Anam v Secretary of State for the Home Department

Detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 is lawful only where it complies with the Hardial Singh principles. A failure to follow published detention policy does not, by itself, make detention unlawful. The court must determine legality for itself, giving appropriate weight to the policy and to the individual circumstances.

A policy that persons with mental illness should be detained only in very exceptional circumstances creates a strong presumption of release. It does not exclude detention where exceptionally weighty factors, including serious risk of reoffending, public harm, absconding, and obstruction of removal, justify it. The Secretary of State bears the burden of establishing lawful detention.

The appellant, a Bangladeshi national with indefinite leave to remain, had paranoid schizophrenia and a lengthy criminal record culminating in convictions for robbery and theft. Following a deportation order, he was transferred from prison to immigration detention.

Cranston J held that the Secretary of State had failed properly to consider the published policy concerning detention of mentally ill persons. He granted a declaration to that effect, but dismissed the claims for release, damages, and a declaration that detention was unlawful. He found that the appellant's offending, risk of absconding, failure to co-operate with removal, and disruptive conduct justified detention.

The appeal concerned whether a failure to apply the policy automatically made detention unlawful and, if not, the proper role of the court in determining the lawfulness of detention.

1. Appeal dismissed unanimously. The appellant's detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 was lawful.

2. Per Black LJ, the principles in Re Hardial Singh [1984] 1 WLR 704 governed legality. A failure to comply with published policy, guidance, or internal procedural requirements did not itself convert detention into false imprisonment. Such a failure remained relevant to the court's assessment of whether detention was lawful and non-arbitrary.

3. The court, rather than the Secretary of State on a conventional public-law review, was the primary decision-maker on whether administrative detention was lawful. It had to assess the relevant evidence, policies, risks, and likely removal timescale for itself. This followed R (A (Somalia)) v Secretary of State for the Home Department [2007] EWCA Civ 804.

4. Chapter 55 of the Enforcement Instructions and Guidance had to be read as a whole. Mental illness gave rise to a strong presumption of release and required very exceptional circumstances for detention. However, serious offending, public protection, absconding, obstruction of removal, and non-co-operation could amount to exceptionally weighty countervailing factors. The comparison was not confined to mentally ill criminal casework detainees.

5. The evidence justified Cranston J's conclusion. The appellant posed a very high absconding risk, had a serious and escalating offending history, had frustrated removal, and had failed to co-operate with documentation. Those matters outweighed the adverse effect of detention on his mental health.

6. Black LJ rejected a freestanding legal test that the Secretary of State had to prove detention was inevitable absent the policy error. Longmore LJ considered that legality was determined solely by the Hardial Singh principles. Maurice Kay LJ considered the authorities not wholly consistent, but held that detention was lawful under either analysis because the same decision was inevitable.

• Court of Appeal (Civil Division): dismissed the appeal and upheld the conclusion that detention was lawful.
• Administrative Court: Cranston J, on 13 October 2009, declared that the Secretary of State had unlawfully failed to consider the implications of the published policy for detention of the appellant. He otherwise dismissed the judicial review claim, including the claims for release and damages.