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

Immigration detention must comply with the Secretary of State’s published detention policy, as well as statutory and common-law limits. Where a detainee suffers serious mental illness, decision-makers must consider whether that illness can be satisfactorily managed in the particular detention facility. Detention is permissible only in very exceptional circumstances where it cannot be so managed. The court must review the decision by ordinary public-law principles.

The claimant’s detention breached Chapter 55.10 of the Enforcement Instructions and the public-sector equality duty. His treatment breached Articles 3 and 8 during different periods. The Hardial Singh principles also required release once detention had become unreasonable, having regard to removal delays, the conditions of detention, his mental state and the absence of sufficient diligence.

The claimant, a Congolese national detained under immigration powers, sought declarations and damages for unlawful detention between 23 February 2011 and 25 April 2012. He suffered serious mental illness and was detained successively at Brook House, Harmondsworth and Colnbrook immigration removal centres.

The claim alleged breach of the Secretary of State’s policy on persons unsuitable for detention, breach of section 149 of the Equality Act 2010, breaches of Articles 3 and 8 of the ECHR, and detention contrary to the Hardial Singh principles because removal was not pursued with sufficient diligence and could not occur within a reasonable time.

1. Chapter 55.10. The policy required three questions to be addressed: whether the claimant suffered serious mental illness; whether it could be satisfactorily managed in the particular immigration removal centre; and, if not, whether very exceptional circumstances justified detention there. The claimant’s illness was serious. His condition could not rationally be regarded as satisfactorily manageable at Brook House, and later became incapable of satisfactory management at Harmondsworth and Colnbrook. No very exceptional circumstances justified continued detention.
2. The failure to comply with the policy made detention unlawful. Damages for loss of liberty were nominal from 23 February to 23 June 2011, because lawful consideration of the policy would probably still have resulted in detention during that period. Substantial damages were available thereafter.
3. Equality duty. Section 149 of the Equality Act 2010 required due regard to the disadvantages and different needs associated with mental illness. The decision-making record showed no such consideration during the Brook House and Harmondsworth periods. The breach independently rendered detention unlawful, although it added nothing to the damages analysis.
4. Articles 3 and 8. The prolonged absence of adequate psychiatric treatment at Brook House and Harmondsworth exacerbated the claimant’s mental suffering and constituted inhuman treatment contrary to Article 3. The Article 3 threshold was not crossed at Colnbrook. Article 8 was breached throughout the detention because the claimant’s mental stability and private life were adversely affected and the interference was not justified or proportionate.
5. Hardial Singh. The Secretary of State had initially detained the claimant for the proper purpose of removal, but failed to act with reasonable diligence, particularly in pursuing nationality verification. The period of detention became unreasonable, taking account of its length, removal obstacles, the claimant’s psychiatric condition, inadequate treatment, detention conditions and the absence of a real absconding risk. In the alternative, damages were recoverable from 23 June 2011.
6. The claimant was entitled to damages for unlawful detention and breaches of Articles 3 and 8. Damages were to be assessed or agreed. The defendant was ordered to pay costs.

First-instance judicial review. Permission was initially granted in part by Blair J on 22 February 2012 and enlarged on appeal by Sir Richard Buxton on 26 March 2012. The Administrative Court determined the substantive claim and directed a separate or agreed assessment of damages.