The Supreme Court holds that immigration legislation does not prevent detention becoming unlawful despite a failure to comply with policy.


Re: R (O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19

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) [2014] EWCA Civ 718. In regards to the policy, it stated the report had not 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 Mar and Jul 2011. However, Lord Wilson believed it was unrealistic to consider that the conditions necessary for the appellant’s release would have been in place prior to 6 July 2011, when she was released on bail, even if the SSHD had addressed the report properly and agreed to the release. 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.


Hugh Southey QC was involved in this case.