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

Immigration detention of a person suffering from serious mental illness is lawful only where the published policy requiring detention in very exceptional circumstances is properly understood and applied. Decision-makers must assess the nature and severity of the illness, the impact of continued detention, and countervailing factors such as absconding and public protection. A general presumption in favour of liberty is insufficient.

A deportation order is not “in force” for the purpose of paragraph 2(3) of Schedule 3 to the Immigration Act 1971 until it has been notified. Detention before notification was therefore unlawful. The claimant’s detention also breached Articles 3 and 5 ECHR.

S sought judicial review and damages for his detention by the UK Border Agency between April and September 2010. He suffered post-traumatic symptoms, hallucinations, repeated self-harm and suicidal risk. Before and during detention, medical experts advised that detention was harmful to his condition and that treatment should be provided in the community.

The claim challenged the legal basis for the initial detention, the subsequent detention reviews, compliance with the Secretary of State’s policy concerning mentally ill detainees, and alleged breaches of Articles 3, 5 and 8 ECHR. S was transferred to hospital in August 2010 and released on bail in September 2010. The central issues were whether detention was lawful and whether the treatment reached the threshold of Convention violations.

1. Initial detention. Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 permits detention where a deportation order is in force. Applying the constitutional principle that a decision adversely affecting liberty must be notified, and following the reasoning in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604, the order was not in force before notification. The claimant’s detention from 23 to 30 April 2010 was unlawful and breached Article 5.
2. Published policy. The Enforcement Instructions and Guidance created a specific presumption that persons suffering from serious mental illness should be detained only in very exceptional circumstances. The decision-maker had to consider objective medical evidence concerning the nature and severity of the illness and the effect of detention, then carefully weigh those matters against risks of absconding, reoffending and harm to the public. The countervailing factors had to be substantial indeed.
3. The detention reviews repeatedly misunderstood the medical evidence. Advice that hospitalisation was unnecessary did not mean that detention was appropriate. The reviews failed to confront the evidence that detention itself aggravated S’s condition, caused hallucinations and self-harm, and prevented effective treatment. The risks to the public were treated as decisive without properly assessing that the principal risk was to S himself. The policy was therefore materially misapplied, making continued detention unlawful under the principles in R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671 and R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299.
4. Articles 3 and 8. S’s pre-existing mental illness was triggered and substantially exacerbated by detention. The failure to obtain, communicate and act upon appropriate expert advice, together with the delay in securing hospital assessment, breached both the negative and positive obligations under Article 3. The treatment passed the high threshold of inhuman or degrading treatment. Article 8 was also breached, although it was unnecessary to decide that issue after the Article 3 finding.
5. The detention was unlawful from the outset and, alternatively, became unlawful shortly after commencement. The court reserved further submissions on relief and damages, including whether damages should be nominal or substantial.