ARF v Secretary of State for the Home Department

Immigration detention must be justified by a reasonable prospect of removal within a reasonable period and must remain proportionate in light of the detainee’s circumstances. The risk of absconding or reoffending is important but is not a trump card. Where serious mental illness is alleged, the Secretary of State must make reasonable enquiries and consider whether the illness can be satisfactorily managed in the available detention facilities, including whether necessary community treatment is unavailable in detention. Chapter 55 requires very exceptional circumstances before continued detention of a person whose serious illness cannot be satisfactorily managed, or who has independent evidence of torture or is identified as a trafficking victim. A failure to investigate and refer a credible trafficking account may breach Article 4.

The claimant sought damages for immigration detention between 31 August 2011 and 22 January 2014, excluding a period spent in prison on remand. She was detained pending deportation and was later transferred to psychiatric hospitals under section 48 of the Mental Health Act 1983, while remaining subject to immigration detention.

She alleged breaches of the Hardial Singh principles, unlawful failure to apply Chapter 55 of the Enforcement Instructions and Guidance, breaches of Articles 3 and 8, and failure to investigate and refer trafficking allegations under Article 4. The central issues were whether detention remained lawful in light of the obstacles to removal and the deterioration in her mental health, whether the detention policy had been properly applied, and whether the trafficking allegations required referral to the National Referral Mechanism.

1. The claim succeeded on liability. Quantum was deferred.

2. Applying the Hardial Singh principles, the court treated reasonableness as an objective question requiring a fresh assessment of all the circumstances. Relevant matters included the length of detention, obstacles to removal, the Secretary of State’s diligence, detention conditions, the effect on the detainee, and the risks of absconding and reoffending. Those risks were important but did not automatically justify continued detention.

3. The claimant’s mental health deteriorated markedly from about April 2012. Her illness was serious by 13 May 2012 and was not satisfactorily managed at Yarl’s Wood. A proper assessment should have led to psychiatric review by the end of May and a fresh detention decision. By 30 June 2012 it should have been apparent that detention was causing deterioration and that the available facilities could not keep her illness under control or prevent suffering. Her detention was therefore unlawful at common law from 30 June 2012.

4. The Secretary of State failed to make the enquiries required by Chapter 55. Reliance on the statement that the claimant was fit for detention was inadequate. The policy required consideration of the seriousness of the illness, its effect on the claimant, available facilities, expected duration of detention and whether treatment available in the community was unavailable in detention. Had the policy been properly applied, detention should have ended after the Part C self-harm reports in May 2012.

5. The Rule 35 report disclosed an account of torture and female genital mutilation. The response did not properly investigate the account or obtain an examination. Under the policy, the claimant should have been released within no more than two weeks after receipt of the report. The detention was irrational and unlawful from 16 March 2012. The failure to refer the later trafficking account to the National Referral Mechanism also breached the Article 4 investigative duty.

6. Article 8 added nothing to the unlawful detention claim. Article 3 was not breached merely by the deterioration in mental health, but the treatment of the claimant as a disruptive detainee, including segregation under a punishment-based regime while seriously mentally ill, amounted to a breach of Article 3 from mid-May 2012.