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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

09 JAN 2014

IM (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1561;(2013) PLLR 134

Immigration - Healthcare - Detention - ECHR

There was no policy preventing a detainee who required medical treatment from being treated and detained in a hospital.

5 December 2013

Court of Appeal

Lewison LJ, Lloyd Jones LJ and Sir Stanely Burnton

(1)        The appellant is IM, a Nigerian national, who entered the UK in July 2007 and became an over-stayer on 23 January 2008. The appellant applied for leave to remain in May 2011 on the basis of Article 8 ECHR. The appellant's asylum claim was rejected and certified as clearly unfounded on 7 August 2013. The appellant has refused food since 27 August 2013. T

(2)        The appellant applied for judicial review on 4 October 2013 on the basis that his detention breached the respondent's policy on detention, as his serious medical condition could not be satisfactorily managed in detention. He also alleged that his detention breached Articles 2 and 3 ECHR. Permission was granted for judicial review on 28 October 2013, but the substantive application was refused.

(3)        The grounds of appeal were:

‘(1)      The judge erred in law in holding that the respondent has power to detain persons, pending their removal from the United Kingdom, in a hospital, save when a direction is made under section 48, Mental Health Act 1983.

(2)        The judge erred in law in his interpretation of the respondent's policy on detention and in failing to hold that the continued detention of the appellant is in breach of that policy and therefore unlawful.

(3)        The judge erred in law in holding that the continued detention of the appellant is not in breach of Hardial Singh principles

(4)        The judge erred in law in holding that the continued detention of the appellant is not in breach of Articles 2 and/or 3 ECHR.'

(4)        HELD: As to ground 1, the Court found that there was no express requirement that the detention and treatment contended for only be supplied by a mental hospital. The phrasing was broad enough to include any hospital. It was said to be illogical to argue that once a detainee could not receive suitable medical treatment in a removal centre or prison that they must be released from immigration detention, despite their awaiting deportation or removal, and regardless of their risk of absconding.

(5)        The Court thus held that the Defendant had the power to detain the appellant in hospital.

(6)        The guidance contained in Chapter 55 of the Enforcement Instructions and Guidance did not, as was contended for by the appellant, provide for all possible circumstances of detention. It was thus not appropriate to infer that there was no power of the respondent to detain the appellant in a hospital. Chapter 55 sets out categories of persons who might not be continued to be detained in a removal centre or prison due to their circumstances, such as a medical condition. However, this guidance was not applicable, as the appellant was not being detained in a removal centre or prison, but in a hospital that could cater for his needs.

(7)        The respondent's policy furthermore did not require that the appellant be released from detention to receive hospital treatment. The Court below was thus correct to reject the submission that detention was unlawful by reason of non-compliance with the respondent's policy.

(8)        The Court concluded that it had been correct to conclude that the point had not yet been reached in finding that there was no longer a reasonable prospect of removal within a reasonable period of time. In particular, there was no evidence that the appellant's condition was not reversible and that he might at some point accept treatment. The Court held that an application of the Hardial Singh principles rightly concluded that detention had not become unlawful.

(9)        In relation to the claim that detention was in breach of Articles 2 and 3 ECHR, the Court acknowledged that these articles obliged the respondent to take positive steps to preserve life and avoid inhuman and degrading treatment. There was however no obligation under Article 2 or 3 ECHR to release a prisoner or detainee on the basis of health grounds. Rather the obligation is to handle the case properly and secure the same medical care that would otherwise have been available.

(10)     The respondent had taken steps to avoid a breach of these obligations by investigating the reasons for the hunger strike, encouraging the appellant to end his refusal to eat, determining whether he had full capacity, enabling the appellant to make an advanced end of life decision and providing him with legal advice and medical treatment. The Court found it difficult to identify what, if any, further positive steps the respondent could have taken. There was therefore no breach of Articles 2 and 3 ECHR.

(11)     The appeal was thus dismissed

Appeal dismissed

Key paragraphs

[19]-[20] - Any hospital.

[22] - Illogical argue release.

[23] - Power hold in hospital.

[34] - Not infer no power detain in hospital.

[42] - Not release to receive hospital treatment.

[45] - Court below correct, ground 2.

[53]-[57] - Prospect of removal.

[58] - Detention not unlawful.

[68] - No obligation to release.

[70] - Steps taken.

[71] - Articles 2 and 3 ECHR.

[75] - No material breach.

[77] - Decision not irrational.

[78] - Conclusion. 

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