IW, R (on the Application of) v The Secretary of State for the Home Department

Immigration detention does not become unlawful merely because a detainee’s deliberate refusal of food or fluids makes him unfit for detention in a removal centre or unfit to fly. The Secretary of State may continue detention where removal remains reasonably in prospect, subject to the Hardial Singh principles and lawful, reasonable decision-making.

Published detention policy must be applied where it covers the circumstances. A policy concerning persons whose medical or mental conditions cannot be managed in detention does not necessarily require release where the detainee’s condition results from a voluntary refusal of food, fluids or treatment. The Secretary of State must instead act reasonably and lawfully, including by considering suitable medical detention where appropriate.

The claimant, an overstayer detained pending removal to Pakistan, challenged the lawfulness of his detention between March and July 2013. During detention he made an asylum claim, pursued an unsuccessful appeal, and later deliberately refused food and fluids while declining hospital treatment unless released.

He alleged breaches of the common law limits on immigration detention, published detention policy, Articles 2, 3 and 8 of the ECHR, and section 149 of the Equality Act 2010. The central issues were whether his detention became unlawful because of his deteriorating health and hunger strike, and whether the Secretary of State’s policy or practice was unlawful.

1. Claim dismissed. The court was bound by R (on the application of IM (Nigeria) v SSHD [2013] EWCA Civ 1561; [2014] 1 WLR 1870. Detention may continue even where a detainee becomes too ill to be cared for in a removal centre, since detention may take place in hospital. A voluntary refusal of necessary treatment may constitute an exceptional circumstance justifying continued detention.
2. The Hardial Singh principles governed the detention. The Secretary of State intended to remove the claimant, acted with reasonable diligence and expedition, and removal remained reasonably in prospect. The claimant’s asylum claim and appeal did not make detention unreasonable. His self-induced health condition was relevant to the prospect of removal, the risk of absconding and the reasonableness of the detention period.
3. The relevant policy was not unlawfully applied. Chapter 55.10 addressed persons whose serious medical or mental conditions could not be satisfactorily managed in ordinary detention. Properly construed, it did not require release where the claimant’s condition resulted from deliberate refusal of food, fluids and treatment. The Secretary of State had to act reasonably and lawfully outside the policy’s express scope, and had done so.
4. Articles 2 and 3 did not require release where medical assessment and treatment were available in detention or through transfer to hospital, but were repeatedly refused. The claimant’s Article 8 claim also failed because detention was lawful, proportionate and directed to an imminent removal.
5. The claim under section 149 of the Equality Act 2010 failed. The Secretary of State was entitled to rely on clinical assessments, and treatment, medication, psychiatric assistance and counselling were reasonable adjustments. The mere diagnosis of reactive depression did not require release.

The judicial review claim was dismissed. Costs were awarded to the defendant, subject to assessment in light of the claimant’s legal aid.

First-instance judicial review in the Administrative Court. The judgment records that the claimant’s interim application for release was granted by Leggatt J on 15 July 2013; the substantive claim was subsequently dismissed.