R (VC) v Secretary of State for the Home Department

This Court of Appeal considered (i) whether the Secretary of State misapplied chapter 55 (§55.10) of the Enforcement Instructions and Guidance on immigration detention of persons with serious mental illness and (ii) whether decision‑making procedures for mentally ill detainees met requirements at common law and under the Equality Act 2010. The court found that the Secretary of State had misinterpreted §55.10 and breached a public law duty to make enquiries following a Rule 35 report, and that those errors bore on the decisions to detain. As a result the appellant’s detention was unlawful from the first Rule 35 report (30 June 2014) until 27 April 2015. The Secretary of State failed to show, on the balance of probabilities, that she would in any event have detained the appellant, so compensatory damages were payable for that period and (if not agreed) should be assessed by a Master. The court rejected the article 3 claim but allowed the Equality Act claim, declaring that the Secretary of State had failed to make reasonable adjustments to decision‑making processes for mentally ill detainees. The court did not need to resolve the Hardial Singh proportionality questions in consequence of its other findings.

Background and parties: VC, a Nigerian national with bipolar affective disorder and multiple prior admissions under the Mental Health Act 1983, was detained under immigration powers between 11 June 2014 and 5 May 2015 in a series of Immigration Removal Centres and subsequently transferred to hospital and detained under the Mental Health Act. He brought judicial review and damages claims challenging the lawfulness of his detention, delay in transfer to hospital, alleged breach of article 3 ECHR, and alleged failures of procedural fairness and failure to make reasonable adjustments under the Equality Act 2010. The Secretary of State was respondent and the Equality and Human Rights Commission intervened.

Procedural history: The appeal was from HHJ Seys Llewellyn QC (Administrative Court) ([2016] EWHC 273 (Admin)). Permission to appeal was given by Moore‑Bick LJ. The Court of Appeal heard the appeal with written submissions from the intervener.

Relief sought: The appellant sought declarations and damages: that detention was unlawful; compensation for unlawful detention (false imprisonment); a declaration that treatment in detention breached article 3; a declaration that the Secretary of State had discriminated contrary to the Equality Act 2010 by failing to make reasonable adjustments; and declarations concerning procedural unfairness.

Issues before the court: (i) whether the Secretary of State misinterpreted and failed to apply §55.10 of chapter 55 (Detention and Temporary Release) to detainees with serious mental illness and failed to make requisite enquiries after Rule 35 reports; (ii) whether those public law errors rendered detention unlawful and, if so, whether compensatory damages were payable or only nominal damages (including the appropriate burden and standard of proof on the question whether the Secretary of State "could and would" have detained in any event); (iii) whether the appellant’s treatment engaged article 3 ECHR; and (iv) whether the Secretary of State’s decision‑making procedures were procedurally fair and complied with the Equality Act 2010 (sections 20 and 29).

Court’s reasoning (concise):

• The court accepted that the Secretary of State misinterpreted §55.10 (treating the paragraph as only engaged when hospitalisation had already occurred) and breached the public law duty to make further enquiries after the first Rule 35 report (30 June 2014). Those errors "bore on" the detention decisions and so vitiated the purported authority for detention from that date.
• On legal principles derived from Lumba and related authorities, a public law error relevant to the detention decision makes the detention unlawful; the question whether compensatory damages are payable (rather than nominal damages only) turns on whether the Secretary of State can show she would and could have detained the person in any event. The Court applied a Wednesbury (rationality) test to the question whether it was open to the Secretary of State to conclude that the appellant’s condition could be satisfactorily managed in detention, and held that in these facts it was not rationally open to conclude satisfactory management after the first Rule 35 report and that she had failed to make relevant enquiries she had promised to make.
• The Secretary of State did not adduce evidence to show she would have detained the appellant in any event; on the evidence before the court she failed to discharge the burden on the issue of "would" and so compensatory damages were due for the period 30 June 2014 to 27 April 2015 (the judge’s allowance for a reasonable interval to arrange hospital transfer was preserved).
• On article 3, the court held the question was finely balanced. The judge below had applied the high standard appropriate to the factual question and conducted the balancing exercise. The Court of Appeal found no legal error in that analysis and dismissed the article 3 ground.
• On the Equality Act 2010, the court found there was a class‑based anticipatory duty to make reasonable adjustments for detainees with mental illness (section 20 duty). The Secretary of State had not shown she had complied with the statutory duty or that proposed adjustments were unreasonable, and so a declaration was appropriate that she had discriminated by failing to make reasonable adjustments to decision‑making procedures for mentally ill detainees. The court, however, declined to make broader declarations in terms sought about specific procedural remedies.

Wider observations: the court emphasised the importance of candid disclosure by the Secretary of State in litigation, the practical problems caused by the absence of contemporaneous evidence explaining decision‑making, and the need for decision‑makers to consider the availability of community treatments and the limits of compulsory treatment in IRCs when assessing whether conditions can be "satisfactorily managed" in detention.

Appeal allowed in part. The court held that the Secretary of State misinterpreted chapter 55 (§55.10) and breached the duty to make enquiries after the first Rule 35 report, rendering detention unlawful from 30 June 2014 to 27 April 2015; the Secretary of State failed to show she would have detained the appellant in any event, so compensatory damages were payable for that period (assessment by a Master if not agreed). The appellant’s article 3 claim was dismissed. The court also held that the Secretary of State breached the Equality Act 2010 by failing to make reasonable adjustments to decision‑making processes for mentally ill detainees, and granted a declaration on that point; it declined broader remedial declarations sought by the appellant.

Appeal from the Administrative Court (HHJ Seys Llewellyn QC; [2016] EWHC 273 (Admin)). Permission to appeal granted by Moore‑Bick LJ on 2 December 2016. Equality and Human Rights Commission granted permission to intervene in the Court of Appeal proceedings.