HA (Nigeria), R (on the application of) v Secretary of State for the Home Department (Rev 1)

Immigration detention becomes unlawful where the decision to detain is materially affected by a public law error, including failure to consider serious mental illness and relevant detention guidance. A public authority responsible for immigration detention must take reasonable steps, reasonably expeditiously, to secure hospital assessment and treatment where a psychiatrist recommends urgent transfer. Prolonged detention in unsuitable conditions, without appropriate psychiatric care, may breach Article 3. A policy reformulation concerning detention of mentally ill persons is subject to the public sector equality duties before it is implemented. Detention is irrational where the individual’s serious mental illness cannot satisfactorily be managed in the detention setting.

The claimant, a Nigerian national liable to automatic deportation after a custodial sentence, was detained under section 36(1)(a) of the UK Borders Act 2007. He developed severe mental illness and displayed prolonged bizarre, self-neglecting and disturbed behaviour in immigration removal centres. A psychiatrist recommended urgent hospital transfer in January 2010, but transfer did not occur until July 2010. After compulsory treatment in hospital, he was returned to immigration detention in November 2010 despite medical warnings that his condition would deteriorate.

The judicial review challenged the legality of the detention, the delay in hospital transfer, the detention policy for mentally ill persons, and compatibility with Convention rights.

1. The application was granted. The claimant was unlawfully detained from 1 February to 5 July 2010 and from 5 November to 15 December 2010.

2. Applying R (Lumba) v Secretary of State for the Home Department, [2012] 1 AC 245, a claimant establishes false imprisonment by proving direct and intentional detention. The defendant must then establish lawful authority. A public law error vitiates that authority where it bears on and is relevant to the decision to detain. The possibility that lawful detention might otherwise have occurred is relevant to damages, not liability.

3. The Secretary of State’s decision from 1 February 2010 failed properly to consider the psychiatrist’s report, the Rule 35 notification, the need for urgent assessment, the prolonged segregation and the apparent inability to manage the claimant’s condition in detention. The detention authority was therefore ultra vires and a nullity.

4. Following the principle in R (D) v Secretary of State for the Home Department, [2005] 1 MHLR 17, the Secretary of State had a public law duty to take reasonable steps, reasonably expeditiously, to secure appropriate hospital assessment and treatment. The delay of more than five months was manifestly unreasonable.

5. The detention conditions between February and July 2010 crossed the threshold in Article 3. The relevant combination included serious mental illness, prolonged segregation, self-neglect, sleeping and washing in toilet areas, inadequate nutrition and the absence of appropriate psychiatric treatment. The return to detention in November 2010 also constituted degrading, and if necessary inhuman, treatment contrary to Article 3.

6. The policy introduced on 26 August 2010 was a change in the stated policy. Its reformulation engaged sections 71 of the Race Relations Act 1976 and 49A of the Disability Discrimination Act 2005. Those duties required due regard before the policy was adopted. The failure to undertake an equality impact assessment rendered the policy unlawful.

7. Applying the policy as reformulated, no reasonable Secretary of State could conclude that the claimant’s serious mental illness could be satisfactorily managed in an immigration removal centre. His detention after 5 November 2010 was therefore irrational and contrary to the policy.

8. The court granted judicial review and reserved remedies, including damages and any further directions concerning quantum.