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

Immigration detention must be assessed by reference to the information reasonably available when each decision was made. It may continue during a pending appeal if there remains a sufficient prospect of removal within a reasonable period and the Secretary of State acts with reasonable diligence.

A policy protecting persons whose serious mental illness cannot be satisfactorily managed in detention operates in stages. A diagnosis alone is insufficient. Only if the threshold is met does the demanding test of very exceptional circumstances arise. Difficult behaviour does not itself establish that mental illness cannot be managed in detention.

The claimant challenged his detention under immigration powers from 26 January 2011 to 22 March 2012. He alleged that the Secretary of State had misapplied the policy concerning detention of seriously mentally ill persons and that his detention breached the Hardial Singh principles.

His appeal against deportation was initially allowed by the First-tier Tribunal, but that determination was set aside by the Upper Tribunal, which later allowed the appeal on the evidence then before it. The central issues were whether his mental illness could be satisfactorily managed in detention and whether there was, at the relevant times, a sufficient and realistic prospect of removal within a reasonable period.

1. Claim dismissed. The court assessed each detention decision by reference to the facts and material available at the time. Later events, including the claimant’s eventual success in his deportation appeal and later medical evidence, could not retrospectively establish unlawfulness.

2. The Hardial Singh principles required detention to serve the purpose of deportation, to remain reasonable, to cease when removal could not be effected within a reasonable period, and to be pursued with reasonable diligence and expedition. The risks of absconding and further offending were important factors. The evidence entitled the Secretary of State to treat both risks as material.

3. The court accepted the approach in R (Das) v SSHD [2014] EWCA Civ 45. The relevant policy phrase had to be read as a whole. A serious diagnosis alone was insufficient. The Secretary of State could generally rely on responsible clinicians where reasonable inquiries had been made, while retaining her own responsibility.

4. The policy operated in stages. If the threshold was not met, the very exceptional circumstances test did not arise. If it was met, that test was demanding. The evidence showed difficult behaviour, but not that the claimant’s mental illness could not be managed in detention. Nor did the facts put the Secretary of State on notice that further particular inquiries were necessary.

5. Dutch nationality did not itself confer enhanced protection against removal. The pending appeal did not make detention unlawful, and the later Upper Tribunal decision did not show that removal prospects had been insufficient during the detention period.

The First-tier Tribunal allowed the claimant’s appeal against deportation. The Upper Tribunal set that determination aside and later allowed the appeal on the evidence before it. The High Court then dismissed this judicial review claim.