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

Mentally ill immigration detainees must have a meaningful opportunity to participate in decisions concerning detention, segregation and transfer to hospital. Where incapacity may prevent participation, procedural fairness and the Equality Act 2010 may require reasonable adjustments, such as independent representation.

A serious mental illness is satisfactorily managed in detention when available facilities keep it under control and prevent suffering beyond that which appropriate treatment elsewhere would entail. Temporary deterioration is relevant but not decisive. Once hospital treatment is required, the Secretary of State must act expeditiously, but may detain the person for a reasonable period pending transfer.

Compensatory damages for unlawful detention depend on whether the person would have been detained had lawful procedures been followed.

These conjoined appeals concerned two foreign nationals, ASK and MDA, who were detained pending removal while suffering from serious mental illness and, at times, lacking capacity to engage with decisions affecting them.

Green J dismissed ASK’s judicial review claim in [2017] EWHC 196 (Admin). A Deputy High Court Judge allowed MDA’s claim in [2017] EWHC 2132 (Admin), holding his detention unlawful for breach of procedural fairness and the public sector equality duty, but rejected or remitted his remaining claims.

The principal issues were whether detention contravened the Secretary of State’s policy, the Hardial Singh principles, articles 3 and 8 of the Convention, procedural fairness, and duties under the Equality Act 2010. The court also considered the proper interpretation of hospital-transfer powers and whether damages should be compensatory or nominal.

1. Appeals allowed in part. Both appellants succeeded on the Equality Act 2010 grounds. The remaining grounds were dismissed. Hickinbottom LJ gave the judgment, with which Peter Jackson and Longmore LJJ agreed.
2. A detainee whose mental incapacity may prevent effective participation is entitled to participate in decisions concerning detention, segregation and transfer to hospital. It was insufficient that healthcare professionals considered the detainee’s best interests. The Secretary of State breached the public sector equality duty and discriminated by failing to make reasonable adjustments to the decision-making process. Obvious possible adjustments included representation equivalent to that provided by an independent mental capacity advocate. The burden lay on the Secretary of State to demonstrate compliance once the duty arose: paras 240–245.
3. The phrase “serious mental illness which cannot be satisfactorily managed within detention” requires a broad, fact-sensitive assessment. A temporary increase in symptoms or a risk of deterioration does not necessarily establish that an illness cannot be managed. The crucial question is whether facilities in detention can keep the illness under control and prevent suffering that would be avoided outside detention. The Secretary of State must monitor the condition and may generally rely on a sincere and reasonably held clinical opinion after conscientious inquiry: paras 217–223.
4. Under section 48 of the Mental Health Act 1983, appropriate treatment must be practically available at an identified hospital. A transfer direction must specify that hospital. Admission remains a clinical decision which the Secretary of State cannot override: paras 26–28.
5. Once there are reasonable grounds for believing that hospital treatment is required, the Secretary of State must obtain appropriate medical advice and pursue transfer with reasonable expedition. Genuine clinical disagreement and the availability and prioritisation of beds are relevant. Even where removal is not presently possible because hospital treatment is required, detention may continue for a reasonable period to keep the person safe pending transfer: paras 227–234.
6. Neither appellant established treatment reaching the article 3 threshold. Article 3 does not generally require release or hospital transfer on health grounds. It requires detention compatible with dignity and adequate medical care. Article 8 has distinct criteria and is not merely an article 3 claim with a lower threshold: paras 114–120 and 235–239.
7. Compensatory damages require proof that, absent the unlawful act, the detainee would not have been detained. Whether detention could lawfully have occurred concerns liability; whether it would have occurred concerns causation and damages. The damages issues were remitted to the county court: paras 136–146 and 245–246.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 1239, allowed both appeals on the grounds concerning the public sector equality duty and reasonable adjustments, dismissed the remaining grounds, and remitted damages issues to the county court.
2. High Court — ASK: Green J dismissed ASK’s judicial review claim on all grounds in [2017] EWHC 196 (Admin).
3. High Court — MDA: A Deputy High Court Judge allowed MDA’s claim in [2017] EWHC 2132 (Admin) for breach of procedural fairness and the public sector equality duty, rejected the Convention and detention-policy grounds, and transferred damages and substantive reasonable-adjustment issues to the county court.