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

Immigration detention of a person suffering from serious mental illness is lawful only where the Hardial Singh principles and the Secretary of State’s mental-health detention policy are satisfied. A detainee’s illness must be assessed objectively, including its severity, likely course, treatment needs and whether the particular detention facility can manage it satisfactorily.

Management includes proper assessment, medication, monitoring, therapy, investigation of possible physical causes, and responding to non-compliance. The Secretary of State remains legally responsible for failures by contracted healthcare providers. Detention decisions are unlawful where material medical evidence is ignored, inaccurately recorded, or not obtained. Effective monitoring and expert advice are required where serious mental illness creates a real risk of deterioration. The claimant’s detention was unlawful throughout and breached articles 3 and 8 of the Convention.

S, a Ghanaian overstayer, was arrested on 3 December 2011 and detained first in police custody and then at Colnbrook and Harmondsworth immigration removal centres until 21 March 2012. He was subsequently diagnosed with paranoid schizophrenia, cognitive impairment, depression and psychotic symptoms.

He sought judicial review and damages, alleging unlawful detention, failure to apply the Secretary of State’s detention policies, inadequate healthcare, failures under the Detention Centre Rules, unlawful processing in the Detained Fast Track, and breaches of articles 3 and 8 of the Convention. The central issues were whether his illness was serious, whether it could be satisfactorily managed in detention, whether removal was reasonably foreseeable, and whether the detention decisions took relevant medical evidence into account.

1. Unlawful detention. S’s detention from approximately 4 pm on 3 December 2011 until his release on 21 March 2012 was unlawful. The decisions were Wednesbury unreasonable because they failed to take account of highly material evidence concerning his mental illness, capacity, treatment needs and fitness for removal.
2. The Hardial Singh principles applied together with EIG paragraph 55.10. Detention required a realistic prospect of removal within a reasonable period, reasonable diligence and expedition, and consideration of whether detention remained justified. There was a strong presumption in favour of release for persons suffering serious mental illness which could not be satisfactorily managed in detention.
3. Whether illness could be satisfactorily managed required consideration of the particular facility’s ability to provide continuing assessment, appropriate medication and dosage, monitoring, therapy, psychological and occupational interventions, investigation of organic causes, and management of non-compliance. S’s florid and unstable psychosis required an intensive and consistent regime which neither Colnbrook nor Harmondsworth could provide.
4. The decision-makers failed to obtain or act upon the FME’s advice, the assessments of Dr Allen and Professor Katona, and other evidence showing psychosis, cognitive impairment and lack of capacity. They also failed to arrange appropriate psychiatric assessment, an appropriate adult, hospital transfer, Rule 34 examinations, a Rule 35 report, accurate IS91 documentation and proper reviews of detention.
5. The Secretary of State’s responsibility for detention and care was non-delegable. Contracting out healthcare did not relieve her of responsibility for failures by contractors, sub-contractors or locum healthcare professionals.
6. Code C of PACE applied directly before immigration detention was authorised and indirectly thereafter through EIG Chapter 38. Its safeguards for mentally vulnerable detainees, including appropriate clinical attention and appropriate-adult arrangements, had to be applied by necessary implication.
7. The failures in assessment, monitoring, treatment and detention conditions amounted to significant breaches of articles 3 and 8. S was entitled to substantial damages for unlawful detention and Convention breaches, subject to assessment or agreement.