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

Immigration detention must remain lawful under the Hardial Singh principles and the Secretary of State’s published policy. For mentally ill detainees, paragraph 55.10 of the detention guidance creates a particularly strong presumption against detention. Continued detention requires an assessment of whether very exceptional circumstances justify it, with the detainee’s condition balanced against the risks of reoffending and absconding.

A failure to apply the policy does not automatically invalidate detention, but the Secretary of State must establish that the failure did not cause the detention and that detention was not arbitrary. Reasonable diligence in pursuing removal includes recognising and communicating an in-country right of appeal. Detention was unlawful where legal errors delayed that appeal.

The claimant, an Algerian national with a significant criminal record and continuing mental illness, challenged his detention under the Immigration Acts pending deportation. He argued that the Secretary of State had failed to apply the published policy governing detention of mentally ill foreign national offenders and had delayed recognising his in-country right of appeal.

The Secretary of State had initially treated the claimant’s further representations as a possible fresh claim under paragraph 353 of the Immigration Rules. Following R (BA Nigeria and PE Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 119, subsequently upheld by the Supreme Court at [2009] UKSC 7, the Secretary of State accepted that the claimant had an in-country appeal against refusal to revoke the deportation order. The issues were whether the detention was unlawful because the policy had not been applied and whether delay in recognising the appeal breached the Hardial Singh principles.

1. The claim succeeded. The claimant’s detention from 20 March 2008 to 11 January 2010 was declared unlawful.

2. Under paragraph 55.10 of the detention guidance, mentally ill detainees are normally suitable for detention only in very exceptional circumstances. In a criminal case, the risk of reoffending, harm to the public and absconding must be carefully weighed against the particular reasons making detention unsuitable. A finding that detention is appropriate requires an assessment of whether the circumstances are very exceptional.

3. The Secretary of State’s reviews considered the claimant’s criminality and risk of absconding but did not properly assess or balance his mental illness. They did not identify very exceptional circumstances. The policy had therefore not been applied.

4. A breach of the policy does not by itself make detention unlawful. The failure must have caused the detention, and the Secretary of State must still demonstrate compliance with the Hardial Singh principles and that detention was not arbitrary. Where the required balancing exercise has not been undertaken and the answer is not obvious, the court should not ordinarily conduct that assessment for the first time. The Secretary of State must justify detention according to the applicable test.

5. Following R (BA Nigeria and PE Cameroon) v Secretary of State for the Home Department [2009] EWCA Civ 119 and [2009] UKSC 7, further representations made after a deportation order are treated as an application to revoke that order. The fresh-claim process does not apply. Refusal to revoke is an immigration decision carrying an in-country right of appeal, whether or not the representations amount to a fresh claim.

6. The Secretary of State’s earlier interpretation of the law was reasonable until the Court of Appeal’s decision. From 1 March 2009, however, it was no longer reasonable to maintain that interpretation. Failure to recognise and communicate the appeal right, followed by inappropriate certification, delayed the appeal and breached the requirement to act with reasonable diligence and expedition. Detention from 1 March to 12 June 2009 was unlawful independently of the policy breach.

The court made a declaration that detention from 20 March 2008 to 11 January 2010 was unlawful.