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

In a challenge to immigration detention involving serious mental illness, the Secretary of State had to apply her published detention policy correctly and consider whether the illness could be satisfactorily managed in detention. The policy did not require detention to continue until hospitalisation became necessary. A Rule 35 report and known medical history triggered a duty to make reasonable enquiries, but the court applied the Wednesbury standard to the substantive detention decisions. Before a marked deterioration supported by a further Rule 35 report, continued detention was rationally open to the Secretary of State. Thereafter, unexplained delay in transferring the detainee to hospital rendered detention unlawful for a defined period. The Mental Capacity Act 2005 did not require the immigration detention decision to be made in the detainee’s best interests. However, prolonged serious mental illness could require safeguards or independent representation to avoid procedural unfairness.

The claimant, a Nigerian national with a history of serious bipolar mental illness and criminal convictions, was detained pending deportation under Schedule 3 to the Immigration Act 1971. He challenged the lawfulness of his detention and treatment, relying on the Secretary of State’s detention policy, the Hardial Singh principles, article 3 of the ECHR, the Mental Capacity Act 2005, the Equality Act 2010, and procedural fairness.

He was detained from June 2014 until September 2015 and transferred to a psychiatric hospital in May 2015 after a serious deterioration in his condition. The central issues were whether the policy had been correctly applied, whether detention remained rational and proportionate, whether treatment breached statutory or Convention rights, and whether the arrangements afforded adequate procedural safeguards.

1. Policy and enquiries. The policy required the Secretary of State to ask whether serious mental illness could be satisfactorily managed in detention and, if not, whether very exceptional circumstances justified continued detention. It did not make hospitalisation or sectioning under the Mental Health Act 1983 the threshold. The Secretary of State could ordinarily rely on the prescribed system of medical care and Rule 35 reporting, but was not entitled to abdicate her own responsibility. The first Rule 35 report and the known history of illness triggered a public law duty to make further reasonable enquiries. That duty was breached after 2 July 2014, although the later detention decisions were not unlawful on that ground.
2. Application of the policy. The repeated review wording, stating that the claimant was suitable for detention in only very exceptional circumstances unless his condition deteriorated to the point of hospitalisation, misinterpreted the policy. Nevertheless, until receipt of the Rule 35 report dated 25 March 2015, it was rationally open to the Secretary of State to conclude that the illness could be satisfactorily managed in detention, having regard to fluctuations in the claimant’s condition, periods of stability, previous prison detention, and the absence of earlier clinical recommendations for hospital transfer. From receipt of the March report, the only rational conclusion was that the illness could not be satisfactorily managed in detention. Detention could continue briefly while transfer arrangements were made, but it became unlawful from 3 April 2015 to 27 April 2015 because the delay was unexplained.
3. Hardial Singh principles. The claimant did not establish that detention became unlawful under principles (ii) or (iii). Removal remained a realistic prospect before the March 2015 deterioration, and the risks of absconding and reoffending were rationally assessed. Continued detention pending compulsory hospital sectioning between 27 April and 5 May 2015 was rationally open to the Secretary of State.
4. Treatment and capacity. The evidence did not satisfy the high threshold or minimum intensity required for an article 3 breach. The Mental Capacity Act 2005 concerns decisions made for or on behalf of a person lacking capacity. The immigration detention decision was the Secretary of State’s own public law decision and did not have to be made in the claimant’s best interests. The Act therefore did not directly invalidate the detention decisions.
5. Equality and procedural fairness. The claimant was disabled for the purposes of the Equality Act 2010. The statutory duty to make reasonable adjustments overlapped with common law procedural fairness. A detainee with prolonged serious mental illness may require assistance or independent representation to make effective representations about continued detention or treatment. No general formal hearing was required on every review, and the claimant had not shown the sustained incapacity necessary to establish that his own detention was procedurally unfair. The segregation challenge also failed on the facts.
6. Outcome. The claim succeeded only in respect of the unlawful detention period from 3 April to 27 April 2015. The remaining challenges failed.

First-instance judicial review in the Administrative Court. The judgment does not state any prior appellate decision in this litigation.