OM (Nigeria) v Secretary of State for the Home Department

Detention of a foreign national prisoner with mental illness requires a structured assessment of the applicable detention policy. The decision-maker must weigh the general presumption of release, public-protection and absconding risks, and the strong presumption against detaining mentally ill persons except in very exceptional circumstances. Failure to consider the relevant policy is an error of law, but does not automatically make detention unlawful. The claimant must show that proper consideration would have led to release. Continued detention must also satisfy the Hardial Singh principles. For a fresh claim, the Secretary of State must ask whether the further material creates a realistic prospect of success before an immigration judge, applying anxious scrutiny. A declaration was granted for failures concerning detention policy and Article 8 family life, but other relief was refused.

The claimant, a Nigerian national recommended for deportation after criminal convictions, challenged her detention and the rejection of further submissions as a fresh claim under paragraph 353 of the Immigration Rules. She relied on serious mental illness, medical evidence concerning conditions in Nigeria, and family and private life involving her daughter. The issues were whether the Secretary of State had properly applied the Enforcement Instructions and Guidance, whether detention had become unlawful or exceeded the period permitted by Hardial Singh, and whether the further submissions created a realistic prospect of success under Articles 3 and 8 of the Convention.

1. Detention policy. The Enforcement Instructions and Guidance constituted an instruction and a promise by the public authority which decision-makers were required to follow. The Secretary of State had failed, until April 2010, expressly to engage with paragraph 55.10 concerning persons with serious medical conditions or mental illness. That failure was an error of law.
2. Effect of the failure. Non-compliance with policy did not automatically invalidate detention. The question was whether, had detention been properly assessed, the claimant would have been released. The assessment required a sequential balancing exercise involving the general presumption of release, the risks of reoffending and absconding relevant to a foreign national prisoner, and the very strong presumption against detention of a mentally ill person. On the evidence, detention would nevertheless have been maintained.
3. Duration. The Hardial Singh principles applied. The Secretary of State had to intend removal, detain only for that purpose, detain for no longer than reasonable, release when removal could not be achieved within a reasonable period, and act with reasonable diligence and expedition. The detention remained lawful.
4. Fresh claim. The court applied the low threshold and anxious scrutiny required by WM (DRC) v Secretary of State for the Home Department and Secretary of State for the Home Department v AR, as considered in ZT (Kosovo) v Secretary of State for the Home Department. Applying N v the United Kingdom, there was no reasonable prospect of an Article 3 violation on the medical evidence. Article 8(1) family life was engaged because limited contact with the claimant’s daughter continued, but the interference was proportionate in light of the family-court orders.
5. Relief. Declarations were granted for the period August 2008 to April 2010 because the mental-illness policy had not been engaged and Article 8(1) had been wrongly treated as inapplicable. Other declarations and quashing orders were refused.