MD, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention becomes unlawful when it is apparent that removal cannot be achieved within a reasonable period. Mental illness, detention-related deterioration, inadequate treatment, personal ties and available bail conditions are relevant to that assessment.

A published detention policy provides an additional legal constraint. Where serious mental illness cannot be satisfactorily managed in detention, continued detention requires very exceptional circumstances. Officials must obtain sufficient medical information and apply the policy conscientiously.

The claimant, a Guinean national, challenged her detention after arriving in the United Kingdom to join her refugee husband. She alleged breach of the Hardial Singh principles, breach of the policy concerning detention of persons with serious mental illness, unlawfulness of that policy under section 149 of the Equality Act 2010, and breaches of Articles 3, 5 and 8 of the European Convention on Human Rights.

She was detained from April 2011 until September 2012. The issues included whether detention became unlawful by October 2011, whether the policy was properly applied as medical evidence emerged, and whether her treatment breached Article 3.

1. Initial detention. The decisions on 7 and 8 April 2011 were not irrational. The claimant had given materially inconsistent answers about her age, marriage and husband, reasonably leading officials to suspect false representations. Ground 1 failed.
2. Hardial Singh principles. By 21 October 2011, detention had lasted about six and a half months, removal could not be achieved within a reasonable period, the judicial review remained outstanding, and the assessment of the claimant’s husband as an unsuitable sponsor was unreasonable. Her lack of criminal convictions or absconding history, personal ties, medical deterioration and available bail conditions also weighed against detention. Detention was unlawful under the third principle from 21 October 2011 until release.
3. Mental-illness policy. Dr Mounty’s diagnosis on 16 February 2012 required proper consideration of whether the claimant’s illness could be satisfactorily managed in detention. Officials failed properly to consider the medical evidence or apply Chapter 55.10. The illness deteriorated and was not satisfactorily managed. No very exceptional circumstances justified continued detention. This ground succeeded from 16 February 2012 until release.
4. Equality duty. The challenge to Chapter 55.10 failed. The court was bound by LE (Jamaica) and held that section 149 was not engaged by the 2010 reformulation.
5. Convention rights. Inadequate assessment and treatment, isolation and restraint caused suffering beyond the inevitable consequences of detention. Article 3 was breached. Article 8 did not require separate determination. Damages were payable for unlawful detention and under Article 5(5). No independent investigation was ordered.

First-instance judicial review in the Administrative Court. The judgment records earlier permission decisions and related proceedings, but no appeal from this judgment.