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

Immigration detention must be exercised for the purpose of removal and only for a period reasonable in all the circumstances. Where the applicable policy treats mentally ill detainees as suitable for detention only in very exceptional circumstances, the Secretary of State must address and apply that policy. Failure to do so makes detention unlawful unless detention was inevitable on the evidence. Protecting a detainee from suicide or other self-harm is not a proper purpose of immigration detention, however commendable the objective. On the facts, very exceptional circumstances were absent and continued detention was not inevitable.

The claimant, a Nigerian national, had completed the custodial part of a sentence for passport and benefit fraud but remained detained under immigration powers at HMP Chelmsford. He suffered severe depression, suicidal ideation and repeated suicide attempts. The Secretary of State relied on removal, absconding and public-protection concerns, and on the need to protect the claimant from self-harm, but did not apply paragraph 55.10 of the Enforcement Instructions and Guidance until after the judicial review claim had been filed. His deportation appeal was later allowed on human-rights grounds. The central issues were whether the policy had been applied, whether very exceptional circumstances justified detention, whether self-protection was a lawful purpose, and whether detention was inevitable.

1. Claim allowed. The claimant’s detention at HMP Chelmsford was unlawful, and an appropriate declaration was made. The parties were to draw up an order, including a stay for negotiation and provision for assessment of damages.
2. The governing principles under Schedule 3 to the Immigration Act 1971, identified in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, are that detention must facilitate removal and must last no longer than is reasonable in all the circumstances.
3. Paragraph 55.10 of the Enforcement Instructions and Guidance required the Secretary of State to consider whether very exceptional circumstances justified detaining a person suffering from serious medical conditions or mental illness. The reviews and reports did not apply that policy; the later review could not cure the failure.
4. Applying the approach in Anam v Secretary of State for the Home Department [2009] EWHC 2496, very exceptional circumstances require both an infrequent situation and circumstances possessing a sufficiently distinctive quality. Relevant matters included the claimant’s mental illness and suicide attempts, the limited seriousness of his offending, his low assessed risk of public harm, his prolonged compliance with bail and the deterioration associated with detention. Those matters did not justify detention.
5. Using immigration detention to protect a person from himself, including preventing suicide, is an improper purpose. The statutory mental-health schemes referred to in section 48 of the Mental Health Act 1948 and the Mental Health Act 1983 provided alternative means of addressing the claimant’s welfare.
6. Failure to apply the policy ordinarily rendered detention unlawful, subject to the exception that the decision was inevitable. The evidence, including internal Home Office emails and medical evidence supporting transfer or community care, showed that continued detention was not inevitable.

This was a first-instance judicial review. The judgment describes earlier immigration and deportation proceedings, including the Upper Tribunal’s decision allowing the claimant’s appeal on Articles 3 and 8 grounds, but no appeal from the present decision is stated.