EH v Secretary of State for the Home Department

The claimant, a Rwandan national, brought judicial review proceedings challenging immigration decisions and his detention. The court applied established authorities on immigration detention (including Lumba and Hardial Singh) and the Defendant’s published policy in Chapter 55 of the Enforcement Instructions and Guidance together with the Detention Centre Rules (Rule 35). The court held that the Secretary of State acted unlawfully by failing to have proper regard to the claimant’s serious mental illness when reviewing detention from 16 November 2010 onwards and accepted the Defendant’s concession that detention was unlawful from 29 December 2010 to 1 March 2011. The court found breaches of Article 5 ECHR for the identified periods and a breach of Article 8 ECHR for detention from 29 December 2010 to 1 March 2011, but did not find that the treatment met the Article 3 threshold. Damages were reserved for later assessment.

The claimant, a Rwandan national and alleged survivor of violence in 1994, arrived in the United Kingdom in 2009 and after an unsuccessful asylum claim was detained as an overstayer in October 2010. He challenged (i) refusal of leave to remain and refusal to treat representations as fresh claims (now superseded), (ii) decisions to remove him, and (iii) detention and continuing detention. Subsequent developments included cancellation of removal directions, interim grants of discretionary leave and the Defendant’s concession that detention was unlawful from 29 December 2010 because of psychiatric illness. Damages were not determined at this hearing.

Nature of the application: judicial review of detention, attempted removal and related immigration decisions; relief sought included declarations of unlawfulness and damages for false imprisonment and ECHR breaches.

Issues framed by the court:

• whether detention was unlawful between 26 October and 28 December 2010;
• damages for unlawful detention from 29 December 2010 to 1 March 2011;
• whether removal attempts were unlawful.

Court’s reasoning (concise): the statutory power to detain derived from the Immigration Act 1971 (Schedule 2) but must be exercised consistently with Hardial Singh reasonableness limits and the Defendant’s published policy (EIG Chapter 55) and the Detention Centre Rules (including Rule 35). The court applied Lumba and Kambadzi on the relevance of material public law errors to detention lawfulness. The medical evidence demonstrated the claimant suffered from post-traumatic stress which became "serious" by early November 2010. The Secretary of State failed to give proper regard to the policy on mentally ill detainees from the 16 November 2010 review onwards; that failure rendered detention unlawfully authorised during that period even though, on the evidence available at the time, detention would in any event have been justified until late December. The Defendant conceded that detention was unlawful from 29 December 2010; the court therefore found breaches of Article 5 for the two relevant periods and a breach of Article 8 for the later period. The court rejected submissions that the detention or the failed removal attempt breached Article 3, finding the medical care in detention was of a high standard and that the Article 3 threshold was not reached. The court reserved assessment of damages to a later hearing.

The claim for judicial review is allowed. The court held that the Secretary of State acted unlawfully by failing to have regard to the claimant’s serious mental illness under EIG paragraph 55.10 when reviewing detention from 16 November 2010 onwards, and accepted the Secretary of State’s concession that detention was unlawful from 29 December 2010 to 1 March 2011. For those periods the detention breached Article 5 ECHR and the later period also breached Article 8 ECHR. The court did not find a breach of Article 3. Damages are to be assessed later.