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

Immigration detention may remain lawful where a detainee’s mental illness engages a strong presumption in favour of release, provided unusually strong countervailing factors justify detention. Relevant factors include the risks of absconding and reoffending, the seriousness of potential harm, the prospect of removal, and whether the condition can be satisfactorily managed in detention.

The court must determine lawfulness for itself under the Hardial Singh principles. A failure to conduct required detention reviews makes detention unlawful, but damages remain nominal where the detainee would and could lawfully have been detained throughout the relevant period.

The claimant challenged his immigration detention from 17 May to 29 November 2010. He alleged failure to apply the Secretary of State’s policy concerning mentally ill detainees, breach of the Hardial Singh principles, misuse of the statutory detention powers, and failure to review his detention.

The Secretary of State accepted, following [2011] UKSC 12 and [2011] UKSC 23, that the absence of formal reviews made the detention unlawful and constituted false imprisonment. She argued that the claimant would nevertheless have been detained lawfully and that only nominal damages were recoverable.

1. Policy concerning mental illness. The claimant’s mental condition was treated as engaging paragraph 55.10 of the Enforcement Instructions and Guidance. Under both the original and amended versions, the strong presumption in favour of release had to be balanced against the risks of absconding, reoffending and public harm. Under the amended policy, manageability in detention was a crucial consideration, but the fact that detention could manage the illness was not itself a reason to detain.
2. The claimant’s persistent offending, drug dependency, history of absconding, use of aliases and claimed nationalities, lack of stable accommodation and high risk of reoffending supplied unusually strong countervailing factors. A reasonable decision-maker could conclude that the circumstances were sufficiently exceptional to justify detention, including during the final period when specialist psychiatric treatment was being sought.
3. Hardial Singh. The court had to decide for itself whether detention was lawful. The Secretary of State intended to deport the claimant, detention was not excessive in duration, it had not become apparent that removal could not be achieved within a reasonable period, and reasonable diligence and expedition had been shown. The claimant’s identity and nationality difficulties were substantially of his own making.
4. The Secretary of State lawfully relied initially on paragraph 16 of Schedule 2 to the Immigration Act 1971 and subsequently on paragraph 2 of Schedule 3. The erroneous reference to Schedule 3 in an internal minute did not displace the correct statutory authority recorded in the detention forms. Failure to serve a further IS91R form on re-detention breached policy but caused no prejudice and did not invalidate the detention.
5. The failure to conduct regular reviews breached the applicable policy and rendered the detention unlawful. Applying normal compensatory principles, however, the claimant would not have been released earlier had reviews been conducted. The claim therefore succeeded only to that limited extent, with nominal damages of £1.

First-instance judicial review claim. No appellate history is stated in the judgment.