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Text:ICLR R (O) v SSHD [2014] EWCA Civ 990, [2014] MHLO 47

IMMIGRATION — Deportation order — Detention pending deportation — Detaining person with mental illness — New medical reports advising treatment in community — Whether continued detention lawful — Whether court primary decision-maker or supervisor of Home Secretary’s decision — Meaning of “satisfactorily managed” in para 55.10 of the Enforcement Instructions Guidance

Regina (O by her litigation friend the Official Solicitor) v Secretary of State for the Home Department

[2014] EWCA Civ 990! ; [2014] WLR (D) 327

CA: Arden, Underhill, Floyd LJJ: 17 July 2014

When determining the lawfulness of the continued immigration detention of a person with mental illness the court’s role was to supervise the decisions made by the Home Secretary for their compliance with the law, applying the Wednesbury test of unreasonableness, and was not that of a primary decision-maker such that it had to make its own choice between medical experts.

The Court of Appeal so held when dismissing the appeal by O, a Nigerian national who had entered the United Kingdom illegally, against the decision of Lang J [2012] EWHC 2899 (Admin)Not on Bailii! of 4 April 2012 refusing O permission to apply for judicial review of the Home Secretary’s decision to detain her in immigration detention notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community.

O had unsuccessfully claimed asylum after entering the UK illegally. She suffered from mental illness and committed child cruelty offences for which she was sentenced to imprisonment. On her release from prison the Home Secretary decided O should be deported and detained O at a detention centre for nearly three years, continued detention purportedly being justified by the risk of O absconding and the risk of harm. A deportation order was eventually made. O issued various proceedings relating to her detention which the court held was lawful. The instant proceedings related to a period when she had been released on bail from immigration detention during which time a deportation order was made. The detention centre had been advised that O’s needs were met there and that she would not obtain any benefit from transfer to hospital. A fresh medical report was obtained which stated that O required a package of care and treatment in the community. The UK Border Agency concluded that the report contained no new information or diagnosis and O’s deportation would not have an impact of the severity required for violation of article 3 of the Convention on Human Rights and Fundamental Freedoms. On O’s application for permission to review the Home Secretary’s decision to continue to detain her, the judge held that there had not been a material change in circumstances in the relevant period of detention from those in previous periods when she had been lawfully detained as, inter alia, the principles in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704! were not infringed as the delay was caused by O’s legal challenges, there was a high risk of absconding and re-offending and para 55.10 of the “Enforcement Instructions Guidance” (“EIG”), as amended, had lowered the test for detention and it was unlikely that O could show that her illness could not be satisfactorily managed in detention.

ARDEN LJ said that, considering the obiter comments of Richards LJ in R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597! at [29], when determining whether a detention was unlawful it had to be shown that the decision-maker, namely the Home Secretary in this instance, had acted as no reasonable decision-maker would have done, being the Wednesbury test of unreasonableness. In the present case it was not shown that no reasonable decision-maker would not rely on certain medical experts. Further, whether O’s mental condition could be successfully managed at all in detention if she could not while detained access the recommended specialist care, considering the obiter comments of Beatson LJ in R (Das) v Secretary of State for the Home Department [2014] EWCA Civ 45! at [71]; [2014] WLR (D) 39, the question was what the EIG policy meant by “satisfactorily managed” in the circumstances of a case of the present kind. Her Ladyship did not give a definitive interpretation of “satisfactorily managed” in paragraph 55.10 of the EIG as the precise facts of any individual case were likely to require careful consideration. The word “satisfactorily” required an objective judgment to be made and did not refer to the opinion of the decision-maker. That objective judgment should be as to whether the outcome of the detention centre’s treatment would be satisfactory and there was no requirement that it should necessarily be equal to that available outside detention. Generally speaking what was required was that the treatment would generally be regarded as acceptable medical practice for dealing with the particular condition appropriately, which might mean keeping the condition stable, but would not necessarily mean treatment that provided the hope of recovery. The fact that there might be specialist treatment somewhere which would be better for the patient did not make that which was otherwise acceptable medical practice unsatisfactory management of the condition within the meaning of paragraph 55.10. In the present case, O’s challenge to the lawfulness of the Home Secretary’s decision to continue O’s detention failed. Her condition could still be satisfactorily managed in detention and in any event there was a risk of re-offending and absconding which while diminishing with time meant there still needed to be safeguards if O was released into the community.

UNDERHILL and FLOYD LJJ agreed.

Appearances: Hugh Southey QC and Ranjiv Khubber (instructed by Lawrence Lupin, Wembley) for the claimant; Julie Anderson (instructed by Treasury Solicitor) for the Home Secretary.

Reported by: Nicola Berridge, Solicitor.

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