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

The claim for judicial review arising from long immigration detention and a detainee's deliberate refusal of food and fluids was dismissed. The judge applied the Hardial Singh principles as distilled in Lumba and related authorities and followed the Court of Appeal decision in IM (Nigeria) v SSHD. The court held that detention remained lawful while removal was reasonably in prospect, that detention of a detainee who deliberately made himself unfit for removal does not automatically become unlawful, and that published policy (Chapter 55) did not require release where hospital detention or treatment in detention was available. Claims under Articles 2, 3 and 8 ECHR and s.149 Equality Act 2010 were rejected for failure to show breaches of positive obligations or that detention was otherwise unlawfully maintained.

This was a first instance judicial review claim by a Pakistan-born detainee who had been an over-stayer and illegal worker and who, while detained pending removal, embarked on a hunger strike and later refused fluids. The claimant sought relief including declarations that his detention was unlawful at common law and contrary to the Home Office's published policy, and alleged breaches of Articles 2, 3 and 8 ECHR and section 149 of the Equality Act 2010. Permission to proceed had been granted and the claimant was released after an interim order for immediate release was made.

The issues before the court were whether (i) the entirety (or part) of detention was unlawful under the Hardial Singh principles and domestic policy (Chapter 55), (ii) the Secretary of State's policy or practice on detainees refusing food was unlawful, (iii) there were breaches of Articles 2, 3 and 8 ECHR in the care and supervision of the claimant, and (iv) there was a breach of the public sector equality duty in s.149 Equality Act 2010.

The judge reviewed the factual chronology of detention, medical assessments and the claimant's deliberate refusal of food/fluids. The court treated IM (Nigeria) v SSHD as determinative on the legal approach to hunger strikes in detention and applied established Hardial Singh principles (intention to remove, reasonable period, diligence, and cessation where removal is no longer reasonably in prospect). The judge concluded that: the Secretary of State had lawful grounds to detain; removal remained reasonably in prospect; the claimant's self-induced barrier to removal (the hunger strike) did not render detention unlawful; medical care and reviews were adequate and contemporaneous clinicians did not diagnose a mental disorder making detention impossible; Chapter 55 did not compel release where hospital detention or transfer could address medical needs; Articles 2 and 3 did not require release given available steps to preserve life and the voluntary nature of the hunger strike; Article 8 and s.149 claims failed because there was no disproportionality nor a failure to make reasonable adjustments in light of the medical evidence.

The judge therefore dismissed the claim for judicial review and intended an award of costs to the Secretary of State, subject to assessment.

This claim for judicial review is dismissed. The court held that detention was lawful throughout the relevant period because removal remained reasonably in prospect, the claimant had deliberately made himself unfit for removal by refusing food/fluids, contemporaneous clinical assessments did not demonstrate a mental disorder rendering detention unlawful, Chapter 55 did not require release where hospital detention/transfer was available, and there was no breach of Articles 2, 3 or 8 ECHR nor of s.149 Equality Act 2010.