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

Immigration detention assumes responsibility for the detainee’s welfare and may engage the Article 3 operational duty where there is a real and immediate risk of substantial and significant harm. The duty does not depend on detention having created or worsened the risk, or on actual harm being proved.

Where a detainee has recently been taking prescribed antiretroviral therapy, reasonable steps normally include maintaining access to it. Where treatment stopped long before detention, the obligation is instead to arrange an expeditious specialist assessment and facilitate clinically appropriate treatment.

Under the amended Immigration Act 1971, the Secretary of State is the primary decision-maker on specified Hardial Singh questions, subject to heightened public-law review. Article 5(1)(f) remains for the court to determine for itself. Detention was unlawful during an excessive release grace period.

MXV, a Zimbabwean national subject to a deportation order, was detained on 11 March 2024. He had HIV but had probably not taken antiretroviral therapy since late 2021, and he also had paranoid schizophrenia. His removal was initially planned for 19 March 2024, but medical treatment and an appeal against deportation delayed removal.

He challenged the detention by judicial review, alleging breaches of the operational and systems duties under Article 3 ECHR, the Hardial Singh principles, Article 5(1)(f) ECHR, published policies, the Detention Centre Rules 2001 and other public-law requirements. The central issues were the Secretary of State’s obligations when detaining a person who is not currently taking HIV treatment, and the effect of amendments made by the Illegal Migration Act 2023.

1. Article 3 operational duty. Detention involved an assumption of state responsibility. In the absence of ART, MXV faced a real and immediate risk of serious health consequences. The duty was therefore engaged, even though the risk pre-existed detention and actual harm was not established.
2. The reasonable steps required depend on the detainee’s treatment position. A person adhering to ART requires continued access to the regimen. A person with an active prescription but imperfect adherence requires reasonable assistance to resume it. A person who has stopped ART for a substantial period requires an expeditious referral to an HIV specialist, clinical assessment and facilitation of the treatment prescribed. It would be impractical to require the Secretary of State to provide ART before clinical assessment where no current regimen existed.
3. The Secretary of State complied with that duty. Officials investigated MXV’s condition before detention; detention screening and blood tests were arranged; referral to the GUM clinic followed promptly; a medical hold protected the appointments; specialist assessment and multidisciplinary consideration occurred; ART was prescribed and offered; and MXV’s request for counselling before taking it was facilitated.
4. Systems duty. No breach was established. The Secretary of State was not required to publish condition-specific guidance for every serious illness. The AAR framework required consideration of serious conditions, specialist treatment, disruption risks, medication and specialist input, and documentation of the detention rationale. That framework was capable of operating effectively in MXV’s case. The policy’s recognition that continuity may not be relevant where treatment has already stopped was not incompatible with Article 3.
5. Hardial Singh and Article 5. Paragraphs 2(3A) to (3E) of Schedule 3 to the Immigration Act 1971 made the Secretary of State the primary decision-maker on the reasonable period for removal and the further period necessary for release arrangements. Those decisions remain subject to anxious rationality review and other public-law controls. Article 5(1)(f), however, continues to require the court to determine for itself whether detention is lawful and proportionate.
6. Removal remained a realistic prospect until the appeal was relisted for September 2024 on 17 May 2024. A reasonable grace period then ran from that date and was no more than two weeks. Detention became unlawful after 1 June 2024. The overall period of detention was not otherwise unreasonable.
7. The policy, Rules and other public-law challenges failed. MXV was falsely imprisoned from 1 June to 19 June 2024 and was entitled to compensatory damages, to be assessed if not agreed. The remaining claims were dismissed.