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

Prolonged immigration detention pending deportation requires anxious scrutiny of the detainee’s circumstances and prospects of release. The court must assess whether the presumption against detention is outweighed by risks such as non-attendance, considering the length and realistic prospects of detention, proposed living arrangements, social ties and current information. A bail tribunal concerned with attendance at its own proceedings does not displace the Administrative Court’s jurisdiction to review continued detention in the wider balance. Mental illness does not automatically require release under an administrative policy. The question is whether the condition can properly be managed within immigration detention.

Mr M, an Iraqi national with indefinite leave to remain, had been convicted of several offences, including domestic burglary. The Secretary of State served notice of an intention to deport him and detained him under Schedule 3 of the Immigration Act 1971 while his appeal before the Asylum and Immigration Tribunal remained outstanding. Two applications for bail had been refused.

Mr M sought judicial review of his continued detention. His Honour Judge Mackie considered that there were significant risks of further offending and non-attendance. In the Court of Appeal, Mr M sought permission to appeal and also applied for mandatory release on the basis of new medical evidence concerning his mental health. The central issues were whether the detention challenge required further scrutiny and whether the medical evidence required immediate release.

The Court of Appeal, per Buxton LJ, with Hooper LJ agreeing, granted permission to appeal but refused the application for immediate release.

1. Continued detention. The prolonged period of administrative detention and the absence of any immediate prospect of removal required anxious scrutiny of Mr M’s circumstances and prospects if released. It was arguable that the material before the High Court was insufficient to establish that the presumption against detention was outweighed by the risk of non-attendance. Further information was required about proposed accommodation, social ties and connections, the risk of reoffending, and the Secretary of State’s current monthly reports.
2. Forum. The Asylum and Immigration Tribunal’s bail decisions were directed principally to whether Mr M would attend its next hearing. That did not prevent the Administrative Court from considering the wider balance between the risk of non-attendance and the length of detention.
3. Mental health. Paragraph 38.10 of the Operation and Enforcement Manual was not an automatic rule requiring release whenever mental illness was established. It was directed to conditions requiring security, care and control that could not properly be dealt with within immigration detention. On the current medical evidence, Mr M’s condition remained capable of being managed within the detention system. A mandatory release order was therefore refused.
4. Suicide watch. The Secretary of State was required to obtain specific medical advice on the circumstances and extent to which suicide watch was necessary. She could act on that advice, after which the earlier direction requiring restoration of suicide watch would be prospectively discharged.

• Court of Appeal (Civil Division): [2008] EWCA Civ 129 granted permission to appeal and refused mandatory release.
• High Court of Justice, Queen’s Bench Division: His Honour Judge Mackie considered the judicial review challenge to continued detention and concluded that continued detention was justified.
• Asylum and Immigration Tribunal: Two applications for bail were refused while Mr M’s appeal against the deportation decision remained pending.