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

Detention under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 is subject to the Hardial Singh principles. Those principles are conditions precedent to lawful detention, even where the statute imposes a duty to detain. A failure to follow a detention policy does not by itself remove the statutory warrant under paragraph 2(1), but detention becomes unlawful when it ceases to be for a reasonable period.

A policy requiring exceptional justification for detaining persons with serious mental illness must be considered at the outset, including where the person is temporarily stable but detention may cause deterioration. Risk must be assessed individually. The claimant’s detention became unlawful when prolonged detention, together with its effect on his health and the resulting delay to his asylum claim, made removal within a reasonable period unrealistic.

BA, a Nigerian national, had been convicted of importing cocaine and sentenced to ten years’ imprisonment. He had a recommendation for deportation and was detained under paragraph 2(1) of Schedule 3 to the Immigration Act 1971 after the custodial part of his sentence ended.

BA suffered from stress-induced psychosis. His condition had previously deteriorated in prison, including refusal of food and drink, and he had twice been transferred to hospital under the Mental Health Act 1983. During immigration detention his mental and physical condition deteriorated significantly. His asylum claim remained unresolved and prevented removal.

The issues were whether detention decisions breached the Secretary of State’s policy, whether detention was authorised under paragraph 2(1) and the Hardial Singh principles, whether BA was entitled to damages, and whether his rights under articles 3 and 8 of the ECHR had been breached.

1. Construction of paragraph 2(1). Paragraph 2(1) of Schedule 3 to the Immigration Act 1971 imposed a duty to detain, subject to a discretion to release. The Secretary of State was under a public law duty to consider periodically whether release should be directed. The statutory provision itself supplied the warrant for detention.
2. Hardial Singh principles. The principles stated in R v Governor of Durham Prison ex p Hardial Singh and restated in R (I) v Secretary of State for the Home Department applied, with appropriate modification, to detention under paragraph 2(1). They were conditions precedent to lawful detention, rather than merely relevant considerations. Detention had to pursue deportation, last no longer than a reasonable period, cease when removal within a reasonable period was no longer realistically possible, and be pursued with reasonable diligence and expedition.
3. Policy. Chapter 55 of the EIG had to be construed by the court. Paragraph 55.10 required serious mental illness and its likely effect on continued detention to be considered even where the detainee was stable when detention was first considered. The decision-maker had to assess whether deterioration could be satisfactorily managed in detention and weigh individually assessed risks of reoffending, harm and absconding against the mental illness. Generalisations that a serious drug offence automatically established high risks were inconsistent with the policy’s individualised approach.
4. The initial and subsequent detention reviews breached paragraph 55.10 and, on several occasions, the review requirements of Chapter 55. Those breaches did not themselves destroy the statutory warrant under paragraph 2(1). Until 21 June 2011, however, detention remained compatible with the Hardial Singh principles and BA would have been detained even if the policy had been followed.
5. By 21 June 2011 BA had been detained for 156 days at Harmondsworth. His detention had seriously affected his mental and physical health, caused persistent refusal of food and drink, and made it apparent that his asylum claim could not be progressed while he remained detained. Detention had ceased to be for a reasonable period. The statutory warrant was therefore lost and BA was falsely imprisoned from that date until release.
6. From 4 July to 6 August 2011 the combination of bureaucratic inertia, inadequate communication and failures in monitoring and medical care breached article 3 of the ECHR, alternatively article 8. The breaches ceased when BA was transferred to hospital. Any future detention would depend on current facts and medical evidence; detention likely to last several months would probably breach the Hardial Singh principles, whereas a short period might not.
7. BA was entitled to damages for false imprisonment, to be assessed, from 21 June 2011 until his release under the interim order.