Xue v Secretary of State for the Home Department

Administrative detention pending removal must remain reasonable in all the circumstances. The court must consider the length and conditions of detention, its effect on the detainee’s physical and mental health, the barriers to removal, the Secretary of State’s diligence, and the risks of absconding and offending. Serious illness engages the detention policy where there is a real possibility that the illness cannot be satisfactorily managed in detention. The Secretary of State must take reasonable steps to obtain sufficient information to make an informed judgment on that issue. Failure to consider material medical evidence may render detention unlawful, even where continued detention would probably have been lawful had the evidence been considered.

The claimant, a Chinese national with convictions for dishonesty offences and a poor record of compliance with immigration conditions, was detained from 2 March 2012 until her release on bail on 17 June 2014. Removal was delayed by appeals, the need for an emergency travel document, further representations and serious physical and mental health problems.

She sought judicial review, alleging that her detention breached the Hardial Singh principles, the Secretary of State’s detention policy and articles 3 and 8 of the Convention. The central issues were when, if at all, her detention became unlawful and whether the Secretary of State had properly considered medical evidence concerning her suitability for detention.

1. Outcome. The claim succeeded. The claimant’s detention was unlawful from 16 July 2013. She was entitled to nominal damages until 2 May 2014, and to damages reflecting the unlawfulness of continued detention after her return from hospital.
2. The power to detain under paragraph 2(2) and (3) of Schedule 3 to the Immigration Act 1971 was subject to the four Hardial Singh principles: detention must pursue removal; it must last only for a reasonable period; it must cease when removal cannot be effected within a reasonable period; and the Secretary of State must act with reasonable diligence and expedition.
3. In assessing reasonableness, the court had to balance the length of detention, barriers to removal, diligence, detention conditions, the effect on the detainee’s health, and risks of absconding and offending. The first year of detention was lawful. By the claimant’s return from hospital after her fall, the duration of detention, its effect on her health and the reduced risks of absconding and offending made further detention unreasonable.
4. The medical reports supplied by Drs Beeks, Omara, Clark and Sagovsky were materially relevant and created a real, rather than fanciful, possibility that Chapter 55.10 of the Enforcement and Instructions Guidance applied. The Secretary of State therefore had to take reasonable steps to inform herself sufficiently to decide whether the claimant’s serious physical and mental illnesses could be satisfactorily managed in detention.
5. The Secretary of State had not shown that the reports had been considered or that the healthcare staff had been asked to comment on them. The absence of a rule 35 report did not justify ignoring independent medical evidence. The detention was consequently unlawful from 16 July 2013. Had the evidence been considered and proper inquiries made, continued detention would probably still have been lawful until 2 May 2014, so only nominal damages were awarded for that period.
6. The claims under articles 3 and 8 were rejected. The article 3 threshold was not crossed on the facts, and the article 8 claim could not succeed in view of the legitimate demands of immigration control.

Not stated in the judgment.