Are there adequate procedures and protections for mentally ill migrants in detention centres who wish to challenge the lawfulness of their detention? No, said the Court of Appeal in R (VC) v Secretary of State for the Home Department [2018] EWCA Civ 57.

Detention centres have long been considered the “foreigner’s prison”. Investigations such as the BBC’s Panorama episode last year have revealed the “culture of abuse” prevalent in many immigration removal centres. The lack of adequately trained staff, attempted suicides and asylum seekers being forced to share cells with foreign criminals make for a toxic mix. Be warned: for those who have not seen the BBC documentary, it makes for uncomfortable viewing.

Failure to make reasonable adjustments for a mentally ill detainee

VC was bipolar and psychotic. From 2014 – 2015, he was shifted from one removal centre to the next and later transferred to a psychiatric hospital, where he was sectioned under the Mental Health Act 1983.

Despite his detention formally ending, he continued to be detained for a further seven months, which formed the basis for an unlawful detention claim. All of the grounds, bar one, were dismissed by the High Court and the matter came to the Court of Appeal.

The main thrust of VC’s argument was that he had been discriminated against by the Secretary of State’s failure to make “reasonable adjustments” under the Equality Act 2010. Singularly, it was her critical failure to make anticipatory adjustments to ensure that procedures were in place to avoid mentally ill detainees being unjustifiably disadvantaged.

In an impressive judgment (akin to a thesis, as befitting a former Cambridge professor), Lord Justice Beatson unpicked each of these arguments and found in VC’s favour.

“Lacuna” in the immigration bail system

The Equality Act 2010 is concerned with discrimination in respect of certain “protected characteristics”, which include a disability. Section 20(3) of the Act makes clear that the duty to make “reasonable adjustments” arises where a given provision, criterion or practice “puts a disabled person at a substantial disadvantage…in comparison with persons who are not disabled”.

At paragraph 157, the court reiterates the well-established principle that the duty to make “reasonable adjustments” is an anticipatory duty:

The Equality Act’s Statutory Code of Practice states (at §7.20) that “the duty is anticipatory in the sense that it requires consideration of, and action in relation to, barriers that impede people with one or more kinds of disability prior to an individual disabled person seeking to use the service, avail themselves of a function or participate in the activities of an association”. At §7.21 it states that “[s]ervice providers should therefore not wait until a disabled person wants to use a service that they provide before they give consideration to their duty to make reasonable adjustments. They should anticipate the requirements of disabled people and the adjustments that may have to be made for them…

The court discovered what Beatson LJ referred to as a “lacuna” in the system. While in other detention contexts there were regular reviews on the lawfulness of detention, in immigration detention only a bail application could initiate an independent review of the detention. Mentally ill detainees lacked the ability to initiate that process and are therefore unjustifiably discriminated against.

VC proposed three main “adjustments” to cure that flaw, including:

1. The appointment of specific “mental health advocates” to make representations on behalf of the detainee;
2. That a detainee’s capacity should be assessed at the beginning of their detention; and
3. That regular and independent reviews should be carried out without a detainee’s prompting.

The Secretary of State argued:

1. She had no power to appoint specific “advocates” for mentally ill detainees;
2. It would breach the detainee’s confidentiality;
3. That it would cost far too much.

The court rejected each submission, citing the Secretary of State’s powers under section 153(2) of the Immigration and Asylum Act 1999 which provides:

Removal centre rules may, among other things, make provision with respect to the safety, care, activities, discipline and control of detained persons.

These duties, the court said, were “sufficiently wide” to allow the Secretary of State to incorporate a system to assist mentally ill detainees in making the relevant representations against their detention. An unimpressed court summed up by saying:

The real point may be that it appears that no real consideration had been given by the Secretary of State to whether such a system could be created.

On the final point, the court was quick to point out that a vague assertion that costs would be borne by taxpayers does not discharge the burden of proof on the Secretary of State in such cases. There had been no assessment of costs whatsoever let alone any evidence that the proposed system was unaffordable.

A far-reaching decision

The Secretary of State’s submissions were fanciful. Or as the court preferred to say, “entirely unfounded”.

The impact of the case is likely to be far reaching and widespread. Whether the proposed system of “mental health advocates” is adopted, in whole or in part, remains to be seen.

As Ben Amunwa points out in his post on the case, the automatic referral provisions contained in paragraph 11 of Schedule 10 of the Immigration Act 2016 now provide for detention to be reviewed four months after the beginning of the person’s detention and every four months thereafter. However, critically, that duty excludes those subject to deportation or who have national security cases. This is likely to be a significant number of detainees who will probably continue to be detained longer than is necessary.

Living in a world where the Home Office can ignore a Tribunal’s decision to grant bail does not fill me with confidence in the slightest. It is therefore ironic for the immigration minister to suggest that the new system will “guarantee independent judicial oversight”.

Doubtless, it will pain the Home Office to actually fund a system which helps detainees rather than letting them suffer the violence and abuse prevalent in removal centres.