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

Factual and Procedural Background

This opinion concerns appeals challenging the powers of the Respondent Secretary of State to detain foreign nationals with mental health conditions pending their removal from the United Kingdom. Each Appellant is a foreign national detained under statutory powers but alleged to have suffered from mental illness, rendering them unfit for removal or detention in immigration removal centres (IRCs), and lacking mental capacity to challenge their detention or engage with related procedures.

The first Appellant, referred to as MDA, is a Somali national subject to a deportation order, detained following the expiration of a custodial sentence from November 2015 until February 2017, when he was transferred to a secure psychiatric hospital under the Mental Health Act 1983 (MHA 1983). A Deputy High Court Judge granted MDA judicial review, finding the entire detention unlawful due to failure by the Secretary of State to inquire into MDA’s mental capacity, breaching the common law duty of fairness and the Public Sector Equality Duty (PSED). The Secretary of State does not challenge these findings but contests other issues.

The second Appellant, ASK, a Pakistani national, was detained pending removal from January to September 2013, during which time he was admitted to a psychiatric hospital. His claim of unlawful detention was refused by Green J, who found no breach on all grounds. ASK challenges this refusal on several grounds, including misapplication of detention policy and breaches of human rights and equality duties.

The appeals involve detailed consideration of statutory frameworks, detention policies, mental health law, and human rights obligations, and address whether the Secretary of State lawfully detained and treated the Appellants in light of their mental health conditions.

Legal Issues Presented

1. Whether the Secretary of State breached the common law duty of fairness by failing to inquire into the Appellants’ mental capacity before and during detention.
2. Whether the detention of the Appellants breached the Secretary of State’s own detention policies, specifically Chapter 55.10 of the Enforcement Instructions and Guidance (EIG) and the Adults at Risk (AAR) Policy.
3. Whether the conditions and treatment of the Appellants in detention amounted to degrading or inhuman treatment in breach of article 3 of the European Convention on Human Rights (ECHR), or interference with private life under article 8.
4. Whether the Secretary of State unlawfully detained the Appellants contrary to the principles established in R v Governor of Durham Prison ex parte Hardial Singh ("Hardial Singh") and article 5 of the ECHR, particularly where removal was not reasonably foreseeable within a reasonable time.
5. Whether the Secretary of State breached duties under sections 20 and 29 of the Equality Act 2010 (EA 2010) to make reasonable adjustments for detainees with disabilities, including mental illness, and the public sector equality duty under section 149 of the EA 2010.
6. Whether damages for unlawful detention should be substantive or nominal.

Arguments of the Parties

Appellant MDA's Arguments

• The Secretary of State breached his own detention policy by failing to properly assess and apply criteria relating to serious mental illness that cannot be satisfactorily managed in detention.
• The treatment regime in detention exacerbated MDA’s mental illness and amounted to degrading treatment breaching article 3 and/or article 8.
• The Secretary of State acted unlawfully under Hardial Singh by detaining MDA when removal to Somalia was not possible within a reasonable time due to suspension of removals and the risk of degrading treatment upon return.
• The Secretary of State breached the EA 2010 by failing to make reasonable adjustments and by breaching the PSED.
• Damages should be substantive rather than nominal, contending that causation is irrelevant to liability for unlawful detention and that adverse inferences should be drawn from the Secretary of State’s failure to submit evidence on decision-making.

Appellant ASK's Arguments

• The Secretary of State failed to consider or properly apply his own detention policy during various periods of detention, notably failing to consider it at all during the first period.
• The Secretary of State misinterpreted the policy by equating “satisfactory management” with absence of clinical need for hospitalisation, which was erroneous.
• The Secretary of State failed to act promptly to transfer ASK to hospital once it was known he required such treatment, breaching Hardial Singh and article 5.
• The treatment and delay in transfer to hospital breached article 3 and the positive duties therein.
• The Secretary of State breached the common law duty of fairness and the PSED by failing to inquire into ASK’s mental capacity and failing to make reasonable adjustments under the EA 2010.

Respondent Secretary of State's Arguments

• The Secretary of State complied with his detention policies and acted lawfully in assessing and managing the Appellants’ mental health conditions.
• The detention and treatment did not reach the threshold of severity required to engage article 3 or breach article 8.
• The delay in transfer to hospital was attributable to clinical disagreement and lack of hospital capacity, not to any unlawful conduct.
• The Secretary of State conducted regular and conscientious reviews of detention and removal prospects in accordance with Hardial Singh principles.
• Damages claims should be remitted to the county court for detailed factual determination, including causation and quantum.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed legal and factual analysis of the detention of both Appellants, focusing on statutory powers, detention policies, and human rights obligations.

Regarding detention policy, the court emphasized that the Secretary of State must take reasonable steps to inform himself of detainees’ mental health and capacity, and to apply detention policies correctly. The court found that, in MDA’s case, the Secretary of State adequately informed himself and reasonably concluded that MDA’s mental illness was being satisfactorily managed in detention. Likewise, in ASK’s case, the Secretary of State applied the detention policy appropriately, considering medical opinions and clinical disagreements.

On article 3 ECHR claims, the court applied established principles requiring a minimum level of severity in ill-treatment. It found that although both Appellants suffered from serious mental illness and some distressing conditions, the evidence did not establish treatment or conditions that reached the high threshold of inhuman or degrading treatment under article 3. The court noted that medical care was available and that the Secretary of State took positive steps to manage their conditions.

The court considered the Hardial Singh principles and concluded that the Secretary of State did not act unlawfully in detaining the Appellants, as removal was reasonably foreseeable within a reasonable period, and delays in hospital transfers were attributable to clinical disagreements and resource limitations rather than unlawful conduct.

Regarding the Equality Act 2010 and mental capacity issues, the court acknowledged breaches of the PSED and the duty to make reasonable adjustments. It found that both Appellants, suffering from disabilities, were not afforded adequate procedural safeguards to participate in decisions affecting their detention, constituting discrimination. The court accepted the Secretary of State’s concession on this point and granted declarations accordingly.

On damages, the court clarified that while causation is irrelevant to the lawfulness of detention, it is relevant to compensatory damages. The question of whether the Secretary of State would have detained the Appellants if acting lawfully requires factual determination, best suited to the county court. Therefore, damages claims were remitted for further consideration.

Holding and Implications

The court’s final decision was as follows:

For both Appellants, the appeals were allowed solely on grounds relating to breaches of the Equality Act 2010, specifically the failure to make reasonable adjustments and breach of the public sector equality duty.

The court made declarations that the Secretary of State discriminated against the Appellants by failing to make reasonable adjustments in the decision-making processes regarding their detention.

All other grounds of appeal, including claims of unlawful detention under Hardial Singh, breaches of article 3 and article 8, and misapplication of detention policy, were dismissed.

The court remitted the issue of damages related to the breaches of the Equality Act 2010 to the county court for detailed factual inquiry and determination, including the question of whether damages should be nominal or substantive.

No new precedent was established beyond affirming existing principles on detention law, human rights obligations, and equality duties. The decision confirms the importance of procedural safeguards and reasonable adjustments for detainees with mental disabilities but upholds the Secretary of State’s discretion and lawful exercise of detention powers where proper processes are followed.