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

This judicial review concerned allegations that the claimant ("ASK") was unlawfully detained in an immigration removal centre (IRC) in 2013, and that once assessed as unfit to fly he was detained unreasonably long before transfer to hospital. The key legal frameworks were the Mental Health Act 1983 (sections 2, 3 and 48), Chapter 55.10 of the Home Office Enforcement Instructions and Guidance (EIG), the common law duty to make enquiries, Articles 3, 5(1)(f) and 8 ECHR, the Mental Capacity Act 2005 and the Equality Act 2010.

The judge found that (i) initial detention was lawful and founded on proper inquiries and contemporaneous medical supervision; (ii) medical opinion throughout was sharply divided and the Secretary of State was entitled to weigh the conflicting expert evidence in the round; (iii) the defendant accepted a decisive clinical opinion (Dr Dossett) in mid-July 2013 and acted promptly thereafter to suspend removal and arrange transfer to hospital; (iv) subsequent delays in physical transfer were attributable to hospital assessments and bed availability rather than unlawful inaction by the defendant; and (v) there was no evidential basis to conclude that the claimant suffered treatment of such severity to engage Article 3, or that Articles 5(1)(f) or 8 were breached, nor that there had been material breaches of the Mental Capacity Act or the Equality Act on the facts.

Accordingly the claim failed: the defendant had made the necessary enquiries, applied relevant policy (including Chapter 55.10 EIG) in substance, and acted lawfully and with appropriate expedition once the clinical position was clarified.

The claimant, a national of Pakistan, was detained in an IRC in January 2013 as an immigration overstayer. He had a recent history of mental health treatment and exhibited variable symptoms thereafter. The core claim was judicial review of the lawfulness of detention and related steps between January and July 2013, with relief sought including declarations and damages for unlawful detention and breaches of Articles 3, 5 and 8 ECHR, failures to comply with Chapter 55.10 EIG, the public sector equality duty (Equality Act 2010), and the Mental Capacity Act 2005.

Main issues framed by the court:

• whether the Secretary of State had made adequate inquiries before and during detention;
• how Chapter 55.10 EIG (the test of whether a detainee’s illness can be “satisfactorily managed” in detention) and the Supreme Court decision in O v SSHD should be applied;
• when a detainee is to be regarded as definitively unfit to fly for removal purposes and the effect on the lawfulness of continuing detention;
• whether there was unlawful delay in transfer to hospital once transfer under the Mental Health Act 1983 was indicated;
• whether Article 3, Article 5(1)(f) or Article 8 ECHR were engaged; and
• whether obligations under the Mental Capacity Act 2005 and the Equality Act 2010 had been breached.

Reasoning and findings (concise):

• The claimant’s medical condition was complex and fluctuating; he was subject to repeated, contemporaneous clinical assessments by different qualified clinicians. There was no period without medical supervision or treatment.
• Caseworkers and clinicians did ask and address the relevant questions under Chapter 55.10 EIG; omissions of formal recitals of policy in notes did not demonstrate failure to apply the policy in substance.
• Medical opinion was divided. The defendant could and should weigh conflicting opinions; a later clinical opinion (Dr Dossett, 6 July 2013) was treated as decisive and the defendant then suspended removal on 18 July 2013 and acted to secure hospital admission.
• Delays in achieving the physical transfer were caused by destination hospitals conducting their own assessments and problems finding an appropriate bed; these systemic and logistical issues did not render the defendant’s conduct unlawful on the facts.
• No evidence showed the claimant’s detention reached the minimum level of severity to engage Article 3; nor was there a lawful basis to find breaches of Article 5(1)(f), Article 8, the Mental Capacity Act or the Equality Act given the evidence before the court.

The court therefore dismissed the claim. The judgment also records that the court received extensive submissions on attribution of responsibility between government bodies but, having found for the defendant on the facts, did not express a final view on that complex issue and set out the competing submissions in an annex to assist future cases.

The claim is dismissed. The court concluded on the evidence that the Secretary of State made the necessary inquiries, detainee's medical condition was under continuous clinical review, conflicting expert opinions justified a careful weighing of the evidence, the Secretary of State accepted a decisive medical view in mid-July 2013 and acted promptly to suspend removal and arrange hospital transfer, and any subsequent delay was due to hospital assessment and bed availability rather than unlawful detention or breaches of Articles 3, 5(1)(f) or 8, the Mental Capacity Act 2005 or the Equality Act 2010.