C v Secretary of State for the Home Department

Immigration detention pending deportation remains lawful only while the Secretary of State intends removal, acts with reasonable diligence and expedition, and removal remains reasonably imminent. The assessment is objective and requires all relevant circumstances to be balanced. Absconding and reoffending risks are relevant but cannot operate as a universal answer to prolonged detention.

Where published detention policy requires very exceptional circumstances for detaining a person with serious mental illness or independent evidence of torture, the policy must be properly considered. Mental illness and torture evidence must be assessed together with the risks relied upon and the prospects of removal. Continued detention became unlawful where those risks were insufficient to outweigh compelling evidence of torture and mental illness, with no reasonably imminent prospect of removal.

The claimant sought judicial review of his detention under the Immigration Act 1971 from 7 April 2008 to 29 March 2011. He had been convicted of criminal offences and was subject to a deportation order.

The Secretary of State accepted that detention between 7 April and 9 September 2008 was unlawful under Lumba v Secretary of State for the Home Department because it resulted from an unpublished blanket detention policy. She also accepted failures to apply the published policies on mental illness and torture in Chapter 55 of the Enforcement Instructions and Guidance, but argued that only nominal damages were recoverable.

The central issues were whether detention was reasonable under the Hardial Singh principles and whether the policy failures entitled the claimant to more than nominal damages.

The claim succeeded in part. The claimant was entitled to damages to be agreed or assessed for unlawful detention from 1 January 2009 to 29 March 2011.

1. The power to detain pending removal had to be assessed under the principles in R v Governor of Durham Prison ex parte Hardial Singh. The Secretary of State had to intend deportation, detention had to remain reasonable in all the circumstances, removal had to remain reasonably imminent, and reasonable diligence and expedition had to be used.
2. The assessment was objective and was not confined to Wednesbury review. Relevant factors included the length of detention, obstacles to removal, official diligence, detention conditions, the effect on the detainee, risks of absconding and risks of criminal offending. The claimant’s absconding and reoffending risks initially justified detention.
3. By the end of 2008 the position had materially changed. The Rule 35 report and Dr Gordon’s report provided independent evidence of torture, PTSD and associated mental-health problems. The Secretary of State should have considered the evidence and obtained an appropriate psychiatric assessment.
4. Under Chapter 55, serious mental illness and independent evidence of torture normally made a person suitable for detention only in very exceptional circumstances. The evidence had to be assessed cumulatively. The claimant’s absconding and reoffending risks were insufficient to outweigh the compelling torture evidence, the mental illness and the likely adverse effect of further detention.
5. By January 2009 there was no reasonably imminent prospect of removal. Although the claimant had not co-operated fully with documentation, the absence of supporting evidence made removal to the Ivory Coast difficult if not impossible, and the Secretary of State had produced no evidence establishing removal within a reasonable period. It was therefore no longer reasonable to detain him.

It was unnecessary to determine the claimant’s remaining discrimination and Convention grounds.

First-instance judicial review proceedings. No prior decision of another court is stated in the judgment.