Supreme Court

Regina (O) v Secretary of State for the Home Department (Bail for Immigration Detainees and another intervening)

[2016] UKSC 19; [2016] WLR (D) 222

2016 Jan 19, 20; 1 April 27

Baroness Hale of Richmond DPSC, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulso JJSC

Immigration — Deportation order — Detention pending deportation — Home Secretary detaining claimant suffering from mental illness pending deportation — Whether detention unlawful following change in medical opinion as to appropriate treatment for illness — Whether illness capable of being “satisfactorily managed” within detention — Whether claim for judicial review to be allowed to proceed after claimant released on bail — Immigration Act 1971 (c 77), Sch 3, para 2 (as amended by Immigration and Asylum Act 1999 (c 33), s 54, Nationality, Immigration and Asylum Act 2002 (c 41), s 114(3), Sch 7, para 7 and Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c 19), s 34))

Facts

The claimant, a 38-year-old Nigerian woman, entered the United Kingdom illegally in 2003 and unsuccessfully claimed asylum. After committing child cruelty offences, she was sentenced to imprisonment. On her release from prison in 2008, the Home Secretary detained her, first under paragraph 2(1) of Schedule 3 to the Immigration Act 1971, pending the making of a deportation order, and then, once the deportation order was made, under paragraph 2(3) of Schedule 3, pending deportation. She was detained for nearly three years, with continued detention purportedly being justified by the risk of absconding and the risk of harm. During that time she displayed serious signs of mental ill-health. Initial medical reports advised that the claimant’s needs would be adequately met at the detention centre and that she would not obtain any benefit from being transferred to hospital. However, in February 2011 a fresh medical report stated, for the first time, that the claimant suffered from a severe form of post-traumatic stress disorder and that she required a package of care and treatment in the community. On the next review of the claimant’s detention in March 2011, the Home Secretary concluded that the report contained no new information or diagnosis and that the claimant’s continued detention was justified. Further reviews came to the same decision. In July 2011 the claimant was released on bail. The claimant was refused permission to proceed with a claim for judicial review of the Home Secretary’s decision to continue to detain her. The judge refused her renewed application for permission, holding that there had not been a material change in circumstances in the relevant period of detention and that it was unlikely that the claimant would be able to show that her ill-health could not be satisfactorily managed in detention, in accordance with paragraph 55.10 of the Home Secretary’s Enforcement Instructions and Guidance. The Court of Appeal dismissed the claimant’s appeal, holding that, although the Home Secretary had unlawfully failed to apply the policy set out in paragraph 55.10 when deciding to detain the claimant between March and July 2011, the likely result of the claim if it proceeded would, at most, be a declaration that the claimant’s detention during that time had been unlawful and an award of nominal damages and, in those circumstances, it was appropriate to uphold the judge’s refusal to grant permission for it to proceed.

On the claimant’s appeal—

Held

Held, appeal dismissed. The policy in paragraph 55.10 of the Enforcement Instructions and Guidance mandated a practical inquiry and the phrase “satisfactorily managed” should be interpreted with regard to its context and purpose. An important part of its context was that the management of a detainee’s illness took place in detention pending likely deportation. Treatment of a patient who found herself in the doubly distressing circumstances of detention and likely deportation had its own considerable, extra challenges. Treatment in those circumstances might be satisfactory even if it would not otherwise be satisfactory. Although the Home Secretary had unlawfully failed to apply her policy to the claimant’s continued detention between March and July 2011, the proper application of that policy would not have led to the claimant’s immediate release, since inquiries would have had to be made as to whether, in the light of the latest medical report, her illness could be satisfactorily managed at the detention centre. In any event, it was unrealistic to consider that the conditions necessary for the claimant’s release would have been in place prior to the date of her actual release on bail. In those circumstances, if the claim for judicial review were permitted to proceed, the result in all likelihood would be a declaration that the claimant’s detention between March and July 2011 had been unlawful and an award of nominal damages, which would bring the claimant no practical benefit. To the extent that the claimant’s contentions in the proceedings had deserved to be vindicated, she had secured their vindication and, accordingly, it was appropriate to uphold the refusal to grant permission for the claim to proceed (paras 31–35, 50).

R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245, SC(E) and R (Das) v Secretary of State for the Home Department (Mind intervening) [2014] 1 WLR 3538, CA applied.

Per curiam. (i) While satisfactory management does not mean optimal management, a narrow construction of the word “management” as meaning no more than “control” of the illness would lack principled foundation, particularly when in very exceptional circumstances the detainee may continue to be detained pursuant to the policy notwithstanding the unsatisfactory management of her illness there (para 30).

(ii) The mandate to detain conferred by paragraph 2(1) of Schedule 3 to the 1971 Act (pending the making of a deportation order) and by the words in parenthesis in paragraph 2(3) (pending deportation) is subject to the two conditions that (i) there is a prospect of deportation within a reasonable time, and (ii) the Home Secretary will consider in accordance with her policy whether to exercise her power to direct release. Were either condition not to be satisfied, the mandate would cease and the detention would become unlawful) (para 48).

R (Francis) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2015] 1 WLR 567, CA not applied.

Appellate History

Decision of the Court of Appeal [2014] EWCA Civ 990; [2015] 1 WLR 641 affirmed.

Appearances

Hugh Southey QC and Ranjiv Khubber (instructed by Lawrence Lupin, Wembley) for the claimant.

Robin Tam QC, Julie Anderson and Belinda McRae (instructed by Treasury Solicitor) for the Home Secretary.

Michael Fordham QC, Laura Dubinsky and Jason Pobjoy, all acting pro bono, (instructed by Allen & Overy LLP, acting pro bono) for Bail for Immigration Detainees, intervening and (instructed by Deighton Pierce Glynn, acting pro bono) for Medical Justice, intervening.

Reported by: Jill Sutherland, Barrister

© 2016. The Incorporated Council of Law Reporting for England and Wales.