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

Where immigration detention policy applies to detainees suffering from possible serious mental illness, the Secretary of State must undertake a practical inquiry into whether the illness can be satisfactorily managed in detention. The inquiry concerns the whole phrase, not diagnosis alone, and includes the individual’s condition, the effect of detention, available facilities and the anticipated detention period. The duty to consider whether the policy is engaged may arise before the policy’s substantive threshold is established; a report under rule 35 is not the only trigger. Failure to address the policy renders continued detention procedurally unlawful. However, only nominal damages may be awarded where lawful detention would have followed, and the Hardial Singh principles remain satisfied.

The claimant, a Nigerian national subject to deportation as a foreign criminal, was detained from 6 August 2012 until release on bail on 23 September 2013. He claimed damages for false imprisonment, alleging that detention became unlawful because of his mental health, contrary to paragraph 55.10 of the Enforcement Instructions and Guidance. He also relied on the Hardial Singh principles and article 3 of the European Convention on Human Rights.

The claim originated as a challenge to removal directions. Permission to amend the claim to challenge detention was granted, while earlier permission applications were refused and later renewed. The issues were whether the Secretary of State had properly considered paragraph 55.10, whether detention breached the Hardial Singh principles, and whether the claimant was entitled to substantial damages.

1. Permission and disposition. Permission was granted to challenge detention. The detention from 23 September 2012 to 23 September 2013 was procedurally unlawful because paragraph 55.10 had not been properly considered. The claimant was entitled to nominal damages only. The Hardial Singh ground was dismissed, and the article 3 claim was refused permission and dismissed.
2. Meaning and engagement of paragraph 55.10. The phrase concerning serious mental illness which cannot be satisfactorily managed within detention requires a practical, holistic inquiry. Diagnosis is not determinative. Relevant matters include the individual’s condition, the effect of detention, the available facilities and the expected duration of detention. The policy may be engaged where there is evidence that a detainee may be unsuitable for detention, even though it is not yet established that the illness cannot be satisfactorily managed. A rule 35 report is sufficient to engage the policy but is not the only possible trigger.
3. From 23 September 2012, the responsible psychiatrist’s advice that the claimant was unfit to fly because of clinical depression and self-harm risk provided sufficient evidence to require consideration of paragraph 55.10. The detention reviews contained no evidence that decision-makers had asked whether the claimant suffered from serious mental illness that could not be satisfactorily managed in detention. The omission was a procedural flaw.
4. The court was bound to apply the traditional Wednesbury public-law review. Since the Secretary of State had not addressed satisfactory management, there was no decision capable of rationality review. Nevertheless, on the evidence, a properly directed decision-maker could reasonably have concluded that the claimant’s mental health was being satisfactorily managed, having regard to the responsible clinicians’ assessments, observation, counselling and offered medication.
5. The detention complied with all four Hardial Singh principles. Removal remained intended, there was a sufficient prospect of removal, the period was reasonable in the circumstances, and the Secretary of State acted with reasonable diligence and expedition.
6. Applying the approach in R (OM) v Secretary of State for the Home Department, the Secretary of State established that the claimant could and would have been lawfully detained had paragraph 55.10 been considered. Under R (Lumba) v Secretary of State for the Home Department, that justified nominal rather than substantial damages.
7. The article 3 claim failed. Although the positive protective duty applied, the claimant established neither a failure in healthcare nor suffering reaching the minimum level of severity required by article 3.

The judgment describes earlier permission proceedings and related claims but is a first-instance determination of the detention claim. The Court of Appeal had previously granted permission to appeal in the procedural history, but the matter was remitted to the Administrative Court by consent before this substantive hearing.