Bah, R (On the Application Of) v Secretary of State for the Home Department

Immigration detention must remain justified on the evidence reasonably available at each stage. The reasonable period for detention depends on all the circumstances, including the detainee’s mental health, the effect of detention, removal prospects, public protection and absconding risks.

The Adults at Risk policy creates a strong presumption against detention, but that presumption may be outweighed by sufficiently substantial immigration-control considerations. A material deterioration in mental health, supported by professional evidence, may require reassessment at a higher risk level and release where the balance has changed. Continued detention became unlawful when the Secretary of State rejected updated medical evidence without properly addressing the changed diagnosis, treatment needs and reduced prospect of removal.

The claimant, a Sierra Leonean national, was detained under the Immigration Act 1971 after completing a sentence of imprisonment. He had PTSD and a history of offending, self-harm and other mental-health difficulties. He remained detained from March 2016 until his release on 1 March 2018.

He challenged his detention on three grounds: breaches of Rules 34 and 35 of the Detention Centre Rules 2001; failure to apply the Adults at Risk policy and to make reasonable inquiries; and breach of the Hardial Singh principles. The central issues were whether detention had been lawful on the information available before November 2017 and whether later medical evidence and a change in removal prospects made continued detention unlawful.

1. Outcome. The claim succeeded in part. Detention from March 2016 until 25 January 2018 was lawful, save that a breach of Rule 34 following transfer to Gatwick IRC made four weeks of detention unlawful, for which nominal damages were appropriate. Detention from 25 January to 1 March 2018 was unlawful.
2. Under the Hardial Singh principles, detention must last no longer than is reasonable in all the circumstances and must end when removal cannot be effected within a reasonable period. Relevant factors include the length of detention, obstacles to removal, diligence, detention conditions, the effect on the detainee, absconding risk and offending risk: [2011] UKSC 12.
3. Mental illness is relevant to the reasonable period of detention. The Secretary of State must take reasonable steps to inform herself about the detainee’s condition and whether detention is likely to injure health. The duty is fact-specific, and reliance on responsible clinicians is ordinarily permissible where the detainee is being properly monitored: [2014] 1 WLR 3538; [2018] EWCA Civ 57.
4. The Adults at Risk policy required the claimant’s vulnerability to be assessed and balanced against immigration-control considerations. Before November 2017, the evidence reasonably available supported a Level 2 assessment. The public-protection risk was sufficient to outweigh the presumption of release, despite PTSD and self-harm history.
5. Rule 34 required a medical examination by a registered medical practitioner within 24 hours of admission, subject to consent. The duty was discharged by providing the opportunity for examination where the detainee had capacity and declined it. Rule 35 imposed an ongoing duty to report where detention was likely to injure health or where there were suicidal intentions.
6. After November 2017, the claimant’s diagnosis, presentation and treatment needs materially changed. By mid-January 2018 the Secretary of State had rejected two professional assessments without adequately addressing that change and had failed properly to reassess the claimant at Level 3. Removal was no longer imminent and the balance had therefore shifted in favour of release.
7. Release could reasonably be delayed to prepare a discharge plan. Fourteen days was appropriate. The claimant should therefore have been released by 25 January 2018.