In R (on the application of TT) v Secretary of State for the Home Department Sir Michael Harrison gave judgment on February 3rd in a claim for unlawful detention where the Secretary of State had sought to justify the continued detention of a mentally ill detainee, notwithstanding his failure to apply policy with regard to the mentally ill.

TT, a Zimbabwean national, suffered from PTSD and severe depressive illness, as a result of torture and persecution in Zimbabwe. In March 2009, he was detained by the Secretary of State under s.2(3) of Schedule 3 to the Immigration Act 1971. In breach of the Detention Centre Rules 2001, TT was not provided with a physical and mental medical examination within 24 hours of his detention or at all. Additionally, the Secretary of State failed to have regard to three subsequent medical reports which diagnosed TT with PTSD and severe depressive disorder when deciding to continue TT’s detention.

Although it was accepted, on behalf of the Secretary of State, that there had been a number of failures to apply policy, it was argued that relief should only be granted where that failure to apply policy had caused the claimant’s detention. Chapter 55.10 of UKBA’s Enforcement Instructions and Guidance states that the mentally ill, and those who have been subjected to torture, will normally only be suitable for detention in “very exceptional circumstances”. It was argued that the Claimant’s risk of absconding or reoffending amounted to such very exceptional circumstances.

The judge dismissed this argument and held that where there had been “a litany of failures and breaches of policy by the Secretary of State”, it would require very compelling evidence indeed to justify detention on the basis of very exceptional circumstances. Where the Claimant’s risk of reoffending was “medium” at most, and where his risk of absconding was “between low to medium”, such very exceptional circumstances did not exist and the claimant was entitled to a mandatory order for release.

Tim Buley appeared on behalf of the successful Claimant.