Das, R (on the application of) v Secretary of State for the Home Department

A public authority that has adopted a policy protecting persons with serious mental ill-health must take reasonable steps to inform itself where there is a real possibility that the policy applies. Failure to do so may render immigration detention unlawful. The policy must be interpreted in its statutory and operational context. “Serious mental illness” indicates a condition involving a serious inability to cope with ordinary life, broadly at the level of requiring in-patient treatment, being liable to compulsory detention, or carrying a real risk of such deterioration in detention. The requirement that illness be satisfactorily manageable concerns practical effectiveness, not elimination of every risk. Detention may nevertheless be lawful in substance if, on proper application of the policy, it would have been authorised. In that event, damages for false imprisonment are limited to nominal damages.

The claimant, an Indian national, sought judicial review of her detention from 7 November 2011 until her release on bail on 12 January 2012, pending removal. She alleged depression and post-traumatic stress disorder and argued that the Secretary of State had failed to comply with immigration instructions concerning persons unsuitable for detention, particularly those suffering from serious mental illness which could not be satisfactorily managed in detention.

The court considered whether the Secretary of State had breached a public law duty of inquiry, breached the policy and the claimant’s legitimate expectation, and, if the detention was unlawful, whether substantial damages were payable.

1. Detention unlawful. The Secretary of State had adopted a policy directed towards the humane treatment of persons suffering from serious mental ill-health. Where there was a real possibility that an individual facing removal fell within the policy, the Secretary of State was under a public law obligation to take reasonable steps to obtain sufficient information to make an informed judgment. The failure to obtain and review Dr Sharma’s report, both before detention and during its continuation, breached that obligation and rendered the whole period unlawful.
2. The Secretary of State also failed to consider the policy in paragraph 55.10 of the immigration instructions. The officials did not ask whether the claimant suffered from serious mental ill-health which could not be satisfactorily managed in detention or, if so, whether very exceptional circumstances justified detention. This breached the policy and the claimant’s legitimate expectation.
3. The policy was interpreted narrowly in context. “Serious mental illness” meant a serious inability to cope with ordinary life, broadly at the level of requiring in-patient medical attention, being liable to compulsory detention under the Mental Health Act 1983, or carrying a real risk of such deterioration in detention. “Satisfactorily managed” referred to practical effectiveness, rather than removal of every risk of mental ill-health or deterioration.
4. On the evidence, the claimant’s condition did not meet that threshold and was capable of satisfactory management in detention. The Secretary of State therefore could and would have detained her lawfully had the policy been properly applied, given the risk of absconding. Applying compensatory principles, only nominal damages were recoverable, although the claimant was entitled to a declaration that the entire second period of detention was unlawful.