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

The claimant, a Somali national detained under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 pursuant to section 36 of the UK Borders Act 2007, challenged the lawfulness of his detention and its continuance. The court applied principles from Lumba, Hardial Singh and related authority, the Defendant's Chapter 55.10 Enforcement Instructions and Guidance and the subsequently issued Guidance on Adults at Risk in Immigration Detention, the Mental Capacity Act 2005 and the Equality Act 2010 (sections 20, 29 and 149).

The judge held that the decision to detain required a fair inquiry into the claimant's litigation capacity because material in the Home Office records (notably a GCID entry of 20 March 2014 and medical history) gave a substantial trigger for enquiry; the Defendant failed to make that enquiry and so breached the common law duty of fairness. The court also found a breach of the public sector equality duty (section 149 Equality Act 2010) in relation to the specific decision-making in this case for the same reason. The claimant succeeded on those grounds and the detention from 4 November 2015 to 3 February 2017 was declared unlawful.

The court rejected the claimant's Article 3 and Article 8 ECHR claims, holding that the threshold for ill-treatment was not met and that the healthcare available in detention meant Article 3 was not engaged. Challenges based on Chapter 55.10 of the EIG and the Adults at Risk guidance were dismissed on the facts: the Secretary of State had taken material medical evidence into account and her conclusions were not Wednesbury irrational. The Hardial Singh challenge that detention was unlawful from the outset was not permitted as an unpleaded ground and, on the facts examined, detention was not shown to have been unreasonable for the purpose of effecting deportation. Claims under sections 20 and 29 of the Equality Act were not determined substantively because the medical evidence on impairment was disputed and insufficiently particularised for the court to resolve without further evidence.

Background and parties: The claimant, a Somali national born in 1994, arrived in the United Kingdom as a minor, had extensive psychiatric history and convictions, and was detained under immigration powers from 4 November 2015 until 3 February 2017. He sought judicial review challenging the lawfulness of initial and continued detention and claimed damages. The Secretary of State was defendant and the Equality and Human Rights Commission intervened.

Relief sought: A declaration that detention was unlawful and an award of damages. The claimant advanced multiple grounds: breach of common law fairness (failure to inquire into capacity), breaches of Articles 3 and 8 ECHR, mis-application of Chapter 55.10 of the Enforcement Instructions and Guidance and the Adults at Risk guidance, breach of the Hardial Singh principles, discrimination and failure to make reasonable adjustments under the Equality Act 2010 (sections 29 and 20), and breach of the public sector equality duty (section 149).

Issues framed by the court: (i) Was the decision to detain and subsequent reviews lawful under paragraph 2(3) Schedule 3 to the Immigration Act 1971 and section 36 UK Borders Act 2007? (ii) Did the Secretary of State breach the common law duty of fairness by failing to inquire into the claimant's capacity to litigate? (iii) Did detention or segregation breach Articles 3 or 8 ECHR? (iv) Were the policies in Chapter 55.10 and the Adults at Risk guidance correctly applied? (v) Were the Hardial Singh principles breached? (vi) Were equality and reasonable adjustment duties under the Equality Act breached?

Evidence and procedural context: The court had before it the Home Office detention minutes and review forms, medical letters (including from Dr Stocking Korzen (5 Jan 2015), Mr R. Rakha (18 Sep 2015), Dr T. Thomas (21 Dec 2015)), GCID entries, Complex Case Review notes and post-detention expert material (Professor Hale's report, produced after attempts to interview the claimant). Permission for aspects of the claim was previously dealt with by Dove J and Lavender J, and the EHRC was permitted to intervene.

Court's reasoning and conclusions:

• The court restated that it must act as a primary decision‑maker when assessing the lawfulness of administrative detention and that the Defendant bears the burden of showing lawful justification. Material in the Home Office records, including a 20 March 2014 GCID entry questioning the claimant's capacity, combined with his clinical history, provided a sufficient trigger for a capacity enquiry before detention was authorised. The Secretary of State relied on consultant letters addressing fitness to travel rather than capacity; no capacity enquiry was undertaken. The absence of that enquiry breached the common law duty of fairness. The claimant therefore succeeded on ground 1.
• On Articles 3 and 8 the court applied the established high threshold for Article 3 (ill-treatment involving intense suffering or serious consequences). Although the claimant had significant mental-health needs and had periods of segregation, the available evidence showed he had access to healthcare in detention and the medical records and consultant advice indicated his condition was being managed in the centres pending assessment. The court did not find the level of suffering required for Article 3 or a breach of Article 8.
• Chapter 55.10 and the Adults at Risk guidance were considered. The Secretary of State had repeatedly reviewed the claimant's condition, had sought and relied on consultant and IRC mental‑health team input (including a view, notably in April 2016, that the claimant could be managed in detention pending hospital assessment). The court concluded the Secretary of State's application of policy was not irrational on the facts and rejected those grounds.
• The Hardial Singh (reasonableness of duration) challenge that detention was unlawful from the outset was not pleaded and would cause prejudice if admitted; moreover, the review records showed periodic and conscientious consideration of prospects of removal and relevant risks. The court did not find, on the material before it, that the statutory purpose of detention had ceased so as to render detention unlawful earlier than the eventual release.
• On equality law the court held the Secretary of State had failed to make sufficient enquiries into the claimant's litigation capacity and therefore had not complied with the public sector equality duty in respect of the specific decision-making in this case; that ground succeeded. Claims under sections 20 and 29 were not determined on the merits because resolution would have required contested medical and expert evidence not in the record and thus those claims were not finally decided.

Disposition: The claimant succeeded on grounds 1 (common law duty of fairness / failure to enquire into capacity) and 8 (breach of the public sector equality duty). The detention from 4 November 2015 to 3 February 2017 was declared unlawful. The court reserved detailed relief and the assessment of damages for further submissions.

The claim was allowed in part. The court held that the Defendant breached the common law duty of fairness by failing to make reasonable enquiries into the claimant's litigation capacity at the time of the decision to detain, and also breached the public sector equality duty (section 149 Equality Act 2010) in relation to the specific decision-making in this case. On the facts the court found no violation of Articles 3 or 8 ECHR, and dismissed challenges based on the application of Chapter 55.10/EIG and the Adults at Risk guidance and on Hardial Singh grounds. The claimant's detention from 4 November 2015 to 3 February 2017 was declared unlawful; further submissions on remedies and damages were directed.

First instance administrative court judgment. Earlier procedural steps mentioned in the judgment: Dove J granted permission to apply for judicial review (save that challenge to Adults at Risk guidance was adjourned) by order dated 18 January 2017; Lavender J refused permission in part (regarding the Adults at Risk challenge) and granted permission for the Equality and Human Rights Commission to intervene by order dated 14 June 2017. No further appellate history is stated in the judgment.