SSHD agrees to review Mental Vulnerability and Immigration Detention Services Order


The Secretary of State for the Home Department (SSHD) has agreed to review the Detention Services Order 04/2020: Mental Vulnerability and Immigration Detention.

The Claimant, an individual with autism spectrum disorder, mild learning disability, anxiety and depression as well likely schizophrenia and possible post-traumatic stress disorder, was detained under immigration powers from 16 June 2021 to 30 November 2022, when he was released on High Court bail following a successful application for interim relief. As a result of his mental impairments, the Claimant lacks, and is likely to have lacked throughout the period of his detention, mental capacity to make immigration related decisions, including mental capacity to decide to cooperate with attempts to remove him to Sudan.

By Judicial Review, the Claimant contended that his detention was unlawful on the following grounds:

  1. It was in breach of the Defendant’s Adults at Risk in Immigration Detention Guidance (“the AAR Policy”) (“Ground 1”);
  2. It was inconsistent with the Hardial Singh principles, particularly in circumstances where the Defendant had failed to comply with his own Detention Case Progression Panels Policy (“Ground 2”);
  3. The Defendant was in breach of the Claimant’s rights under Article 14 (when read with Article 5) of the European Convention of Human Rights, in that he did not make adequate arrangements to treat the Claimant (a detained individual with a learning disability) differently from a detained individual without a learning disability, in particular by failing to make adequate arrangements (whether by the Detention Services Order 04/2020: Mental Vulnerability and Immigration Detention (“the DSO”) or otherwise) to assess the Claimant’s mental capacity to make decisions relevant to his immigration position and detention (“Ground 3”); and
  4. The Defendant indirectly discriminated against the Claimant, contrary to s.19 of the Equality Act 2010, by failing to screen those detained under immigration powers for learning disabilities (“Ground 4”).

Following a number of requests for further information and specific disclosure, the SSHD eventually conceded that – while the DSO is designed (among other things) to identify individuals who lack mental capacity to make decisions relevant to their detention under immigration powers – there is currently no mechanism by which such individuals can in fact be identified (or assessed), with the consequence that the DSO does not operate effectively to identify individuals like the Claimant who lack mental capacity to decide to cooperate with the removal process. More broadly the Defendant conceded that: “the assessment of capacity in respect of immigration related decisions is not operating effectively or as intended in certain cases, in particular, in cases where concerns are raised about a detained individual’s ability to make immigration related decisions”.

The Defendant further conceded that:

  • Material aspects of the DSO, including the need for each IRC to maintain a “Mental vulnerability Log” and for the Home Office to keep a central record relating to clinical mental capacity assessments and their outcomes, was not operational; and
  • The DSO did not operate effectively in the Claimant’s case.

As part of the settlement, the SSHD has agreed to carry out a review of the DSO by 31 May 2024 and to notify the Claimant (through his litigation friend) of the outcome of that review.

In light of the concessions made by the Defendant and his commitment to review the DSO and pay the Claimant’s costs, the Claimant has withdrawn Grounds 3 and 4 of his challenge, with Grounds 1 and 2 proceeding as a private law claim for false imprisonment in the High Court.

Chris Buttler KC and Roisin Swords-Kieley acted for the Claimant, instructed by Duncan Lewis Solicitors.

View the Consent Order here