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

Interim release from immigration detention requires a serious question to be tried and an assessment of the balance of convenience, including the public interest. The court must exercise particular caution where release would effectively grant the substantive relief sought.

A detainee’s capacity to decide whether to accept hospital treatment is material. Where the detainee can make that decision rationally and refuses hospitalisation, detention is not necessarily unlawful merely because treatment cannot be managed in a detention centre, provided hospital detention is available. The court should generally leave the final lawfulness of detention and policy compliance to the substantive hearing.

Three urgent applications sought interim relief, principally immediate release from immigration detention. The applicants, Pakistani, Nigerian and Algerian nationals, relied on serious physical and mental health problems associated with prolonged food and fluid refusal. They contended that continued detention breached Articles 2 and 3 of the European Convention on Human Rights and was inconsistent with detention policy.

The court considered the applications without determining permission to bring judicial review. Earlier judges had refused or adjourned interim applications. The central issues were whether the applicants could safely be treated while detained, whether their capacity to refuse hospitalisation affected the lawfulness of detention, and whether release was required pending trial.

1. Interim relief. The ordinary interim-relief principles applied: there had to be a serious question to be tried, followed by consideration of the balance of convenience and the public interest in relief against a public authority. Because immediate release would substantially provide the relief sought at trial, particular caution was required ([2010] EWHC 1425 (Admin); (1987) 86 LGR 431).
2. The court accepted that issues concerning Articles 2 and 3, and the application of paragraph 55.10 of the UKBA Enforcement Instructions and Guidance, raised serious questions for trial. It did not finally determine whether detention had become unlawful or whether the policy had been complied with. The issue concerning the suggested Wednesbury approach was likewise left for trial ([2012] EWCA Civ 597).
3. Both IM and SA had capacity to decide whether to accept hospital treatment. The Defendant was prepared to facilitate hospitalisation, including while detention continued. Each applicant refused hospitalisation. The court held that a person who is unfit for detention in a detention centre may nevertheless be fit for detention in hospital. Detention was therefore not rendered unlawful merely because the detention centre could not manage the applicant’s condition. The refusal of hospitalisation was a key factor against interim release.
4. The court held that its inherent jurisdiction to protect a vulnerable adult was unavailable because the applicants had capacity and did not fall within the relevant description of a vulnerable adult, drawing on Re SA (Vulnerable Adult with Capacity: Marriage) and Re L (Vulnerable Adults: Court Jurisdiction) (No 2). Article 2 imposed a positive obligation to protect life, including against self-inflicted death in custody, but that obligation did not require release on these facts (Keenan v UK).
5. Interim relief was refused in all three cases. The balance of convenience included real risks of absconding. The applications for anonymity were also refused. Under CPR 39.2(4), the public interest in identifying parties was not outweighed by Article 8 interests, and there was no cogent evidence that publication would impede treatment or cause comparable harm.

This was a first-instance Administrative Court judgment. The judgment records earlier interlocutory orders, including refusal of permission and interim relief by Baker J on 3 October 2013 in NM’s case, and adjournments of IM’s and SA’s applications to an oral hearing.