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

This appeal concerns the correct interpretation and application of paragraph 55.10 of the Secretary of State's Enforcement Instructions and Guidance, which states that those "suffering from serious mental illness which cannot be satisfactorily managed within detention" are normally suitable for detention only in very exceptional circumstances. The Court reviewed the interaction between that policy, the statutory powers to detain (notably Schedule 2, paragraph 16 of the Immigration Act 1971 and related provisions), and the common law limits on detention derived from the Hardial Singh line of authority as explained in Lumba.

The Court held that the judge below erred by treating "serious mental illness" as meaning illness of a degree that in practice equated with liability to be sectioned or admission to inpatient hospital care; the policy must be read purposively and fact-sensitively so that diagnosis alone does not determine applicability and the effect of detention and the practicability of managing the illness in detention are central considerations. The Court further held that, because the material before the Administrative Court and this Court did not permit a safe conclusion that the error was immaterial to the outcome, the case must be remitted for further factual consideration of whether, applying the correctly construed policy, detention would have been justified and whether any entitlement to more than nominal damages arises.

This was an appeal by Pratima Das against the Administrative Court's declaration that her detention from 7 November 2011 to 12 January 2012 was unlawful but that she was entitled only to nominal damages because, on the judge's findings, lawful detention would in substance have been inevitable.

Background and relief sought

• The appellant is an Indian national who was subject to removal directions and detained under powers in the Immigration Act 1971. She claimed compensatory damages for false imprisonment in respect of that detention, asserting it was unlawful because her mental illness meant detention was inappropriate under the Secretary of State's policy in §55.10.
• The Administrative Court (Sales J) declared the detention unlawful for failure to give practical effect to §55.10 by not taking reasonable steps to inform itself of the appellant's mental health, but awarded only nominal damages on the ground that detention would in substance have been inevitable.

Issues before the Court of Appeal

1. Whether the judge applied an unduly high threshold in construing "serious mental illness" in §55.10 (effectively confining it to cases requiring inpatient hospitalisation or being "sectioned").
2. If the judge did err in construction, whether on the facts it was nonetheless inevitable that the Secretary of State would have detained the appellant so that only nominal damages are payable.

Court's reasoning and decision

• The Court emphasised that interpretation of §55.10 must be purposive and pragmatic: the policy operates as a constraint on detention powers, alongside the Hardial Singh principles and the requirement to adhere to published policy as explained in Lumba.
• The Court rejected the judge's apparent rule that only conditions of a severity approximating hospital admission or sectioning engage §55.10. That approach conflates the different purposes and criteria of the Mental Health Act 1983 and immigration detention policy, and does not reflect current mental health practice where many serious illnesses are managed in the community.
• Whether the policy applies in any individual case requires assessment of whether the person is "suffering" from the illness and whether it can be "satisfactorily managed in detention". This involves consideration of the individual's condition, likely effect of detention, available facilities, medication and treatment, and expected duration of detention. Where engaged, the policy sets a high hurdle: detention will be justified only in very exceptional circumstances which must be balanced against risks such as absconding or risk of harm to the public (the latter particularly relevant for foreign national prisoners).
• The Court found that Sales J had erred in his interpretation. On the evidence before the Court it was not possible to conclude that the error was immaterial; accordingly the appeal was allowed and the matter remitted for reconsideration on the factual questions, including whether detention would properly have been justified and what remedies flow from that determination.

Appeal allowed. The judge below erred in construing the phrase "serious mental illness" in §55.10 as essentially equating to illness warranting inpatient admission or sectioning under the Mental Health Act 1983. The policy must be read purposively: diagnosis alone is not decisive and the question whether an illness "cannot be satisfactorily managed within detention" requires an assessment of the individual's condition, the likely effect of detention, available treatment and the expected period of detention. Because the material before the courts did not allow a safe conclusion that the error was immaterial to the outcome, the Court remitted the case for further consideration of whether lawful detention would nevertheless have followed and what compensation, if any, should be awarded.

Appeal from the Administrative Court (Sales J) [2013] EWHC 682 (Admin). The Court of Appeal allowed the appeal and remitted the matter to the Administrative Court for further factual consideration under the correct construction of §55.10; neutral citation [2014] EWCA Civ 45.