O v Secretary of State for the Home Department [2016] UKSC 19: Supreme Court judgment safeguards rights of immigration detainees.

27.04.16 | |

Laura Dubinsky of Doughty Street Chambers was on the counsel team for two NGOs, Bail for Immigration Detainees and Medical Justice, who intervened jointly on the points of principle raised by the appeal.


This judgment makes very significant advances in the law for the rights of detainees and in particular mentally ill detainees, albeit the appellant lost her appeal against the refusal of permission to seek judicial review.


The judgment importantly reaffirms executive accountability for breaches of published policy (and other material public law errors) in the administrative detention of immigrants. The Supreme Court has overturned a line of jurisprudence (in particular Francis v SSHD [2015] 1 WLR 567) which had effectively immunised the executive from the consequences of policy breaches in certain types of administrative detention. The lower courts had held that where the words ‘shall… be detained…. unless….’ appeared in statute , there was a ‘statutory warrant’ for detention, so that an individual’s detention remained lawful  even if she was detained contrary to published Home Office policy. In a judgment with significant ramifications for detention under paragraph 2(1) Schedule 3 Immigration Act 1971 (pursuant to a criminal court’s recommendation for deportation, as was the case for this appellant) and also for detention under s.36(2) UK Borders Act 2007 ( detention pursuant to an ‘automatic’ deportation order, under very similarly worded legislation), the Supreme Court in O clarifies that notwithstanding that statutory language, the executive remains liable for unlawful detention if it commits a material public law error (such as acting contrary to published policy in a way which had a bearing on the decision to detain).


The O judgment also sheds important light on the meaning and proper application of the Home Office’s policy concerning the detention of the mentally ill under the Immigration Acts; and on the standard of care which should be made available for mentally ill immigration detainees.  It is published Home Office policy that those ‘suffering from serious mental illness which cannot satisfactorily be managed within detention’ are unsuitable for detention save in ‘very exceptional circumstances’. The lower courts had held (in particular in Das v SSHD [2014] 1 WLR 3538 ) that it was sufficient that the treatment in detention avoided deterioration –treatment could, on that approach, be ‘satisfactory’ even if different treatment would be available in the community which would be likely to secure improvement of the detainee’s mental condition.   But the Supreme Court clarified that if there is treatment which would be available to the detainee only if released which would be likely to effect a positive improvement in her condition, that is relevant to the question of whether the condition is ‘satisfactorily managed’ in detention. If the standard of care provided to a detainee in detention were not equal to the standard which would be made available to her if released, it would be questionable (subject to the strength of other relevant factors) whether the management of the illness in detention was satisfactory.  There was no principled foundation to treat the word ‘management’ as meaning no more than ‘control’ of the condition. The burden is on the Home Secretary to inquire into the availability of the treatment in the community for the detainee.


To read the full judgment click here.

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