New Judgment: R (O) v Secretary of State for the Home Department  UKSC 19
27 Wednesday Apr 2016
On appeal from:  EWCA Civ 990
The Supreme Court unanimously dismissed the appeal concerning the appellant’s challenge to her continued detention in Immigration Removal Centres which had resulted in her poor mental health according to a report from a senior psychologist.
The appellant was imprisoned for cruelty to her child and deportation was recommended. As she had previously absconded while on bail, she was detained in immigration detention following her release from prison. She was not deported due to mental health concerns. The appellant was diagnosed with severe post-traumatic stress disorder and claimed her immigration detention was contrary to the Hardial Singh principles and contrary to the Secretary of State’s policy in respect of detaining persons suffering with mental illness. Her appeal was dismissed by the High Court and the Court of Appeal.
In delivering the lead judgment Lord Wilson stated that the court had to consider the SSHD’s policy relating to the detention of mentally ill persons pending deportation and the effect of any failure by the SSHD to apply that Policy, in the light of R (Francis)  EWCA Civ 718. The Policy obliges the SSHD to conduct monthly reviews of detention pending deportation. In the appellant’s detention reviews between 4 March and 4 July 2011, only the briefest reference was made to the senior psychologist report. Lord Wilson reasoned that the report should have been properly addressed in the reviews and therefore the SSHD unlawfully failed to apply her policy when deciding to continue to detain the appellant between March and July 2011.
The court then had to determine what would have been the SSHD conclusions if the report had been properly addressed. Lord Wilson stated that the court cannot predict the result of those inquiries into whether the appellant’s condition could be properly managed in detention but reasoned that even on the assumption that the proper application of the policy should in due course have led the SSHD to direct the appellant’s release, it is unrealistic to consider that the conditions necessary for her release would have been in place prior to 6 July 2011, when she was released on bail. The lower courts were therefore correct to refuse her application on this ground.
On the issue of R (Francis) Lord Wilson stated that it was wrongly decided. The power to detain conferred by the Immigration Act 1971, Sch 3, para 2(1), and by the words in parenthesis in para 2(3) is a mandate subject to two conditions: first, there must be a prospect of deportation within a reasonable time; and second, the SSHD must consider in accordance with the Policy whether to exercise the power to detain. If either condition is not satisfied, the mandate to detain ceases and detention becomes unlawful.
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