QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy High Court Judge)
| THE QUEEN ON THE APPLICATION OF MDA
by his litigation friend THE OFFICIAL SOLICITOR
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|EQUALITY AND HUMAN RIGHTS COMMISSION
Mr Rory Dunlop and Mr Benjamin Tankel (instructed by Governme nt Legal Department) for the Defendant
Ms Helen Mountfield QC (instructed by Equality and Human Rights Commission) for the Intervener
Hearing dates: 27, 28 and 29 June 2017
Crown Copyright ©
NEIL CAMERON QC:
i) His initial and continued detention breached his common law rights not to be deprived of his liberty in the absence of fair procedural safeguards and was an oppressive unfair and unreasonable exercise of the power to detain.
ii) His detention breached his rights under section 6 of the Human Rights Act 1998 by breaching his rights under Articles 3 and 8 of the European Convention of Human Rights.
iii) Under the Defendant's policy in Chapter 55.10 of the Enforcement Instructions and Guidance, the Claimant should have been considered unsuitable for detention except in exceptional circumstances. No such circumstances apply in his case.
iv) His continued detention was incompatible with the Guidance on Adults at Risk in Immigration Detention issued pursuant to section 59(1) of the Immigration Act 2016 and brought into force by The Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016 and the accompanying policy set out in Guidance on Adults at Risk in Immigration Detention.
v) His detention breached principle (iii) as set out in R v. Governor of Durham Prison ex parte Hardial Singh  1 WLR 704 (at page 706).
vi) His detention breached his rights not to be discriminated against by the Defendant in the exercise of her public functions contrary to Section 29(6) of the Equality Act 2010.
vii) The Defendant failed to make reasonable adjustments for his needs when detained, contrary to section 20 of the Equality Act 2010.
viii) By failing to give due regard to the need to eliminate discrimination, and to advance equality of opportunity the Defendant breached the public sector equality duty imposed by section 149 of the Equality Act 2010.
The Legal Framework
"(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State
(a) while the Secretary of State considers whether section 32(5) applies, and
(b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.
(2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate."
"(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] 7 the Secretary of State directs otherwise)."
"62. Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction).
72 The Privy Council seems to have adopted a similar approach in Tan Te Lam, finding that the facts which had to be found for the power to detain to exist were jur isdictional facts and hence for the court to determine. Mr Giffin has pointed out that the decision went to the existence of the power rather than to its exercise, which is true, but the reasoning in that decision seems to be of broader significance. As was said by Lord Browne- Wilkinson, giving the judgment, at page 114 BC:
"If a jailor could justify the detention of his prisoner by saying 'in my view, the facts necessary to justify the detention exist' the fundamental protection afforded by a habeas corp us would be severely limited. The court should be astute to ensure that the protection afforded to human liberty by habeas corpus should not be eroded save by the clearest words."If the Secretary of State were to be entitled to determine what weight should be attached to, say, the risk of the detainee absconding if released, as compared to the weight to be attached to other factors, and so to decide whether the length of detention was reasonable, with the court only intervening if his decision was not one properly open to him, the erosion of the protection of human liberty referred to by Lord Browne- Wilkinson would be very substantial indeed."
"37 The defendant filed a witness statement from Mr Alistair Albosh a member of the Mentally Disordered Offenders Team ("MDOT") in respect of the period after the claimant was compulsorily detained under the 1983 Act, namely between 27 April 2015 and 28 September 2015. The claimant drew attention to the lack of witness evidence from the defendant in respect of the period prior to transfer to the psychiatric hospital.
38 Counsel for the defendant in reply drew my attention to R (JS (Sudan)) v Secretary of State for the Home Department  EWCA Civ 1378, where McFarlane LJ said, at para 45:
"I consider that whether or not the burden of proof is strictly engaged on a particular issue is largely dependent upon context Where, however, as in the present case, the issue relates to a period of detention, the basic facts relating to the dates upon which an individual was detained and the administrative steps that were undertaken are unlikely to be in issue. The initial burden of proof would be upon the claimant to establish the fact of detention; thereafter the burden will shift to the Secretary of State to establish lawful authority for detention as a matter of principle. The main focus of the hearing, however, is likely to be the evaluation of whether or not what had occurred was, in all the circumstances, 'reasonable'. In that context consideration of the burden of proof seems to me neither apt nor useful."
39 I note that the JS (Sudan) case was a Hardial Singh claim, but I consider that these observations are no less applicable in a policy challenge subject to a Wednesbury test of unreasonableness. Thus the defendant has elected not to introduce witness evidence, but it is not a case in which I should draw adverse inference from the fact that the defendant has not lodged witness evidence. However there is no evidence that the case worker dealing with the case of the claimant contacted the relevant mental health authorities for further advice as it was said he/she would in the reply of 2 July 2014 to the first rule 35 report."
Common Law Principles of Fairness
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"45 As to the contended duty of inquiry, counsel for the defendant says: (i) in deciding whether the decision- maker as to inquiry is in breach of the duty it is only where the view taken is Wednesbury irrational that the court can impose a different approach, it is not a question of what the claimant considers would be ideal or even sensible; (ii) that any duty to inquire was contextual; and (iii) that the context here was of a closely prescribed system of medical care and oversight of any detainee pursuant to the Detention Centre Rules and the operational standards formally adopted and used for audit within the detention centre system.
46 In R (K) v Secretary of State for the Home Department  EWHC 3257 (Admin) Haddon-Cave J approved and applied the approach adopted by Mr C M G Ockelton, Vice President of the Upper Tribunal sitting as a deputy High Court judge in R (SA (Holland)) v Secretary of State for the Home Department  EWHC 2570 (Admin) at , that:
"The Secretary of State is generally entitled to rely on the responsible clinicians where reasonable inquiries had been made and the requirements of [paragraph 55.10] were considered where applicable, so long as there was not a total abdication of the Secretary of State's own responsibilities to the clinician."
47 I respectfully agree with that view of Haddon-Cave J in the R (K) case, and with the submissions of counsel for the defendant at para 45 above. In my judgment this is not to say that the defendant is entitled to be simply passive, or to review and decide against continuing detention only if advised by the medical staff that it should do so; but I consider that the defendant was entitled to act in the expectation that there is (in default of evidence to the contrary in an individual case) a closely prescribed system of medical care and oversight of any detainee, and that the centre will be informed by medical staff if in their opinion the detainee's health (a) is likely to be significantly harmed by being detained further or (b) has become more likely than before to be so harmed."
Articles 3 and 8 of the European Convention on Human Rights
"174 The following principles relating to Article 3 are well- established in the Strasbourg jurisprudence and can be summarised by reference to the decision of the European Court of Human Rights in Kudla v Poland (2002) 35 EHRR 11, although many other cases could be cited:
(1) Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (para. 90).
(2) However, ill- treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative : it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (para. 91).
(3) The Court has considered treatment to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either bodily injury or intense physical or mental suffering (para. 92).
(4) It has deemed treatment to be degrading because it was such as to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing them (para. 92).
(5) On the other hand, the Court has consistently stressed that the suffering and humiliation involved must go beyond that inevitable element connected with a given form of legitimate treatment or punishment (para. 92). Measures depriving a person of liberty may often involve such an element (para. 93).
(6) It cannot be said that Article 3 lays down a genera l obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to receive a particular kind of medical treatment (para. 93). Nevertheless, the state must ensure that a person is detained in conditions which are compatible with his dignity and that the manner and method of execution of measures used do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (para. 94)."
"33 For a violation of Article 3 to arise there must therefore be :
(a) a denial of medical treatment which is available in hospital;(b) which is of a nature which the person's mental condition requires;(c) where evidence exists that the person concerned suffered serious consequences as a result of the denial;(d) a failure to exercise a transfer power to hospital "promptly"; and(e) the consequences suffered by the person in question reach a level of "sufficient severity" to engage the operation of Article 3. These conditions are expressed in Drew as being cumulative."
Chapter 55.10 of the Enforcement Instructions
"55.10 Persons conside red unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
- Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.
If a decision is made to detain a person in any of the above categories, the casework must set out the very exceptional circumstances for doing so on file."
"30. In formulating policy that, save very exceptionally, management of serious mental illness in an IRC, if not "satisfactory", should precipitate release, the Home Secretary has adopted a word of extreme and appropriate elasticity. It catches a host of different factors to which the circumstances of the individual case may require her to have regard. In R (Das) v Secretary of State for the Home Department (Mind intervening)  1 WLR 3538, in a judgment with which Moses and Underhill LJJ agreed, Beatson LJ, at paras 4547, 6570, offered a valuable discussion of the phrase "satisfactory management". I respectfully disagree with him only in relation to an aside in para 71 of his judgment. Beatson LJ there expressed an inclination to accept the Home Secretary's contention that, if the management of the illness in an IRC was likely to prevent its deterioration, it would be satisfactory even if treatment was available in the communit y which was likely to secure its improvement. I would not exclude the relevance of treatment, available to the detainee only if released, which would be likely to effect a positive improvement in her (or his) condition. If it was likely that such treatment would actually be made available to the detainee (rather than be no more than on offer in principle to all members of the community in N HS publications), its availability should go into the melting- pot; and the burden would be upon the Home Secretary to inquire into its availability. If, contrary to the Partnership Agreement quoted in para 29 above, the standard of care (expressly aimed at improving health as well, of course, as preventing it from deteriorating) provided to a detainee in an IRC were for so me reason not equal to that which would be made available to her if released, it would in my view be questionable, subject to the strength of other relevant factors, whether the management of her illness in the IRC was satisfactory. While satisfactory management does not mean optimal management, a narrow construction of the word "management" as meaning no more than "control" of the illness would lack principled foundation, particularly when in very exceptional circumstances the detainee may continue to be detained in the IRC pursuant to the policy notwithstanding the unsatisfactory management of her illness there.
31. Above all the policy in paragraph 55.10 of the manua l mandates a practical inquiry. As Beatson LJ stressed in the Das case, the phrase "satisfactory management" should be interpreted with regard to its context and purpose (para 45); should not be subjected to the fine analysis appropriate to a statute (para 47); nor invested with a spurious degree of precision: para 65. An important part of its context is that the management of the illness takes place in detention pending likely deportation. Treatment of a patient who finds herself in the doubly stressful circumstances both of detention and of likely deportation has its own considerable, extra challenges; treatment in those circumstances might be satisfactory even if it would not otherwise be satisfactory."
Guidance on Adults at Risk in Immigration Detention
"Assessment: general principles
The decision making process a decision maker should apply is:
- does the individual have need to be detained in order to effect removal?
- if the answer is no, they should not be detained
- if the answer is yes, how long is the detention likely to last?
- if the individual is identified as an adult at risk, what is the likely risk of harm to them if detained for the period identified as necessary to effect removal given the level of evidence available in support of them being at risk?
If the evidence suggests that the length of detention is likely to have a deleterious effect on the individual, they should not be detained unless there are public interest concerns which outweigh any risk identified. For this purpose, the public interest in the deportation of foreign national offenders (FNOs) will generally outweigh a risk of harm to the detainee. However what may be a reasonable period for detention will likely be shortened where there is evidence that detention will cause a risk of serious harm. Where the detainee is not an FNO, detention for a period that is likely to cause serious harm will not usually be justified.
An individual will be regarded as being an adult at risk if:
- they declare that they are suffering from a condition, or have experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention
- those considering or reviewing detention are aware of medical or other professional evidence which indicates that an individual is suffering from a condition, or has experienced a traumatic event (such as trafficking, torture or sexual violence), that would be likely to render them particularly vulnerable to harm if they are placed in detention or remain in detention whether or not the individual has highlighted this themselves
- observations from members of staff lead to a belief that the individual is at risk, in the absence of a self- declaration or other evidence
The nature and severity of a condition, as well as the available evidence of a condition or traumatic event, can change over time. Therefore decision makers should use the most up-to-date information each time a decision is made about continuing detention."
Once an individual has been identified as being at risk, by virtue of them exhibiting an indicator of risk, consideration should be given to the level of evidence available in support, and the weight that should be afforded to the evidence, in order to assess the likely risk of harm to the individual if detained for the period identified as necessary to effect their removal:
A self-declaration of being an adult at risk - should be afforded limited weight, even if the issues raised cannot be readily confirmed.
Professional evidence (for example from a social worker, medical practitioner or NGO), or official documentary evidence, which indicates that the individual is (or may be) an adult at risk - should be afforded greater weight. Such evidence should normally be accepted and consideration given as to how this may be impacted by detention. Representations from the individual's legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.
Professional evidence (for example from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm for example, increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk, should be afforded significant weight. Such evidence should normally be accepted and any detention justified in light of the accepted evidence. Representations from the individual's legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context."
Where on the basis of professional and / or official documentary evidence, detention is likely to lead to a risk of significant harm to the individual if detained for the period identified as necessary to effect removal, they should be considered for detention only if one of the following applies:
- removal has been set for a date in the immediate future, there are no barriers to removal, and escorts and any other appropriate arrangements are (or will be) in place to ensure the safe management of the individual's return and the individual has not complied with voluntary or ensured return
- the individual presents a significant public protection concern, or if they have been subject to a 4 year plus custodial sentence, or there is a serious relevant national security issue or the individual presents a current public protection concern
It is very unlikely that compliance issues, on their own, would warrant detention of individuals falling into this category though non-compliance should be taken into account if there are also public protection issues or if the individual can be removed quickly."
"46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in Re Hardial Singh  1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Tai A Chau Detention Centre  AC 97, 111A-D in the passage quoted by Simon Brown LJ at paragraph 12 above. In my judgment, Mr Robb correctly submitted that the following four principles emerge:
i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.
47. Principles (ii) and (iii) are conceptually distinct. Principle
(ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired."
Section 29 Equality Act 2010
"(6) A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation."
"(7) A duty to make reasonable adjustments applies to (a) ;
(b) A person who exercises a public function that is not the provision of a service to the public or a section of the public."
Section 20 Equality Act 2010
"20 Duty to make adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid."
Section 149 of the Equality Act 2010
"149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to
(a) Eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
(2) A person who is not a public authority but who exercises public functions must, in the exercise of those functions, have due regard to the matters mentioned in subsection (1).
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to
(a) Remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) Take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) Encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves ha ving due regard, in particular, to the need to
(a) Tackle prejudice, and
(b) Promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are
Pregnancy and maternity; Race;
Religion or belief; Sex;
"(1) As stated by Arden LJ in R (Elias) v Secretary of State for Defence  1 WLR 3213;  EWCA Civ 1293 at , equality duties are an integral and important part of the mechanisms for ensuring the fulfilment of the aims of anti- discrimination legislation.
(2) An important evidential element in the demonstration of the discharge of the duty is the recording of the steps taken by the decision maker in seeking to meet the statutory requirements: R (BAPIO Action Ltd) v Secretary of State for the Home Department  EWHC 199 (QB) (Stanley Burnton J (as he then was)).
(3) The relevant duty is upon the Minister or other decision maker personally. What matters is what he or she took into account and what he or she knew. Thus, the Minister or decision maker cannot be taken to know what his or her officials know or what may have been in the minds of officials in proffering their advice: R (National Association of Health Stores) v Department of Health  EWCA Civ 154 at [26 27] per Sedley LJ.
(4) A Minister must assess the risk and extent of a ny adverse impact and the ways in which such risk may be eliminated before the adoption of a proposed policy and not merely as a "rearguard action", following a concluded decision: per Moses LJ, sitting as a Judge of the Administrative Court, in Kaur & Shah v LB Ealing  EWHC 2062 (Admin) at [23 24].
(5) These and other points were reviewed by Aikens LJ, giving the judgment of the Divisional Court, in R (Brown) v Secretary of State for Work and Pensions  EWHC 3158 (Admin), as follows:
i) The public authority decision maker must be aware of the duty to have "due regard" to the relevant matters;
ii) The duty must be fulfilled before and at the time when a particular policy is being considered;
iii) The duty must be "exercised in substance, with rigour, and with an open mind". It is not a question of "ticking boxes"; while there is no duty to make express reference to the regard paid to the relevant duty, reference to it and to the relevant criteria reduces the scope for argument;
iv) The duty is non-delegable; and
v) Is a continuing one.
vi) It is good practice for a decision maker to keep records demonstrating consideration of the duty.
(6) "[G]eneral regard to issues of equality is not the same as having specific regard, by way of conscious approach to the statutory criteria." (per Davis J (as he then was) in R (Meany) v Harlow DC  EWHC 559 (Admin) at , approved in this court in R (Bailey) v Brent LBC  EWCA Civ 1586 at .)
(7) Officials reporting to or advising Ministers/other public authority decision makers, on matters material to the discharge of the duty, must not merely tell the Minister/decision maker what he/she wants to hear but they have to be "rigorous in both enquiring and reporting to them": R (Domb) v Hammersmith & Fulham LBC  EWCA Civ 941 at  per Sedley LJ.
(8) Finally, and with respect, it is I think, helpful to recall passages from the judgment of my Lord, Elias LJ, in R (Hurley & Moore) v Secretary of State for Business, Innovation and Skills  EWHC 201 (Admin) (Divisional Court) as follows:
(i) At paragraphs 
" Contrary to a submission advanced by Ms Mountfield, I do not accept that this means that it is for the court to determine whether appropriate weight has been given to the duty. Provided the court is satisfied that there has been a rigorous consideration of the duty, so that there is a proper appreciation of the potential impact of the decision on equality objectives and the desirability of promoting them, then as Dyson LJ in Baker (para ) made clear, it is for the decision maker to decide how much weight should be given to the various factors informing the decision.
 The concept of 'due regard' requires the court to ensure that there has been a proper and conscientious focus on the statutory criteria, but if that is done, the court cannot interfere with the decision simply because it would have given greater weight to the equality implications of the decision than did the decision maker. In short, the decision maker must be clear precisely what the equality implications are when he puts them in the balance, and he must recognise the desirability of achieving them, but ultimately it is for him to decide what weight they should be given in the light of all relevant factors. If Ms Mountfield's submissions on this point were correct, it would allow unelected judges to review on substantive merits grounds almost all aspects of public decision making."
(ii) At paragraphs 
" It is also alleged that the PSED in this case involves a duty of inquiry. The submission is that the combination of the principles in Secretary of State for Education and Science v Tameside Metropolitan Borough Council  AC 1014 and the duty of due regard under the statute requires public authorities to be properly informed before taking a decision. If the relevant material is not available, there will be a duty to acquire it and this will frequently mean than some further consultation with appropriate groups is required. Ms Mountfield referred to the following passage from the judgment of Aikens LJ in Brown (para ):
' .the public authority concerned will, in our view, have to have due regard to the need to take steps to gather relevant information in order that it can properly take steps to take into account disabled persons' disabilities in the context of the particular function under consideration.'
 I respectfully agree ."
Ground 1 Common Law Rights
i) The Defendant was under a duty to enquire as to the Claimant's capacity.
ii) The evidence of lack of capacity was available to the Defendant upon reasonable enquiry. Attached to Ms Weston's written reply, submitted after the oral hearing, is a 36 page Annex identifying the evidence which Ms Weston submitted was available to the Defendant upon reasonable enquiry.
i) The statutory right to detain is impliedly limited to those circumstances where there is a right to challenge detention.
ii) The Claimant fell into the category described at page 1 of the Mental Capacity Act 2005 Code of Practice, namely a person who lacked capacity to make particular decisions.
iii) That, as referred to in the witness statement of Mr Henson-Webb, of the mental health charity MIND, there appeared to be inadequate procedura l safeguards to protect the r ights of the Claimant who lacked capacity, whic h might be said to be equivalent to the 'Bournewood Gap' referred to in HL v. United Kingdom (2005) 40 EHRR 32. She also referred to the witness statement of Theresa Schleicher, a Casework Manager with Medical Justice. Ms Schleicher states that decisions on capacity are not normally part of the remit of a healthcare provider.
iv) The Defendant never asked what was the Claimant's capacity and did not enquire whether he was able, genuinely, to participate in decisions on his deportation and detention.
v) As there is a foreseeable risk that ill treatment will occur, and as reference had been made in one of the Defendant's GCID records for 20th March 2014 which questioned whether the Claimant had mental capacity, a duty to make enquiries arose.
i) No duty to conduct a capacity assessment under the Mental Capacity Act 2005 arose in this case.
ii) The issue of whether such a duty arises has been considered and rejected in VC at paragraphs 129-147.
i) Some substantial trigger would be required before the Defendant would be required to effect, invite or secure independent representation (VC at paragraph 169).
ii) The test should be whether a detainee has capacity to make decisions about whether he should seek help from a lawyer, not whether he has capacity to give instructions. If the detainee can take himself to a see a solicitor that will be enough to protect his interests.
iii) If there was strong evidence before the Defendant that the Claimant was continuously lacking in capacity to make decisions about whether to seek assistance from a lawyer then it would be Wednesbury unreasonable not to enquire into capacity.
i) The trigger did not arise in this case; and
ii) In any event the Defendant did take reasonable steps to enquire into capacity.
"129 The Claimant makes three submissions, as set out in skeleton argument for trial. (i) Pursuant to the public law duty of enquiry and in order to facilitate compliance with the MCA 2005, the Defendant is under an obligation to arrange for a detainee to have a capacity assessment where there is a reasonable suspicion that the detainee may lack capacity. (ii) Where a detainee is assessed as lacking capacity in relation to areas of decision making that are the sole responsibility of the Defendant the Defendant is obliged to make those decisions compliantly with section 4 MCA 2005, namely in the detainee's best interests; (iii) In order to make best interests decisions the Defendant must ensure that the incapacitated detainee's wishes and feelings are put forward, and that the detainee is supported to participate so far as is possible and that the detainee's interests are represented."
"138 First, therefore as a matter of construction of the Act I consider misconceived the submission that in areas of decision making which are her sole responsibility the Defendant is obliged to make those decisions compliantly with section 4 MCA 2005, namely in the detainee's best interests. Further if the Act thereby required any decision "affecting" a person without capacity to be made in his best interests it would lead to remarkable results: for instance, on his conviction in an ordinary criminal case his individual best interests would trump other interests when considering whether or for how long he should be imprisoned."
"143 As to submission (i), of an obligation to arrange for a detainee to have a capacity assessment whenever there is a reasonable suspicion that they may not have capacity 'to participate in' decisions, (a) similar considerations apply; and (b) such must in my judgment be contextual. To take a strong case, if it were all but certain that the detainee was to be removed from the UK within days and by his history and convictions he was likely to kill and maim if released in the UK, a capacity assessment might be otiose."
"169 Since the presumption of the policy is one of libert y subject to the further provisions of that policy, the decision to detain is not one in which the detainee himself truly "participates", and detention is subject in the ordinary case to challenge by review, some substantial trigger is in my view required before the Secretary of State would be required to effect, invite, or secure independent representation. If there has been only a restricted period of such lack of capacity or detachment from reality, I consider it is for the Claimant to show that it would not be artificial or over-burdensome for the Defendant not so do so. Equally I accept that temporary segregation decisions are often taken for individual operational reasons which will often demand a rapid response. It would be heavy handed and often difficult to require some formal representations in each such case, particularly where segregation may be of short duration as it was up to 24 March 2015 in each case here save one (that of 21/02/2015 to 24/02/2015). If segregation occurs repeatedly, and for longer duration, that may become a substantial trigger."
Ground 2- Articles 3 and 8 of the ECHR
i) The Claimant had frequent contact with healthcare workers.
ii) The Defendant was never warned by the healthcare workers that detention was harmful to the Claimant or damaging him.
iii) The healthcare workers informed the Defendant that the Claimant was being well managed and was fit for detention.
iv) The Claimant has not proved that he suffered from intense suffering beyond that which was inevitable with a mental health condition when in detention.
v) The threshold referred to at paragraph 33 in ASK is not met.
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"52 As regards the types of "treatment" which fall within the scope of Article 3 of the Convention, the Court's case law refers to "ill-treatment" that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible."
i) The standard of mental healthcare provided to the Claimant during his detention was not adequate for his complex needs.
ii) Treatment was not offered in a suitable therapeutic environment.
iii) A person with a psychotic mental health problem who in addition may have a past history of PTSD from events in Somalia should be considered unsuitable for detention which is known to worsen mental health conditions in such patients.
iv) When transferred from one IRC to another it appears that the new healthcare unit was not provided with adequate information about the Claimant's complex disorder and treatment and care needs.
v) Various studies indicate that there is a high risk of segregation further exacerbating existing mental health problems.
Ground 3 Chapter 55.10 of the Enforce ment Instructions and Guidance
i) The Defendant was not entitled to rely on Dr Stocking Korzen's letter of 5th January 2015.
ii) The Defendant failed to take account of the letter of 18th September 2015 from Mr Rakha.
iii) The Defendant failed to take account of other information already held by the Home Office.
iv) The Defendant failed to pose the correct questions regarding the Claimant's ongoing care and treatment needs.
v) The Defendant breached her duty of enquiry in failing to address the questions relating to 'satisfactory management' in that she interpreted 'satisfactorily managed' as meaning not detainable in hospital under the Mental Health Act.
i) Whether a potential or existing detainee falls into one the categories listed? In this case the relevant category being those suffering from serious mental illness which cannot be satisfactorily managed within detention; and
ii) If the detainee does fall into one of those categories: are there very exceptional circumstances which justify detention or continued detention?
Ground 4 Adults at Risk Guidance ("AAR Guidance")
Ground 5 the Hardial Singh Principles
i) The entry on a Bail Accommodation Proforma dated 12th January 2016 in which it is stated "We are unable to remove Mr (MDA) to Somalia within a reasonable timescale due to CST stating that 'Enforced returns to Mogadishu remain paused at the request of the Somalis. At this time there is no indication when they may restart'."
ii) The summary of a detention review carried out on 9th November 2016, in which it is stated:
"I agree to maintain detention in order for the CO to arrange for an ongoing case plan to be put in place in terms of release. There is no planned date for enforced removals to Somalia due to current political events occurring at the ending of November 2016. Advice is needed from CST on a realistic timescale. The CO should also review whether removal is recommended particularly due to his current mental health."
I note on CID that Mr [MDA] is very disruptive and has demonstrated levels of violence. The CO must also keep updated on this. Release is recommended due to the length of timescale for removal however this can only be done once we are clear on his medical health needs and ongoing care plan if release is agreed."
i) The third principle in Hardial Singh is only breached when it becomes apparent that lawful removal will not take place within a reasonable period of time (Lumba paragraph 22).
ii) Reasonableness is a matter of fact for the court.
iii) Detention can be lawful for a period when arrangements for accommodation on release are considered (R (on the application of FM) v. Secretary of State for the Home Department  EWCA Civ 807 at paragraph 60).
iv) The Defendant does not have to anticipate potential challenges to removal ... R (on the application of AR) v. Secretary of State for the Home Department  EWCA Civ 857 at paragraphs 21-23).
v) The lawfulness of the Defendant's actions cannot be judged retrospectively in the light of the fact that she was not in fact able to remove the Claimant within the timescales envisaged (R (on the application of Botan) v. Secretary of State for the Home Department  EWHC 550 (Admin) at paragraph 96).
i) As stated in the letter from the Defendant to the Claimant dated 25t h January 2016, she was entitled to conclude that whatever the issues with treatment of those suffering mental illness in Somalia, the Claimant would not suffer such treatment as (on the basis of Dr Stocking Korzen's letter of 5th January 2015) he was not suffering from mental disorder and therefore did not require treatment on return to Somalia.
ii) Alternatively in the absence of a challenge from the Claimant the Defendant was entitled to assume that removal could take place as soon as Somalia agreed.
Grounds 6 and 7: Sections 20 and 29 of the Equality Act 2010 - reasonable
i) The duty imposed by section 20 of the Equality Act 2010 is an anticipatory duty and is owed to the disabled persons at large in advance of an individua l disabled person coming forward (Finnigan v. Chief Constable of Northumbria Police  1 WLR 445 at paragraph 32). She also relied upon H v. Commissioner of Police for the Metropolis  EWCA Civ 69 at paragraph 67.
"There should have been a policy to enable the Defendant to determine the legal capacity of detained persons upon detention and for there to be regular reviews of litigation capacity."
Failure to provide particular assistance to those who lack mental capacity to enable them to access the available procedures constitutes unjustified unequal treatment.
If the Claimant's inability to litigate is disability-related, a procedure which makes it more difficult for a person with a mental disability to access the system, by contrast to a person who does not have that disability, is unlawful unless objectively justified.
There was a failure to make reasonable adjustments to features of the various systems of review and appeal available to challenge immigration detention because they proceed on the basis that the Claimant could represent his own interests. Such failure constituted a breach of section 20 read with section 29, of the Equality Act 2010.
i) The claim has not been properly pleaded and particularised. He referred to H v. Commissioner of Police for the Metropolis  EWCA Civ 69 at paragraphs 60 and 61 as an example of how such a claim should be pleaded.
ii) The County Court is the more appropriate forum as the issues turn on disputed expert evidence as to what the Claimant's impairment was.
iii) There has been no disclosure
iv) The Defendant should be able to consider whether to join healthcare providers using the Part 20 procedure.
i) At all material times the Claimant's disability was a personality disorder not a psychotic illness.
ii) The Claimant was not treated less favourably as a result of his disability
iii) The action that the Defendant took constituted anticipatory reasonable adjustments.
Ground 8 section 149 of the Equality Act 2010 -the public sector equality duty
("PS ED ")
i) What the specific disadvantages for those who lack litigation capacity are in the context of immigration detention (the first mandatory consideration under section 149(3)(a));
ii) How could those disadvantages could be removed or minimised (the second mandatory consideration under section 149(3)(a)); and
iii) What steps could be taken to address the particular needs of those who lack litigation capacity by reason of mental disability (the third mandator y consideration under section 149(3)(b) and section 149(4)).