October 2013 – Immigration Detention & Mental Health
HA was a Nigerian man with serious mental health issues who was detained twice by immigration authorities in 2010. During the first 5-month detention, his mental health deteriorated to such an extent that he had to be hospitalised under the Mental Health Act 1983. Following this he spent a further two-month period in detention.
He applied for a judicial review to challenge both the lawfulness of his detention and the conditions of that detention.
Central to his claim was the change in UKBA guidance relating to the detention of people with mental health problems. The previous policy provided that the ‘mentally ill would only be considered suitable for detention in very exceptional circumstances’. This was amended and effectively reversed the presumption against detaining people with mental health issues.
The revised policy was not subject to any consultation nor did the Home Office undertake an Equality Impact Assessment on the revised guidance.
The Administrative Court found that HA’s detention was unlawful, that his treatment had breached article 3 of the European Convention on Human Rights and that the policy change had breached the public sector equality duty contained in the Equality Act 2010.
The Secretary of State gave a formal undertaking that she would carry out an impact assessment within seven days. However, the Secretary of State was then granted leave to appeal and no impact assessment was conducted. In a further twist, she withdrew her appeal shortly before the hearing was due to take place. The result of this is that the judgement in HA stands and that arguably, the current policy to detain people with mental health issues is unlawful. Despite the impact of other similar cases, without clear guidance from the Court of Appeal the case of HA can still be used to challenge the legality of the current guidance on detention of people with a mental health problem.
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