VC, R (On the Application Of) v The Secretary of State for the Home Department (Rev 1)

Immigration detention is unlawful where a material public law error bears upon the decision to detain. Lawfulness does not depend on whether a lawful decision could otherwise have been made. That question concerns compensatory damages.

Serious mental illness is not satisfactorily managed merely because it is controlled or has not yet required hospitalisation. Relevant considerations include deterioration, inability to compel treatment in a removal centre, and treatment likely to improve the condition if the detainee is released.

The anticipatory duty to make reasonable adjustments requires procedures enabling mentally ill detainees to understand and make representations about detention and segregation. Procedural fairness may require assistance even without a long and sustained period of incapacity.

The appellant, who had bipolar affective disorder with psychotic features, was detained in immigration removal centres under the Immigration Act 1971. He challenged the legality and conditions of his detention, the delay in transferring him to hospital, and procedures for detention and segregation.

The Administrative Court, in [2016] EWHC 273 (Admin), held that the Secretary of State had misinterpreted her policy on seriously mentally ill detainees but found unlawful detention only between 3 and 27 April 2015. It dismissed the claims under article 3 of the Convention, the Equality Act 2010, and common-law procedural fairness.

The appeal concerned the effect of the admitted public law errors, entitlement to compensatory damages, the article 3 threshold, reasonable adjustments for mentally ill detainees, and procedural fairness in detention and segregation decisions.

1. Appeal allowed in part. The policy error and breach of the duty of inquiry bore upon the decisions to detain. They therefore vitiated the authority for detention after receipt of the first Rule 35 report. The judge had wrongly treated the possibility of a lawful alternative decision as preserving the detention's lawfulness. That issue concerned damages, not liability for false imprisonment.

2. It was not rationally open to conclude that the appellant's serious mental illness could be satisfactorily managed in detention. The first Rule 35 report identified deterioration caused by detention, non-compliance with medication, and an inability to compel treatment within a removal centre. The Secretary of State also failed to make promised inquiries or consider community treatment capable of improving his condition. Satisfactory management is broader than control and does not require deterioration to the point of hospitalisation.

3. The Secretary of State bore the burden of establishing on the balance of probabilities that she would have detained the appellant had she acted lawfully. In the absence of evidence about her decision-making, that burden was not discharged. Compensatory damages were due for 30 June 2014 to 27 April 2015. Assessment was remitted to a Master on the basis that the appellant would have been in the community until 2 April and in a psychiatric unit thereafter. The Hardial Singh issue did not require determination.

4. The article 3 appeal was dismissed. Article 3 includes a positive duty to protect detained persons' well-being and provide requisite medical assistance, with particular regard to mentally ill persons' vulnerability. The factual standard of proof is beyond reasonable doubt, but whether established treatment meets the article 3 threshold is a question of law. Although detention caused suffering beyond that inherent in the illness, the high minimum-severity threshold had not been shown to have been crossed.

5. The Equality Act 2010 appeal was allowed. Mentally ill detainees were substantially disadvantaged by procedures offering no assistance in understanding or making representations about detention and segregation. The anticipatory duty required reasonable adjustments for the affected class. The Secretary of State did not prove that possible adjustments were unreasonable, impracticable, unaffordable or beyond her powers. A declaration of discrimination contrary to sections 20 and 29 was granted.

6. Segregation decisions on 15 and 21 February and 24 March did not meet common-law standards of procedural fairness. The procedures did not assist the appellant to understand the reasons or make representations. A favourable eventual result could not cure an unfair process. A long and sustained inability to make representations is not a prerequisite for additional safeguards, although the court declined to grant the wider procedural-fairness declaration sought.

1. Court of Appeal (Civil Division): The appeal was allowed on the public law and Equality Act 2010 grounds, but dismissed on article 3. Compensatory damages were extended to the period 30 June 2014 to 27 April 2015 and remitted for assessment.
2. Administrative Court: In [2016] EWHC 273 (Admin), HHJ Seys Llewellyn QC found unlawful detention only between 3 and 27 April 2015 and dismissed the remaining claims.