Alemi, R (on the application of) v Secretary of State for the Home Department

Where published immigration-detention guidance states that a person suffering from serious mental illness should be detained only in very exceptional circumstances, the decision-maker must properly consider and apply that guidance. Before expert evidence of serious illness is received, the legality of detention may be assessed on Wednesbury grounds where the decision is based on medical advice. Once compelling expert evidence is received, the decision-maker must engage with it and either act on it or obtain adequate contrary advice. A continued failure to do so may make detention unlawful, although a reasonable period may be allowed to arrange an appropriate transfer.

The claimant, an Afghan national, sought judicial review of his detention between 1 March and 16 August 2013. During detention he made repeated serious suicide attempts and was eventually transferred to a secure psychiatric unit. The defendant relied on medical assessments which initially attributed his conduct to situational anxiety rather than serious mental illness. The claimant later relied on a detailed report from a clinical psychologist stating that he suffered from severe post-traumatic stress disorder and required transfer to a secure psychiatric facility.

The principal issue was whether detention remained lawful under the defendant’s published guidance, particularly after receipt of that report. A separate issue concerning removal to Belgium under Dublin II was withdrawn by consent.

1. Liability. The claim succeeded in part. The claimant was unlawfully detained from midnight on 23 May 2013 until his transfer to a psychiatric unit on 16 August 2013. The court did not determine whether an earlier period of unlawful detention had been established.
2. Applicable approach. The defendant accepted that detention guidance made a person suffering from serious mental illness, which could not be satisfactorily managed in detention, suitable for detention only in exceptional circumstances. Failure properly to consider or apply that guidance would be a public-law error. Where the decision-maker had acted on medical advice, the court assessed the application of the guidance on Wednesbury grounds, following the approach discussed in R (LE Jamaica) v Secretary of State for the Home Department and expressly approved in R (O) v Secretary of State for the Home Department.
3. Period before the expert report. Between 1 March and 8 May 2013, the evidence of repeated self-harm was powerful, but the defendant had received medical advice that the claimant was not mentally ill and had received no contrary expert evidence. The court was not prepared to conclude that no reasonable Secretary of State could have maintained detention on the material then available.
4. Effect of the report. Dr Thomas’s detailed and compelling report materially changed the position. The defendant had to accept it and investigate transfer to a secure psychiatric unit, or obtain properly informed contrary advice. Brief reassessments by the existing clinicians did not adequately engage with it. No reasonable Secretary of State could thereafter conclude that detention in an immigration removal centre complied with the published guidance. The report received on 8 May did not make detention immediately unlawful, since a reasonable period was required to obtain the recommendations needed for transfer. The court estimated that period at least two weeks and fixed the unlawful detention date at midnight on 23 May.
5. Orders. The liability issue was transferred to the Queen’s Bench Division for determination of damages, with a case management conference directed. The claimant was awarded the costs of the liability hearing, subject to detailed assessment. The Dublin II claim was withdrawn by consent and related costs were awarded.

This was a first-instance judicial review decision. The judgment refers to earlier proceedings concerning removal and to permission granted by Beatson LJ on 4 October 2013, but gives no citation for a judgment determining the same claim.