Continued detention pending removal of failed asylum seeker on hunger strike not unlawful

aeroplane in sunsetIM (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1561 (25 November 2013) – read judgement

The Court of Appeal has ruled that the secretary of state for the Home Department had the power to detain an immigration detainee in hospital to ensure that he received appropriate medical treatment pending his removal from the United Kingdom.

This was an appeal by a failed asylum seeker against the ruling by Ouseley J that his continued immigration detention was lawful ([2013] EWHC 3764 (Admin)).

Factual backgound

The appellant, a Nigerian national, had been refused asylum and leave to remain and was detained pending removal. He refused food and most fluids, stating further that he did not want medical treatment. His capacity to understand the significance or consequences of his decision had been tested on a number of occasions and was not in issue. An end-of-life plan had been prepared by nursing staff at the immigration removal centre. He had refused transfers to hospital, insisting on a condition of release from detention. His release had been refused despite referrals stating that he was unfit for detention at the IRC. The secretary of state had made a direction under the  Immigration Act 1971 Sch.2 para.18(1)  in relation to the appellant’s continued detention.

The questions before the court were whether

  1. the secretary of state had the power to detain a person in a hospital pending their removal, other than when a direction was made under Section 48 of the Mental Health Act 1983
  2.  the judge had erred in law in his interpretation of the respondent’s policy on detention and
  3.  in failing to hold that the continued detention of the appellant is in breach of that policy and therefore unlawful.
  4. the continued detention was not in breach of the  Hardial Singh principles;
  5. the continued detention was not in breach of  Article 2 or Article 3 of the European Convention on Human Rights.

The Court of Appeal dismissed the appeal.

Reasons behind the judgement

1. Giving judgment for the Court, Lloyd Jones LJ took as his starting point that a power of detention must be strictly construed. Having said that, however, he agreed with the judge below that, on its face, the definition in s. 145  Mental Health Act 1983 was amply wide enough to cover any hospital, whether or not a mental hospital, and whether or not a person is compulsorily detained in a hospital where people may be compulsorily detained under sections 47 and 48 MHA 1983.  There were no express words which imposed any such limitation on the power to detain in a hospital. There was no obvious reason why the statutory trail which defined “hospital” for that purpose travelled via the 1983 Act as opposed to section 275 of the National Health Service Act 2006.  It might be that the definition was wider under the 1983 Act; however, it was impossible to draw from the statutory language any inference that it was intended that the power to detain in hospital should be limited to a person detained under section 48. If that had been the intention, there should be clear words to that effect and it could not have been intended that such an important restriction should be left to be inferred from the route followed by the statutory definition. There was also no obvious reason to restrict the scope of hospitals in which a detainee could be compulsorily detained.

 If the appellant’s interpretation is correct, there would be a substantial gap in the respondent’s powers of detention. It would follow that in the great majority of cases, once a detainee could not receive suitable medical treatment in a removal centre or in prison he would, in the absence of very exceptional circumstances, have to be released from immigration detention, despite the fact that he was awaiting deportation or administrative removal, and regardless of the risk of his absconding. In normal cases, the very exceptional circumstances would have to be such as to justify preventing effective medical treatment. As the judge observed, such a limitation would be remarkable and pointless. However, in any event, I do not consider that any such limitation is a necessary inference from the statutory provisions or their scheme [21]

2. There was a false basis to the appellant’s submission that there was a statement of policy that those suffering from serious medical conditions which could not be satisfactorily managed within detention had to be released. The stated policy did not address the continuation of detention generally, but the continuation of detention in an IRC or prison.

the consequence of the applicability of the policy is not that those to whom it applies become unsuitable for detention anywhere simply because their conditions are unsuitable for treatment in a removal centre or prison. Its effect is not that, in the absence of very exceptional circumstances, continued detention is unsuitable but that the detention in the removal centre or prison is unsuitable. As both Ouseley J. and Stewart J. observed, the result is not that a detainee must be released unless there are very unusual circumstances but that the detainee must be moved to a suitable place of detention. A person may be fit to be detained in hospital even if not fit to be detained in an IRC. [37]

3. The Hardial Singh principles had not been breached in the instant case. The question was whether those principles applied where the medical condition could be regarded as self-inflicted and the detainee could choose to end the refusal of food and drink. In particular, there was no evidence that the condition of the appellant had become irreversible or that, should the appellant now change his stance and accept treatment, he could not be removed from the United Kingdom within a reasonable time.  Ousely J below had been correct to hold that the application of Hardial Singh principles did not lead to the conclusion that detention had become unlawful.

The principles enunciated in relation to deportation by Woolf J. in R v Governor of Durham Prison Ex p Singh [1983] EWHC 1 (QB) and developed by Lord Dyson in  R (on the application of Lumba) v Secretary of State for the Home Department [2011] UKSC 12 applied with equal force to those detained pending administrative removal. There had to be a limit to the duration of the permitted detention set by the need for the detention to be for the statutory purpose and by the need to effect removal within a reasonable time. Clearly a detainee could not be detained to the point of death.. 

4. However, the secretary of state had taken reasonable steps to avoid a breach of Articles 2 and 3 and was under no obligation to release the appellant to enable him to obtain treatment. Even though the appellant was in immigration detention pending removal rather than a convicted or remand prisoner, the secretary of state was entitled to conclude in the light of his immigration history that there was a risk of absconding, notwithstanding the fact that his physical condition had further deteriorated. Kudla v Poland (30210/96) (2002) 35 EHRR 11 is authority for the proposition that there is no general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to obtain any particular kind of medical treatment. Rather, Article 3 requires the State adequately to secure the wellbeing of prisoners (and therefore detainees) by providing the required medical assistance.  Rappaz v Switzerland (7317510)  (in French only) showed that there is no general obligation to release a prisoner or detainee on health grounds. The emphasis is, rather, on the obligation of the State properly to handle the case and secure the same medical care which would have been available outside prison.

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