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Court has no “superhero” jurisdiction says Home Office in unlawful detention case

In the case of Xue v Secretary of State for the Home Department [2015] EWHC 825 (Admin) the Home Office claimed that the court had no “superhero” jurisdiction and could not or should interfere with the right of the Secretary of State indefinitely to detain a foreign national. Happily for the woman concerned, who was detained for two years at the Yarl’s Wood detention camp before being released and who during that time underwent a catastrophic decline in mental and physical health, Mrs Justice Laing disagreed. A finding of unlawful detention was made and some very limited damages were awarded covering only the final month of her detention.

Mrs Justice Laing begins the judgment with some arguably unsympathetic remarks:

The longer her detention went on, the more vulnerable she became. Her physical health has been significantly compromised, probably permanently. Her mental health also declined in detention. She eventually fell down a stairwell and broke her back. But she is a foreign national. She has no right to be here.

So… it hurt less? It does not really matter? She does not deserve our sympathy? Were I a foreign national, I think I would rather not have this judge decide my case. Despite this inauspicious start the judge does go on to find in the woman’s favour, finding that the Home Office ignored the copious medical and psychiatric evidence that was repeatedly presented. In the meantime, the woman had self harmed repeatedly, she had become psychotic and owing to side effects from her medication and complications was left unable even to urinate. She needed to use a catheter, which rather reduced the chances of her absconding if released.

At no point during the two years of immigration detention does there seem to have been any prospect of removing this woman. For the first year she was not cooperating with removal but we hear nothing of any progress at all by the Home Office during the final 12 months towards removing her. Like many others, she was seemingly “warehoused” until a court finally intervened.

Against this, the woman had 17 convictions for various offences, all minor, and had a very poor immigration history. However, her total sentences of imprisonment amounted to ten months, which was below the threshold for automatic deportation, and which was far less than the time she ultimately served in immigration detention. It might also be thought that the criminal offending and lack of cooperation with removal was linked to mental health issues, but this seems not to have been a concern for the Home Office, which vigorously and rather robustly resisted the unlawful detention claim:

Miss Anderson [for the Home Office] submitted that it was not for the Court to exercise what she described as a “superhero” jurisdiction by seeking to put right perceived injustices arising from immigration detention. Detention was bound to be distressing, and depressing, for detainees. Parliament had set no time limit on the exercise of the powers conferred by Schedule 3 to the 1971 Act, and if limits were to be implied, they must not undermine the central purpose of detention, which was to facilitate the removal of FNOs who not only had no right to be here, but whose presence in the United Kingdom is not conducive to the public good. As many such prisoners, the Claimant presented clear risk of absconding and of committing further offences. To the extent that she had not co-operated with attempts to obtain an ETD, she had prolonged her own detention.

To summarise, immigration detention is awful but that is inevitable, Parliament has ordained that detention can be indefinite and the court should basically butt right out. But there is more. Miss Anderson also argued that the various medical reports were “medical advocacy” and the court should “not give them any weight, and the Secretary of State was not obliged to give them any weight”, the Secretary of State was entitled to prefer the reports of the nurses employed by the detention centre over evidence from qualified external doctors and consultants, that the Secretary of State was entitled to ignore medical reports from doctors not employed by the detention centre unless nurses employed by the detention centre had issued what is called a Rule 35 report (the same type of report that was issued, for example, in the Alois Dvorzak case but ignored by the Home Office, leading to his death) and that, anyway, detention reviews by the Home Office did not need to refer to external medical reports in order to be lawful.

These submissions were all rejected. It is worth pausing for thought to consider what limits there might be on State power if Miss Anderson’s submissions had been accepted.

Ms Xue’s voice was no doubt one of the screams of nighttime we know the detainees hear at Yarl’s Wood. Her case adds to the growing collection of judgments in which the Home Office has been found to have caused serious harm to migrants with mental health issues.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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