O, a Nigerian woman with serious mental ill-health, was held at Yarl’s Wood for nearly three years while the Home Secretary pursued her deportation. The Supreme Court held that a failure to apply the published policy on detaining mentally ill people can make that detention unlawful, even where the statute says the person “shall” be detained, but that a lawful application of the policy would not have secured O’s release any earlier than her release on bail. It therefore dismissed her appeal against the refusal of permission to pursue the claim: the likely result was only a declaration and nominal damages of £1.
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O was detained pending deportation and challenged the way the Home Secretary reviewed her continued detention.
Until the deportation order, she was detained under paragraph 2(1) of Schedule 3 to the Immigration Act 1971, which says that a person subject to a court recommendation for deportation “shall” be detained unless the Home Secretary directs release or the person is released on bail. After the order, detention continued under the words in parenthesis in paragraph 2(3), which also use “shall”. Those provisions differ in wording from paragraph 2(2), which says that a person notified of a decision to make a deportation order “may” be detained.
The claim
O had already been released when she brought this claim. She sought a declaration and damages for a period in 2011.
On 3 April 2012 Lang J refused permission for the fourth claim to proceed. On 17 July 2014 the Court of Appeal, Arden LJ giving the substantive judgment and Underhill and Floyd LJJ agreeing, dismissed O’s appeal. O asked the Supreme Court to grant permission and send the claim back to the Administrative Court for a full hearing.
Mental illness and the detention policy
The Home Secretary had information about O’s mental illness and treatment. A later clinical report raised a question about the suitability of managing her condition in detention.
A clinical psychologist supplied a report in February 2011. The issue was what the decision-maker should have done in light of it.
The Home Secretary’s published policy, in Chapter 55 of the Enforcement Instructions and Guidance, retains a power to detain in the interests of immigration control, but starts from a presumption in favour of release. Reviews are required, in a criminal case at least every 28 days. Paragraph 55.10, as amended on 25 August 2010, says that certain people are normally suitable for detention only in very exceptional circumstances. The relevant category is:
Those suffering from serious mental illness which cannot be satisfactorily managed within detention.
In deciding whether very exceptional circumstances exist, the caseworker must weigh the severity of the risks of offending or further offending and of absconding.
The reviews
In six reviews between 4 March and 4 July 2011, the same caseworker made only the briefest reference to Dr Agnew-Davies’ report, describing it as “yet another psychiatric report” and treating it as a further request to revoke the deportation order. The reviews wrongly identified Dr Ratnayake’s March 2010 diagnosis as the most recent one. They did not mention the diagnosis of post-traumatic stress disorder, the recommended specialist treatment, or the questions whether O could be “satisfactorily managed” at Yarl’s Wood and, if not, whether very exceptional circumstances justified continued detention. Senior officers endorsed the conclusion that the risks of reoffending and absconding outweighed the presumption of release.
The caseworker did not ask the questions needed to apply the published policy.
What the policy required
The meaning of the policy was for the court to decide for itself, not merely to ask whether the Home Secretary’s reading was reasonable. Lord Wilson, with whom Lady Hale, Lord Reed, Lord Hughes and Lord Toulson agreed, described “satisfactory management” as a highly elastic phrase. It requires a practical inquiry into the individual case, not a fine statutory analysis. Management in detention pending likely deportation has extra difficulties, so treatment there might be satisfactory even if it would not be satisfactory in other circumstances. Satisfactory management is not optimal management, but it means more than mere control of the illness.
Lord Wilson parted company with one aside in the Court of Appeal’s decision in Das. He would not exclude treatment available only on release, if that treatment was likely to improve the person’s condition and was likely actually to be made available, rather than merely offered in principle. The burden of inquiring into availability would lie on the Home Secretary. If care in the removal centre fell below the standard that would be made available on release, it would be questionable, subject to the strength of other factors, whether management there was satisfactory.
Applied to Dr Agnew-Davies’ report, the policy called for questions rather than an immediate decision to release. Those questions included whether the new diagnosis was likely to be correct and whether the Yarl’s Wood clinicians agreed with it; what treatment O was receiving and how satisfactory the clinicians thought it was; how long deportation was likely to take; whether immediate lengthy specialist treatment was approved by the responsible doctor and was practical for a foreign citizen awaiting deportation; and what accommodation, medical care and community care would be available if she were released. O accepted that a proper application of the policy would not have produced immediate release in March 2011. The Supreme Court could not predict the result of inquiries which, judging by the reviews, seemed mostly never to have been made. Even on the doubtful assumption that the policy should eventually have led to release, it was unrealistic to think that the necessary conditions would have been in place before 6 July 2011.
There was a separate argument about how closely a court should examine a decision which does apply the policy: ordinary public-law rationality, or a more intense inquiry because liberty is at stake. Lord Wilson did not choose between those approaches. The Home Secretary had not addressed satisfactory management in the light of the report, so there was no such decision to appraise. The error was a procedural flaw in the refusal to release. Even without that flaw, no decision to release O would have been made before 6 July 2011.
Unlawful detention and nominal damages
In Lumba, the Supreme Court held that false imprisonment requires detention and the absence of lawful authority to justify it. If a public authority has not lawfully exercised its power to detain, it does not matter that it could and would have detained the person had it acted lawfully. That fact shows that the person has suffered no loss and is entitled only to nominal damages; it does not mean that the tort was not committed. In Lumba the result was damages of £1.
The Home Secretary argued that Lumba did not apply because O’s detention began under the “shall” wording of paragraph 2(1), not the “may” wording of paragraph 2(2). She relied on the Court of Appeal’s decision in Francis, which treated detention under paragraph 2(1) as authorised by the statute itself unless and until the Home Secretary directed release, so that an unlawful application of policy did not make the detention unlawful.
Lord Wilson held that this part of Francis was wrong. A claim to detain pending deportation must be clearly justified by the statutory language. The duty to review detention applies equally under paragraphs 2(1) and 2(2), and there was no good reason why the same defects should have different legal consequences. A sentencing judge’s recommendation for deportation, perhaps made years earlier, should not keep detention lawful despite an unlawful application of policy. Lumba itself had treated later detention under “shall” wording as unlawful where policy had been misapplied. Section 36(2) of the UK Borders Act 2007 also describes detention under paragraph 2(3) as the exercise of a “power”.
The statutory language did not free detention decisions from the requirement to apply the published policy.
Verdict: The Court unanimously dismissed O’s appeal against refusal of permission. Had the claim proceeded, the likely result was a declaration of unlawful detention and £1 in nominal damages. The Supreme Court made neither award.
Source: R (O) v Secretary of State for the Home Department [2016] UKSC 19
