ASK v The Secretary of State for the Home Department

Immigration detention of a person with serious mental illness requires a practical, fact-sensitive assessment under Chapter 55.10 of the Enforcement Instructions and Guidance. The Secretary of State must consider whether the illness can be satisfactorily managed in detention, including treatment likely to be available if the person is released. The inquiry requires independent consideration of all relevant evidence, viewed in the round. A failure to record policy questions in formulaic terms is not decisive if the substance of the policy has been applied. Conflicting clinical opinions do not require acceptance of the opinion most favourable to the detainee. Detention may remain lawful while the medical position is unresolved and removal remains a realistic possibility. Once hospital transfer is accepted, the Secretary of State must act with reasonable expedition, but delays caused by clinical assessments and bed availability are not necessarily unlawful.

ASK, a Pakistani national and immigration overstayer, challenged his detention in an immigration removal centre between January and September 2013. He alleged that the Secretary of State had failed to make adequate inquiries into his mental health, had detained him unlawfully after he became unfit to fly, and had delayed his transfer to psychiatric hospital. He relied on Chapter 55.10 of the Enforcement Instructions and Guidance, the Mental Health Act 1983, the Equality Act 2010, the Mental Capacity Act 2005, common-law detention principles, and Articles 3, 5 and 8 of the Convention.

The central issues were whether detention was unlawful at its outset, whether it became unlawful when medical opinions indicated that hospital treatment might be required, and whether the subsequent transfer process was unlawfully delayed.

1. Claim dismissed. The Secretary of State’s conduct was lawful throughout. The evidence showed frequent clinical assessment, no treatment gap, and substantially divergent medical opinions.
2. The common-law duty to make inquiries is practical, context-specific and does not demand perfection. The court must assess the evidence as a whole and avoid treating isolated omissions, abbreviated records or individual statements as determinative. The absence of an express reference to Chapter 55.10 in a detention review is not decisive if officials substantively applied the policy and considered the relevant questions.
3. Chapter 55.10 required consideration of whether ASK’s illness could be satisfactorily managed in detention. The inquiry included the availability of better treatment elsewhere, the possibility of release, the risks of absconding or harm, and the continuing prospects of removal. The Secretary of State was entitled to consider conflicting clinical evidence independently and was not bound to accept the first opinion favouring hospital transfer.
4. The assessment on 9 February 2013 that ASK was fit to be detained but unfit to fly was not a definitive conclusion that removal would never be possible. His condition fluctuated with medication compliance, and removal remained a realistic possibility. Detention therefore did not automatically become unlawful on that date.
5. The first point at which the Secretary of State should have concluded that hospital transfer was required was 18 July 2013, when she received Dr Dossett’s report. She acted within two days by suspending removal and accepting the need for transfer. Subsequent delay caused by receiving hospitals’ assessments and bed availability was neither excessive nor unreasonable. An acute emergency could have been dealt with through hospital or A&E arrangements, but the evidence did not show that such urgency existed.
6. The claims under Articles 3, 5(1)(f) and 8, the Hardial Singh principles, false imprisonment, the Equality Act 2010 and the Mental Capacity Act 2005 failed. ASK’s capacity was kept under review, and the Secretary of State acted in his best interests when she suspended removal despite his stated wish to return to Pakistan.