High Court finds systemic risk of unfairness for incapacitated detainees

18.02.16 | |

In VC v Secretary of State for the Home Department [2016] EWHC 273 (Admin) the High Court has ruled that there is a systemic risk of unfairness when seriously mentally ill or incapacitated people are held in immigration detention. HHJ Seys Llewellyn QC held that where a detainee lacks capacity or is prevented from making effective representations about continued detention because of his mental illness, adjustments will need to be made to avoid a breaches of procedural fairness and breaches of the duty to make reasonable adjustments under the Equality Act 2010. The Judge stated that he could "readily envisage circumstances which would make it important that help is available to make representations on behalf of a detainee otherwise unrepresented, if he is mentally unwell enough to do so himself" [158].

 

The Judge found that the absence of any provision for independent assistance for incapacitated detainees amounted to a lacuna in the system, stating that "the longer the period of serious mental illness and continuing detention, the more likely it seems to me that the Secretary of State will be required to consider by her officers whether independent representation of his interests is required by some third party or someone akin to an [Independent Mental Capacity Advocate]". He held that "the present system has no provision to fill the gap even where procedural fairness would require it" [168]. 

 

You can read the judgment here

 

Martha Spurrier represented VC, instructed by Hamish Arnott of Bhatt Murphy Solicitors. The Official Solicitor acted as VC's litigation friend.

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