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

The claimant challenged the lawfulness of her immigration detention following arrival from Guinea on 7 April 2011, arguing breaches of domestic detention policy (Chapter 55 of the Enforcement Instructions and Guidance), the Hardial Singh principles, and Articles 3 and 5 of the European Convention on Human Rights. The court analysed the statutory powers to detain (Immigration Act 1971, Schedule 2 paragraphs 16(1) and 16(2)) and paragraph 320(7A) of the Immigration Rules as the basis for refusal of entry.

The court held that the initial decision to detain was not irrational given the contradictory account given on arrival, but that detention became unlawful from 21 October 2011 because it was no longer reasonable in all the circumstances (breach of the third Hardial Singh principle). The court further held that from 16 February 2012 the Secretary of State failed to apply or properly consider Chapter 55.10 (persons with serious mental illness) and therefore detention was unlawful for the period 16 February 2012 to 13 September 2012. Finally, the court found that the State breached Article 3 ECHR by failing to ensure adequate psychiatric assessment and management, with treatment and management measures amounting to inhuman or degrading treatment.

Background and parties: The claimant, a Guinean national, arrived at Heathrow on 7 April 2011 with a family reunion entry clearance. The Secretary of State detained her after officers formed concerns about inconsistent statements regarding her age and marriage. The claimant was held at Yarl's Wood for over 17 months. She brought judicial review proceedings seeking declarations of unlawfulness, damages for false imprisonment and breaches of Articles 3, 5 and 8 ECHR, a declaration that the detention policy for the mentally ill (Chapter 55.10 EIG) was unlawful under the Equality Act 2010 s.149, and a mandatory order for an independent investigation.

Procedural posture and relief sought: Permission for judicial review was granted. Earlier, a separate judicial review and immigration appeal process had been pursued; removal directions were repeatedly set then cancelled. The claimant sought declarations that detention was unlawful from the outset or, alternatively, from October 2011 and thereafter, damages for false imprisonment, compensation under the ECHR, and various ancillary remedies.

Issues framed by the court:

• Was the initial decision to detain lawful and rational?
• Had detention become unlawful by reason of the Hardial Singh principles (in particular principles 2 and 3) by October 2011 or subsequently?
• Did the Secretary of State breach Chapter 55.10 EIG concerning detention of those with serious mental illness?
• Was Chapter 55.10 unlawful under the Equality Act 2010 s.149?
• Were the detention and conditions incompatible with Articles 3, 5 and/or 8 ECHR?

Court reasoning and findings: The judge accepted the statutory basis for detention and the relevance of paragraph 320(7A) of the Immigration Rules where false representations are alleged. On the initial detention he found the officers’ concerns about inconsistent statements were not irrational and that the detention decision on arrival was justifiable in context. However, by 21 October 2011, in light of (a) the pending judicial review, (b) medical evidence beginning with Dr Bingham indicating acute deterioration linked to detention and repeated self-harm, and (c) the availability of feasible alternatives and support from the claimant’s husband, it had become apparent that removal could not be effected within a reasonable period. The court therefore found detention unlawful from 21 October 2011 under the Hardial Singh principles.

Separately, the court concluded that from 16 February 2012 (the date of Dr Mounty’s psychiatric findings diagnosing major depression with psychotic features and generalised anxiety disorder) the Home Office had failed to take reasonable steps to inform itself about the claimant’s mental health and to consider whether her condition could be satisfactorily managed in detention as required by Chapter 55.10 EIG. The absence of proper engagement with that policy, failure to seek or act on psychiatric advice and failure to produce Rule 35 reports where indicated rendered detention unlawful from 16 February 2012 to release on 13 September 2012.

The judge further found breaches of the positive obligations under Article 3 ECHR: the State failed to ensure effective psychiatric supervision, treatment and a therapeutic strategy aimed at curing or preventing aggravation of illness; use of isolation, restraint and repeated removal attempts exacerbated suffering and crossed the threshold into inhuman or degrading treatment. The court declined to declare the policy itself unlawful under s.149 of the Equality Act, noting binding authority and ongoing review of policy. Damages for unlawful detention and ECHR breaches were reserved for assessment.

First instance: The claim succeeded in part. The court held that initial detention on arrival was not irrational, but found detention unlawful from 21 October 2011 to 13 September 2012 by reason of a breach of the third Hardial Singh principle, and unlawful from 16 February 2012 to 13 September 2012 for failure to apply Chapter 55.10 EIG to the claimant’s serious mental illness. The court also found a breach of Article 3 ECHR (inhuman or degrading treatment) arising from inadequate psychiatric assessment and management. Damages and the form of relief were reserved for assessment or further submissions.