R (O) v Secretary of State for the Home Department


[2016] UKSC 19; [2016] 1 WLR 1717

In this case the Appellant O appealed to the Supreme Court against the decision of the Court of Appeal which had dismissed her appeal against the refusal to grant permission to  apply for Judicial Review. The Supreme Court provided important guidance on various areas of immigration detention law and which had been the subject of controversy in the existing case law.

The Court essentially held:

1) On the facts the SSHD had unlawfully failed to apply her published detention policy when deciding to continue to detain O between March and July 2011,

2). The reference to satisfactory management in the policy required a practical enquiry. Treatment available to a detainee only when released and which would be likely to have a positive improvement in the detainee’s condition, could be relevant and its availability should form part of the consideration on detention.

3).  Although the overall refusal to release O was procedurally flawed, it was clear that a lawful application of her policy by the Home Office would not have secured O’s release from detention any earlier than the date of her actual release on bail.

4). The power to detain a person pending deportation in Schedule 3, para 2(1) of the 1971 and under the words in parenthesis in para 2(3) was a mandate subject to two conditions: (a) there was a prospect of deportation within a reasonable time; (b) the SSHD had to consider, in accordance with the policy, whether to exercise the power to detain. If either condition was not met, the mandate would cease and the detention would become unlawful; the Court of Appeal’s decision in Francis v SSHD [2014] EWCA Civ 718 was wrong and overruled.

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