BCZ v Secretary of State for the Home Department & Ors

Continued immigration detention remains lawful where the detainee’s medical condition can presently be managed in detention, the Secretary of State has properly considered the relevant policy and medical evidence, and the risks of absconding or further offending outweigh the reasons militating against detention. A diagnosis need not be conclusive before medical evidence becomes relevant, but the court must assess the evidence available at the date of decision and recognise the Secretary of State’s continuing duty of supervision. Under the Hardial Singh principles, removal need not be imminent or capable of being assigned a fixed date. There must instead be a sufficient and realistic prospect of removal within a period reasonable in all the circumstances.

BCZ, a Chinese national detained pending deportation after conviction for fraud-related offences, sought renewed permission to apply for judicial review and interim relief. He argued that continued detention was unlawful because of his deteriorating physical and mental health following a period of food and fluid refusal, and because removal could not take place within a reasonable time.

The Secretary of State relied on the absence of a conclusive neurological diagnosis, ongoing medical monitoring, the risks of absconding and reoffending, the imminent asylum and deportation appeal, and the prospect of obtaining emergency travel documentation. The central issues were whether continued detention was arguably unreasonable in light of BCZ’s medical condition and whether the duration of detention breached the Hardial Singh principles.

1. Application dismissed. The renewed application for permission was not arguable, and interim relief was refused.
2. The detention policy in Chapter 55.10 of the Enforcement Instructions and Guidance required particular consideration of whether a serious mental or physical condition could be satisfactorily managed in detention. The Secretary of State was required to exercise independent judgment, but could properly rely on responsible clinical opinions and resolve conflicts between medical evidence.
3. The evidence did not establish a conclusive diagnosis of Wernicke-Korsakoff syndrome. BCZ had resumed normal eating and drinking, was being monitored daily, and further assessment remained in progress. The Secretary of State had not ignored the medical evidence. The fact that the condition might have been self-induced was not conclusive, but was relevant to the overall balance, particularly where refusal of treatment was deliberate.
4. The risk of absconding and further offending remained significant. The labels attached to the risk were less important than the underlying facts. Those risks had to be weighed against the medical considerations and the presumption in favour of liberty.
5. The Hardial Singh principles, reaffirmed in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, were not breached. Detention was for the legitimate purpose of removal, was not longer than reasonable, and the Secretary of State was acting with due diligence. Removal need not be imminent or have a predictable fixed timetable. A sufficient or realistic prospect of removal could exist despite uncertainty as to when removal would occur.
6. The assessment had to be made on the evidence available at the date of the continuing decision, while recognising that a later conclusive diagnosis or evidence that treatment could not be provided in detention might require reconsideration.

First-instance judicial review proceedings. The judgment records an earlier refusal of permission on paper by Kenneth Parker J on 20 August 2014, followed by this renewed application before the Administrative Court.