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O, a Nigerian national aged 38 who entered the UK illegally in late 2003 with her three-year old son, suffered from mental health problems. She was detained at Yarl’s Wood for almost three years (2008-2011) purportedly justified by the risks of absconding and harm despite a 2009 recommendation, under the Mental Health Act 1983, s 48 for her transfer to hospital. O’s case turned on official policy on detaining the mentally ill pending deportation. It readily demonstrates the abjectness of the predicament of detainees and even Lord Wilson confessed that he knew nothing about her circumstances after 6 July 2011 but deduced “she has not, or not yet, been deported.”

Under the principle in Lumba (Congo) v Secretary of State for the Home Department [2011] UKSC 12 it was held that permitting her judicial review claim to proceed would result in a £1 award for damages because she had already been released from detention when it was issued “and it could bring her no practical benefit.” Supported by the interveners – Bail for Immigration Detainees and Medical Justice – O successfully argued that the authority of R (Francis) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2014] EWCA Civ 718 had been wrongly decided. Even though Lady Hale, Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson unanimously dismissed O’s appeal, in times when public funding for legal cases is in short supply these proceedings are proof of the legal profession’s commitment to representing the vulnerable on a pro bono basis. In comparison to some of the other recent appeals decided by the Supreme Court, O’s case is less case law focused but involved extraordinary facts.

Context

O was refused asylum and discretionary leave and her appeal was dismissed. Some days after arriving in the UK, in violation of the Children and Young Persons Act 1933, s 1, she committed the offence of cruelty to her son. She pleaded guilty in 2008 and was sentenced to 12 months’ imprisonment and recommended for deportation. Upon completing her sentence she was detained at Yarl’s Wood until being released on bail in early July 2011. She was initially detained pursuant to the Immigration Act 1971, Sch 3, para 2(1), pending the making of a deportation order. After the order was made, she was detained under Sch 3, para 2(3) of the 1971 Act, pending her deportation. While in detention, O attempted to commit suicide in March 2010. Medical experts disagreed on whether she could be treated in Yarl’s Wood.

O challenged the lawfulness of her detention from 22 July 2010 (and in particular from 4 March 2011, the date of the first review of O’s detention following the government’s receipt of the 2011 report) until 6 July 2011 when she was released on bail. The High Court refused permission for O’s claim to proceed because her detention did not infringe the Hardial Singh principles and there was a high risk of absconding and a significant risk of reoffending. Despite finding flaws in the monthly reviews of O’s detention between March and July 2011, the Court of Appeal dismissed her appeal; which meant that the matter entered the Supreme Court.

The Supreme Court

The effect of the flaws on the lawfulness of O’s detention between March and July 2011, in light of the authority of Francis, were central to her case. Unanimously dismissing the appeal, Lady Hale, Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson held that if O’s claim for judicial review had been permitted to proceed, the outcome would at best be a declaration that her detention was unlawful and an award of only nominal damages. The courts below had thus been entitled to refuse permission.

In O’s case, six reviews of O’s detention which were written between 4 March 2011 and 4 July 2011 made only a fleeting reference to a new medical report produced in 2011 and her most recent diagnosis was wrongly identified as being in March 2010. Senior officers endorsed the caseworker’s view that “yet another psychiatric report” changed nothing because the risk of reoffending and absconding outweighed the presumption in favour of release.

Lord Wilson found that despite the fact that the new report was provided to the authorities especially to support O’s application to challenge her deportation, it was relevant to the detention policy and should have been given proper consideration in the reviews. It was therefore right (and was officially conceded) that the Home Office unlawfully failed to apply its policy when deciding to continue to detain O between March and July 2011. However, as highlighted above, granting O permission to proceed with her judicial review claim would be counterproductive because it would merely result in a declaration that her detention was unlawful and amount to an award of only nominal damages.

The Supreme Court held that Francis – involving a Jamaican national who used a counterfeit British passport, bearing the name “David Francis”, and was detained for 3 years and 9 months – was wrongly decided. Lord Wilson held the deportation power conferred by the 1971 Act, Sch 3, paras 2(1) and (3) to be subject to two conditions, namely (i) there must be a prospect of deportation within a reasonable time and (ii) the decision-maker must consider in accordance with the policy whether to exercise the power to detain. If either condition is not satisfied, detention becomes unlawful because the mandate to detain ceases.

Comment

This case is a grim reminder of the vexing problems posed by immigration detention in immigration removal centres staining the UK’s reputation as a free society founded on the principles of liberal democracy. The June 2016 report of the House of Commons Select Committee on Home Affairs is extremely critical of immigration detention because of high costs which (in distinction to the present case) can swell in cases where detention is held to be unlawful. More than 30,000 people entered immigration detention in 2015. But the percentage of those removed has decreased from 63 percent in the first quarter of 2010 to 44 percent in the last quarter of 2015; the majority of those entering immigration detention are not removed. Explaining that in the last quarter of 2015 it cost £91 per day to hold one person in immigration detention and quite disturbed by the fact that a total of £18 million has been paid in compensation over the last four years, the committee had little choice but to conclude:

The home office should reduce the length of time that detainees are held and investigate alternatives to detention. This is particularly true for children, where the government must meet its commitment to end detention of children for immigration purposes.

This post is an abridged version of a post that originally featured on the UK Immigration Law Blog, which can be found here.

About the author: Asad Ali Khan is BA, MSc, MA, LLB (Hons), BVC, LLM, Barrister-at-Law (Middle Temple), Advocate High Courts Pakistan. In addition to immigration, he works as international counsel in an English law firm and acts as a court expert in UK family law proceedings involving removal of children from the jurisdiction to Pakistan. He also writes on corporate social responsibility.