AMG, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention of a person suffering from serious mental illness is not unlawful merely because the person is mentally ill. The Secretary of State must obtain sufficient information to decide whether the illness can be satisfactorily managed in the proposed detention facility, having regard to the treatment required and facilities available. Where the policy applies, detention requires very exceptional circumstances, although risks posed by a foreign criminal may justify detention. The detainee must be monitored for deterioration, and appropriate steps must be taken to transfer the person to hospital where necessary. The Hardial Singh principles require consideration of the realistic prospect and timing of removal, but risks of absconding and re-offending remain relevant. A decision-maker need not recite policy language precisely if the policy is properly applied.

The claimant, a Jamaican national with a history of offending and serious mental illness, sought judicial review of his detention under the Immigration Act 1971. He was detained first at an immigration removal centre and later in hospital under the Mental Health Act 1983.

He alleged breaches of the Secretary of State’s detention policy concerning persons with serious mental illness, the Hardial Singh principles, and the public-sector equality duty under section 149 of the Equality Act 2010. The central issues were whether his illness could be satisfactorily managed in detention, whether his detention became unreasonable after an appellate tribunal ordered a rehearing of his deportation appeal, and whether due regard had been given to his disability.

1. Policy and mental illness. Chapter 55.10 of the Enforcement Instructions and Guidance applied only to detention in an immigration removal centre or prison. It did not apply to detention in hospital. The Secretary of State had to obtain sufficient information to make an informed judgment whether the claimant’s illness could be satisfactorily managed in the proposed facility, considering the treatment required and facilities available. The guidance in R (on the application of Das) v SSHD [2014] EWCA Civ 45 and IM (Nigeria) v SSHD [2013] EWCA Civ 1561 was applied.
2. The claimant’s illness was initially capable of satisfactory management at Harmondsworth. When it became apparent that this was no longer so, the health-care team took appropriate steps to secure hospital transfer. The period required for assessment and transfer was not unreasonable. The claimant’s return to the removal centre was justified by his responsible clinician’s view that his condition could again be managed there.
3. Errors in detention reviews did not invalidate the detention where the Secretary of State would have reached the same decision on the true facts. The policy did not require the decision-maker to use its precise wording; the question was whether the policy had in substance been applied.
4. Hardial Singh principles. The relevant inquiry was fact-sensitive. The period spent awaiting a rehearing did not automatically require release. The claimant’s detention remained reasonable in light of the expected timetable, the facilities available, and the substantial risks of absconding and re-offending. The principles in Lumba v SSHD [2011] UKSC 11 were applied.
5. Equality duty. The Secretary of State had due regard to the claimant’s mental illness and its possible connection with the risks relied upon. The duty did not require her to disregard those risks. The claim was dismissed.