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

Whether mental illness is satisfactorily managed in immigration detention is an objective question. The treatment need not match the best treatment available in the community or offer recovery. It must generally amount to acceptable medical practice for the condition, which may consist of keeping it stable.

The court determines the meaning of a detention policy. Once correctly construed, its discretionary application is reviewable only on public law grounds. Risks of absconding and reoffending remain material to the legality of detention under the Hardial Singh principles, although their force may diminish over time. Detention reviews must record why detention continues despite material developments. A review failure which would yield only nominal damages need not justify judicial review.

O, a foreign national with serious mental illness, was detained after a custodial sentence and a decision to deport her. Earlier Court of Appeal proceedings had addressed the lawfulness of her detention before 24 July 2010. This appeal concerned detention from that date until her release on immigration bail on 6 July 2011.

During that period, a psychiatrist diagnosed post-traumatic stress disorder and depression and recommended long-term treatment through a community care package. O contended that this medical evidence, the prospects of removal, and proposed community support made continued detention unlawful. Lang J refused permission to seek judicial review: [2012] EWHC 2899 (Admin). The central questions were the proper construction and application of paragraph 55.10 of the Enforcement Instructions Guidance and whether continued detention breached the Hardial Singh principles.

1. Appeal dismissed. The court held that O’s continued detention during the relevant period was lawful. Her new diagnosis and the community treatment recommended for her did not establish that her condition could not be satisfactorily managed in detention.
2. The phrase satisfactorily managed in paragraph 55.10 of the Enforcement Instructions Guidance required an objective assessment of the outcome of treatment in detention. It did not require treatment equivalent to that available outside detention, nor treatment offering recovery. In this context, acceptable medical practice could consist of maintaining a stable condition. A specialist treatment that was unavailable generally and could not reasonably be provided in detention did not make otherwise acceptable treatment unsatisfactory. The court adopted the purposive and pragmatic approach in R (MD (Angola)) v Secretary of State, [2011] EWCA Civ 1238.
3. The court, rather than the Secretary of State, determines the policy’s legal meaning. But where the Secretary of State has correctly directed herself on that meaning, the application of the policy to medical evidence is discretionary and reviewable only for public-law unreasonableness. Following R (LE Jamaica) v SSHD, [2012] EWCA Civ 597, it was not unreasonable to rely on the existing medical evidence rather than the views of Dr Agnew-Davies and Professor Katona. The recommended community package was not then in place and the Secretary of State had no duty to provide it.
4. The risks of absconding, reoffending and harm to children remained relevant to the Hardial Singh enquiry. Although their potency could lessen over time, they arose from recent events and could not be ignored. Release could safely be negotiated only once a satisfactory package of accommodation, supervision and support was available. Such a package was not accepted until the bail order of 6 July 2011.
5. The detention reviews were deficient. They should have recorded, even briefly, the potential significance of the new psychiatric report and why detention continued. The UK Border Agency’s separate letter and notifications under Detention Centre Rules 2001 rule 35 served different functions and could not replace proper recorded reviews. However, the defect did not warrant permission for a separate judicial review claim because O could and would lawfully have been detained in any event, and at most nominal damages were available.

• Court of Appeal (Civil Division): Dismissed O’s appeal and upheld the refusal of permission to apply for judicial review: [2014] EWCA Civ 990.
• High Court, Queen’s Bench Division (Administrative Court): Lang J refused permission to apply for judicial review of the continuing detention decision: [2012] EWHC 2899 (Admin).