R (VC) v SSHD  EWCA Civ 57
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Regina (VC) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening)
2017 Nov 28, 29; 2018 Feb 2Arden, Lewison, Beatson LJJ
Immigration— Deportation order— Detention pending deportation— Mentally ill detainee challenging lawfulness of immigration detention and treatment in detention— Scope of Secretary of State’s duty to inquire into detainee’s mental health— Whether Secretary of State obliged to make decisions in detainee’s best interests where detainee lacking capacity— Whether breach of duty to make reasonable adjustments— Mental Capacity Act 2005 (c 9), s 4 — Equality Act 2010 (c 15), ss 20(2), 29(7)
In June 2014 the claimant was detained under Schedule 3 to the Immigration Act 1971 pending his deportation. A few weeks later, pursuant to rule 35 of the Detention Centre Rules, a report by medical professionals identified that he was suffering from mental illness. In March 2015 a further report referred to a deterioration in his mental state and in May 2015 he was transferred to a psychiatric hospital. He continued to be detained under Schedule 3 until September 2015 when he was detained under section 3 of the Mental Health Act 1983 until April 2016. During his detention the claimant was segregated on a number of occasions, the longest segregation being for seven days. The claimant sought judicial review of the Secretary of State’s decision to detain him and of his treatment while in detention, contending that (i) his detention had been unlawful in that the Secretary of State had breached her public law duty of inquiry into the question of whether his mental illness could be satisfactorily managed within detention for the purposes of her policy, which at the material times was contained in chapter 55 of the document Enforcement Instructions and Guidance “Detention and Temporary Release”, since replaced, (ii) his treatment during detention had been contrary to the Mental Capacity Act 2005 in that the Secretary of State had failed to make her decisions regarding that treatment in his best interests and (iii) his treatment during detention had been discriminatory, contrary to the Equality Act 2010, and procedurally unfair. The judge dismissed the claim, accepting that the Secretary of State had misinterpreted her policy governing detention where she interpreted the reference in paragraph 55.10 “to those suffering from serious mental illness which cannot be satisfactorily managed within detention” as not applying “unless and until the claimant’s condition deteriorated to the extent that he was hospitalised”, but that, save for the period between 3 and 27 April 2015, that did not render the detention unlawful as the Secretary of State could have rationally concluded that the claimant’s mental condition could be satisfactorily managed within detention and when he was transferred to hospital she could rationally have decided not to release him pending his transfer, and accordingly she was liable in damages only in respect of the period between 3 and 27 April 2015. The claimant appealed on the grounds inter alia that (i) his detention was unlawful because of public law errors made by the Secretary of State in respect of her misinterpretation of her policy and she had failed to make enquiries into his mental health (ii) his treatment in detention was inhuman and degrading amounting to a breach of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and (iii) the Secretary of State had discriminated against him by failing to make reasonable adjustments to her decision-making procedures for detainees suffering from mental illness as required by the Equality Act 2010.
On the claimant’s appeal—
Held, appeal allowed in part. (1) The claimant’s detention was unlawful for the period between 30 June 2014 and 27 April 2015 and the judge had erred in concluding otherwise. The judge’s approach to consider that during the periods it was rationally open to the Secretary of State to conclude that she could lawfully detain the claimant, her decisions to do so were thereby rendered lawful was the wrong approach. It was not rationally open to the Secretary of State, following the receipt of the first report, to consider that the claimant’s condition could have been satisfactorily managed in detention. The burden lay with the Secretary of State to demonstrate that she would in any event have detained the claimant. Given the seriousness of the claimant’s mental condition and the Secretary of State’s misinterpretation of what “satisfactory management” meant the Secretary of State would not have detained the claimant in any event. The claimant was entitled to compensatory damages in respect of the period 30 June 2014 to 27 April 2015 (paras 8, 39, 56, 85, 100, 107, 191, 195, 196).
R (Lumba) v Secretary of State for the Home Department (JUSTICE intervening)M; B, para 62, SC(E) applied. (2) The Secretary of State had discriminated against the claimant by failing to make reasonable adjustments to her decision-making processes for detainees suffering from mental illness as required by sections 20 and 29 of the Equality Act 2010. No assistance was given to mentally ill detainees in understanding the reasons for their continued detention or in making representations in respect of those decisions nor was assistance given to a mentally ill detainee in understanding why he was segregated or in making representations in respect thereof. Accordingly mentally ill detainees were put at a substantial disadvantage compared to other detainees, no reasonable adjustments, such as the implementation of a system akin to that of an independent mental capacity advocate, had been made and the Secretary of State had breached her duty to make reasonable adjustments for mentally ill detainees in respect of their ability to make representations on decisions regarding their continued detention and segregation. The declaration sought would be granted (paras 8, 149, 150, 154, 193).
(3) In respect of a breach of article 3 of the Convention, the judge was required to and did conduct a balancing exercise taking into account all the circumstances of the case. He did not make any errors in his approach nor did he fail to take into account any significant factors (paras 136, 192).
Per curiam Where the Secretary of State fails to submit any evidence to explain her decision-making process in respect of decisions to detain, the basis for drawing adverse inferences of fact against her in judicial review proceedings will be particularly strong (para 68).
R (Das) v Secretary of State for the Home DepartmentM at  approved. Decision of Judge Seys Llewellyn QC M; B reversed in part. Stephanie Harrison QC and Amanda Weston (instructed by Bhatt Murphy) for the claimant.
Julie Anderson and Belinda McRae (instructed by Government Legal Department) for the Secretary of State.
Helen Mountfield QC (instructed by Equality and Human Rights Commission) filed written submissions on behalf of the intervener.
Reported by: Nicola Berridge, Solicitor