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

Immigration detention must comply with statutory limits, the Hardial Singh principles and the Secretary of State’s published detention policy. Where a detainee develops a serious mental illness, the Secretary of State must consider whether detention remains justified under the policy. That duty is not discharged merely because healthcare is provided by contractors or because no formal Rule 35 report has been made. A breach of public law duty makes detention unlawful where it bears on and is material to the detention decision, although detention may nevertheless have been otherwise justifiable for damages purposes. Unlawful detention does not automatically constitute inhuman or degrading treatment under Article 3 ECHR. Article 8 may nevertheless be breached where continued detention is unlawful and disproportionate.

The claimant, a Rwandan national, challenged decisions refusing further immigration leave, directing his removal and detaining him between October 2010 and March 2011. The claims concerning the refusal of leave and fresh claim were superseded. The defendant conceded that detention was unlawful from 29 December 2010, but the claimant maintained that detention had become unlawful earlier because of his serious mental illness and alleged history of torture. He also challenged an attempted removal and aspects of his detention under Articles 3, 5 and 8 ECHR. The remaining issues concerned the lawfulness of detention, the effect of the defendant’s policy on mentally ill detainees, and whether the attempted removal and use of restraints were unlawful.

1. Detention principles. The defendant had statutory power to detain the claimant for removal under Schedule 2 to the Immigration Act 1971. Applying R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 and Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, a material breach of public law duty bearing on the decision to detain makes detention unlawful.
2. The defendant’s policy required particular caution before detaining persons suffering from serious mental illness. Following R (Anam) v Secretary of State for the Home Department [2009] EWHC 2496 (Admin), as approved on appeal and in subsequent cases, the policy applied only where the mental illness reached a seriousness threshold. The claimant’s initial depression and post-traumatic symptoms did not meet that threshold. By 4 November 2010, however, repeated acute episodes involving hallucinations and severe distress established serious mental illness.
3. The defendant failed to consider the policy when reviewing detention. That failure should have been addressed by the 16 November 2010 review. The defendant retained legal responsibility for detainees and could not rely on the fact that healthcare was provided by contractors or that no formal Rule 35 report had been made. Information known to healthcare staff acting on the defendant’s behalf could be material to the defendant’s responsibility.
4. Even if the policy had been properly applied before 29 December 2010, continued detention would have been justified and lawful because removal was imminent, the claimant had previously absconded, had failed to comply with conditions and was unlikely voluntarily to attend for removal. His illness was then capable of being managed with medication and counselling. Detention was conceded to be unlawful from 29 December 2010 to 1 March 2011.
5. The Rule 35 material of 26 October 2010 was not independent evidence that the claimant had been tortured. The nurse had conducted only an initial screening and recorded the claimant’s account. The defendant was entitled to rely on the prior judicial findings rejecting that account. The later medical records likewise did not initially constitute independent evidence of torture.
6. Unlawful detention did not automatically breach Article 3. The claimant received extensive medical care and monitoring, and the Article 3 threshold was not reached. The attempted removal on 7 February 2011, including reasonable restraint, was also lawful and proportionate. Continued detention from 29 December 2010 breached Article 5 because it was not in accordance with domestic law, and breached Article 8 because it was unlawful and disproportionate.

The judicial review claim and the Human Rights Act claim were allowed to those limited extents.