When should persons with severe mental illnesses be released from immigration detention?

Indefinite immigration detention can have a disastrous effect on mental health. In 2015 alone, there was an average of one suicide attempt per day in the UK’s detention estate.

Independent reports have confirmed the extent of the problem and made urgent recommendations to better protect vulnerable detainees. There is currently cross-party support for adding a 28-day limit on detention to the Immigration Bill making its way through Parliament.

Now, the Home Office policy on the detention of severely mentally ill persons has been scrutinised by the Supreme Court for the first time in R (O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19.

In this case the Home Office repeatedly failed to consider the recommendations of mental health professionals to release or transfer O from detention. The language of the ‘detention reviews’ is telling, with caseworkers bemoaning “yet another psychiatric report” sent by her solicitors.

The (rather sad) facts

O was a Nigerian national convicted of child cruelty towards one of her children, sentenced to a term of imprisonment and subject to a deportation order. Earlier, she had given birth to a daughter who was placed for adoption by a Court order.

Medical professionals had diagnosed her with chronic mental illnesses rooted in childhood abuse in Nigeria. While she was detained at Yarl’s Wood, she was admitted to the psychiatric wing of Bedford Hospital after attempting to suffocate herself. Subsequently, she was returned to Yarl’s Wood. O was detained there for almost 3 years in total.

The law

The Home Office policy is contained in Chapter 55 of the Enforcement Instructions and Guidance (‘EIG’). At section 55.10, it states that those suffering from serious mental illness which cannot be satisfactorily managed within detention should only be detained in very exceptional circumstances. The Court noted that the recent Shaw report recommended that the words “satisfactorily managed” be removed from the policy.

The NHS administers health services in detention centres and the Court set out the legal underpinnings of this arrangement (§ 29). Treatment should be equivalent to what is available to the general population at large. It should seek to improve health and wellbeing, not just stop deterioration. Despite this, the Home Office accepted in 2014 that there are not enough specialist mental health services in detention centres.

The key case in this area is Das [2014] EWCA Civ 45. That case discussed what amounted to “satisfactory management” (at §§ 45 to 47 and 65 to 71). O largely approves Das, subject to one potentially important observation.

O observes that if there was treatment that would actually be made available to the detainee on release that would be likely to secure improvements in their health, then that would be relevant to the issue of whether detention was justified.

The Home Office bears the burden of investigating the availability of such treatment. If treatment inside detention was not equal to what would be available if released, then the detention may not be justified (§ 30).

The Court set out some detailed questions that arose on the facts of this case (at § 33). While some of these issues appeared in Das (at §§ 57 and 67), there are some new issues related to the duty on the Home Office to make inquiries.

It may be useful in future cases to ask the following questions of the Home Office:

• Whether a person’s diagnosis is likely to be correct (if disputed)?
• Did the clinicians at the detention centre agree with any diagnosis by a person’s own doctor?
• What was the nature of the treatment currently provided?
• How satisfactory was the treatment and did it lead to any improvements
• Was an independent expert assessment required?
• Would any mental health clinic accept the person for any required long term treatment?
• What accommodation was available for any community based treatment?
• What medical and community care services would be available on release?

In O’s case, although there was an unlawful failure to apply Chapter 55.10, the Court agreed with the Court of Appeal that a lawful application of the policy would not have secured her release any earlier. She was therefore entitled to nominal damages of £1.

Francis overruled

The Court also considered some rather technical arguments related to the earlier case of R (Francis) v Secretary of State for the Home Department [2014] EWCA Civ 718.

In Francis, the Court of Appeal found that where the government took a decision to detain that was required by statute (ie. under the Immigration Act 1971 Schedule 3, paragraph 2(1) and (3)), it did not matter that the government failed to apply a policy on releasing certain detainees because the decision is effectively taken by Parliament.

The Supreme Court disagreed. Overruling Francis, the Court found that the Home Office had to review detention regardless of the requirements in Schedule 3, paragraph 2(1) and (3). Those powers are still subject to 2 conditions, both of which must be met in order for detention to be lawful:

• The so-called Hardial Singh principles must be applied, (in other words there must be a reasonable prospect of deportation within a reasonable period of time); and
• The decision must be in accordance with Home Office policies on whether to exercise the power to release the detainee, (including the policies concerning mental health).