S v Secretary of State for the Home Department

Immigration detention pending deportation must remain connected to a realistic prospect of removal and must last no longer than is reasonably necessary. The Secretary of State must apply the published detention policy conscientiously, including its provisions concerning serious mental illness, and must reconsider detention when material medical or removal evidence changes. A material failure to apply the policy, or a failure to take relevant considerations into account, renders detention unlawful even where detention would probably otherwise have been justified. Risks of reoffending, harm to the public and absconding are relevant, particularly after a serious offence, but they do not justify detention indefinitely. The court itself determines whether detention exceeds the legal limits established by the Hardial Singh principles.

The claimant, a Togolese national, challenged his detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, pending removal after a deportation order. He had been detained from 21 November 2008 until his release on bail on 1 February 2011. He alleged that the Secretary of State had failed to apply the policy on detention of mentally ill persons, that detention had become unreasonable because removal to Togo was not realistically achievable, and that an application to revoke the deportation order made detention unlawful.

The issues were whether detention in prison and at Colnbrook was unlawful because of the failure to apply the policy, whether continued detention breached the Hardial Singh principles, and whether the revised policy introduced in August 2010 was unlawful for failure to comply with the statutory equality duty.

1. The application for judicial review was allowed to the extent that the claimant was unlawfully detained from 21 November 2008 to 14 August 2009 and from 28 January to 1 February 2011. The intervening detention period was lawful.

2. The burden lay on the Secretary of State to justify the legality of detention. The power under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 was subject to the Hardial Singh principles: detention had to be for the purpose of removal, for a period reasonable in all the circumstances, and with reasonable diligence and expedition. Detention became unlawful when there was no reasonable prospect of removal within a reasonable period. Relevant factors included the length and conditions of detention, the obstacles to removal, the effect on the detainee and family, and the risks of absconding and reoffending.

3. The detention in prison was unlawful because the Secretary of State failed to consider the claimant’s known mental illness under paragraph 55.10 of the Enforcement Instructions and Guidance. That was a material public law error under Kambadzi v Secretary of State for the Home Department. Nevertheless, the evidence indicated that, had the policy been applied, detention would probably have been maintained because the claimant’s condition was being managed, he had committed a serious sexual offence, and the perceived risks outweighed the adverse effects of detention. Damages for that period would therefore have been nominal.

4. The Secretary of State applied paragraph 55.10 during the Colnbrook period and was entitled initially to weigh conflicting psychiatric evidence and risks of harm and absconding. However, by 28 January 2011 the new evidence required a genuine reconsideration. The evidence then showed serious mental illness, adverse effects from detention, unavailable treatment, a low assessed risk of reoffending, and no reasonable prospect of removal to Togo in the foreseeable future. Continued detention was therefore unlawful both under ordinary public law principles and the Hardial Singh principles.

5. An application to revoke the deportation order did not automatically make detention unlawful. It was one factor to be considered. The court declined to rule on the argument based on R (on the application of HA (Nigeria) v Secretary of State for the Home Department because that decision was under appeal and the issue had not been fully argued.

6. The domestic unlawfulness of the detention meant that the claimant had also been unlawfully deprived of liberty contrary to Article 5 of the European Convention on Human Rights, and the Secretary of State had acted incompatibly with section 6(1) of the Human Rights Act 1998.