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

Administrative detention is unlawful where a relevant public-law policy has not been applied. A lawful counterfactual affects compensatory damages rather than liability for false imprisonment. Normal compensatory principles apply; the Supreme Court authorities do not impose a distinct legal test of inevitability.

Under a policy permitting detention of mentally ill persons only in very exceptional circumstances, the strong presumption of release may be displaced by sufficiently weighty risks of reoffending, harm and absconding. Detention must also comply with the Hardial Singh principles.

Further representations constitute a fresh claim under paragraph 353 of the Immigration Rules only if they contain previously unconsidered material which, taken with earlier material, creates a realistic prospect of success before an immigration judge.

The appellant was a Nigerian national with serious mental-health difficulties. Following criminal convictions and a deportation decision, she was held in administrative detention from 8 August 2008. She challenged her continuing detention and the Secretary of State’s refusal to treat further human-rights representations as a fresh claim.

The Administrative Court dismissed both aspects of the claim in [2010] EWHC 2147 (Admin). After the Supreme Court’s decisions in Lumba and Kambadzi, the Secretary of State conceded that detention until 28 April 2010 had been unlawful because the policy concerning mentally ill detainees had not been considered.

The remaining issues were whether that breach caused compensable loss, whether detention was otherwise permissible under the policy and the Hardial Singh principles, and whether representations based on articles 3 and 8 of the European Convention on Human Rights amounted to a fresh claim.

1. The appeal was allowed only to the extent conceded. Detention from 8 August 2008 to 28 April 2010 was unlawful because the Secretary of State had failed to consider the applicable policy on mentally ill detainees. The resulting false imprisonment caused no loss because the appellant would and could lawfully have been detained. Nominal damages of £1 were awarded. The remainder of the appeal was dismissed.

2. The Supreme Court decisions in Lumba [2011] UKSC 12 and Kambadzi [2011] UKSC 23 established that a relevant public-law defect renders detention unlawful. Proof that lawful decision-making would have produced detention concerns damages, not liability. The Supreme Court’s references to detention being inevitable reflected the facts before it and did not establish a separate legal test. Normal compensatory principles require proof on the balance of probabilities, although the burden may shift to the defendant to show that lawful detention would and could have occurred.

3. The policy created a strong presumption that mentally ill persons should be released unless very exceptional circumstances justified detention. It nevertheless required an individual balance which included the risks of reoffending, public harm and absconding. The appellant’s history, mental state, impulsivity, limited community support and previous absconding produced a sufficiently weighty balance in favour of detention. The deterioration of her health carried limited weight because the balance of medical opinion was that her needs could be managed in detention, while the contrary recommendation favoured hospital transfer rather than release.

4. The risk of suicide or self-harm could not, on the assumed correctness of R (AA) [2010] EWHC 2265 (Admin), justify immigration detention for the detainee’s own protection. On the facts, however, it could not be separated clearly from the risk of harm to others. The detention decisions made after 28 April 2010 engaged adequately with the policy and contained no material error rendering detention unlawful.

5. Applying the four Hardial Singh principles as distilled in R (I), the Secretary of State detained the appellant for deportation, two years was not unreasonable in all the circumstances, removal remained a sufficient prospect at every stage, and no finite removal date was required. The delay in responding to the further representations was relevant but had only a minor overall effect and did not make continued detention unreasonable.

6. Under paragraph 353 of the Immigration Rules, the article 3 material did not disclose compelling humanitarian grounds or a realistic prospect of crossing the very exceptional threshold. The remaining family life protected by article 8 was vestigial and plainly outweighed by the considerations favouring deportation. The Secretary of State was therefore entitled to conclude that the representations were not a fresh claim.

Richards LJ delivered the judgment. Hughes and Ward LJJ agreed.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 909, allowed the appeal only in respect of the conceded unlawfulness of detention from 8 August 2008 to 28 April 2010, awarded nominal damages of £1, and otherwise dismissed the appeal.
2. Administrative Court: In [2010] EWHC 2147 (Admin), dismissed the challenge to detention and the refusal to treat the further representations as a fresh claim.