R (on the application of MDA by his litigation friend the Official Solicitor) v Secretary of State for the Home Department, EHRC intervening  EWHC (Admin) (judgment 18 August 2017)
MDA arrived in the UK as a child aged 13 or 14 years, having fled war in Somalia where he recounted he had been subjected to very serious ill treatment and exposed to traumatic violence including sexual violence.
Within weeks of his arrival he was admitted to a children’s psychiatric unit suffering from mental ill health including sexual disinhibition. The Home Office considered him too ill to be interviewed about his asylum claim and granted him discretionary leave to remain for three years on account of his severe mental ill health and the lack of treatment and care in Somalia. A social worker informed the Home Office that it was unlikely he would ever be safe to live independently and that he posed a risk to himself and the public.
He spent years in hospital and psychiatric care, suffering from distressing psychotic symptoms and complex PTSD. By now an adult, following imprisonment for offences committed while in a psychiatric unit, a decision was made to deport him and to detain him pending deportation.
Lacking capacity to instruct a representative or access justice, he remained detained in various immigration removal centres, refusing to accept medical treatment or see an advisor, until Detention Action alerted lawyers to his deteriorating situation. His release was ordered by the High Court following an application for interim relief and MDA was admitted to a psychiatric unit. MDA was assessed by multiple professionals as lacking litigation capacity and also lacking capacity to consent or refuse treatment.
In his claim for judicial review, MDA, by his litigation friend the Official Solicitor, sought a declaration that he had been unlawfully detained under the Immigration Acts. He argued that his initial and continued detention breached his common law right 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.
The court found that on the facts of MDA’s case the Secretary of State was under a duty to enquire as to his capacity before deciding to detain him. The failure to conduct an enquiry into MDA’s mental capacity and its consequences amounted, on the facts of MDA’s case, to a breach of his common law right to fair procedural safeguards and as a result the whole of his detention under the Immigration Acts had been unlawful  – .
The court further found that because he had found that “the Defendant did not make sufficient enquiries to gather the necessary information to enable her to properly take account of the Claimant’s disabilities in the context of the decision to detain” the Secretary of State had also breached the Public Sector Equality Duty set out in s149 Equality Act 2010 .
This important judgment addresses serious deficiencies in approach to immigration detention of vulnerable adults which have been the subject of severe criticism including by the Joint Committee on Human Rights and Sir Stephen Shaw, former HM Chief Inspector of Prisons.
MDA was represented by Amanda Weston of Garden Court’s Public Law and Civil Liberties and Human Rights teams, instructed by the Official Solicitor as litigation friend to MDA and Sue Willman of Deighton Pierce Glynn solicitors.
The Intervener was represented by Helen Mountfield QC, instructed by Clare Collier of the Equality and Human Rights Commission.