QUB v Secretary of State for the Home Department

The claimant challenged the lawfulness of his detention from 9 February to 29 March 2016. The principal legal materials considered were Chapter 55 of the Home Office Enforcement Instruction and Guidance (in particular paragraphs 55.3 and 55.10) and the public sector equality duty in section 149 of the Equality Act 2010.

The court held that paragraph 55.10 (persons unsuitable for detention in all but very exceptional circumstances) was not engaged because there was no evidence that the claimant was suffering from a serious mental illness that could not be satisfactorily managed in detention, nor was there independent evidence at the time showing torture made detention appropriate only in very exceptional circumstances. Paragraph 55.3 was engaged but the reviewing officer had taken into account the claimant’s reported mental health and his account of torture when assessing continued detention. The court also held that the decision to treat the claimant as a high absconding risk was not irrational, given his prolonged evasion of immigration controls, lack of ties in the United Kingdom, and the timing of his asylum claim.

The court rejected the public sector equality duty challenge, finding no failure to have due regard to protected characteristics that caused disadvantage to the claimant and noting evidence of relevant training and procedures. The claim for judicial review was dismissed.

This was a first instance judicial review claim by an Indian national detained during an immigration enforcement visit on 9 February 2016. The claimant was detained on suspicion he would abscond and remained in detention until 29 March 2016 when he was released after the Secretary of State received a Rule 35 report indicating injuries consistent with torture. The claimant later provided some medical evidence, and his solicitors had raised mental health and vulnerability concerns before his release.

The claimant sought judicial review of the decisions to detain and to continue detention on four grounds: (i) failure to apply correctly Chapter 55 of the Enforcement Instruction and Guidance, in particular paragraphs 55.3 and 55.10; (ii) lack of rational basis for concluding he would not comply with conditions of temporary admission; (iii) similar challenge to rationality and risk of absconding; and (iv) breach of the public sector equality duty under section 149 of the Equality Act 2010.

The court framed the issues as whether the threshold in paragraph 55.10 was met, whether the decision-maker had taken the mandatory considerations in paragraph 55.3 into account (notably mental health and history of torture), whether the absconding risk assessment was rational, and whether the Secretary of State had given due regard under the PSED.

The court reasoned that: (i) there was no evidence before the Secretary of State (or before the court) that the claimant suffered a serious mental illness that could not be managed in detention; thus paragraph 55.10 did not apply; (ii) the reviewing officer had conducted the screening interview and the contemporaneous review and therefore was aware of the claimant’s statements about depression, flashbacks and an allegation of torture; the asylum claim and mental health were considered in the review and healthcare records did not indicate unsuitability for detention; (iii) the assessment that the claimant was a high absconding risk was not irrational because he had evaded immigration control for some years, had no close ties in the United Kingdom, had admitted working illegally and only claimed asylum after detention; and (iv) the PSED challenge failed because the Secretary of State had taken steps to consider protected characteristics, the claimant could not identify specific disadvantage caused by any failure, and there was evidence of relevant training and procedures. The judge noted the claimant was released three days after receipt of the independent Rule 35 report.

The court therefore dismissed all grounds and refused the judicial review claim.

This was a first instance decision. The claim for judicial review is dismissed. The court found that paragraph 55.10 of Chapter 55 EIG did not apply because there was no evidence of a serious mental illness that could not be managed in detention and there was not then independent evidence that torture made detention appropriate only in very exceptional circumstances. Paragraph 55.3 had been engaged and the claimant’s reported mental health and allegation of torture had been taken into account. The assessment that the claimant was a high absconding risk was not irrational. The PSED challenge under section 149 of the Equality Act 2010 failed because no particular disadvantage to the claimant was shown and the Secretary of State had taken steps to address equality considerations.

Proceedings issued 18 March 2016. Permission for judicial review was granted on 22 November 2016 limited to detention challenges; after an oral hearing on 31 March 2017 the claimant was also permitted to argue a breach of the public sector equality duty. The substantive hearing took place before Deputy High Court Judge Dinah Rose QC and judgment was handed down on 28 June 2017 (Neutral Citation [2017] EWHC 1494 (Admin)).