R (HA) Nigeria v Secretary of State for the Home Department

The claimant challenged the lawfulness of continued administrative detention under section 36(1)(a) of the UK Borders Act 2007 and the conditions of that detention, and sought declarations and damages. The court applied the principles in R (Lumba) v Secretary of State for the Home Department concerning false imprisonment and public law errors in detention decisions, and assessed the application of Rule 35 of the Detention Centre Rules 2001, the duty to arrange psychiatric assessment and transfer, and the public sector equality duties (section 71 Race Relations Act 1976 and section 49A Disability Discrimination Act 2005).

Key holdings:

• The decisions to continue detention were vitiated by public law error and the claimant was unlawfully detained from 1 February to 5 July 2010, and again from 5 November to 15 December 2010.
• The delay of over five months between a psychiatrist’s urgent recommendation (January 2010) and transfer to hospital (5 July 2010) was manifestly unreasonable; the Secretary of State had a duty to take reasonable and expeditious steps to secure transfer for assessment and treatment.
• The August 2010 reformulation of the detention policy for mentally ill detainees was unlawful for failure to comply with public sector equality duties.
• Detention in the two challenged periods breached the claimant’s Convention rights (Article 3 ECHR) in that the combination of acts and omissions amounted to degrading treatment.

Background and parties. The claimant, a Nigerian national detained under authority of the Secretary of State by virtue of section 36(1)(a) UK Borders Act 2007 after conviction for a drugs offence, challenged continued detention at Immigration Removal Centres and the conditions of detention. The defendant was the Secretary of State for the Home Department. Permission for judicial review had been granted and the hearing before Singh J was confined to liability.

Nature of the claim and relief sought. The claimant sought declarations and damages for unlawful detention and breach of Convention rights; he challenged (i) the lawfulness of decisions to continue detention in two discrete periods (on or about 16 January–5 July 2010 and 5 November–15 December 2010); (ii) delay and failure to arrange timely hospital assessment and transfer; (iii) the lawfulness of a policy reformulation of August 2010 on detention of mentally ill detainees; and (iv) compatibility with Articles 3, 5 and 8 ECHR.

Issues framed by the court. Whether the Secretary of State had lawful authority to continue detention in the specified periods or whether public law errors vitiated that authority (applying the Lumba line of authority); whether Rule 35 and the defendant’s policy and practice required earlier discharge or transfer for psychiatric assessment/treatment; whether delay in transfer breached public law duties; whether the August 2010 reformulation of the Enforcement Instructions and Guidance violated the public sector equality duties; and whether the cumulative acts and omissions violated Article 3 (and/or Articles 5 and 8).

Facts relevant to decision. The claimant exhibited disturbed, bizarre and self-neglecting behaviour from late 2009; a psychiatrist (Dr Spoto) in January 2010 recommended urgent transfer to hospital for assessment and possible treatment. Repeated internal exchanges in the UK Border Agency and repeated detention reviews occurred; an official Rule 35 report was served and considered. Transfer to Hillingdon Hospital under section 48 MHA 1983 occurred on 5 July 2010. The claimant was returned to Harmondsworth IRC on 5 November 2010 and granted bail on 15 December 2010. A reformulation of the detention policy for mentally ill detainees was made on 26 August 2010.

Court’s reasoning and conclusions. Applying the Supreme Court’s analysis in Lumba, the judge held that from 1 February 2010 the Secretary of State’s own decision-making was vitiated by public law error in failing properly to address the clinical material and Rule 35 process; accordingly the apparent authority to detain was ultra vires and the detention unlawful from that date. On the duty to secure transfer for assessment/treatment, the court adopted the principle (analogous to the prisoner context in R (D)) that, once there are reasonable grounds that hospital assessment/treatment is required, the responsible authority must take reasonable and expeditious steps; the five-month delay to transfer was manifestly unreasonable. The August 2010 reformulation of policy breached the public sector equality duties because it was introduced without appropriate equality impact assessment or consultation. The cumulative failures and the return to IRC detention in November 2010 amounted to degrading treatment in breach of Article 3. The claim for judicial review was therefore granted on liability; remedies and quantum were to be considered separately.

The claim for judicial review is granted. The court held that the Secretary of State’s decisions to continue detention were vitiated by public law error and thus unlawful from 1 February to 5 July 2010 and from 5 November to 15 December 2010. The Secretary of State breached the duty to take reasonable and expeditious steps to secure psychiatric assessment and transfer, the delay was manifestly unreasonable, the August 2010 reformulation of detention policy breached the public sector equality duties, and the cumulative acts and omissions amounted to degrading treatment contrary to Article 3 ECHR. Remedies and quantum were reserved for further consideration.