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

A detention policy referring to those who are mentally ill must, in the context of the amended Mental Health Act 1983, be applied to a detainee with a personality disorder. A failure to consider that policy does not itself render detention unlawful where lawful consideration would inevitably have resulted in detention.

The lawfulness of prolonged immigration detention remains a fact-sensitive application of the Hardial Singh principles. Risks of absconding and reoffending must be balanced against the detention’s length, the realistic prospect of removal, and any serious adverse effect on mental health. A real prospect of removal within a defined short period may justify continued detention in a finely balanced case.

The claimant, an Algerian national subject to a deportation order, challenged his continuing immigration detention under Schedule 3 to the Immigration Act 1971. He had been in immigration detention since September 2007, largely in HMP Wandsworth, and had a history of absconding, offending, self-harm and disturbed behaviour.

HH Judge Vosper QC refused permission except on an issue concerning the claimant’s sharing of a cell with a convicted prisoner. Laws LJ later granted permission for judicial review and ordered that the application be retained in the Court of Appeal. The claimant alleged that the Secretary of State had failed to apply the exceptional-circumstances policy for mentally ill detainees and that detention had become unreasonable under the Hardial Singh principles.

The central issues were the policy’s application to personality disorder, the materiality of the failure to obtain a psychiatric assessment, and whether continued detention remained lawful.

Claim dismissed. Sullivan LJ gave the judgment, with which Arden LJ and the Master of the Rolls agreed.

1. The policy in paragraph 55.10 of the Enforcement Instructions and Guidance did not distinguish mental illness from personality disorder. Read in its statutory context, its references to the mentally ill included persons with a mental disorder as defined by the amended Mental Health Act 1983. The Secretary of State should therefore have engaged with the policy once placed on notice of the claimant’s deteriorating mental condition in January 2009. The delay in obtaining a psychiatric assessment was inexcusable.

2. That error did not make the detention unlawful. Applying R (WL) [2010] EWCA Civ 111, a failure to take account of a non-statutory policy is material only if it affected the decision to detain. The claimant’s history of absconding, breach of bail and reoffending meant that, on proper consideration in January 2009, he would inevitably have been detained, either in prison or, if clinically required, in a secure hospital unit.

3. The Hardial Singh principles governed the reasonableness of continued detention. The court recognised the grave concerns created by 30 months’ detention, the earlier absence of a removal timetable, inadequate diligence, and the psychiatric evidence of harm from detention in prison. However, fresh evidence established a real prospect of an emergency travel document and removal within one to three months. In the circumstances, including the claimant’s non-cooperation and very high risks of absconding and offending, continued detention was not unlawful.

4. The Secretary of State was required to keep the claimant and his advisers informed through monthly reviews and to reassess detention promptly if the removal timetable slipped. The proposed timetable for independent psychiatric evidence and, if appropriate, consideration of hospital transfer was not unreasonable. No mandatory order was required.

1. Court of Appeal (Civil Division): The retained judicial-review claim was dismissed: [2010] EWCA Civ 347.
2. Court of Appeal (permission stage): On 16 October 2009, Laws LJ granted permission to apply for judicial review and ordered that the application be retained in the Court of Appeal.
3. High Court: On 1 July 2009, HH Judge Vosper QC refused permission save for a challenge to the conditions of detention at HMP Wandsworth. There was no cross-appeal on that issue.