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

A failure by the Home Secretary lawfully to apply a published detention policy renders immigration detention unlawful. This applies whether the statutory provision says that a person “shall” or “may” be detained. The statutory mandate to detain is conditional upon proper consideration, in accordance with policy, of whether release should be directed.

Whether serious mental illness is “satisfactorily managed” in detention requires a practical, individual assessment. Relevant matters include treatment capable of improving the condition and likely to be available after release. Satisfactory management need not be optimal, but it means more than controlling deterioration.

If the detainee could and would have remained detained following a lawful decision, false imprisonment is nevertheless established, although only nominal damages may be recoverable.

O, a Nigerian national with serious mental ill-health, was detained pending deportation for almost three years. Her present claim challenged the later period of detention, particularly from 4 March to 6 July 2011. Monthly reviews failed properly to address a psychologist’s diagnosis of post-traumatic stress disorder, the recommended specialist treatment, and whether O’s illness could be satisfactorily managed in detention.

Lang J refused permission to seek judicial review. The Court of Appeal dismissed O’s appeal in [2014] EWCA Civ 990, [2015] 1 WLR 641, although it accepted that the Home Secretary had unlawfully failed to apply her published policy. O appealed to the Supreme Court.

The principal issues were whether lawful application of the policy would have secured earlier release; whether the policy failure rendered detention under paragraph 2(1) and paragraph 2(3) of Schedule 3 to the Immigration Act 1971 unlawful; and whether permission should be granted where the likely remedy was a declaration and nominal damages.

1. Appeal dismissed unanimously. Lord Wilson delivered the judgment, with which Lady Hale, Lord Reed, Lord Hughes and Lord Toulson agreed. The Home Secretary had unlawfully failed to apply paragraph 55.10 of her detention policy between March and July 2011. The reviews did not address the diagnosis of post-traumatic stress disorder, the proposed specialist treatment, whether O’s illness could be satisfactorily managed at Yarl’s Wood, or whether very exceptional circumstances nevertheless justified detention: paras 21–27.

2. “Satisfactory management” requires a practical and individual inquiry. The expression is deliberately elastic and must be interpreted in its context and according to the policy’s purpose. Relevant treatment is not confined to measures preventing deterioration. Treatment likely to improve the condition and actually available following release must enter the assessment. Satisfactory management does not require optimal management, but treating “management” as no more than control of illness would be unprincipled: paras 28–33. The contrary aside in R (Das) v Secretary of State for the Home Department [2014] EWCA Civ 45 was disapproved.

3. Proper application of the policy would have required further inquiries rather than immediate release. The court could not predict their result. Even assuming that the illness could not satisfactorily be managed in detention, the Home Secretary would still have had to assess absconding and reoffending risks and arrange suitable accommodation and care. O would not have been released before her actual release on bail on 6 July 2011: paras 33–35.

4. The court did not determine whether judicial review of an application of detention policy is confined to rationality or requires an intensive assessment of correctness. The Home Secretary had made no decision on satisfactory management capable of appraisal. Her decision-making process was therefore procedurally flawed: paras 36–37.

5. A failure lawfully to apply published policy renders detention unlawful even where the statutory language directs that the person “shall” be detained. The mandates in paragraphs 2(1) and 2(3) of Schedule 3 to the Immigration Act 1971 are conditional upon a prospect of deportation within a reasonable time and upon lawful consideration of release under the applicable policy. They have no different effect from the powers expressed by “may” in paragraphs 2(2) and 2(3): paras 38–49. The contrary majority holding in R (Francis) v Secretary of State for the Home Department [2014] EWCA Civ 718 was wrong and was displaced.

6. Had the claim proceeded, O would probably have obtained a declaration that her detention from 4 March to 6 July 2011 was unlawful and £1 nominal damages. As she had already been released, the proceedings offered no practical benefit. The refusal of permission was therefore upheld: para 50.

1. United Kingdom Supreme Court: In [2016] UKSC 19, unanimously dismissed O’s appeal and upheld the refusal of permission, while holding that the detention was probably unlawful and that the contrary reasoning in Francis was wrong.
2. Court of Appeal: In [2014] EWCA Civ 990, [2015] 1 WLR 641, dismissed O’s appeal. It accepted that the Home Secretary had unlawfully failed to apply her policy but concluded that the likely relief did not justify granting permission.
3. Administrative Court: Lang J refused permission to seek judicial review on 3 April 2012.