However, detention may also be
rendered unlawful by an error of public law.
41. The basis for public law error as a species of unlawful detention is two cases,
Lumba and Kambadzi, decided by the Supreme Court in 2011. In order for
public law error to make detention unlawful, the error must be ‘material’ to the
decision to detain or to continued detention. For example, a decision to continue
detention which is taken by the wrong grade of official, but which is otherwise
unflawed, will not render detention unlawful because the breach of public law
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(the failure to follow policy) does not bear on the underlying decision to
detain11
.
42. Detention will be unlawful if there is a material failure to comply with published
policy. It will be irrelevant to the lawfulness of detention that the detainee could
or would have been detained had there not been such a failure. As the court put
it in Kambadzi, all that the claimant has to do is prove that he was detained. The
Secretary of State must prove that the detention was justified in law. She cannot
do this by showing that, although the decision to detain was tainted by public
law error, a decision to detain free from error could and would have been made.
However, where detention is unlawful because of a public law failure, the
detainee will be entitled only to nominal damages where he could or would have
been detained had there been a lawful exercise of the power to detain. In Mr
Kambadzi’s case, for example, his detention was unlawful because of the failure
to conduct regular reviews of his detention in compliance with policy; however,
he could and would have continued to be detained if there had been regular
reviews of his detention. So while his detention was unlawful because of the
failure to apply published policy and follow procedure, he would not be entitled
to more than nominal damages.
43. Most commonly, where detention is challenged because of a breach of public
law, the error involves a failure by the Secretary of State (or individuals acting
on her behalf) to comply with published policy or procedure. I’m going to
concentrate on this aspect of public law error, which has formed the basis of
challenges to immigration detention in a number of important cases.
44. The main statement of the Secretary of State’s policy in relation to detention is
set out in Chapter 55 of the Enforcement Instructions and Guidance, which can
be found on the Home Office website. I shall refer to the policy as ‘Chapter 55’.
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Lumba
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45. Where detention is challenged on the basis of a public law failure to apply
published policy, the court is not deciding for itself whether or not the policy
was correctly applied, but whether on a Wednesbury view the Secretary of State
acted properly or reasonably. However, somewhat confusingly, the application
of the policies and procedures in Chapter 55 is also relevant to the ‘reasonable
period’ of detention under Hardial Singh as well as to public law arguments.
This means that the question of whether a policy has been correctly applied
during someone’s detention may be subject both to Wednesbury review (as a
species of public law error) and to non-Wednesbury review (under the
‘reasonable’ period of detention under the Hardial Singh principles). For now, I
will concentrate only on the public law aspect.
46. Chapter 55 is a lengthy and detailed document which sets out the Secretary of
State’s policy with regards to the use of detention, the procedure by which
individuals can be detained, the need for detention reviews, the detention of
vulnerable individuals – for example, those with physical or mental illness,
families or young people – and the places in which people can be detained under
immigration powers.
47. Chapter 55 sets out some basic principles, which echo the common law
principles in Hardial Singh. For example, detention must be used as a last resort
and for the shortest possible time (55.1.3 and 55.3). Detention must only be used
to effect removal and may only continue for a period that is reasonable in all the
circumstances (55.1.4.1). In all cases, caseworkers should consider on an
individual basis whether removal is imminent.
48. One of the most important aspects of Chapter 55 is the requirement for regular
reviews of detention, and it was this aspect which was challenged in Kambadzi.
Chapter 55 requires that there should be what is referred to as “robust and
formally documented consideration” as to whether the detainee is removable at
least monthly intervals. The longer the period that an individual has been in
detention, the more senior the individual required to authorise a continuation of
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detention. Chapter 55 also requires that the detainee is provided with progress
reports on a monthly basis, explaining why they continue to be detained.
49. Chapter 55 also sets out the Secretary of State’s policy with regards to detaining
those with physical and mental health conditions. In summary, the policy states
that those with serious disabilities, or with serious mental illnesses or medical
conditions which cannot be satisfactorily managed in detention, should only be
detained in very exceptional circumstances. The policy does not give guidance
on what constitutes ‘very exceptional circumstances’12
.
50. There have been a significant number of cases recently challenging the
application of the policy in Chapter 55 to cases where detainees have had
physical and mental health problems. Again, it is not possible within the remit of
this talk to go through each and every case in detail, so the following is just an
overview highlighting some of the important points.
R (BA) v SSHD [2011] EWHC 2748 (Admin)
51. BA was a Nigerian national who was detained pursuant to a recommendation for
deportation at the end of his 10 year criminal sentence for a drug offence. He
had psychotic episodes and had been transferred to hospital under s47 Mental
Health Act 1983 during his criminal sentence. Despite this he was not monitored
on transfer to immigration detention. In detention, BA’s condition deteriorated
rapidly and he displayed psychotic symptoms within 7 weeks, as well as
refusing food and drink. His detention was continued (and continued at the date
of the hearing) despite a Rule 35 report nearly a year earlier (and numerous
medical reports) assessing him as unfit for detention.
52. The court (Elspeth Laing QC) found that BA had been unlawfully detained from
June 2011 onwards, both under Hardial Singh and the Chapter 55 policy. There
12
The current version of the policy replaced an earlier, less restrictive version in August 2010. The
previous version of the policy did not make any reference to ‘satisfactory management’ so that those with
serious illnesses were to be detained only in very exceptional circumstances.
18
had been “a crescendo of professional voices” that BA was unfit to be detained.
His detention breached Article 3 and (in the alternative) Article 8; there had
been “a combination of bureaucratic inertia, and lack of communication and co-
ordination between those who were responsible for his welfare”.
R (Moussaoui) v SSHD [2012] EWHC 126 (Admin)
53. The claimant was Algerian, although he had not cooperated with establishing his
nationality. He had a history of psychiatric illness and had made several
previous attempts at suicide, and psychiatric illness was noted as a risk factor at
the outset of his detention. His health deteriorated in detention, but he was given
access to psychiatric care and treatment.
54. The court (Lindblom J) found that his detention had not been in breach of the
Chapter 55 policy or unlawful. There had been particularly strong factors
weighing in favour of detention, including his serious and prolific offending and
the high risk of reoffending. His condition had fluctuated but he had been given
medication and treatment and had been monitored by clinical staff. It had been
reasonable to detain him throughout the period and although his detention was
rendered unlawful by the failure to conduct regular reviews, no more than
nominal damages were appropriate.
R (HA (Nigeria)) v SSHD [2012] EWHC 979 (Admin)
55. The claimant was a Nigerian national and an overstayer, who began to
experience psychiatric problems during his prison sentence, prior to detention,
and was assessed as displaying “serious mental health problems” throughout his
detention. He was assessed as unfit for detention, but was nonetheless detained
for nearly a year afterwards, during which time his condition deteriorated so that
19
he was transferred to hospital under s48 MHA 1983. He was eventually granted
bail by the High Court.
56. The court (Singh J) found that the Secretary of State’s failure to act on the
reports and recommendations from psychiatrists and senior officials rendered
the claimant’s detention unlawful for most of the period. The duty identified in
relation to mentally ill prisoners in R (D) v Secretary of State for the Home
Department and another [2005] 1 MHLR 17 - where there are reasonable
grounds to believe that a prisoner requires treatment in a mental hospital, to take
reasonable steps to obtain appropriate medical advice, and if necessary to
transfer him to hospital – applied equally to immigration detainees. The SSHD
would not be acting rationally if she ignored a psychiatric recommendation for
transfer to hospital. The court found that HA’s detention had breached his rights
under Article 3 but did not go on to consider the alternative Article 8 claim.
57. The court further found that the policy in the later version of Chapter 55.10
(introduced on 26th
August 2010) was unlawful under s149 Equality Act 2010,
because there had been no consultation and no regard to the public sector
equality duty. The SSHD undertook to start an equality impact assessment
within 7 days of the judgment – this appears to have been abandoned when the
SSHD appealed (although the appeal has since been discontinued).
R (LE (Jamaica)) v SSHD [2012] EWCA Civ 597
58. The appellant, a Jamaican citizen, challenged his detention by reference to the
earlier version of the policy in Chapter 55.10. Richards LJ, giving the judgment
of the court, confirmed [29] that the lawfulness of detention under a policy was
subject to Wednesbury review and was not a matter to be determined by the
court. Whilst the construction of the policy was a matter for the court, and not
subject to Wednesbury review, the question of whether the decision-maker had
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acted within his discretion in applying the policy could only be reviewed by the
court on Wednesbury grounds.
59. Richards LJ held that both versions of the Chapter 55.10 policy incorporated a
‘seriousness threshold’ before the policy was engaged, and endorsed the
interpretation of Cranston J in Anam at [52] that “…mental health issues only
fall to be considered under Chapter 55 where there is available objective
medical evidence establishing that a detainee is, at the material time, suffering
from mental health issues of sufficient seriousness as to warrant consideration of
whether his circumstances are sufficiently exceptional to warrant his detention.”
60. Despite there having been no reference to the Chapter 55 policy in the reasons
given for detaining the appellant, the court accepted that the policy had been
applied because UKBA had accepted the prison’s view at the outset of detention
that the appellant’s condition was controlled by medication and that he was fit to
be detained. Although there had been a failure to carry out reviews, this did not
give rise to more than nominal damages.
R (S) v SSHD [2012] EWHC 1939 (Admin)
61. The claimant, a Togolese national, challenged his detention both in prison and in
a detention centre. The court (Lang J) accepted that the Secretary of State had
been aware at the outset of detention that the claimant had mental health
problems (depression and PTSD). Despite psychiatric reports indicating that
detention would exacerbate the claimant’s condition and increase his risk of
suicide, there was no reference to the Chapter 55.10 policy or any application of
it to the claimant’s case.
62. The court concluded that the failure to apply the policy rendered the claimant’s
detention in prison unlawful, but that it was “very probable” that the claimant
would have been detained in any event. In relation to his subsequent detention in
an IRC, it was only when a second psychiatric report was supplied to the SSHD,
21
confirming the opinion of Dr Katona, that the claimant’s detention became
unlawful; the SSHD had failed to have regard to the new evidence.
R (D) v SSHD [2012] EWHC 2501 (Admin)
63. The claimant was a national of Congo Brazzaville with paranoid schizophrenia
who had previously been detained for some 3 years; the Secretary of State was
aware of his condition prior to detaining him in February 2011. The claimant
was held without psychiatric medication or treatment for several months, during
which time his symptoms worsened, eventually culminating in a psychotic
breakdown and loss of capacity. Despite several psychiatric reports provided by
the claimant’s solicitors, here was no reference to his mental health or the
Chapter 55.10 policy in any detention review or monthly progress report.
64. In a lengthy judgment, the court (Charles George QC) found that the claimant’s
detention had been unlawful under Chapter 55.10 for the entire period of
detention, but that nominal damages only would be due for the first few months.
The failure to ensure access to medical treatment during the first nine months of
detention constituted a breach of Article 3, and the claimant’s Article 8 rights
had also been breached for the duration of his detention. Further, the Secretary
of State’s failure to have regard to the claimant’s disabilities, and/or to consider
the needs of disabled detainees, was a breach of the general equality duty in
s149 Equality Act 2010.
R (EH) v SSHD [2012] EWHC 2569 (Admin)
65. The claimant was a Rwandan film-maker who had previously suffered mental
illness caused by previous traumatic experiences. On reception into detention,
he was recorded as a survivor of genocide with persistent flashbacks who was
receiving antidepressant medication. In detention, he was recorded as
22
experiencing severe anxiety, panic attacks and flashbacks, night terrors and
auditory hallucinations, and was described as being in a ‘horrific delusional
state’. There was however no mention of his condition, or the Chapter 55.10
policy, in detention reviews or monthly progress reports.
66. The court (Lang J) noted [151] that the Secretary of State retained full legal
responsibility for persons detained in detention centres and it made no difference
that day to day management or healthcare were being provided by private
contractors. If staff at a detention centre were aware of a detainee’s condition the
Secretary of State should be taken to be aware of it.
67. The Secretary of State’s failure to consider her policy or apply it when she
became aware of the claimant’s condition rendered his detention unlawful, but
he was only entitled to nominal damages as she could and would have detained
him lawfully had the policy been applied [159]. In particular, and somewhat
surprisingly given the evidence that the claimant’s health had been stable prior
to detention, the court placed reliance on the fact that there was no medical
evidence that detention was exacerbating the claimant’s condition. The
claimant’s Article 3 claim was also rejected.
R (Das) v SSHD [2013] EWHC 682 (Admin)
68. The claimant had come to the UK as a domestic servant and suffered depression
and PTSD. She challenged her detention, inter alia under Chapter 55 EIG. This
was a(nother) case where UKBA was aware that the claimant was suffering
from psychiatric illness prior to detention, but failed to make any checks prior to
the decision to detain. Again, there was no mention of the claimant’s psychiatric
condition in the reviews of her detention, even though psychiatric reports were
sent to UKBA which highlighted the issue. There was no evidence that the
policy in Chapter 55.10 had been considered or applied to the claimant’s
particular circumstances.
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69. Sales J held that there was a public law duty of inquiry; the Secretary of State,
having adopted the policy in Chapter 55, was obliged to take reasonable steps to
inform herself about the relevant circumstances in order to be able to make an
informed judgment about whether the Chapter 55 policy applied or not in an
individual case: Secretary of State for Education and Science v Tameside
Metropolitan Borough Council [1977] AC 1014. The failure to take such steps
rendered the claimant’s detention unlawful.
70. Sales J also made some useful points [21] about the consequences of lack of
evidence from the Secretary of State, underlining that the court can draw
negative inferences from the failure to put before the court witness statements to
explain decision-making and the reasoning behind a decision: Wisniewski v
Central Manchester Health Authority [1998] Lloyds Rep Med 223 , 240;
Herrington v British Railways Board [1972] AC 877 , 930G-H (Lord Diplock);
The Law Debenture Trust Corporation plc v Elektrim SA [2009] EWHC 1801
(Ch), [176]-[179].
71. However, Sales J went on to find that the claimant would inevitably have been
detained had the Chapter 55 policy been correctly applied, and hence that she
was only entitled to nominal damages. Worryingly, he held that ‘serious mental
illness’ had to be narrowly construed so as to avoid undermining the “effective,
firm and fair operation” of immigration controls, and concluded that
“In my view, “serious mental illness” connotes a serious inability to cope
with ordinary life, to the level (or thereabouts) of requiring in-patient
medical attention or being liable to being sectioned under the Mental
Health Act 1983 , or a mental condition of a character such that there is a
real risk that detention could reduce the sufferer to that state – for
instance, if there were a real risk that they could have a break-down in
prison.”
72. Similarly, ‘satisfactory management’ within Chapter 55.10 indicated a standard
of “practical effectiveness of treatment, rather than treatment which avoids all
risk of suffering mental ill-health or any deterioration in an individual’s mental
24
well-being” which Sales J appeared to equate with “what may be expected to be
effective in preventing a detainee from slipping into a state of serious inability to
cope with ordinary life”.
Other sources of public law
73. The cases I have just referred to outline some of the issues that have arisen in
recent immigration detention cases focusing on the application of Chapter 55
policy. However, Chapter 55 is not the only source of public law duties relevant
to immigration detention.
74. In addition to published policy under Chapter 55, the Secretary of State must
also, in the exercise of detention, comply with the statutory duties in the
Detention Centre Rules 2001. Relatively few challenges have been based on the
Rules, and those which have been brought have focused on Rules 34 and 35,
which govern the treatment of detainees who are vulnerable by reason of
medical or mental health conditions, or who have been victims of torture.
Medical practitioners within a detention centre are required to provide reports to
the Secretary of State in cases where such detainees are likely to be injuriously
affected by detention – these reports are known as ‘Rule 35 reports’. Whilst the
Secretary of State is required to respond quickly to a Rule 35 report, there is no
guidance or policy which sets out how the contents of the report should be
considered or when the report should result in release.
75. In the recent case of EO, the High Court held that the 2001 Rules were
concerned with the regulation of the management of detention centres, and
accordingly had no direct bearing on the power of the Secretary of State to
detain. Technically, therefore, a breach of the Rules did not render detention
unlawful. However, a breach of the Rules was material and relevant to the
Secretary of State’s compliance with published policy on detention and would
therefore indirectly render detention unlawful in the sense of Lumba. Failings by
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individual medical practitioners to conduct proper reports were not actionable
by detainees; unless it could be established that the Rule 35 report should have
been accepted by the caseworker as independent evidence of torture under the
Secretary of State’s policy, detention would not be unlawful.
76. In addition to the Detention Centre Rules, the Secretary of State’s exercise of
the power of detention must comply with other mandatory policies. Detention
Service Orders, which are available on the Home Office website, are
instructions outlining procedures to be followed by staff working within the
detention estate and contractors employed on behalf of detention services. These
cover issues such as access to medication, the standard of accommodation,
lighting and heating, cases where detainees are refusing food and fluid, deaths in
detention, risk assessments of detainees, care of pregnant women, self harm and
suicide risk, and the use of restraints.
77. In addition, some detainees will be covered by policies relevant in other
contexts. Immigration detainees in prison with mental health difficulties, for
example, are also covered by Prison Service Instruction (PSI) 50/2007 and joint
guidance issued in conjunction with the Department of Health. In R(on the
application of HA (Nigeria)) v SSHD [2012] EWHC 979 (Admin) it was not
disputed that this guidance applied equally to detainees in the immigration
estate. The guidance provides, inter alia, that:
1.1 The head of healthcare at the prison, in conjunction with the prison
mental health team, must ensure that prisoners who may need treatment
in psychiatric hospital are identified as soon as possible (p11);
1.2 The fact that a person is a prisoner must not prevent or delay access to
appropriate care and treatment, in hospital if necessary [p11];
1.3 For those detained under the Immigration Act, Border Agency
caseworkers will need to be approached by the healthcare manager for a
decision on whether temporary admission is appropriate. Where
continued detention is required transfer will be by s48 [Mental Health
Act 1983] [p13].
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Human rights
78. We’ve looked at the common law constraints on the exercise of detention
powers under Hardial Singh and the way in which detention may be rendered
unlawful by public law errors such as the failure to comply with public policy.
Last but not least, immigration detention must also be compliant with the
Human Rights Act and the European Convention on Human Rights.
Immigration detention potentially engages Article 5, Article 3 and Article 8.
79. Article 5 ECHR grants a right to liberty and sets out the exceptions when
detention can be lawful. Article 5(1)(f) allows for detention
79.1 to prevent a person making an ‘unauthorised entry’:
79.2 against someone for whom ‘action is being taken to effect deportation or
extradition’ (i.e. removal)
80. The exceptions to liberty must be narrowly interpreted. Article 5 is intended to
provide protection against arbitrary detention and provides procedural
guarantees:
80.1 detention must be in accordance with procedures defined by law
80.2 the law must be sufficiently clear and precise.
80.3 there must be a right to an effective review of the lawfulness of detention
by ‘judicial procedure’, although this does not have to be in a court.
81. Caselaw under Article 5 echoes the principles enshrined in common law. For
example, detention under Article 5(1)(f) is justified only for as long as
deportation proceedings are in progress, and will cease to be lawful under
Article 5 if proceedings are not pursued with due diligence. In Mikolenko v
Estonia, the applicant detainee had refused to cooperate with steps taken to
document him for his return to Russia. The Russian authorities were unprepared
to issue documents without cooperation of the detainee, and there were
27
considerable periods of inactivity by the Estonian authorities. Because the
removal of the applicant had become “virtually impossible” without his
cooperation, which he was not willing to give, his detention was not being
effected with a view to his deportation and was hence unlawful under Article 5.
82. The domestic courts have tended to take the approach that this type of argument
under Article 5 adds little to the Hardial Singh or public law arguments, with
Lord Justice Richards in Muqtaar referring to it as a ‘bootstraps’ argument.
83. The other aspect of Article 5 which is relevant to immigration detention,
however, is the requirement in Article 5(1) for there to be a link between the
purpose of detention and the place and conditions of detention. This is of course
most likely to be relevant to immigration detainees who have been held in prison
rather than detention centres.
84. The domestic courts have in general accepted the principle that the requirement
for a link between the purpose of detention (ie immigration detention to effect
removal) and the place and conditions of detention indicates that immigration
detainees should not be held in prison unless there are specific risk factors which
justify detention in prison. This principle is also reflected in the Secretary of
State’s policy in Chapter 55. However, in many cases the courts have found that
the individual risk posed by the detainee is sufficient to justify detention in
prison. In the case of Rozo-Hermida, however, the court found a breach of
Article 5 where a detainee had been detained in prison rather than an IRC
because of a ‘blanket policy’ which dictated that certain categories of offender
were unsuitable for detention in the immigration estate. Despite this case the
policy and practice of the Secretary of State with regards to decisions to detain
in prison seems to be largely unchanged.
85. Article 3 is obviously also highly relevant to the lawfulness of immigration
detention, particularly as significant numbers of detainees in immigration
detention have mental or physical health problems.
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2. Article 3 ECHR imposes an absolute prohibition on torture or inhuman or
degrading treatment or punishment. Ill-treatment must reach a minimum
threshold of severity to fall within the scope of Article 3. The minimum
threshold differs from case to case, and depends on all the circumstances
including the nature and context of the treatment, the manner and method of its
execution, its duration, its physical or mental effects and, in some cases, the sex,
age and state of health of the victim.
3. In Kudla v Poland (2002) 35 EHRR 11, in the context of a mentally ill detainee
held on remand, the court stated [93] that:
“…the State must ensure that a person is detained in conditions which
are compatible with respect for his human dignity, that the manner and
method of the execution of the measure do not subject him to distress or
hardship of an intensity exceeding the unavoidable level of suffering
inherent in detention and that, given the practical demands of
imprisonment, his health and well-being are adequately secured by,
among other things, providing him with the requisite medical assistance
(see, mutatis mutandis, the Aerts v. Belgium judgment of 30 July 1998,
Reports 1998-V, p. 1966, §§ 64 et seq.).”
4. In Pretty v UK (2002) 35 EHRR 1, the court accepted [52] that:
“…The suffering which flows from naturally occurring illness, physical
or mental, may be covered by Article 3, where it is, or risks being,
exacerbated by treatment, whether flowing from conditions of detention,
expulsion or other measures, for which the authorities can be held
responsible.”
5. In Keenan v UK (2001) 33 EHRR 38, the court found a breach of Article 3 in a
case where a prisoner on remand was not given the necessary psychiatric input,
where inadequate medical records were kept, and where segregation and
punishments were imposed in response to psychotic episodes.
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6. In the context of immigration detention, there have been several recent cases
where the court has found a breach of Article 3. In R (HA (Nigeria)) v SSHD
[2012] EWHC 979 (Admin), the court found that Article 3 had been breached
for an immigration detainee whose serious mental illness was not treated for a
period of more than 5 months, where his illness led to bizarre behaviour which
alienated him from other detainees, and where he had been segregated and/or
subject to the use of force on several occasions. A similar conclusion was
reached in the case of D v SSHD, again because lack of psychiatric treatment
and medication had resulted in psychotic breakdown and the loss of litigation
capacity.
7. Even where treatment does not breach Article 3, it may still breach the
detainee’s right to ‘moral and physical integrity’ as an aspect of his private life
under Article 8 ECHR, as suggested by the House of Lords in the context of
removal in Razgar [2004] UKHL 27. This argument was accepted in the case of
D, because the detainee in that case had lost his ability to relate to other people
because of his psychosis and loss of capacity. Although similar arguments were
put forward in HA, the court did not consider them because of its findings on
Article 3.
CONCLUSION
8. As I said at the outset, the right to liberty is of fundamental importance. The
courts have repeatedly emphasised the need to construe powers of detention
narrowly, to ensure that the power to detain is not exercised unlawfully or
improperly and that fundamental common law and human rights are not
infringed.
9. We’ve seen that to be lawful, detention under immigration powers requires not
simply a lawful power to detain, but lawful exercise of that power. It must
comply with common law – the Hardial Singh principles; with public law,
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particularly the Secretary of State’s published policy on detention; and with
human rights.
10. I hope this seminar has been informative and that it will assist you in your future
practice.
Leonie Hirst
Tooks Chambers
