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

Immigration detention must remain reasonable in all the circumstances. There is no fixed maximum period. Relevant factors include the risk of absconding, the risk of further offending, the detainee’s contribution to delay, the prospect of removal within a reasonable time, and the Secretary of State’s diligence.

A policy concerning detention of mentally ill persons is engaged by medical evidence indicating mental illness; a diagnosis of personality disorder, where the available evidence expressly excludes mental illness, does not necessarily engage it. Detention in prison may be justified where the detainee presents a serious management risk in an immigration removal centre. Breach of detention policy may also engage Article 5 rights concerning the manner and conditions of detention.

The claimant, an Algerian national subject to a deportation order, challenged his continuing immigration detention and his transfer from an immigration removal centre to Wandsworth Prison. He also challenged the conditions in which he was held, including sharing a cell with a convicted prisoner without recorded consent.

The claim concerned two periods of detention. The court refused permission to review the completed first period because the challenge was brought outside the judicial review time limit. It considered the lawfulness of the second period, the applicable detention policies, the common-law detention principles, and the alleged infringement of Article 5 of the European Convention on Human Rights.

1. First period of detention. The decisions to detain the claimant in July 2006 and September 2007 were separate executive decisions. The fact that both derived authority from paragraph 2 of Schedule 3 to the Immigration Act 1971 did not convert them into one continuing administrative act. The challenge to the completed first period was brought outside the three-month judicial review limit in CPR Part 54, and permission was refused.
2. Mental-illness policy. The policy applied to persons suffering from serious medical conditions or mental illness. The medical evidence recorded self-harm and personality disorder but expressly excluded mental illness. The Secretary of State was therefore not required to apply the policy. The court distinguished the circumstances considered in R (MMH) v Secretary of State for the Home Department.
3. Duration of detention. Applying the principles in Hardial Singh, as stated in R (I) v Secretary of State for the Home Department, there was no fixed period after which detention automatically became unlawful. The relevant considerations included the high risk of absconding, the almost inevitable risk of further offending, the claimant’s obstructive conduct, the prospect of obtaining Algerian travel documents, and the Secretary of State’s steps to secure removal. Detention remained reasonable and removal could be achieved within a reasonable time.
4. Transfer to prison. The claimant’s conduct at Colnbrook, including threats, self-harm, non-compliance and attempts to encourage disruption, provided a sufficient basis for concluding that he could not safely be managed in an immigration removal centre. The transfer to Wandsworth was consistent with the relevant policy.
5. Conditions of detention. Holding the claimant with a convicted prisoner without his explicit consent breached the applicable Prison Service policy. That manner of detention infringed Article 5. The Secretary of State for the Home Department was not absolved from responsibility merely because the Secretary of State for Justice might also be liable. A declaration was made and an inquiry into damages directed. In all other respects permission for judicial review was refused.

First-instance judicial review decision. The judgment does not state any prior appellate decision.