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Mixed messages on detention of vulnerable detainees

Mixed messages on detention of vulnerable detainees

In R (Gasztony) v Secretary of State for the Home Department [2019] EWHC 2879 (Admin), the High Court has ruled that substantial periods of a mentally ill man’s detention were unlawful because the Home Office took too long to arrange suitable alternative accommodation. However, the claimant was detained for over 16 months in total and the court found that most of that period was lawful, despite there being no prospect of removal within a reasonable time for much of it.

The decision applies the Court of Appeal judgment in R (ASK) v Secretary of State for the Home Department [2019] EWCA Civ 1239, which held that arranging alternative accommodation for mentally ill detainees (such as a hospital transfer under the Mental Health Act) is an acceptable purpose of immigration detention. The decision in ASK undermined the core requirement of the Hardial Singh principles, which is that detention may only be used for the purpose of removing someone from the UK.

In this case, Mr Gaztony was detained from 20 February 2018 to 26 June 2019. On 5 April 2018 he lodged an appeal against deportation and from 19 April 2018 the Home Office effectively conceded that removal was no longer possible, seeking to justify detention solely on the ground of arranging a transfer to suitable accommodation. Over a year later, Mr Gaztony was released into the community with exactly the same access to NHS services as anyone else.

Mr Justice Chamberlain found three periods of detention to be unlawful because of unreasonable delay in arranging accommodation, amounting to about five months of unlawful detention in total. However, he ruled that the question of whether there was a breach of the Hardial Singh principles from 19 April 2018, which would have meant about 14 months of unlawful detention, did not arise because of Mr Gaztony’s mental health problems:

The comments made by the officers who authorised detention [after 19 April 2018] for the most part show that they considered detention from that point to be justified only pending transfer to Schedule 10 accommodation or to a secure hospital. In those circumstances, the key question was whether, in detaining GKG, the Secretary of State complied with his duty to take all reasonable steps to procure GKG’s transfer (either to Schedule 10 accommodation or to a hospital) within a reasonable time. The question of whether detention might have become unlawful under the third Hardial Singh principle even if GKG did not have ASD [autistic spectrum disorder] does not, accordingly arise; and I do not decide that issue.

This illustrates a perverse consequence of the ASK judgment. Vulnerable detainees can be lawfully detained for substantially longer periods than detainees without vulnerabilities. No one would want the law to encourage the Home Office to simply eject vulnerable detainees from detention in order to avoid liability for unlawful detention, but the stark increase in the length of lawful detention in this case suggests that the courts need to be much more strict when policing Home Office delay in finding suitable accommodation for vulnerable detainees.

Alexander Schymyck

Alex teaches Public Law at Queen Mary University of London and is due to start pupillage at Garden Court Chambers in October 2020

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