R (IM (Nigeria)) v SSHD sub nom R (Muaza) v SSHD [2013] EWCA Civ 1561, [2013] MHLO 113

Unsuccessful appeal in hunger strike deportation case. [Summary required.]

Related judgments

R (IM (Nigeria)) v SSHD sub nom R (Muaza) v SSHD [2013] EWCA Civ 1561, [2013] MHLO 113

ICLR

The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.  

IMMIGRATION — Detention pending deportation — Medical treatment — Detainee on hunger strike refusing medical treatment — Whether Secretary of State having power to remove detainee for treatment under detention in hospital — Whether detainee should be released from detention for treatment

Regina (IM (Nigeria)) v Secretary of State for the Home Department

[2013] EWCA Civ 1561!; [2013] WLR (D) 476

CA: Lewison, Lloyd Jones LJJ, Sir Stanley Burnton: 5 December 2013

The Secretary of State for the Home Department had power to detain in hospital an immigration detainee pending his removal from the United Kingdom and such power was not limited to a person detained under section 48 of the Mental Health Act 1983. The Secretary of State’s policy on detention allowed for the removal to hospital of a detainee whose serious medical condition could not be treated in the detention centre and did not require that he be released from detention in order to receive medical treatment.

The Court of Appeal so stated, inter alia, when giving reasons for dismissing on 25 November 2013 the appeal of the claimant, IM, a Nigerian failed asylum seeker detained in a detention centre pending his removal from the country. On 19 November 2013 Ouseley J had refused his claim for judicial review of his continuing detention because it breached the Secretary of State for the Home Department’s policy on detention and breached articles 2 and/or 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

LLOYD JONES LJ said that the Secretary of State had power under paragraph 3(1) of the Immigration (Places of Detention) Direction 2001( made pursuant to paragraph 18(1) of Schedule 2 to the Immigration Act 1971) to detain in hospital an immigration detainee pending his removal from the United Kingdom. The power to detain in hospital was not limited to a person detained under section 48 of the Mental Health Act 1983. The Secretary of State’s published policy on detention did not prevent the removal to hospital in detention of a detainee whose serious medical condition could not be managed satisfactorily in a removal centre, and accordingly, it did not require his release from detention to enable him to receive hospital treatment. The continuing refusal of the claimant to accept any medical treatment removed his case from the scope of the policy statements because they did not envisage such a case. The judge was correct to reject the submission that the continuing detention of the claimant was unlawful by reason of a failure to comply with the policy. The question arose as to how the principles relating to the length of time during which a person may be held in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704! applied in a case of food and fluid refusal where the medical condition may be regarded as self-inflicted and where the detainee may choose to end that refusal. The application of the principles required an assessment of the prospects of removal within a reasonable time in the light of all available evidence. The production of an end of life plan of itself did not mean that the point had been reached beyond which detention became unlawful. The Secretary of State had taken reasonable positive steps to avoid a breach of article 2 or 3 of the Convention in the circumstances arising from the claimant’s refusal of food and fluids. SIR STANLEY BURNTON and LEWISON LJ agreed.

Appearances: Elisabeth Laing QC and Nicola Braganza (instructed by Deighton Pierce Glyyn) for the claimant; Eleanor Grey QC (instructed by Treasury Solicitor) for the Secretary of State.

Reported by: Alison Sylvester, Barrister.

© 2013. The Incorporated Council of Law Reporting for England and Wales.

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