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

Factual and Procedural Background

The appeal concerns the detention of the Appellant, a foreign national suffering from bipolar affective disorder with psychotic features, who was detained under the Immigration Act 1971 ("the 1971 Act") across four Immigration Removal Centres ("IRCs") between June 2014 and May 2015. The Appellant had a history of repeated hospital admissions under the Mental Health Act 1983 ("the 1983 Act") and multiple criminal convictions. He was eventually transferred to a psychiatric hospital and detained under the 1983 Act. The Appellant challenged the legality of his immigration detention and the delay in his transfer to hospital, appealing against a decision dismissing most of his claims. The Secretary of State's policy at the time, chapter 55 of the Enforcement Instructions and Guidance, governed detention of persons with mental illness, providing that those with serious mental illness not satisfactorily managed in detention should only be detained in very exceptional circumstances.

The procedural history includes a judgment given on 16 February 2016, which accepted that the Secretary of State misinterpreted her policy but found most of the detention lawful except for a 24-day period in April 2015. The appellant filed a notice of appeal and was granted permission. The Equality and Human Rights Commission intervened on issues relating to discrimination and procedural fairness under the Equality Act 2010. The appeal court reviewed the legal and factual issues in detail, including evidential matters and the Secretary of State's public law duties.

Legal Issues Presented

1. Whether the Secretary of State correctly applied the policy governing detention of persons with mental illness under the Immigration Act 1971, and the legal consequences if she did not.
2. The adequacy under common law and the Equality Act 2010 of procedures allowing mentally ill detainees to make representations concerning their detention.
3. Whether the Appellant's detention breached article 3 of the European Convention on Human Rights (ECHR) due to inhuman or degrading treatment.
4. The applicability and consequences of the Hardial Singh principles concerning lawful immigration detention.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R (O) v Secretary of State for the Home Department [2016] UKSC 19	Approval and interpretation of detention policy relating to mentally ill detainees	Considered and approved the policy applied; used to assess Secretary of State’s policy interpretation
R (Das) v Secretary of State for the Home Department [2014] EWCA Civ 45	Application of detention policy and public law standards	Carefully considered; policy misinterpretation was authoritatively refuted
R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704	Principles delimiting lawful immigration detention	Referenced but not necessary to decide due to findings on unlawful detention
R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888	Formulation of Hardial Singh principles	Confirmed principles marking lawful detention boundaries
Lumba and Mighty v Secretary of State for the Home Department [2011] UKSC 12	Relationship between public law errors and false imprisonment; compensatory damages	Guided analysis of lawfulness of detention and damages entitlement
R(HA) (Nigeria) v Secretary of State for the Home Department [2012] EWHC 979 (Admin)	Summary of principles for compensatory damages in unlawful detention	Used to clarify damages entitlement and causation issues
R v Secretary of State for the Home Department, ex p Doody [1994] 1 AC 531	Common law procedural fairness principles	Applied in assessing procedural fairness of detention decision-making
Osborn v Parole Board [2013] UKSC 61	Procedural fairness and role of courts in reviewing procedural fairness	Used to frame procedural fairness analysis
LE (Jamaica) v Secretary of State for the Home Department [2012] EWCA Civ 597	Engagement threshold for detention policy relating to mental illness	Considered in assessing when policy applies to detainee's mental illness
R (BA) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin)	Interpretation of policy phrase "cannot be satisfactorily managed in detention"	Preferred approach adopted to identify when policy is engaged
R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909	Test and burden of proof for compensatory damages in unlawful detention	Guided court’s approach on “could and would” test and burden of proof
R (EO & others) v Secretary of State for the Home Department [2013] EWHC 1236 (Admin)	Burden of proof on Secretary of State to show lawful detention for damages	Supported approach that claimant need not prove negative; burden on defendant
R (IM) (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1561	Application of detention policy and article 3 ECHR standards	Distinguished from present case; considered policy application and medical care duties
Ocalan v Turkey [2005] ECHR 28	Article 3 ECHR standards: minimum severity and standard of proof	Adopted for assessing article 3 claim regarding treatment in detention
Kudla v Poland [2000] ECHR 512	Article 3 ECHR: minimum level of severity for inhuman or degrading treatment	Used to explain threshold for article 3 breach
Mouisel v France (2004) 38 EHRR 34	Article 3 positive obligations and treatment of detainees	Supported positive duty to provide medical assistance
Keenan v United Kingdom (2001) 33 EHRR 38	Article 3: medical care obligations for mentally ill detainees	Referenced for vulnerability of mentally ill detainees and medical care needs
Pretty v United Kingdom (2002) 35 EHRR 1	Article 3 positive obligations	Referenced for positive duty to protect detainees
Premininy v Russia (2016) 62 EHRR 18	Article 3 positive duty	Referenced in support of positive obligations
GS (India) & Ors v Secretary of State for the Home Department [2015] EWCA Civ 40	Scope of article 3 and paradigm cases	Distinguished as concerning deportation risk, not detention conditions
Paulley v Firstgroup plc [2017] UKSC 4	Equality Act: definition of disabled persons generally and reasonable adjustments	Applied in assessing disability class and duty to make reasonable adjustments
Finnigan v Chief Constable of Northumbria Police [2013] EWCA Civ 1191	Equality Act: anticipatory duty and burden of proof in reasonable adjustments	Used to analyse duty to make adjustments and evidential burdens
Project Management Institute v Latif [2007] UKEAT 0028	Requirement to specify reasonable adjustments sought	Referenced regarding claimant's obligation to identify adjustments
R (Muasa) v Secretary of State for the Home Department [2017] EWHC 2267	Procedural fairness in segregation decisions	Referenced and distinguished on facts relating to mental illness
R (L) v West London Mental Health NHS Trust [2014] EWCA Civ 47	Procedural fairness: causation not required to establish unfairness	Used to reject causation approach to procedural fairness claim
AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123	Tribunal powers to appoint litigation friends for incapacitated detainees	Referenced concerning procedural safeguards in immigration appeals
English v Emery Reimbold [2002] EWCA Civ 605	Procedure for obtaining reasons for judicial decisions	Noted as procedure not followed for reasons of refusal of evidence admission

Court's Reasoning and Analysis

The court analysed the Secretary of State's misinterpretation of the detention policy, concluding that the errors bore on the lawfulness of the entire detention period from the first Rule 35 report on 30 June 2014 until transfer to hospital in May 2015. The judge below erred in limiting unlawfulness to a 24-day period in April 2015 because he incorrectly applied a causation test, conflating lawfulness with whether the Secretary of State could have rationally detained the Appellant. The court clarified that public law errors relevant to detention decisions render detention unlawful regardless of whether detention could have been rationally justified, with the question of lawful detention affecting damages, not lawfulness itself.

The court found the Secretary of State breached the duty to make enquiries about the Appellant's mental illness and failed to consider relevant factors, including the inability to compel medication in detention and the existence of community-based compulsory treatment orders. The court rejected submissions that the duty to consider whether the policy was engaged arose only when the policy was actually engaged, endorsing a more proactive approach to assessing detainees' mental health conditions.

Regarding damages, the court applied the "could and would" test from case law, concluding that the Secretary of State had not shown on the balance of probabilities that the Appellant would have been detained lawfully in any event. Thus, compensatory damages are due for the period of unlawful detention, except for a short allowance for arranging hospital transfer.

On article 3 ECHR claims, the court recognised the high threshold for inhuman or degrading treatment, requiring suffering beyond that inherent in detention and illness. The judge below applied the correct legal principles and conducted a balancing exercise, ultimately finding the threshold was not met. The court agreed that the claim was finely balanced but saw no error of law warranting interference.

In relation to procedural fairness and the Equality Act 2010, the court found that the Secretary of State owed a duty to make reasonable adjustments for mentally ill detainees, including anticipatory adjustments. The judge below erred by conflating procedural fairness with the statutory duty under the Equality Act and by requiring a "substantial trigger" or sustained incapacity before adjustments were necessary. The court found a lacuna in the system for assisting mentally ill detainees in making representations about detention and segregation decisions. The Secretary of State failed to discharge the burden of proof that she complied with the duty to make reasonable adjustments, thus discriminating against the Appellant. However, the court declined to grant a declaration of procedural unfairness in the terms sought due to difficulties in identifying specific affected decisions.

The court declined to decide the Hardial Singh principles issue in light of its findings on unlawful detention and damages.

Holding and Implications

The appeal is allowed in part and dismissed in part.

The court held that the detention of the Appellant under the Immigration Act 1971 was unlawful for the period from 30 June 2014 to 27 April 2015 due to the Secretary of State’s misinterpretation of detention policy and breach of public law duties. Compensatory damages are payable for this period, with the quantification to be determined by a Master of the Queen's Bench Division if not agreed. The court dismissed the Appellant’s claim under article 3 ECHR, finding no breach. The court allowed the appeal on the Equality Act ground, declaring that the Secretary of State discriminated against the Appellant by failing to make reasonable adjustments to decision-making processes concerning mentally ill detainees.

The direct effect of this decision is to affirm the unlawfulness of the Appellant’s detention for the stated period and to require compensation. It also establishes the Secretary of State’s duty to make reasonable adjustments for mentally ill detainees in immigration detention, highlighting systemic deficiencies. No new binding precedent was established beyond the application and clarification of existing principles in the context of mentally ill immigration detainees.