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

Detention of a person suffering from mental illness, or supported by independent evidence of torture, is normally justified only in very exceptional circumstances. A breach of the Detention Centre Rules or the Secretary of State’s detention policy makes detention unlawful only where it caused the detention: properly assessed, the person would otherwise have been released. The assessment requires substantial weight to be given to the strong presumption in favour of release, while considering risk of reoffending, risk of absconding, danger to the public and the practical prospects of removal. Serious failures to examine, review and address medical evidence may therefore invalidate continued detention where the evidence shows that detention is aggravating mental illness or increasing the risk of suicide.

The claimant, a Zimbabwean national subject to a deportation order, sought judicial review of his detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971. He alleged breaches of the Detention Centre Rules 2001 and of the Secretary of State’s policy concerning mentally ill detainees and persons with independent evidence of torture. He also alleged that removal had not been pursued with reasonable diligence.

The claimant had PTSD, severe depression, reported suicide attempts and medical evidence consistent with torture. The defendant accepted several failures in the detention and review process but argued that detention was justified by risks of reoffending and absconding. The central issue was whether, despite those failures, very exceptional circumstances justified continued detention.

1. Ground one succeeded. The court declared the detention unlawful and ordered release on bail, subject to twice-weekly reporting, residence at an agreed address and electronic tagging. The defendant was given 72 hours to put the arrangements in place, with liberty to apply if difficulties arose. The claim was stayed for two months for settlement of damages and, if necessary, transferred to the Queen’s Bench Division for assessment. The defendant was ordered to pay the claimant’s costs.
2. The admitted failure to provide a physical and mental examination within 24 hours breached Rule 34(1) of the Detention Centre Rules 2001. The Rule 35 report identifying alleged torture and the risk of harm from continued detention was not acted upon. The defendant also failed to review detention after receiving medical reports diagnosing PTSD and severe depression, including evidence that continued detention aggravated the claimant’s condition and increased the risk of suicide.
3. The relevant question was causation. A breach of policy or the Rules did not itself make detention unlawful. It had to be shown that, if detention had been properly assessed, the claimant would not have been detained. That question depended on whether very exceptional circumstances justified detention under chapter 55.10 of the Enforcement Instructions and Guidance.
4. Very exceptional circumstances require a strong presumption in favour of release to be overcome by a substantial balance of countervailing factors. Relevant matters included the risk of reoffending, the risk of absconding, danger to the public and the prospects of removal. The claimant’s reoffending risk was no higher than medium. His absconding risk was between low and medium. Refusal of voluntary repatriation was academic while removals to Zimbabwe were not being enforced.
5. The failures were significant and serious. The court found no very exceptional circumstances justifying detention. Detention became unlawful when the defendant received Dr Katona’s report at the beginning of October 2009. The court did not decide the separate expedition and overall-unreasonableness grounds.

First-instance judicial review in the Administrative Court. The judgment does not state any subsequent appellate decision.