LEONIE HIRST. Detention Under Immigration Powers DVD248. Quality training for less

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1 Quality training for less Detention Under Immigration Powers DVD248 LEONIE HIRST All copyright and intellectual property rights in these Webinar DVDs and materials remain the property of the SOLICITORS group 1 thesolicitorsgroup.co.uk enquiries@thesolicitorsgroup.co.uk

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3 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 broadbased 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 , 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

4 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 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. 4

5 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 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. 5

6 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 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 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. 6

7 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 7

8 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 8

9 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 principles 2. 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 State 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 Lumba 4, 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 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] 9

10 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 I 5 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 irrelevant 6. 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 detention 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] 10

11 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] 11

12 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 out 9. 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

13 37. In the recent case of Muqtaar 10, 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

14 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 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 14

15 (the failure to follow policy) does not bear on the underlying decision to detain 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 Lumba 15

16 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 ( 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 ( ). 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 16

17 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 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 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. 17

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 coordination 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 18

19 he was transferred to hospital under s48 MHA 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 (introduced on 26 th 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 The appellant, a Jamaican citizen, challenged his detention by reference to the earlier version of the policy in Chapter 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 19

20 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 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 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, 20

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 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 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 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 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 21

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 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 had been considered or applied to the claimant s particular circumstances. 22

23 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 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 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 23

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 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 24

25 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]. 25

26 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 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 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 26

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 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. 27

28 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. 28