AS (Lebanon), R (on the application of) v Secretary of State for the Home Department & Anor

At the permission and interim-relief stage, serious psychiatric evidence may establish a good arguable case that immigration detention is unlawful under the governing detention principles and published policy. That does not require immediate release into the community where no psychiatrist recommends it and the evidence indicates a substantial risk of harm to others. A mandatory order compelling a Minister of the Crown to act is available only in exceptional circumstances. At an interlocutory stage, the court will not ordinarily compel a transfer to psychiatric hospital before unlawfulness has been established, particularly where the responsible Minister has only recently become a party.

The claimant, a Lebanese national detained pending deportation after completing a sentence of imprisonment, sought permission to challenge his detention and interim relief. He relied on the principles derived from R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704, the Secretary of State’s policy on detention of persons with serious mental illness, and articles 3 and 8 of the ECHR.

Two independent consultant psychiatrists considered that the claimant met the criteria for transfer to hospital under section 48 of the Mental Health Act 1983. The issues were whether permission should be granted, whether the claimant should be released or transferred pending determination of the judicial review, and whether an assessment under section 2 was appropriate.

1. Permission granted. The claimant had a good arguable case that his continued immigration detention was unlawful on the legal and policy grounds advanced. The independent psychiatric evidence agreed that he suffered from significant psychiatric conditions, that detention exacerbated his symptoms and suicide risk, and that he met the criteria for transfer to hospital under section 48 of the Mental Health Act 1983.

2. Interim release into the community was refused. None of the psychiatrists recommended temporary admission or bail, and the evidence showed that the risk of harm to others in the community was too great.

3. A mandatory order against a Minister of the Crown could be made only in exceptional circumstances. At this interlocutory stage, the claimant had not established that either Secretary of State had acted unlawfully. The court therefore would not compel the Secretary of State for Justice to order a hospital transfer contrary to his considered view, particularly as he had only recently been joined and had had limited time to consider the evidence.

4. The claimant’s unsuitability for admission to one particular psychiatric unit did not establish that he could appropriately remain in prison. It raised the practical question of identifying the appropriate unit. The court declined to require an assessment under section 2 because sections 47 and 48 of the Mental Health Act 1983 provided the route for transferring detained persons for psychiatric treatment and enabling their return to detention when treatment ended.

5. The application for interim relief was refused. The Secretary of State for Justice was joined as the second defendant, Brent Primary Care Trust replaced the former interested party, the claim was permitted to be amended, and the judicial review was expedited.

The judgment was a first-instance decision on permission and interim relief. The judgment records earlier interlocutory directions and adjournments before Collins J, Ouseley J and a Deputy High Court Judge, but no prior judgment citation is stated.