R (O) v SSHD [2016] UKSC 19, [2016] MHLO 12

"The appellant, O, is a woman of Nigerian nationality, aged 38. In November 2003, with her son, then aged three, she illegally entered the UK. In July 2008 she pleaded guilty to offences of cruelty towards her son, who had returned to live in Nigeria, and the court sentenced her to 12 months' imprisonment and recommended that she be deported. On 8 August 2008 her sentence came to an end, whereupon the respondent, the Home Secretary, detained her - at first pending the making of a deportation order and then, following the making of such an order, pending her deportation pursuant to it. O's detention, which was at the Immigration Removal Centre at Yarl's Wood in Bedfordshire, continued until 6 July 2011 when, pursuant to a grant of bail on 1 July 2011, she was released. It follows that O was detained at Yarl's Wood for almost three years. The court knows nothing about her circumstances after 6 July 2011 but infers that she has not, or not yet, been deported. ... In the present proceedings, which - chronologically - encompass her fourth claim for judicial review, O challenges the lawfulness of the later period of her detention, namely from 22 July 2010, and in particular from say 4 March 2011, until 6 July 2011. The object of the present proceedings has never been to secure her release, which had already occurred at the time of their issue. The object has been to secure a declaration that the detention was unlawful and, perhaps in particular, an award of substantial damages for false imprisonment. ... O has the misfortune to have suffered for many years from serious mental ill-health. So the appeal requires this court to consider the Home Secretary's policy relating to the detention of the mentally ill pending deportation; and perhaps also to identify the criterion by which the court should determine a complaint that she has failed to implement some aspect of her policy relating to it. Furthermore the Home Secretary is obliged to conduct monthly reviews of whether a person's detention pending deportation should continue. There were, as the Court of Appeal held, defects in the Home Secretary's conduct of the monthly reviews of O's detention between March and July 2011. ... [W]ere O's claim for judicial review permitted to proceed, the result in all likelihood would be a declaration that her detention from 4 March 2011 to 6 July 2011 was unlawful and an award to her of damages in the sum of £1. ... I would dismiss the appeal."

Related judgments

R (O) v SSHD [2016] UKSC 19, [2016] MHLO 12

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

Supreme Court

Regina (O) v Secretary of State for the Home Department (Bail for Immigration Detainees and another intervening)

[2016] UKSC 19!

2016 Jan 19, 20; 1 April 27

Baroness Hale of Richmond DPSC, Lord Wilson , Lord Reed , Lord Hughes , Lord Toulson JJSC

Immigration — Deportation order — Detention pending deportation — Home Secretary detaining claimant suffering from mental illness pending deportation — Whether detention unlawful following change in medical opinion as to appropriate treatment for illness — Whether illness capable of being “satisfactorily managed” within detention — Whether claim for judicial review to be allowed to proceed after claimant released on bail — Immigration Act 1971 (c 77), Sch 3, para 2 (as amended by Immigration and Asylum Act 1999 (c 33), s 54, Nationality, Immigration and Asylum Act 2002 (c 41), s 114(3), Sch 7, para 7 and Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (c 19), s 34))

The claimant, a 38-year-old Nigerian woman, entered the United Kingdom illegally in 2003 and unsuccessfully claimed asylum. After committing child cruelty offences, she was sentenced to imprisonment. On her release from prison in 2008, the Home Secretary detained her, first under paragraph 2(1) of Schedule 3 to the Immigration Act 1971, pending the making of a deportation order, and then, once the deportation order was made, under paragraph 2(3) of Schedule 3, pending deportation. She was detained for nearly three years, with continued detention purportedly being justified by the risk of absconding and the risk of harm. During that time she displayed serious signs of mental ill-health. Initial medical reports advised that the claimant’s needs would be adequately met at the detention centre and that she would not obtain any benefit from being transferred to hospital. However, in February 2011 a fresh medical report stated, for the first time, that the claimant suffered from a severe form of post-traumatic stress disorder and that she required a package of care and treatment in the community. On the next review of the claimant’s detention in March 2011, the Home Secretary concluded that the report contained no new information or diagnosis and that the claimant’s continued detention was justified. Further reviews came to the same decision. In July 2011 the claimant was released on bail. The claimant was refused permission to proceed with a claim for judicial review of the Home Secretary’s decision to continue to detain her. The judge refused her renewed application for permission, holding that there had not been a material change in circumstances in the relevant period of detention and that it was unlikely that the claimant would be able to show that her ill-health could not be satisfactorily managed in detention, in accordance with paragraph 55.10 of the Home Secretary’s Enforcement Instructions and Guidance. The Court of Appeal dismissed the claimant’s appeal, holding that, although the Home Secretary had unlawfully failed to apply the policy set out in paragraph 55.10 when deciding to detain the claimant between March and July 2011, the likely result of the claim if it proceeded would, at most, be a declaration that the claimant’s detention during that time had been unlawful and an award of nominal damages and, in those circumstances, it was appropriate to uphold the judge’s refusal to grant permission for it to proceed.

On the claimant’s appeal—

Held, appeal dismissed. The policy in paragraph 55.10 of the Enforcement Instructions and Guidance mandated a practical inquiry and the phrase “satisfactorily managed” should be interpreted with regard to its context and purpose. An important part of its context was that the management of a detainee’s illness took place in detention pending likely deportation. Treatment of a patient who found herself in the doubly distressing circumstances of detention and likely deportation had its own considerable, extra challenges. Treatment in those circumstances might be satisfactory even if it would not otherwise be satisfactory. Although the Home Secretary had unlawfully failed to apply her policy to the claimant’s continued detention between March and July 2011, the proper application of that policy would not have led to the claimant’s immediate release, since inquiries would have had to be made as to whether, in the light of the latest medical report, her illness could be satisfactorily managed at the detention centre. In any event, it was unrealistic to consider that the conditions necessary for the claimant’s release would have been in place prior to the date of her actual release on bail. In those circumstances, if the claim for judicial review were permitted to proceed, the result in all likelihood would be a declaration that the claimant’s detention between March and July 2011 had been unlawful and an award of nominal damages, which would bring the claimant no practical benefit. To the extent that the claimant’s contentions in the proceedings had deserved to be vindicated, she had secured their vindication and, accordingly, it was appropriate to uphold the refusal to grant permission for the claim to proceed (paras 31–35, 50).

R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening) [2012] 1 AC 245, SC(E) and R (Das) v Secretary of State for the Home Department (Mind intervening) [2014] 1 WLR 3538, CA applied.

Per curiam. (i) While satisfactory management does not mean optimal management, a narrow construction of the word “management” as meaning no more than “control” of the illness would lack principled foundation, particularly when in very exceptional circumstances the detainee may continue to be detained pursuant to the policy notwithstanding the unsatisfactory management of her illness there (para 30).

(ii) The mandate to detain conferred by paragraph 2(1) of Schedule 3 to the 1971 Act (pending the making of a deportation order) and by the words in parenthesis in paragraph 2(3) (pending deportation) is subject to the two conditions that (i) there is a prospect of deportation within a reasonable time, and (ii) the Home Secretary will consider in accordance with her policy whether to exercise her power to direct release. Were either condition not to be satisfied, the mandate would cease and the detention would become unlawful) (para 48).

R (Francis) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2015] 1 WLR 567, CA not applied.

Decision of the Court of Appeal [2014] EWCA Civ 990!; [2015] 1 WLR 641 affirmed.

Appearances:

Hugh Southey QC and Ranjiv Khubber (instructed by Lawrence Lupin, Wembley) for the claimant.

Robin Tam QC, Julie Anderson and Belinda McRae (instructed by Treasury Solicitor) for the Home Secretary.

Michael Fordham QC, Laura Dubinsky and Jason Pobjoy, all acting pro bono, (instructed by Allen & Overy LLP, acting pro bono) for Bail for Immigration Detainees, intervening and (instructed by Deighton Pierce Glynn, acting pro bono) for Medical Justice, intervening.

Reported by: Jill Sutherland, Barrister

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