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

A material breach of a published immigration detention policy makes detention unlawful and establishes false imprisonment. Whether the person could and would have been detained following lawful application of the policy affects damages rather than liability.

Under the applicable policy, a diagnosis of mental illness did not alone engage the requirement that detention be justified by very exceptional circumstances. The illness had to be sufficiently serious, having regard to its nature, severity, management in detention and the effect of detention upon it.

Failure to conduct required monthly detention reviews rendered continued detention unlawful. Only nominal damages were recoverable where lawful reviews would inevitably have resulted in continued detention.

The appellant challenged his immigration detention under the Immigration Act 1971 from 16 February 2006 until his release on bail on 30 July 2007. He suffered from paranoid schizophrenia, controlled by medication. The Secretary of State considered that detention was justified by the risk of absconding and the anticipated imminence of removal.

Bean J dismissed the judicial review claim: [2007] EWHC 2980 (Admin). The appeal was stayed pending the Supreme Court decisions in Lumba and Kambadzi, after which permission was granted because the applicable principles had changed.

The Court of Appeal considered whether the detention decision complied with the published policy on detention of mentally ill persons and what followed from the failure to undertake required monthly detention reviews.

1. Appeal allowed to a limited extent. The initial detention was lawful. The failure to carry out monthly reviews made the continuing detention unlawful from approximately April to October 2006. The appellant was entitled to a declaration and nominal damages of £1. The appeal was otherwise dismissed.

2. A material breach of the Secretary of State's published detention policy renders detention unlawful and establishes false imprisonment. The possibility that the person could and would have been detained had the policy been followed concerns the quantum of damages, not liability. The principles in Lumba, [2011] UKSC 12, and Kambadzi, [2011] UKSC 23, therefore governed the consequences of the missed reviews.

3. The initial decision was based on the risk that the appellant would abscond and the expectation that removal was imminent. The decision-maker's witness statement and the contemporaneous documents had to be read together. The assessment was rational in light of the appellant's immigration history, criminal antecedents and incentive to evade deportation.

4. The reference to the mentally ill in paragraph 38.10 of the Operational Enforcement Manual contained an implicit threshold of seriousness. A diagnosis alone was insufficient. The decision-maker had to consider the nature and severity of the illness, whether it could be satisfactorily managed in detention, whether detention significantly affected it and whether the illness made detention significantly more burdensome. The Court endorsed Cranston J's formulation in Anam, [2009] EWHC 2496 (Admin).

5. The appellant's schizophrenia was controlled by medication and he was assessed as stable. The decision-maker had considered the relevant medical evidence and rationally concluded that the special policy was not engaged. It was consequently unnecessary to identify very exceptional circumstances justifying detention.

6. Richards LJ considered that construing the policy is ultimately a matter for the court, but applying a correctly understood policy to the facts is an exercise of statutory discretion reviewable on ordinary public law principles, including Wednesbury rationality. He regarded the court's role as supervisory. That issue did not determine the appeal because the detention was justified under either a supervisory or an independent assessment. Kitchin LJ and Maurice Kay LJ agreed with Richards LJ.

1. Court of Appeal (Civil Division): The appeal was allowed only to the extent of declaring an entitlement to nominal damages of £1 for unlawful detention caused by missed monthly reviews. It was otherwise dismissed: [2012] EWCA Civ 597.
2. High Court, Administrative Court: Bean J dismissed the claim for judicial review challenging the lawfulness of the appellant's immigration detention: [2007] EWHC 2980 (Admin).