MD (Angola) & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

An immigration detainee with a serious medical condition is normally unsuitable for detention under the applicable policy only where the condition significantly affects the detainee and cannot be satisfactorily managed in detention. A diagnosis of HIV does not alone engage that protection.

Articles 2 and 3 of the ECHR require an appropriate general system for protecting detainees’ health, but do not prescribe adoption of particular professional guidance as a universal minimum standard. When assessing the reasonableness of detention, the court must consider the illness’s impact and whether suitable treatment can control it. A medical error, including an interruption in medication, does not by itself make detention unlawful. Its effect must be assessed in all the circumstances.

Three unrelated appellants, each diagnosed as HIV-positive and liable to removal or deportation, challenged the lawfulness of their immigration detention. Cranston J dismissed their judicial review claims.

They appealed on three grounds. They contended that the Secretary of State’s policy normally excluded anyone diagnosed with a serious medical condition from detention. Alternatively, they alleged that the general arrangements for managing HIV-positive detainees failed to comply with Articles 2 and 3 of the ECHR because the Secretary of State had not adopted specialist guidance as a universal standard. Finally, they submitted that failures in their individual treatment had rendered their detention unlawful.

The central questions were how the policy phrase “suffering from serious medical conditions” should be construed, what general healthcare system the Convention required, and whether the treatment of any appellant made his detention unlawful.

1. The appeals were dismissed unanimously. Maurice Kay LJ delivered the leading judgment. Arden and Patten LJJ agreed.

2. The phrase “suffering from serious medical conditions” in the Secretary of State’s detention policy did not include every person who had such a condition. In its context, it referred to a person significantly affected by a condition which could not be satisfactorily managed in detention. The policy’s purpose, the anticipated brevity of detention and the express qualification “suffering from” supported that construction. A well-controlled HIV diagnosis therefore did not alone make detention permissible only in very exceptional circumstances.

3. Articles 2 and 3 required appropriate general measures to protect detainees’ health, including competent staff, professional standards, suitable systems and requisite medical assistance. They did not require the Secretary of State to adopt the British HIV Association advice as a universal legal minimum. The existing combination of the Detention Centre Rules 2001, operating standards, service orders and contractual healthcare obligations constituted an ECHR-compliant general system. The adequacy of medical assistance remained fact-sensitive: Slimani v France (2006) EHRR 49, Aleksanyan v Russia (2011) 52 EHRR 18 and Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681 applied.

4. Under the Hardial Singh principles, the impact of illness is relevant to the reasonableness of detention. The critical question is whether facilities are available to control the illness and prevent suffering. Neither the common law nor Article 3 provides that every medical mistake makes detention unlawful or requires release. The mistake, its effects and all surrounding circumstances must be evaluated.

5. The evidence did not establish unlawful detention for any appellant. TN’s alleged treatment failures were unsupported. CJ’s missed doses and appointments did not have adverse consequences sufficient to affect legality. MD’s interruption in medication was more concerning and may have contributed to resistance, but it did not require the Secretary of State to end detention. Arden LJ left open whether MD might establish a separate Article 3 damages claim and emphasised that authoritative professional guidance could inform the assessment of treatment under Article 3.

1. Court of Appeal (Civil Division): The court granted permission to appeal and unanimously dismissed all three appeals: [2011] EWCA Civ 1238.
2. Administrative Court: Cranston J dismissed the applications for judicial review on 30 July 2010. He held that the detention policy had not been breached and rejected the appellants’ factual cases concerning the management of their conditions. No neutral citation is stated.