IMMIGRATION DETENTION OF PERSONS WITH MENTAL HEALTH ISSUES

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1 IMMIGRATION DETENTION OF PERSONS WITH MENTAL HEALTH ISSUES Context 1. The Home Office is conducting an equality assessment of its policy on the immigration detention of persons with mental health issues. This document sets out the legal and policy framework for the policy in its current form and the background to its formulation. Responses to this consultation will be used to inform the policy and the equality assessment. Detention legal framework and policy 2. The power to detain an illegal entrant, seaman deserter, port removal or person liable to administrative removal is set out in Schedule 2 to the Immigration Act In addition, there is a free standing power to authorise detention where the Secretary of State has the power to set removal directions in section 62 of the Nationality, Immigration and Asylum Act The power to detain someone who is subject to deportation is set out in Schedule 3 to the Immigration Act 1971and section 36 of the UK Borders Act 2007 (automatic deportation). 3. The above immigration legislation provides for detention in the following circumstances: pending an individual s examination on arrival in the UK and pending a decision to grant or refuse entry; where there are grounds for believing that a person may be liable to removal from the UK (eg as an illegal entrant or overstayer) and pending their removal; and/or pending a decision on whether to deport and pending their deportation. 4. Case law has established that detention under these powers whilst not limited by the statute is subject to common law limitations. The leading case is R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, which has been interpreted as setting out the following principles: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. (ii) The deportee may only be detained for a period that is reasonable in all the circumstances. (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable

2 period, he should not seek to exercise the power of detention. (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal. 5. To be lawful, the exercise of the power to detain in immigration detention must be pursuant to one of the statutory powers and accord with the limits expressed in domestic case law and case law from the European Court of Human Rights in relation to Article 5 of the European Convention on Human Rights. It must also be in line with the Home Office s published policy on the use of detention. 6. Published Home Office policy can be found at Chapter 55 of the Enforcement Instructions and Guidance 1. This guidance covers general matters and specific areas such as the considerations that apply in relation to those who have been convicted of non-trivial criminal offences in the UK. In general, the guidance indicates that detention should be used sparingly and for the shortest possible period. The instances in which it is most usually appropriate include the following circumstances: to effect removal or deportation; to establish a person s identity or basis of claim; where there is reason to believe someone will fail to comply with conditions attached to temporary admission or temporary release; or as part of the asylum Detained Fast Track (DFT) process. 7. Although we would much prefer that people with no lawful basis of stay in the UK left voluntarily, experience has shown that many such individuals choose not to do so and, where that is the case, we have no option but to enforce their departure, which will invariably include the use of detention. The use of detention in appropriate circumstances is an essential element in protecting the UK s borders and in maintaining an effective immigration control. In particular, detention plays a key role in preventing unauthorised entry to the UK and in supporting the removal from the UK of persons with no lawful basis of stay, including those who have been convicted of criminal offences. In doing so, it helps to prevent harm to the public, especially in relation to the risk of reoffending by foreign nationals convicted of criminal offences. 8. All decisions to detain are taken on the basis of the individual circumstances of the case concerned, including all factors arguing for or against detention, and wherever possible the alternatives to detention (temporary admission or temporary release) are used. In addition, all detention is reviewed against a presumption in favour of release in accordance with the Home Office s published policy. 9. Once detention has been authorised it is kept under close review at regular intervals, and if there is a significant change in circumstances, to ensure it continues to be justified and remains consistent with Home Office policy. 1 movals/

3 10. Detainees can apply to seek their release from the High Court under a writ of habeas corpus or as part of a judicial review challenge considering the lawfulness of detention. Further, there is a statutory bail system under which bail can be obtained from the Immigration and Asylum Chamber of the First-Tier Tribunal. Detention of persons with mental health issues 11. Those who are liable to be detained for immigration purposes under UK law include persons who have mental health issues of different natures and degrees of seriousness. The Home Office s policy with regard to the detention of those with mental health issues can also be found in Chapter 55 of the Enforcement Instructions and Guidance. 12. Prior to 25 August 2010 section of the Enforcement Instructions and Guidance stated that: Certain persons are normally considered suitable for detention in only very exceptional circumstances. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. The following are normally considered suitable for detention in only very exceptional circumstances: Those suffering from serious medical conditions or the mentally ill 13. A more explicit statement of that policy was published on 25 August 2010 in the following way: Certain persons are normally considered suitable for detention in only very exceptional circumstances. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention. The following are normally considered suitable for detention in only very exceptional circumstances: Those suffering serious mental illness which cannot be satisfactorily managed within detention In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act. 14. The more explicit guidance did not change the Home Office s policy on the detention of individuals suffering serious mental illness, but merely clarified the longstanding policy position that, whilst serious mental illness is a relevant factor to be taken into account in deciding whether to authorise or maintain detention,

4 there was no automatic bar to detention in relation to any particular type of mental illness. The policy requires an individual consideration of the position with a view to assessing the impact of detention and the individual s fitness to be detained at each stage. Accordingly, whether the individual s serious mental health issues can be satisfactorily managed within detention is a key consideration in the assessment. What does the policy mean? 15. As indicated, section of the Enforcement Instructions and Guidance calls for an individual assessment of the position in relation to those who are suffering from significant mental health issues and so may be vulnerable to a greater adverse impact of detention than those who are not suffering from such mental health issues at the time of detention. The presence of mental health issues does not automatically preclude detention. Consideration will be given to whether the provision of medical care and treatment effectively mitigates the serious adverse effects of detention due to the serious mental illness which would otherwise be suffered by the detainee. This consideration may include account being taken of the likely duration of detention. For example, it may be that a serious mental illness could be managed satisfactorily for a short period of detention to effect a scheduled deportation but that detention would be contraindicated for a prolonged period so release would be appropriate if the deportation does not go ahead. 16. The policy additionally provides for very exceptional circumstances where it might prove necessary to detain a person with serious mental health issues that cannot be managed satisfactorily in detention (subject to the requirements of Article 3 of European Convention on Human Rights). Given that such circumstances are by definition very exceptional they cannot be codified. However, it may include an instance where the person concerned presents a risk of harm to the public and the detention is not anticipated to be very lengthy in order to give effect to a statutory requirement to deport under the automatic deportation regime or a recommendation of deportation by the Criminal Court. In exceptional cases it may also be necessary for detention to continue while individuals are waiting for or subject to mental health assessment, or are awaiting transfer to hospital under the Mental Health Act 1983 where they are not suitable for release. 17. The meaning of the policy in practice was described by Cranston J in Anam v Secretary of State for the Home Department [2009] EWHC 2496 (Admin) at paragraph 52 in the following way: 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 detention. [Thus] consideration should be given to the nature and severity of any mental health problem and to the impact of continuing detention on it.

5 18. This position was endorsed by the Court of Appeal in LE (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 597 at paragraph 41: It is difficult to see why special provision requiring detention to be justified by very exceptional circumstances should have been made for those with a mental illness that could be satisfactorily managed in detention so that the illness was not significantly affected by detention and did not make detention significantly more burdensome. I acknowledge the contrast in language between "those suffering from serious medical conditions" and "the mentally ill", and that some significance was attached to this contrast in R (MD (Angola)) v Secretary of State for the Home Department, but I do not consider that to be a sufficient reason for giving the policy the meaning for which Mr Southey contended. The court in that case was careful to leave open how the policy was to be construed in relation to the mentally ill. I am not impressed by Mr Southey's argument based on the uncertainty involved in the application of a seriousness threshold: a threshold of that kind had to be applied in any event under the original policy in relation to serious medical conditions, and has to be applied to mental illness as well as to medical conditions under the August 2010 amendment to the policy. Although the approach in Anam involves reading in a substantial qualification which is not expressed in the original policy, I am satisfied that such a qualification was implicit and gives effect to the true meaning of the policy. Questions 19. We are inviting views on the questions set out below, along with any other general comments relevant to equality issues and the policy. Considerations arise at the general level of the balance to be struck by this policy between the interests of the individual liable to detention and the collective interest of all members of the UK community in upholding UK law and giving effect to UK immigration policy. Also, there may be specific technical and evidential matters that are relevant to the implementation of the policy in relation to equality requirements. The questions below are intended to encourage comments on the relevant considerations since relevant and focused contributions will be of most assistance in examining the impact of equality considerations in this context. However, the questions should not be regarded as exhaustive. How should the balance be struck between individual interests and collective interests in upholding UK law and immigration policy in relation to those with mental health issues? Should that balance take account of individual circumstances or prescribe a general approach that does not require individual consideration (for example, a complete prohibition of detention of any person with significant mental health issues in any circumstances; or identification of particular mental health conditions that will always preclude detention)? What specific equality issues arise from a situation where persons suffering from mental illness may be detained? Do those issues vary according to the nature and seriousness of the mental health issues and the ability of treatment or management to mitigate any adverse effects?

6 What specific equality issues arise from the policy as formulated at present? Do you have any evidence that you believe shows that detaining such persons will have a disproportionate impact on any of the equality groups that you think should be considered in assessing the equality impact? Do you have evidence that the detention of such persons discriminates against particular equality groups? Are there any other sources of data that would give an accurate picture of how detention of those with serious mental health issues could impact on equality groups? Is there a formulation of policy in this area that better accommodates the relevant individual and collective interests taking account of equality considerations? Do you have any suggestions of how such equality issues could be addressed or mitigated under the existing policy or any reformulated policy specified? Are there particular facilities or services that should always be available to all detainees in immigration removal centres in connection with mental health issues? If so, what are they? Are there ways in which the provision of facilities or services to detained persons with mental health issues could be improved? If so, what action is required by the relevant providers (including the Department of Health)? How do those facilities and services compare to what would be available in the community? Responses Responses to this consultation should be sent to: MentalHealthDetentionConsultation@homeoffice.gsi.gov.uk The closing date for responses is 21 March 2014 Detention Policy, Operational Policy and Rules Immigration and Border Policy Directorate Home Office 24 January 2014