Da Silva v The Secretary of State for the Home Department

Immigration detention must be authorised by the statutory power applicable to the detainee. A mistaken reliance on an inapplicable power renders the detention unlawful, although damages may be nominal if detention would otherwise have occurred.

Detention of a person subject to deportation remains subject to the Hardial Singh principles and ordinary public law controls. The Secretary of State may give substantial weight to public protection and the risk of absconding. Where serious mental illness becomes apparent, reasonable steps must be taken within a reasonable time to secure suitable hospital conditions. Detention in hospital may remain lawful where the illness can be satisfactorily managed there.

The claimant, an Angolan national subject to a deportation order, challenged his immigration detention between 2 April and 1 July 2014. The initial detention notice relied on section 36(1) of the UK Borders Act 2007, although a deportation order was already in force and the applicable power was paragraph 2(3) of Schedule 3 to the Immigration Act 1971.

The claimant also alleged breaches of the Hardial Singh principles, the Secretary of State’s detention policy concerning serious mental illness and torture, and Articles 3 and 8 of the Convention. After psychiatric assessments, he was transferred from an immigration removal centre to hospital on 30 April. The central issues were whether the detention was lawfully authorised, whether continued detention was justified, and whether the claimant should have been moved to hospital earlier.

1. Statutory authority. Section 36(1) of the UK Borders Act 2007 applies before a deportation order is made. Once such an order is made, section 36(2) requires detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, unless detention is considered inappropriate. The claimant’s detention from 2 to 6 April 2014 was therefore unlawful because it purportedly relied on section 36(1). He would nevertheless have been detained under the correct power, so only nominal damages were recoverable.
2. Initial detention. Applying the principles restated in [2011] UKSC 12, the Secretary of State intended to deport the claimant, removal was reasonably foreseeable, and detention was justified by repeated breaches of bail conditions, damage to electronic monitoring equipment, risk of absconding and public protection. The error concerning exhaustion of appeal rights did not invalidate the substantive decision.
3. Policy and mental illness. The detention policy’s reference to a person suffering serious mental illness which could not be satisfactorily managed in detention had to be read as a whole. The issue was practicability of management, not diagnosis alone. At the date of initial detention, the evidence did not establish that the claimant’s illness could not be managed in detention. The torture reservation also did not apply because there was no independent evidence or judicial finding that the claimant had been tortured.
4. Hospital transfer. Once the psychiatric assessments of 3 April established that the claimant required secure hospital treatment, the Secretary of State had to take reasonable steps within a reasonable time to secure appropriate transfer. The period until 17 April was reasonable. From 17 to 30 April, however, a suitable hospital bed was available and the claimant remained in unsuitable immigration-removal-centre conditions because of the mistaken belief that a Ministry of Justice order was required. That period of detention was unlawful.
5. Detention in hospital and remedy. Detention in hospital from 30 April to 1 July was lawful because the claimant’s illness could be satisfactorily managed there and he would otherwise have been detained under the Mental Health Act 1983. The claim succeeded to the limited extent identified, and the court reserved the form of order and assessment of damages.

This was a first-instance judicial review. The judgment records earlier decisions of the First-tier Tribunal and Upper Tribunal concerning the claimant’s deportation appeal, but no citation for a decision under appeal in these proceedings.