IM (Nigeria) v Secretary of State for the Home Department

An immigration detainee may be detained in a hospital for medical treatment under a direction made pursuant to Schedule 2 to the Immigration Act 1971. The power is not confined to mental-health transfers.

A policy treating serious illness as normally unsuitable for detention in an immigration removal centre or prison does not necessarily require release from all detention. It may instead require transfer to a suitable hospital. A detainee’s informed refusal of all treatment may place the case outside a policy premised upon acceptance of treatment.

Detention becomes unlawful when removal cannot reasonably be achieved within a reasonable time. Hunger strike does not itself require release under that principle or under articles 2 and 3 of the ECHR, provided the authorities properly manage the risk and offer appropriate medical care.

The appellant, a Nigerian national liable to administrative removal, was detained after making an unsuccessful asylum claim. He began refusing food and intermittently refusing fluids. Although medically assessed as unfit for continued detention in an immigration removal centre, he retained capacity and refused hospital treatment unless released.

Ouseley J granted permission to seek judicial review but dismissed the substantive claim. The appellant challenged the legality of his continued detention on four grounds: the statutory power to detain him in hospital; compliance with the Secretary of State’s published detention policies; the principles governing the permissible duration of immigration detention; and the positive obligations arising under articles 2 and 3 of the ECHR.

Appeal dismissed unanimously. Lloyd Jones LJ gave the principal judgment, with which Sir Stanley Burnton and Lewison LJ agreed.

1. Schedule 2, paragraph 18(1) to the Immigration Act 1971, together with the Immigration (Places of Detention) Direction 2011, authorised detention in any hospital falling within the adopted statutory definition. Although powers of detention require strict construction, nothing confined this authority to a transfer for mental disorder under section 48 of the Mental Health Act 1983. The separate hospital-transfer powers for prisoners did not restrict the general immigration power. The Direction was not ultra vires.

2. The published policies did not require release merely because a serious medical condition could not be managed satisfactorily in an immigration removal centre. Properly read in context, their references to unsuitability concerned detention in a removal centre or prison. Ordinarily, the appropriate response would be transfer in detention to a hospital. Here, however, the appellant’s capacitated refusal of all medical treatment placed his case outside policies premised upon acceptance of treatment. Alternatively, that refusal was capable of constituting very exceptional circumstances. Continued detention therefore did not breach the policies.

3. The Hardial Singh principles required detention to serve the statutory purpose of removal, to last no longer than was reasonable, and to cease when removal could no longer be achieved within a reasonable time. An end-of-life care plan was relevant evidence but did not itself establish that the permissible limit had been crossed. There was no evidence that the appellant’s condition was irreversible. If he accepted treatment, removal within weeks remained possible, and there was at least a real possibility that he would change his position. The Secretary of State could wait to see whether he persisted; detention was not thereby converted into detention for the purpose of breaking his will.

4. Articles 2 and 3 of the ECHR imposed positive duties notwithstanding the appellant’s voluntary hunger strike, but created no general obligation to release him on health grounds. The relevant inquiry was whether the authorities properly managed the situation and offered medical care equivalent to that available outside detention. Repeated medical assessments, capacity reviews, offers of food, fluids and hospital treatment, access to advisers, and preparation of a care plan satisfied those obligations.

5. The decisions to maintain detention were neither irrational nor rendered unlawful by immaterial factual errors or by being taken by an official of a different grade from that specified in policy. The appeal was accordingly dismissed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld Ouseley J’s refusal of the substantive judicial review claim in [2013] EWCA Civ 1561.
2. High Court, Administrative Court: Ouseley J granted permission to apply for judicial review but refused the substantive claim and granted permission to appeal. No neutral citation is stated.
3. High Court, Administrative Court: Stewart J and Collins J had previously refused interim release. Collins J directed a rolled-up hearing.