The immigration detention system continues to discriminate against migrants with mental health conditions, in breach of the Equality Act 2010, the Court of Appeal has held. The case is R (ASK) v Secretary of State for the Home Department [2019] EWCA Civ 1239.

The appeal concerned two men, known as ASK and MDA, who suffered from mental illness to the point where they lacked the legal capacity to challenge their detention. The court found that the Home Office had failed to adapt its detention system to account for this situation.

ASK, an overstayer from Pakistan, was detained from January to September 2013 when he was admitted to a secure psychiatric unit. MDA, who arrived in the UK from Somalia aged 14, had been sectioned several times under the Mental Health Act 1983 but was in immigration detention from November 2015 to February 2017 (when he was sectioned again).

The government deployed Sir James Eadie QC in the face of multiple grounds of appeal. Only one succeeded, the Court of Appeal holding that the Secretary of State had discriminated against the appellants “by failing to make reasonable adjustments to the decision-making processes in breach of section 20 and 29 of the EA 2010”.

This followed from last year’s decision in R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 57. The VC case also resulted in a finding of unlawful discrimination towards detained migrants with mental illness, but little has changed since. The instructing solicitors in ASK and MDA said in a joint statement that “despite 17 months passing since that judgment, no sufficient or adequate steps have been taken by the Secretary of State for the Home Department to comply with his duty to eliminate discrimination towards migrants with mental health conditions”.

Lord Justice Hickinbottom wrote: 

… ASK’s case is not materially different from the cases of VC or MDA. Because of his illness, ASK suffered from a disability. It seems likely that, from time-to-time, he lacked the capacity properly to engage with the detention authorities in relation to important decisions that related to him, e.g. with regard to his continuing detention, segregation and non-transfer to hospital. In those respects, he was treated differently from those detainees who were not disabled. In breach of the PSED [Public Sector Equality Duty], the Secretary of State failed to have due regard to eliminate discrimination. Further, the duty on the Secretary of State to make reasonable adjustments having arisen, no adjustments were made and obvious adjustments (e.g. in the form of IMCA-type representation) could have been made. The burden was therefore on the Secretary of State to show he had complied with the duty to make such adjustments; and he adduced no evidence that he had even considered such adjustments and certainly no evidence that he had complied with the duty.

The lawyers involved, Bhatt Murphy and Deighton Pierce Glynn, have called for the Home Office to take “immediate steps to provide interim safeguarding arrangements to protect the right of access to justice for detained migrants who may lack capacity”.