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

This Court of Appeal considered whether detention pending immigration removal of foreign nationals with mental health conditions was lawful where the detainees might be unfit to be removed or lack capacity to engage with detention procedures. Key legal rules considered included the statutory powers to detain under the Immigration Act 1971, the Mental Health Act 1983 transfer powers (sections 2, 3, 37, 47 and 48), the Detention Centre Rules 2001 (notably the duties to assess and report under rules 34–35), the Mental Capacity Act 2005 and the common-law Hardial Singh principles limiting detention pending removal. The court also considered obligations under articles 3 and 8 ECHR and the duties in the Equality Act 2010 (in particular sections 20, 29 and 149).

The court rejected most human rights and Hardial Singh challenges to continued detention on the facts of these two appeals, finding that contemporaneous clinical opinion and case reviews meant that the Secretary of State had acted within the permissible discretionary margin in relation to most periods of detention. However, the court concluded that both appellants' cases succeeded to the extent that the Secretary of State had breached equality duties: he had failed to make reasonable adjustments and to have due regard to disabled detainees' needs (public sector equality duty), and declarations to that effect were justified. Issues of damages for those breaches were remitted to the county court.

Background and relief sought

• These consolidated appeals arose from judicial review proceedings by two foreign nationals (ASK and MDA) detained by the Secretary of State pending removal while suffering from significant mental health problems. Each claimed that aspects of their detention were unlawful and sought statutory and common-law relief, including declarations and damages. Grounds included breach of the common-law duty of fairness, breach of the Hardial Singh principles (detention only for reasonable time to effect removal), failure to comply with Home Office detention policy, breaches of articles 3 and 8 ECHR, and breaches of the Equality Act 2010 including failure to make reasonable adjustments and failure to comply with the public sector equality duty.

Procedural posture

• These appeals came from two High Court judgments: Green J's decision in ASK ([2017] EWHC 196 (Admin)) and Neil Cameron QC (Deputy High Court Judge)'s decision in MDA ([2017] EWHC 2132 (Admin)). Permission to appeal was granted and the appeals were heard by the Court of Appeal (Longmore, Hickinbottom and Peter Jackson LJJ).

Issues framed by the court

1. Whether detention during the specified periods was unlawful because of failure to have regard to or to apply correctly the Secretary of State's detention policy (Chapter 55.10 of the Enforcement Instructions and Guidance or the later Adults at Risk policy).
2. Whether detention breached the Hardial Singh common-law principles or article 5 ECHR because removal was not realistically possible within a reasonable time.
3. Whether conditions and treatment in detention or the absence of transfer to hospital breached article 3 or article 8 ECHR.
4. Whether the Secretary of State breached the common-law duty of procedural fairness and the Mental Capacity Act 2005 by failing to inquire into detainees' capacity to litigate or make decisions, and whether that conduct breached the Equality Act 2010 (sections 20, 29 and the public sector equality duty).
5. Whether declaratory relief and compensatory or nominal damages were appropriate, and if so the quantification of any award.

Court’s reasoning and disposition

• The court conducted a fact-sensitive review of the contemporaneous records, clinical reports and detention reviews in each case. It emphasised that detention powers must be strictly construed and that the Secretary of State must act with reasonable diligence in attempting to effect removal (the Hardial Singh principles), but also noted the wide margin available to the executive where clinical judgment was engaged.
• On factual review the court rejected most article 3 and article 8 complaints and the Hardial Singh arguments on the ground that, on the material before the decision-makers at the relevant times, there was a bona fide and reasonably held view that treatment and management in detention were satisfactory or that removal remained a prospect; clinical disagreement and scarce bed capacity explained delays in transfer and did not make detention unlawful in all the periods in issue.
• In both appeals the court accepted the reasoning of this court in VC that distinct obligations under the Equality Act 2010 arise where detainees have mental disabilities: the Secretary of State may be under a duty to make reasonable adjustments to decision-making processes (for example by providing advocacy or adapted review procedures) and to have due regard to disabled detainees' needs under the PSED. On that basis the court allowed each appeal in part, granting declarations that the Secretary of State had discriminated by failing to make reasonable adjustments and had failed to comply with the PSED, and remitted the assessment of damages to the county court.

Subsidiary findings and observations

• The court observed that admission to hospital under the Mental Health Act is a clinical decision and that the Secretary of State lacks power to override clinical refusal to admit; section 48 requires that appropriate treatment be available in practice (i.e. an identified place) and the transfer scheme is subject to the practical constraints of bed availability and clinical prioritisation.
• The appeals confirm the high threshold for article 3 claims based on conditions of detention and the difficulty for claimants of proving the intensity of suffering required.

The Court of Appeal allowed both appeals in part. It rejected most substantive challenges based on article 3, article 8, Hardial Singh and (on the facts) most policy challenges, concluding that contemporaneous clinical opinion and detention reviews justified the Secretary of State’s decisions for the periods in issue. However, the court held that both appellants had established breaches of equality duties: the Secretary of State had failed to make reasonable adjustments and had failed to have due regard under the public sector equality duty. Declarations to that effect were to be granted and issues of damages were remitted to the county court for assessment.

Appeals to the Court of Appeal from High Court judicial review judgments: Green J in ASK ([2017] EWHC 196 (Admin)) and Neil Cameron QC (Deputy Judge) in MDA ([2017] EWHC 2132 (Admin)). Permission to appeal was granted and the Court of Appeal delivered judgment in these consolidated appeals ([2019] EWCA Civ 1239).