Muhammad & Ors, R (on the application of) v Secretary of State for the Home Department

This is a bundle of urgent first-instance applications for interim relief seeking immediate release from immigration detention. The court applied the usual private law interim principles (serious question to be tried and the balance of convenience) together with consideration of public interest and obligations under Articles 2 and 3 ECHR. The judgment considered the UKBA Enforcement Instructions and Guidance (paragraph 55.10), the Detention Centre Rules 2001 rule 35, and Home Office Detention Services Order 03/2013 (paras 55–60) in the context of detainees refusing food and fluid.

The court refused interim relief in all three cases. Material subsidiary findings were: (i) each claimant had capacity to litigate; (ii) in the cases of IM and SA there was insufficient evidence that they lacked capacity to decide whether to go to hospital and they were refusing hospitalisation; (iii) NM also had capacity and there was no persuasive evidence she would accept inpatient treatment if released; (iv) the Secretary of State was prepared to arrange hospital transfer but the claimants declined; and (v) there was a real risk of absconding if release were ordered. Anonymity applications were refused for lack of cogent reason and because none of the claimants was a protected party.

These three urgent applications sought immediate unconditional release (or bail subject to conditions) from immigration detention on medical and human-rights grounds because each claimant had been refusing food and/or fluids and was asserted to be medically unfit to remain in detention. The applicants were Noreen Muhammad (Pakistani national), Isa Muazu (Nigerian national) and Sid Ahmed Adda (Algerian national). The applications were heard together because they raised similar issues.

The nature of the relief sought was interim relief for immediate release from detention pending the determination of underlying judicial-review claims. The principal issues were: (i) whether there was a serious question to be tried on Article 2/Article 3 ECHR and on non-compliance with the UKBA Enforcement Instructions and Guidance, particularly paragraph 55.10; (ii) whether the claimants lacked capacity such that the court should order hospitalisation or release under its inherent jurisdiction; (iii) the weight to be given to detention-centre medical records and medical reports supplied by Medical Justice; and (iv) where the balance of convenience lay, including the risk of absconding and prospects of removal.

The court accepted there was a serious question to be tried in respect of the medical and human-rights issues and noted the relevance of rule 35 of the Detention Centre Rules 2001 and the Home Office Detention Services Order on food and fluid refusal. However, on the merits of the interim applications the judge found as follows:

• NM: although suffering from major depression and suicidal ideation, the judge was not persuaded she would accept inpatient psychiatric treatment if released and concluded she had capacity to refuse treatment; the best clinical opinion supported inpatient hospital care rather than discharge to a cousin; balance of convenience favoured continued detention.
• IM: medical evidence indicated severe malnutrition and probable psychosis, but the judge concluded there was insufficient evidence that IM lacked the capacity to decide whether to go to hospital; the Secretary of State was prepared to facilitate hospital transfer in detention but IM refused; risk of absconding and balance of convenience weighed against release.
• SA: similarly seriously physically unwell and depressed, but the judge found insufficient evidence that SA lacked capacity to decide about hospitalisation; SA refused hospital care despite the Secretary of State's readiness to facilitate transfer; risk of absconding and practical prospects of removal were considerations against interim release.

The court therefore refused interim relief in all three cases. The judge also refused anonymity, finding no cogent reason to curtail publication and no evidence that publication would impede medical treatment. The court did not finally determine the lawfulness of detention but left those matters for full hearing; permission to seek judicial review was not determined in these hearings because of urgency.

Interim relief refused in all three cases. The judge accepted there were serious questions to be tried concerning medical care in detention and Convention rights but concluded that each applicant retained capacity to decide about hospitalisation or treatment, that the Secretary of State was willing to facilitate hospital transfer in detention, and that the balance of convenience (including risk of absconding and the prospect of management in a hospital setting) weighed against ordering immediate unconditional release.