MXV, R (on the application of) v The Secretary of State for Home Department

Introduction

This case concerns the Secretary of State’s powers and duties when detaining a foreign national with HIV for the purposes of deportation.

In R (CSM) v Secretary of State for the Home Department [2021] 4 WLR 110, Bourne J held that, having regard to its nature, the potential consequences of interrupting antiretroviral treatment (“ART”) were capable of engaging Article 3 of the European Convention on Human Rights (“ECHR”). In that case the claimant was adhering to a prescribed regimen of ART at the time of his detention. The Secretary of State was responsible for a delay of around 1½ days in providing the claimant’s prescribed treatment. Having scrutinised the circumstances, the Court found a breach of the Article 3 ECHR systems and operational duties.

The circumstances of the present case are different. At the time of his detention in March 2024 the Claimant had not taken ART for a lengthy period, likely since 2021. It was necessary for him to be clinically assessed before ART could be restarted. The Claimant also suffered from paranoid schizophrenia for which he was taking medication.

The issues before the Court are whether, in detaining and maintaining the detention of the Claimant, the Secretary of State acted in breach of the operational and systems duties arising under Article 3 ECHR. The Court is also required, in light of amendments to the Immigration Act 1971 (“IA”) introduced by the Illegal Migration Act 2023, to consider the proper approach to assessing compliance with the principles derived from R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704, and whether any breaches of those principles, or of Article 5(1)(f) ECHR, are established. Finally, the Court must determine whether the Claimant’s detention was vitiated by public law error, including any failure by the Defendant to comply with the requirements of her published policy.

In this judgment, I begin by setting out the relevant factual background. I then turn to the evidence before the Court concerning HIV and ART, and the Secretary of State’s published policy framework. I then address four issues: first, the operational duty under Article 3 ECHR; secondly, the systems duty; third, the application of the Hardial Singh principles and Article 5(1)(f) ECHR; and finally the other alleged public law errors.

For reasons given below, I conclude that no breach of the operational or systems duties under Article 3 ECHR has been established. Although for the most part the Claimant’s detention was lawful applying the Hardial Singh principles (as modified by paragraphs 2(3A) to (3E) of Schedule 3 IA) and/or Article 5(1)(f) ECHR, the Claimant’s detention from 1 June 2024 until 19 June 2024 was unlawful. I further reject the Claimant’s arguments that the Secretary of State failed to comply with her published policies.

Factual Background

The Claimant (“MXV”) is a citizen of Zimbabwe, born on 14 August 1981. He arrived in the UK in 2004. In 2009 he was granted refugee status and subsequently, in around 2014, indefinite leave to remain (“ILR”).

MXV has two medical conditions which are relevant to the issues in this case:

After being discharged from hospital on 6 November 2015, MXV informed the Community Mental Health Service that he was HIV positive but that his treatment was “blood tests only every 6 months”. In respect of his mental health condition, he was receiving antipsychotic depot injections.

At some point during the ensuing years it appears that MXV was prescribed ART in the form of oral Biktarvy. By 2019, however, he had stopped taking this medication. In a note dated 2 August 2019, the Community Mental Health Team recorded that MXV had:

“…been denying his HIV status and has declined to attend appointment with consultant with regard to treatment. Consultant is very concerned as without treatment soon [MXV’s] immune system will be severely compromised and he will be at serious risk of infection.”

A medical note dated 2020 indicates that in 2019 he had:

“stopped taking his tablets … of his own accord and Dr was aware and monitoring – but he has attended no follow ups”.

Medical records of 26 June 2021 state that MXV did not like his previous HIV medication because of “lots of side effects”; he was advised the HIV will not have gone away by itself. A further entry dated 3 August 2021 records that he was not be taking HIV medication at that time, although he reported feeling well.

MXV has a significant criminal history in the UK. He has 11 convictions for 17 offences recorded between March 2012 and March 2023. In particular, on 19 February 2021 he was convicted at Chester Crown Court of two counts of possession with intent to supply a class A drug, one relating to cocaine and the other to heroin. On 29 April 2021 he was sentenced to 2 years’ imprisonment. That sentence was of sufficient length to render MXV a “foreign criminal” within the meaning of section 32(1) of the UK Borders Act 2007 and to trigger automatic deportation under section 32(5) of that Act.

While serving that sentence, MXV was noted to have paranoid schizophrenia and was treated with depot injections. He was also known to have HIV, but was not receiving treatment. On 6 September 2021, he was seen by the sessional GP at HMP Risley, who recorded the following:

“Confirmed HIV pos and bloods suggest active disease… Doesn’t want any medication for HIV as tried before and made him feel sick. … having treatment is not contrary to his faith but feels as if he doesn’t have HIV and has never had it. Has never been poorly with it. Knows it can make him poorly without treatment. … happy to take risk that without treatment he could die young… Difficulty to fully assess capacity but I think he does have capacity but has some underlying health beliefs that are causing him to deny reality…”

By 13 October 2021, MXV told a nurse that he would like to recommence treatment for his HIV. He was seen by the specialist nurse on 11 November 2021, who recorded:

“November 2020 last tablets. Did not want to tell staff due to it being confidential but he is eager to recommence.”

Blood tests were subsequently undertaken, and a discussion took place with the doctor regarding the most appropriate medication to restart, having regard to previous treatment and resistance. On 25 November 2021, MXV was prescribed a 56-day supply of Biktarvy (one tablet per day), and it appears he commenced this medication shortly thereafter.

By that stage the custodial portion of MXV’s sentence had come to an end but he remained subject to immigration detention until 22 December 2021. On that date, MXV was convicted of further offences concerning the supply of Class A drugs. He was sentenced to a total of 12 months’ imprisonment. The custodial portion of that sentence lasted until May 2022, and he was released on 13 May 2022.

Following his sentence in late April 2021, the Secretary of State issued and served on MXV (i) a notice of decision to make a deportation order, dated 16 May 2021, and (ii) a notification of intention to cease refugee status, dated 5 August 2021. MXV responded on 25 May 2021 and 21 September 2021. On the latter date he made short handwritten representations, which included the following:

“I would like to stay in the UK with my daughter who is a UK citizen. I also suffer from multiple illness such as paranoia [schizophrenia] and HIV. I do not have any family in Zimbabwe so won’t have any support.”

The Secretary of State treated these representations as a protection and human rights claim. On 22 November 2022, the Secretary of State decided to revoke MXV’s refugee status. This was followed, on 28 November 2022, by a decision to refuse MXV’s protection and human rights claim. When refusing MXV discretionary leave, the Secretary of State referred to his paranoid schizophrenia and HIV, and set out the basis for her view that appropriate treatment was available in Zimbabwe.

A deportation order was also signed on 28 November 2022. The effect of that order was that MXV’s ILR ceased: see section 5(1) IA. MXV did not appeal these decisions at that stage.

In or around November 2022, MXV became homeless. On 25 November 2022, the Community Mental Health Team recorded that he was living outside in a shed. At that time, he had missed a depot injection and his mental health was deteriorating. A record dated 26 November 2022 states that he informed the consultant psychiatrist that his HIV was under control and he was still on medication for it. At the end of December 2022, the Community Mental Health Team saw MXV and recorded that he was homeless and “sofa surfing”. The homelessness team had attempted to place him with the YMCA and in local bed and breakfast accommodation, but this was unsuccessful due to concerns about his behaviour. By January 2023, MVX was noted to be living rough in the underground car park next to Crewe Police Station. A record dated 13 February 2023 states that he had again missed a depot injection and had begun hearing voices. He remained homeless during 2023. It was recorded that he was staying at a hostel in May 2023 and sleeping rough or at a church in June/July 2023. During this time he missed further depot injections. By August 2023, his last injection had been administered in May. At that point the Community Mental Health Consultant expressed concerns regarding MXV’s substance misuse, which were sufficient to lead to the cessation of his prescribed anti-psychotic medication.

In preparation for his deportation, the Secretary of State agreed emergency travel documentation with the Zimbabwean authorities on 31 August 2023.

On 19 October 2023, officials acting on behalf of the Secretary of State made enquiries of the Blackburn and Darwen Community Mental Health Team and its Clinical Lead, Joseph Ball. Mr Ball was asked to provide an update on MXV’s current health status, details of his medication, and an up-to-date medical report. Mr Ball replied the same day, noting that depot injuections had restarted and were being administered every four weeks, the most recent having been given on 11 October 2023. Further updates were requested in November 2023.

On 22 December 2023, the Secretary of State’s officers sought advice from Aeromed Medical in relation to the proposed deportation of MXV. The response, dated the same day, recorded that he had a diagnosis of paranoid schizophrenia and was HIV positive. It stated:

“The previous concern was that he was not attending clinic for his depot injection but that has now been switched to tablets; unfortunately [there] is no way to monitor if he is compliant with his meds, but the report states he has capacity and good insight into the need for medication; therefore we have to assume he is taking appropriate responsibility… He has been given a supply of 28 tablets and they have stated they will continue to provide these so I am sure he will be given a supply to return to Zimbabwe with.”

The Secretary of State’s officials then sought confirmation of the name of the mental health medication, to ensure its availability in Zimbabwe, and asked whether MXV would be provided with medication for his HIV. In a response on 17 January 2024, it was stated the mental health medication was Zuclopenthixol and that MXV would “certainly” be on medication to preserve his immune function, and that he would be provided with a supply to return to Zimbabwe with. After that response, an internal Home Office email (also of 17 January 2024) recorded:

“Prior to providing a removal date, we will need to ensure he will receive [a] supply of medication for HIV as he would not be accepted by [detention gatekeeper]/IRC without this. If he is barrier free, and once confirmation [is] received of his HIV medication we can look at a suitable removal date in line with an EV.”

On 23 February 2024, Mr Ball wrote again to the Secretary of State’s officials following a review of MXV, stating:

“His situation remains exactly the same, he continues to take illicit substances [and] is currently prescribed oral antipsychotic medication for residual symptoms of schizophrenia. In relation to his physical health, [he] completed some physical health observations and a further appointment was booked with the GP this morning which he refused to attend.”

On 26 February 2024, the Secretary of State authorised MXV’s detention. The forms that were completed by the reviewing officer recorded that he was to be detained for removal purposes under paragraph 2(3) of Schedule 3 IA, that emergency travel documentation was in place and there were no barriers to removal. The estimated timescale for removal was between zero and one month. After noting the diagnoses of paranoid schizophrenia and HIV, the reviewing officer stated:

“[MXV] was referred to the Mental Health Team with a diagnosis of paranoid schizophrenia which is currently stable and he was prescribed Zuclopenthixol 400mgs in tablet form every four weeks. This will be available for his removal. Other risks to highlight are that he hears voices and is HIV Positive. RL Complex cases and Aeromed have been advised what medication he currently has for this condition, this will be made available for his removal.”

MXV was assessed as being at level 3 under the Adults at risk in immigration detention (“AAR”) policy. The risks of absconding, harm, and re-offending were each assessed as high.

On 27 February 2024, the Secretary of State’s officials again contacted Mr Ball, asking:

“Would it be possible to ensure that [MXV] has at least a 30 day supply of all of his prescribed medication and antiretroviral drugs (ARV) on the day of his detention otherwise it will not be possible to detain him as the IRC he will be taken to will not have a supply.”

Mr Ball’s response, also on 27 February 2024, was as follows:

“[MXV] was given a 28 day supply of Zuclopenthixol 20mg oral tablets on 22/02/24, the next P-10 is due 21/03/24. We question if he [is] even taking the medication, the depot injection was discontinued due to pervasive illicit substance misuse (Crack cocaine). His presentation remains unchanged if medicated or unmedi[c]ated , this gentlemen has capacity to make decisions around his care.

In relation to anti-viral drugs he is not currently prescribed this medication at this time, he attended the GP last week for a physical health check but I am unable to see the blood results. No medication has been prescribed from their service.”

Accordingly, by 27 February 2024 it was clear to the Secretary of State that MXV was not receiving antiretroviral medication for his HIV.

On 1 March 2024, the Secretary of State’s officials recorded that they had liaised with Aeromed “regarding [MXV] not being compliant with anti-viral medication. They advised this should not hinder his removal”.

On 6 March 2024, MXV’s detention plan acknowledged MXV was considered vulnerable “because of his medical issues (Paranoid schizophrenia and HIV positive) and recreational drug use”. His detention and removal was authorised by the Head of Foreign National Offenders Returns Command the same day. The request which she approved indicated that the medication MXV currently had would be made available for his removal.

On 7 March 2024, the Secretary of State’s officials again contacted Mr Ball to confirm whether MXV would have “either his medication and/or a prescription” with him as he was to be detained the next morning. Mr Ball responded (the same day):

“As previously mentioned [MXV] was given a 28 day supply of Zuclopenthixol 20mg oral tablets on 22/02/24, the next FP-10 is due 21/03/24. Therefore if detained tomorrow he will have a 13 day supply. If detained and he has no medication on his person, please do not hesitate to contact myself and I will write a repeat prescription.”

On the same day, a special operations form was completed with a request for a medic to be present at the time of MXV’s detention. In relation to HIV, the form stated:

“In relation to anti-viral drugs he is not currently prescribed this medication at this time, he attended the GP last week for a physical health check but I am unable to see the blood results. No medication has been prescribed from their service.”

On 11 March 2024, a Detention Gatekeeper also verified the case for detention and asked for confirmation that “all [MXV’s] required medication is on his person”. The record assessed MXV at AAR level 2 and explained:

“Medical Issues: [MXV] was referred to the Mental Health Team with a diagnosis of paranoid schizophrenia which is currently stable and he was prescribed Zuclopenthixol 400mgs in tablet form every four weeks. Other risks to highlight are that he hears voices and is HIV Positive. RL Complex cases and Aeromed have been advised what medication he currently has for this condition, this will be made available for his removal. He should have medication/prescription with him as the police are picking him up and taking him to the ICE team at the Custody Suite.”

On 11 March 2024, MXV was detained. He was served with a notice of detention (IS91), reasons (IS91R) and removal directions indicating he would be deported on a flight to Harare departing on 19 March 2024.

On arrival at Harmondsworth Immigration Removal Centre (“IRC”) on 11 March 2024, MXV was seen by a nurse for initial screening. The contemporaneous record included the following:

“History of homelessness… States he [has been] homeless for 2.5 year[s]…

Diagnos[is] of paranoid schizophrenia.

no (Footnote: ¹) medication. …

Referral to mental health team…

HIV screening test…

is not receiving prescribed medication…

no[t] on any medication currently.

have tablets in his bag but no name of medication…

Referral to GP … – mental health issues…

On his movement, order recorded that he take[s] Zuclopenthixol 400mg tablets form [sic] every four weeks. Also has been diagnosed [with] paranoid schizophrenia and he hears voices and HIV positive he states that he not take medication for HIV.

Positive cocaine and THC (Footnote: ²)”

On 12 March 2024, MXV’s detention was subject to review 24 hours into his detention. MXV was assessed at AAR level 2. His paranoid schizophrenia was noted, along with the prescription of Zuclopenthixol. It was said he “has 20 tablets with him in custody and takes 1 per day. Custody nurse has stated that the label has worn off so he cannot be given these in custody.” His HIV status was identified and it was said: “RL Complex cases and Aeromed have been advised what medication he currently has for this condition, this will be made available for his removal”. It was noted that MXV was due for removal on 19 March 2024. MXV was assessed as posing a high absconding, harm and re-offending risk.

Also on 12 March 2024, MXV was seen by a GP for an assessment under Rule 34 of the Detention Centre Rules 2001. The record of that assessment states:

“1.

HIV – not on any meds

2.

Schizophrenia, paranoia – … He said he was homeless hence, he did not have an injection. He said that he would like to go back on depot…”

A plan was set out for an urgent referral to a psychiatrist, Dr Patel. The referral note indicates that Dr Patel was to assess whether MXV could go back on depot injections for his schizophrenia. Blood tests were also arranged, although unlabelled samples had to be discarded and repeated.

On 14 March 2024, Dr Patel saw MXV and a review was conducted. For his paranoid schizophrenia MXV was prescribed Risperidone 3mg (28 tablets) to be taken at 6pm. A few days later, on 18 March 2024, a nurse discussed MXV’s case with Dr Patel. Dr Patel stated that he was happy for MXV to return to Zimbabwe on the new prescription without further monitoring. Dr Patel agreed to make an entry on the patient record and did so later the same day, explaining:

“It was not clinically appropriate to restart a depot injection about 5-6 days before he leaves UK as it is not possible to monitor him for any side effects and the medication has a slow onset of action. It is therefore prudent to start him on oral medication with quick action. He has been asymptomatic for several weeks.”

By 15 March 2024, the results of MXV’s blood tests were available. These confirmed “HIV type 1 detected”. MXV saw a clinical practitioner that day who referred him to the genitourinary medicine (“GUM”) clinic. Healthcare records show that the referral to the GUM clinic was sent off on the same day. The form stated “Not on any treatment”. When contacting the GUM clinic, healthcare was informed that the specialist was out of the office until 21 March 2024.

On 18 March 2024, a nurse made the following entry into the patient record:

“[MXV] has flight for tomorrow 19.03.2024. During MDT meeting it was agreed that healthcare should chase his appointment for blood/ and his HIV appointment and prescription. Blood is out, however, need appointment with the specialist for prescription. The specialist will be back on Thursday 21.03.2024. After the appointment he need[s] to take his tablet for some days before he is allow[ed] to go to monitor the side effect[s]. He needs urgent blood tomorrow.”

Meanwhile, a medical hold on deportation was initiated and approved. The forms, completed on 18 March 2024, indicate that MXV had last taken HIV medication in 2022. It was noted that the specialist at the clinic was out of the office until 21 March 2024. The following was recorded:

“Normally, after the appointment, the medication can be prescribed. Patient needs to take the medication for a few days to make sure patient has no complication[s]. Please do not move him/her to another centre.”

The following day, 19 March 2024, removal directions were deferred and MXV was subject to a medical hold. The IS91RA Part C form, completed on that date, states:

“Medical Hold – [MXV] is diagnos[ed] with paranoid schizophrenia, his antipsychotic medication zuclopethixol 500mg (injection) was switched to risperidone 3mg (tablets) on 14/03/2024 to prepare him for deportation. This needs to be monitored and stabilised before flying.

[MXV] has medical diagnosis of Human Immunodeficiency Virus he is currently going under investigations in order to re-start his medication for his illness. He has an appointment with the specialist clinic on 02/04/2024.”

On 20 March 2024, MXV asked to be seen by a doctor for the production of a report in accordance with Rule 35 of the Detention Centre Rules 2001. He was seen and a report produced on 25 March 2024. The doctor reported that MXV described himself as being a victim of torture and that he was experiencing worsening mental health in detention; he was referred to mental health for further assessment. The report inaccurately stated that MXV was “on treatment” for HIV.

Also on 25 March 2024, the Secretary of State reviewed and maintained MXV’s detention at a 14-day review. The documentation stated that there were no barriers to removal, but this was updated with information about the medical hold (described above). The reviewing officer assessed him at AAR level 3. He remained at high risk of absconding, harm and re-offending.

On the same day, the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) refused MXV’s application for bail. The FTT recognised the presumption in favour of liberty but, applying the principles in Hardial Singh, considered that there were no reasonable alternatives to detention. The FTT stated:

“I accept there are no barriers to removal. An ETD has been agreed by the Zimbabwe High Commission and removal direction[s] were previously set for 19^th March 2024. Removal directions can be reissued once the applicant is in receipt of his prescribed medication.”

The Secretary of State responded to the Rule 35 Report on 26 March 2024. The response assessed MXV at AAR level 2 noting that his schizophrenia was being treated with medication under guidance of the healthcare team and an appointment with an HIV specialist had been arranged for 2 April 2024. Removal within 4-6 weeks was envisaged. After consideration of the relevant factors, detention was maintained.

On 28 March 2024, MXV’s referral for mental health assessment (arising from the Rule 35 Report) was considered. It was noted that he “did not want to engage” and was already known to mental health caseload. He was added to the psychology waiting list.

An HIV screening test was taken on 27 March 2024. The results, recorded on 2 April 2024, showed an “abnormal” result.

MXV was seen by Dr Luciana Rubinstein, Lead Clinician for Sexual Health and HIV at the GUM Clinic on 8 April 2024. She entered the following note on the system:

“08.04.2024 - LR/CD review - age 42, from Zimbabwe, previous HIV care in Crewe under Dr. Wood, according to patient. Disengaged from care since 2021, ARV interrupted then. HX of schizophrenia on Risperidone. Unsure about ARV Hx, no medical summary yet. Blood results: VL: 20000, cd4: 560, vit D: 22, Hep A immune, needs Hep B booster, Hep C neg. Rest unremarkable. Awaiting genotype and HLA. Plan: Dr. Wood contacted directly by email, Consider Biktarvy initiation for discussion at MDT. Needs consultant follow up. L. Rubinstein”

Also on 8 April 2024, MXV’s detention was reviewed (1 month review). The reviewing officer assessed MXV at AAR level 2. The risk of absconding, harm and reoffending remained high. Detention was maintained because removal directions could again be requested “once his medication has been prescribed”; removal was deemed likely within a reasonable timescale.

On 15 April 2024, a letter was sent from the GUM Clinic to Harmondsworth IRC concerning MXV’s treatment plan. It stated:

“[MXV] was reviewed recently in the Hillingdon HIV clinic. He has been living with HIV since 2007 but unfortunately has disengaged from care and is not currently on anti-HIV medication. His blood test indicated high viral load, 20893 copies/ml, associated with high risk of morbidity, mortality and transmission. Furthermore there is also the potential risk that his HIV virus may have become resistant to standard treatment following this period of treatment interruption.

He has an appointment with one of the HIV consultants at the end of the month to discuss initiating medication. Until he is stable on antiretroviral therapy and the viral load is undetectable should not be considered stable and therefore is not fit to travel. We would also advise against relocating him to a different service to avoid disrupting his care even further.”

There is a healthcare note on 16 April 2024 that an enquiry was made to the GUM Clinic as to the status of MXV’s HIV medication “as information was being requested from HO for re-request or deportation”. It was noted that MXV had an appointment scheduled for the GUM clinic on 30 April 2024. The note indicates: “Spoke to admin team and requested appointment be brought forward urgently so resident can be seen and be started on medication ASAP”. Later in the day, following a discussion with the clinic, it was confirmed that the appointment on 30 April 2024 would be maintained. On 17 April 2024, a note in MXV’s patient record records that he was “not fit to fly till stable” with his medication.

On 18 April 2024 an outpatient prescription for ART was sent to Harmondsworth IRC from the Northwick Park Hospital on behalf of the GUM Clinic. Dovato and Tenofovir Disoproxil tablets were prescribed to be taken once a day. The prescription covered a three month supply of each.

On 25 April 2024, MXV was seen by the psychiatrist, Dr Patel. He was noted to have a “[s]table mental state”. Dr Liz Clark of Medical Justice also saw MXV at Harmondsworth IRC on 25 April. The following day, she sent a letter to the healthcare team recommending his mental health be monitored and, in respect of HIV, as follows:

“I understand that he has a GUM appointment on 30.4.2024 with a view to restarting antiretroviral therapy. I recommend that BHIVA guidelines ‘Detention, Removal People Living with HIV June 2009’ are followed, including that no-one is removed whose condition is not stable having just started ART.”

On 30 April 2024, MXV was seen by Dr Rubinstein at the GUM Clinic. The record of that consultation indicates:

“Hx of poor adherence and engagement with care. Last seen by services in 2021, whilst in prison in Liverpool, on Biktarvy then… Off ARV since then. History of Schizophrenia…I contacted the duty manager of the IRC who confirmed he is not to be uncuffed. They argue it is their policy following risk assessment.”

Nonetheless Dr Rubinstein was able to prescribe medication for MXV as set out in her record of the consultation. This prescription was then entered into the healthcare system on 30 April 2024 as follows:

“Prescription from another organisation – arrived from hospital today added to gp ledger to prescribe 3 x 30 dolutegravir/lamivudine 50mg/300mg (Dovato) – 1 daily … 3x30 Tenofovir Dispoproxil 245mg – 1 daily … enough medication to cover until 29/7/24”

On 1 May 2024 a clinical practitioner in the healthcare team spoke to Dr Rubinstein at the GUM Clinic and made the following note:

“Spoke with consultant Dr Rub[i]nstein from Wakely centre. Advised medication to be restarted and in 2 weeks time 15/5/24 FBC U&Es HIV viral load LFTs. Plan@ Booked for BTs – we need to communicate results to them once this is done so they can decide on plan going forward.”

On 1 May 2024, MXV was offered his first dose of ART but he refused and wanted to speak to a GP about it. He saw the GP the next day, 2 May 2024, who recorded:

“appt made as patient wanted to be counselled before taking his HIV meds. can see was meant to see consultant at [W]akely on 30/4 but tells me not seen as he was handcuffed. no letter yet. was “just told” to take meds and he is not happy until SEs etc are explained. was previously on 1 tablet until 2021 managed by eagle bridge crewe but since 2021 been off meds as he was not referred in the community. Plan: went through BNF with him, discussed common SEs, agreed to take now but still would like to have the appt with specialist as previously planned for more detailed explanation. i will write. as of now, for bloods on 15/5 as previously planned”.

The GP then made a reference to the GUM Clinic accordingly.

On 3 May 2024, MXV took his prescribed HIV medication stating he had “no new concerns” and that he was “happy with current plan”. Testing later in the month revealed that MXV’s viral load had returned to undetectable levels (see note of 22 May 2024).

On 3 May 2024, MXV’s detention was reviewed and authorised on 6 May 2024. The reviewing officer assessed him at AAR level 3, with the risk of absconding, harm and reoffending unchanged. The estimated time for removal was said to be 4-6 weeks and no case-working barriers to removal were identified.

Meanwhile, on 24 April 2024, Duncan Lewis Solicitors, acting on behalf of MXV, had lodged an out of time appeal against his deportation, accompanied by a request for an extension of time. The appeal was admitted out of time by the FTT on 29 April 2024. A directions hearing for case management was listed for 17 May 2024, with the substantive appeal listed for 6 June 2024. At the directions hearing on 17 May 2024, the substantive hearing was relisted for 2 September 2024.

On 2 May 2024, Duncan Lewis Solicitors sent a pre-action protocol letter before action challenging the lawfulness of MXV’s detention. On 15 May 2024, the Government Legal Department responded on behalf of the Secretary of State, rejecting the allegations of unlawfulness and maintaining that the detention was proportionate and lawful, albeit subject to ongoing monitoring. On 29 May 2024, MXV commenced these judicial review proceedings, accompanied by an urgent application for interim relief. Directions on that application, together with an order for anonymity, were made by Freedman J on 31 May 2024.

A further review of detention took place on 3 June 2024. At this point, two barriers to removal were identified: first, the pending appeal to the FTT, which had been admitted out of time; and secondly, the need for emergency travel documentation to be revalidated. The timescale for removal was considered to be between 3-6 months. MXV was assessed at AAR level 3, with the risks of absconding, harm and reoffending remaining high. A decision was made to authorise continued detention for a short period whilst accommodation was sourced, after which MXV would be released. That course was approved and a release referral was agreed.

On 5 June 2024, the result of MXV’s blood test revealed raised immunoglobulin, as expected. That indicated “an underlying active infection”. He was advised to continue his current treatment.

On 6 June 2024, an IS 91RA Part C form was completed by an Assistant Psychologist. It recorded that MXV was describing symptoms of trauma linked to his experience of hearing voices following a medical procedure. The doctor considered it likely the current detention environment would exacerbate these symptoms.

On 12 June 2024, a hearing took place before Paul Bowen KC, Deputy High Court Judge. The Judge granted MXV’s application for interim relief and ordered MXV be released by 4.00pm on 19 June 2024, subject to conditions.

MXV was released on 19 June 2024 and placed in Home Office supported accommodation. The Court was informed that MXV has since adhered to his ART and that his antiretroviral levels have significantly improved.

Following MXV’s release, the Secretary of State filed an Acknowledgement of Service and Summary Grounds of Defence on 12 July 2024. MXV filed his reply on 12 August 2024. Andrew Kinnear KC, Deputy High Court Judge, granted permission to apply for judicial review and gave directions to a substantive hearing. Detailed Grounds of Defence and evidence was filed by the Secretary of State on 13 August 2025. An application to rely on evidence in reply was granted on 6 October 2025 by HHJ Walden-Smith.

HIV and Immigration Detention

The Court has been provided with evidence about HIV and its treatment from of the following individuals:

Those individuals refer to guidelines published in March 2019 jointly by BHIVA and NAT and entitled Immigration detention and HIV – Advice for healthcare staff and operational staff (“BHIVA Guidelines”).

Insofar as the evidence concerned HIV and its treatment, it was largely uncontested by the Secretary of State. The following key points emerge from it:

In this case MXV relies on the BHIVA Guidelines, produced jointly by BHIVA and NAT. The document describes itself as a “practical resource” for, inter alia, healthcare and operational staff in Immigration Removal Centres (“IRCs”).

Section 2 of the BHIVA Guidelines concerns HIV prevention, treatment and care in immigration detention. At §2.1.1 the following appears:

“It is essential that reception screening and the initial medical examination in IRCs… prioritise continuity of ART for people who have already been prescribed HIV treatment.

Clinical guidelines state that people who receive an HIV diagnosis should start treatment immediately. … If a person is diagnosed with HIV after arriving in immigration detention and their clinician prescribes ART, IRC healthcare staff must ensure that measures are taken to support the person to adjust to their diagnosis and to adhere to therapy.”

At §2.1.1, the Guidelines recommend how IRCs should manage newly arrived HIV positive detainees “who have been prescribed ART”: “The HIV service should provide the appropriate ART within 24 hours of the health screening”. The need to ensure continuity of access to treatment, to support HIV-positive detainees taking their prescribed regimen of ART, and to avoid the cancellation of appointments with specialists “unless absolutely necessary” is emphasised in numerous places in the Guidelines: see e.g. §§2.1.2, 2.2.1, 3.1.1 etc.

§2.2.2 contains recommendations about what should occur when a person receives an HIV diagnosis in immigration detention, and how treatment should be determined:

“If a person receives an HIV diagnosis within the IRC, they should have access to appropriate post-test counselling, referral to an HIV specialist as soon as possible, and a baseline assessment to clarify their clinical condition. The decision on whether to start treatment should be determined by an HIV clinician in association with the patient, and in line with current UK treatment guidelines. A newly diagnosed person must see an HIV specialist before a date is set for removal.”

Similarly, at §3.1.1, the Guidance recommends that those living with HIV should see a specialist as soon as possible after arrival, or that their previous HIV clinician be consulted (§3.1.1). This is supported by §3.2.1 which concerns “Appointments with the HIV Service”:

“Every effort should be made to ensure that people can attend their appointments at the HIV service. It is not appropriate for appointments to be cancelled for operational reasons, such as a lack of escorts, unless in exceptional circumstances. Detainees should be put on ‘medical hold’ prior to their appointment, to avoid transfer to another IRC and the inevitable delays while medical records are forwarded and new appointments are made.

People should not be routinely handcuffed during transport to medical appointments. Restraints should only be applied if a risk assessment indicates a specific risk of escape or threat to safety for staff or the public. To preserve patient confidentiality and the individual’s confidence in their patient rights, handcuffs should be removed during appointments and the guard should leave the room. Any exceptions to this protocol must be justifiable under home Office policy on the use of restraints.”

Finally, at §3.3.1 there is a section entitled ‘Fitness to Travel’ which provides:

“A person should not be removed if their condition is not stable. Operational staff should inform the GP of a detainee’s intended removal with sufficient time that the GP can communicate with the HIV specialist, conduct an examination if necessary, and raise any concerns identified about the fitness to travel of a person living with HIV.

The final judgment regarding whether a person living with HIV is medically stable and fit to travel rests with the IRC GP in consultation with the individual’s HIV specialist. …

While not an exhaustive list, a decision on fitness to travel should take into account if the person living with HIV is:

•

Awaiting an HIV test result or appropriate post-test counselling and a baseline assessment to clarify their clinical condition

•

In receipt of a recent HIV diagnosis, or has just started ART or a new drug regimen

•

…

•

Experiencing mental health issues…”

The Secretary of State’s Policy Framework

The Secretary of State has not adopted the BHIVA Guidelines. Her relevant policy is called Adults at risk in immigration detention (“AAR”).

At the time of R (CSM), the applicable version of AAR was version 5 (dated 6 March 2019). Bourne J noted that this version did not contain any information or guidance specifically about detainees with HIV (§§17, 19); nor had the Secretary of State published a policy which was applicable to such individuals (§§28, 91). The Judge accepted that it would be disproportionate to require a policy to deal with every specific medical condition, but considered that, in respect of HIV, there was a serious problem affecting a significant number of people (§92).

In concluding that there had been a breach of the Article 3 ECHR systems duty, Bourne J stated (§98):

“It is for the Defendant to consider what policy or guidance to adopt, and then to adopt and disseminate it properly. It is not for the Court to dictate that this should be the BHIVA guidance. However, if the Defendant were to form the view that the BHIVA guidance is suitable, then there appears to be no obstacle to its adoption.”

In his witness statement for these proceedings, Peter Ledwitch-Madsen, a policy advisor in the Returns Enforcement and Detention policy team at the Home Office, explained that following R (CSM) consideration was given to whether the BHIVA Guidelines could be adopted alongside an overarching safeguarding policy. He stated that it was decided not to do so for a number of reasons: (i) it was considered appropriate to address the process to be followed by front line staff encountering those with HIV widely, not just when they were in an environment like an IRC; (ii) the BHIVA guidance did not clearly delineate between actions of Home Office staff and clinicians in a way that could easily be adopted; and (iii) adopting condition-specific guidance for HIV risked creating an expectation that guidance would be required for other specific medical conditions, thereby potentially over-complicating the policy.

The Secretary of State initially responded to the ruling in R (CSM) by issuing to its caseworkers (but not publishing) Interim Internal Guidance and communications on the detention of individuals with HIV requiring antiretroviral treatment on 4 August 2021 (“IIG”). The IIG reminded officers that “any person with HIV being considered for detention, must be in possession of an adequate supply of prescribed medication and antiretroviral drugs”. It stated that a referral for detention would only be considered appropriate “where [officials had] confirmed that the individual has their own medication with at least 30 days of supply”.

In R (LC) v SSHD[2023] EWHC 319 (Admin) the Court approved an order by consent finding that the claimant had been unlawfully detained because of non-compliance with the IIG: “knowing that the Claimant had HIV and had been prescribed antiretroviral medication, the Defendant detained him without any supply of antiretroviral drugs”.

I was also shown a ‘lessons learned’ review following R (LC), dated 15 November 2021, which concluded that:

“Since the [IIG] was first issued … a situation had not been encountered whereby an individual referred for detention had stated that they were no longer taking their prescribed medication. If an individual has been prescribed HIV medication, it needs to be clearer that medication must be available prior to detention regardless of whether an individual states they are/are not using it – when detention proceeds, responsibility for the care of the individual transfers to the Home Office and that medication should be available (at the IRC) even should an individual refuse to take it.”

By the time the facts of the present case arose, the IIG had been withdrawn and a revised policy framework replaced that described above. AAR version 9 was promulgated on 20 April 2023 and was in force at the outset of MXV’s detention. AAR version 10 was promulgated on 21 May 2024 and was in force by the time of MXV’s release. The policy is underpinned by statutory guidance entitled Immigration Act 2016: Guidance on adults at risk in immigration detention (current version dated May 2024).

AAR is guidance promulgated to assist the Secretary of State’s officials assess whether a person in, or being considered for, immigration detention is an “adult at risk”. Within a section addressing indicators of risk, there is guidance concerning those with serious physical health conditions or illnesses. After recognising that such conditions may inhibit a person’s ability to cope within a detention environment, the guidance states that (Footnote: ⁶):

“This should be factored into any consideration of detention and, indeed, into consideration of their general management through the immigration process.”

The policy offers a non-exhaustive list of factors that staff should consider when deciding whether an individual is suffering from a “serious” health condition. AAR then contains a section dealing with “Individuals with a serious condition being cared for under a prescribed specialist service”. The following text then appears:

“Some individuals with a medical condition considered to be serious (on the basis of the considerations set out above), may be on a specialised treatment plan which requires specialist clinical support, or specialist medication that is prescribed by specialist prescribers and not GPs in commissioned healthcare services within detention. If so, all reasonable efforts must be made to support continuity of the individual’s current treatment plan.

If healthcare services are unable to satisfy the clinical support required (including medication) within the timescale necessary to maintain the individual’s current treatment plan, then it is unlikely that the person will be suitable for detention.

Factors to consider:

•

is there professional evidence that the individual is suffering from a serious health condition, or mental health condition as defined under the Adults at Risk policy? If so, is the individual under the care of a prescribed specialised service, on a specialised treatment plan and currently taking medication? Specialised services cover rare and/or complex medical conditions and often involve treatments provided to patients with rare cancers, genetic disorders or complex medical or surgical conditions (for example, HIV)

•

if an individual has recently completed a custodial sentence and is being considered for detention within an immigration removal centre (IRC), are there any practical considerations that may impact the ability to support continuity of care? It is important to consider logistical implications of treatment plans, such as frequency and location of essential external appointments

•

if the individual is entering a place of detention from the community or at a port of entry, what information about their condition and treatment plan is known? Are there any practical considerations that may impact the ability to support continuity of care if they are detained (for example, feasibility of enabling travel to a specialist clinic if required)?

•

what are the clinical impacts if an individual’s treatment is disrupted?

•

does the individual have enough medication supply to enable treatment to continue without interruption if they are detained?

•

if not, how quickly can it reasonably be expected that further medication will be able to be sourced, so as to provide a reasonable amount for continuation of care?

◦

you should consider whether the medication can ordinarily be prescribed by IRC/prison healthcare services or whether a specialist prescription is required

◦

additional prescribed medication, from a clinic engaged in the individual’s treatment within the UK, can usually be obtained within 48 hours

•

has the individual paused, stopped or not started a treatment plan for a condition that would normally fall under a prescribed specialist service? If so, the continuity of the current treatment plan may not be a relevant consideration, because the plan will already have been disrupted. If this is the case, please document any information and reasons available to provide the rationale for detention decisions

Responses should be documented to support the rationale for detention decisions.”

The Article 3 ECHR Operational Duty

I start my analysis with consideration of whether the Secretary of State complied with the Article 3 ECHR operational duty when detaining MXV.

The operational duty was described by Bourne J in R (CSM) in a way that was not controversial before me (see §§103-5):

“103.

In certain circumstances the State owes a positive protection or “operational” duty under ECHR article 2 (Footnote: ⁷) (which protects the right to life) or under article 3, to take measures to protect individuals who are at risk of death or of harm which is sufficiently serious to engage article 3.

104.

In Rabone v Pennine Care NHS Trust[2012] UKSC 2; [2012] 2 AC 72, para 22, Lord Dyson JSC said:

“the operational duty will be held to exist where there has been an assumption of responsibility by the state for the individual's welfare and safety (including by the exercise of control). The paradigm example of assumption of responsibility is where the state has detained an individual, whether in prison, in a psychiatric hospital, in an immigration detention centre or otherwise. The operational obligations apply to all detainees, but are particularly stringent in relation to those who are especially vulnerable by reason of their physical or mental condition: see, for example, Keenan v United Kingdom33 EHRR 913 (prisoner suffering from a mental disorder) and Tarariyeva v Russia (2006) 48 EHRR 609 (person detained in a prison hospital suffering from a serious physical illness).”

105.

That duty will arise where there is a real (not fanciful) and immediate (present and continuing) risk of the relevant harm: ibid at paras 38–39.”

In that passage Bourne J referred to Rabone v Pennine Care NHS Trust [2012] 2 AC 72 at §39. There Lord Dyson explained that:

“In my view, one must guard against the dangers of using other words to explain the meaning of an ordinary word like “immediate”. But I think that the phrase “present and continuing” captures the essence of its meaning. The idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future.”

Where it does arise, the nature of the duty is “not particularly stringent” (per Lord Rodger in Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681 at §41). It is a dutyto take all reasonable steps to avoid a real and immediate risk of the relevant harm. In Watling v Chief Constable of Suffolk Constabulary [2019] EWHC 2342 (QB), at §73, HHJ Saggerson observed that the duty must not be interpreted so as to impose impossible or disproportionate burdens on the authorities. The ease or difficulty of taking precautions and the available resources are all relevant.

In R (CSM), Bourne J explained its operation in the present context thus (at §§107-109):

“107.

The nature of the operational duties under articles 2 and 3 is the same: Rabone at para 104 per Baroness Hale of Richmond JSC. The obligation is to take all reasonable steps to avoid a real and immediate risk of the relevant harm. In an article 3 case, that means substantial and significant harm.

108.

As I said in the context of the systems duty above, a claimant need not show that a breach of the duty resulted in actual harm.

109.

However, it is necessary to show a material breach of the operational duty. The “all reasonable steps” test does not mean that any shortcoming will be sufficiently serious to infringe article 3 .”

In relation to §108 above, Bourne J had said this in relation to the systems duty at §100:

“100.

It is agreed that, in order to show a material breach of that duty, the claimant does not have to show that he actually suffered serious harm as a result of the breach, though a lack of harm may mean that there is no right to damages. The Court of Appeal ruled that this is the correct approach to a breach of the article 2 operational duty in Sarjantson v Chief Constable of Humberside Police [2013] EWCA Civ 1252; [2014] QB 411, per Lord Dyson MR at paras 27–29. I see no reason why a more stringent test should be applied to the systems duty and, as I have said, the relevant duties under articles 2 and 3 are essentially the same.”

Bourne J concluded that, although CSM’s was a “borderline” case, there had been a breach of the operational duty. The Secretary of State was responsible for a delay of at least 1½ days in providing the claimant’s prescribed ART: see §§110-115. At §§116-118 Bourne J said this:

“116.

I bear in mind the BHIVA guidance that the occasional missed dose, though strongly contra-indicated, may be tolerated. But as I have said, the question is not whether harm was caused, but whether there was a failure to take reasonable steps to avoid a risk of harm.

117.

In view of the medical evidence to which I have referred, it seems to me that the failure was material. Therefore there was a breach of the operational duty.

118.

However, there is again no evidence that the breach caused any harm. It satisfies a test of materiality by a narrow margin, given the short period of time which was involved. I do not consider that any damages of a compensatory nature should be awarded for that breach of duty, or indeed for the breach of the systems duty considered above.”

The first issue is whether the operational duty was engaged on the present facts. There can be no doubt that when MXV was detained on 11 March 2024, there was an assumption of responsibility by the UK state for his welfare and safety. Immigration detention is listed as a paradigm example of when such an assumption can arise through control: see Rabone §22. The only remaining question is whether the evidence before the Court supports the conclusion that there was a real (and not fanciful) immediate risk of substantial and significant harm to MXV (see Rabone at §§38-9).

I am entirely satisfied that the evidence supports the conclusion that, at the point of detention, and thereafter, there was a real and immediate risk of harm to MXV of the requisite seriousness. The evidence indicates that in the absence of ART MXV faced a real and ongoing risk of serious and long-term adverse health outcomes, including increased morbidity and mortality and that his viral load could rebound quickly. This is clear from the evidence I have summarised at paragraph 76 above, and also from the medical record of 2 August 2019, made during an earlier period when MXV was not taking ART (see paragraph 10 above). MXV was in need of protection against these risks which in my judgment were sufficiently immediate notwithstanding his long period of non-adherence with an appropriate ART regimen.

On behalf of the Secretary of State it was argued that detaining MXV without ART did not expose him to any greater risk than he was already running by not engaging with ART in the community. Mr Anderson submitted that, but for the detention, MXV is not likely to have re-engaged with HIV medication. I do not accept those submissions prevent the operational duty from being engaged. The duty arises from the state’s assumption of responsibility through detention, coupled with the presence of a real and immediate risk of serious harm. It does not depend upon showing that detention created the risk or exacerbated it. Nor is there a requirement that the risk be external: the duty has been found to apply in relation to the risk of self-inflicted harm: see Rabone. Matters of causation may bear on remedies, including damages, but they do not determine whether the duty arises. As I have said, in this case I am satisfied that the relevant criteria are fulfilled.

Mr Anderson’s submission invites (i) consideration of what would have happened had MXV not been detained, and (ii) the conclusion that he suffered no loss as a result of the detention (or even was put in an improved position in detention as a result of the supported reengagement with ART). It seems to me that this is an invitation, contrary to the authorities, to examine whether the MXV suffered actual harm in order to determine whether the duty arises. In my judgment that is the wrong approach.

For all of these reasons, I reject the Secretary of State’s submissions on this point and find the operational duty was engaged.

As explained above, the operational duty requires that all reasonable steps be taken to avoid a real and immediate risk of relevant harm. Not every shortcoming will be sufficiently serious to infringe this aspect of Article 3 ECHR: see R (CSM) §§107, 109.

On behalf of MXV, it was submitted that the Secretary of State failed to take all reasonable steps by detaining MXV without an adequate supply of ART, and failing to provide him with prescribed ART until around 3 May 2024 (a period of around 54 days). Ms Meredith argued that there was no material difference between his case and that of R (CSM). She submitted that it was irrelevant that MXV might have exposed himself to harm in the community, and even if he had, it did not excuse the Secretary of State’s failure to afford him the opportunity to take medication in detention. Ms Meredith argued this case was more serious than R (CSM) because the lack of treatment for 54 days was considerably longer. Further, she relied on the lessons learned review in the case of R (LC).

By contrast, the Secretary of State submitted that the operational duty had been complied with. The Secretary of State argued that this case is materially different from R (CSM) and all reasonable steps were taken. Enquiries were made about MXV before detention which revealed he was not taking ART. Upon detention MXV was referred to the GUM Clinic with the result that he was assessed by appropriate specialists and ultimately prescribed ART.

In my judgment there is a clear and material difference between the situation that pertained in R (CSM) and that which exists here. That difference affects what steps are reasonable for the Secretary of State to take and therefore the practical requirements of the operational duty. In R (CSM) the claimant was, prior to detention, adhering to a prescribed regimen of ART. Bourne J’s analysis focused on the Secretary of State’s duty to maintain access to that treatment given the potential consequences of its interruption.

The present case is not the same. It is agreed that MXV was not taking ART at the time of his detention. Precisely when his last treatment stopped is not consistently described in the materials before the Court. When he was seen by Dr Rubinstein in the GUM clinic on 8 April 2024, she recorded that he had last received ART in 2021. By contrast, a Community Mental Health Team note of 26 November 2022 recorded MXV as having told the consultant psychiatrist that he was still on medication for HIV at that point. If that were correct then the inference would be that he became non-compliant shortly thereafter. 2022 is also given as the date of cessation on the medical hold forms completed on 18 March 2024. Ultimately, I do not consider this discrepancy is significant for the resolution of the issues in this case. Whichever date is chosen, MXV had not taken ART for a long period of time prior to detention. It is not a case where a prospective detainee had an active prescription, had recently become non-compliant, had recently become parted from his medication, or had missed a dose or two.

Doing the best I can, I consider that Dr Rubinstein’s record on 8 April 2024 is the most reliable source. ART was the focus of her consultation. That was not the case in respect of the meeting with the psychiatrist in November 2022. Records show that MXV was prescribed ART at HMP Risley on 25 November 2021 following a previous period of non-adherence to a regimen since 2019. Dr Rubinstein’s note that 2021 was the last time MXV took ART is also consistent with the record created by the GP who discussed his new ART medication with MXV on 2 May 2024. For these reasons, and in the absence of evidence from MXV, I consider it is most likely MXV’s previous ART ceased at around the end of 2021.

The evidence before the Court is clear that even in circumstances where a person has not taken ART for some time, it remains medically important for them to do so. There are potentially very serious consequences of failing to restart treatment. However, the fact that a person has not taken ART for some time is an important distinction from the situation the Court was considering in R (CSM). The position is not as simple as restarting the person on any ART, or even on their last taken ART. A clinical assessment must take place in order to consider the medical circumstances and the precise treatment that should then be offered: see above paragraph 76. In the course of her submissions Ms Meredith accepted that this must be done. I consider she was right to do so. The evidence before the Court shows that a range of treatment options are available and, when a patient has been non-adherent to therapy, resistance can be developed which can limit, or certainly affect, future treatment choices. The assessment should be made by a clinician in conjunction with the patient (because, of course, a person with capacity can make their own decisions concerning treatment).

Accordingly, in a case such as the present, where there is no extant regime of ART, taking all reasonable steps cannot translate to the Secretary of State ensuring a supply of ART prior to or at the outset of detention. Such an approach is not practical given the medical assessment that is required. It is not in accordance with recommendations contained in the BHIVA Guidelines at §2.2.2 (see paragraph 80 above) in relation to the analogous situation where a person receives an HIV diagnosis in detention. Furthermore, the Secretary of State could not reasonably be expected to know what medication to make available. If the duty were interpreted in that way, it would effectively prevent the Secretary of State from lawfully detaining a person in MXV’s position until a treatment regime is commenced. That, in turn, could provide a perverse and medically ill-advised disincentive to a potential deportee recommencing treatment as soon as possible.

In my view, in the present context the proper approach to the operational duty can be summarised in the following way:

In my judgment, the facts of MXV’s case disclose that the Secretary of State did take all reasonable steps to comply with the operational duty:

On behalf of MXV, Ms Meredith advanced a number of criticisms. Strictly speaking, these criticisms went beyond the terms in which this ground of challenge was advanced at §99 of the Statement of Facts and Grounds. I have, however, considered them.

First, Ms Meredith argued that there ought to have been no doubt that MXV was HIV positive prior to his arrival at the IRC and that the HIV screening and blood tests delayed his referral to the GUM clinic. Whilst the Secretary of State knew of MXV’s status before detention, I do not consider that arranging for an HIV screening test, and blood tests, amounted to culpable delay, or that making the referral to the GUM clinic on the 15 March (as opposed to before) constituted the failure to take all reasonable steps. It was a reasonable decision to require the screening and blood tests in order to both confirm HIV and also obtain information about MXV’s viral load given that he was not on ART. It was unfortunate in this case that the blood tests had to be repeated because they had not properly been labelled, but that was done expeditiously. I consider that a prompt referral to the GUM clinic then was made on 15 March in light of appropriately obtained medical information. At one point in her submissions, Ms Meredith suggested that a referral to the GUM clinic should have taken place before MXV was detained. I do not accept that submission. It was not until detention that the Article 3 duty became engaged, and it was not until seen upon detention that it could be ascertained whether MXV would cooperate with such a referral.

The period between the referral on 15 March and the appointment on 8 April 2024 was in this case attributable to the GUM clinic. It was not delay for which the Secretary of State was culpable.

As for the period from 8 April to 30 April 2024, this was attributable to the clinical decisions taken by Dr Rubinstein on 8 April 2024, in particular the decision to discuss the case in a multi-disciplinary team meeting. That discussion appears to have been clinically well-indicated as MXV subsequently started on a different regimen of ART than he had taken previously, and, indeed, that which Dr Rubinstein was initially considering on 8 April 2024. This delay is not, in my view, attributable to the Secretary of State; indeed as I have explained, the evidence shows attempts were made to expedite the follow-up appointment.

Ms Meredith next criticised the Secretary of State for keeping MXV in handcuffs at the appointment on 30 April 2024 such that Dr Rubinstein could not properly conduct the appointment. I do not consider that this factor was material in terms of delay in this case. It did not delay the prescription of ART.

Finally, ART was made available to MXV on 1 May 2024. The delay between that offer and him taking his first dose (3 May 2024) was due to him wanting a further discussion with a GP about the side effects of the medication. That was facilitated expeditiously and arranged on 2 May 2024.

Accordingly, whilst I accept that the operational duty was engaged, I consider that the Secretary of State complied with it by taking all reasonable steps in the circumstances of this case. I therefore reject this ground of challenge.

The Article 3 ECHR Systems Duty

MXV also argues that the Secretary of State breached the Article 3 ‘systems’ duty. Given my conclusion above that the Secretary of State complied with the operational duty on the facts of this case, any failure in the wider policy or administrative framework is unlikely to justify relief for MXV beyond a declaration. In particular, no additional or different remedy would follow in circumstances where the operational response to MXV’s detention complied with Article 3. Nonetheless, as the point was pleaded and fully argued, I have gone on to address the points raised under this ground of challenge.

In R (CSM) Bourne J summarised the systems duty in the following way (§§71-3):

“71.

The state has a positive duty to put in place a legislative and administrative framework to secure the health and well-being of those in detention so as to avoid harm of a kind which would engage article 3.

72.

An analogous duty under article 2 requires health authorities to protect the lives of patients in hospitals. In Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2008] UKHL 74; [2009] AC 681, the scope of the duty was described by Lord Rodger of Earlsferry at para 69:

“In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2.”

73.

The context in Savage was different, but the systems duty in relation to protecting immigration detainees from article 3 ill treatment is of the same broad nature. Deputy Judge Saggerson in Watling v Chief Constable of Suffolk Constabulary [2019] EWHC 2342 (QB); [2020] RTR 23 described the article 3 duty in the context of police custody, at para 71:

“This general duty requires that legislative and administrative systems are put in place which will make for effective prevention of the risk to the health and well-being of those under the control of public authorities.”

As with the operational duty, the parties before me did not dispute the correctness of that description. Further, the parties did not dispute that when considering the terms of AAR (or other policy), it was for the Court to construe the policy objectively, for itself, by reference to the ordinary meaning of the language: see Mahad v Entry Clearance Officer [2010] 1 WLR 48 §10.

In R (CSM), the Secretary of State relied on the fact that the version of AAR then in force generally addressed the needs of vulnerable detainees. Whilst Bourne J accepted that it would be disproportionate to require a policy to deal with every specific medical condition, he considered that a serious problem was demonstrated in respect of HIV which affected a significant number of people (see §§88-92). Given the possible consequences of interrupting treatment, he concluded the provision of training and information to relevant staff to avoid interruptions would not be disproportionate and that a breach of the systems duty was established (§§97-99).

On behalf of MXV, Ms Meredith argued that AAR in versions 9 and 10 did not constitute an effective legal and administrative system for protecting HIV-positive detainees from serious harm. She argued this was so for four reasons:

On behalf of the Secretary of State, Mr Anderson argued that it was inapt to use this case as a vehicle in which to make the first three criticisms. He submitted that this was not a case concerning missed doses of prescribed ART, or the failure to obtain prescribed ART, or the inability quickly to source ART due to closure of a clinic. I agree. As I have explained, the present case is materially different from cases such as R (CSM). It concerns a prospective detainee who had not taken ART for a significant period prior to his detention. True it is that a significant adverse risk remains in his case in the event of continued non-treatment; however the practical way in which that risk is mitigated is very different from the case of an individual who needs to maintain and continue to access a prescribed regimen. As Ms Meredith accepted, in a case such as the present there had to be a clinical assessment before the appropriate form of ART could be chosen and restarted. In these circumstances, I do not consider it is appropriate for the Court to conduct a wider examination of the extent to which AAR meets the Secretary of State’s obligations pursuant to the Article 3 systems duty beyond the factual circumstances of this case.

MXV’s final criticism engages with the last bullet point of the AAR guidance extracted above at paragraph 92.

There is no difficulty with the proper construction of this part of AAR. Decision makers are directed to consider whether an individual has paused, stopped or not started a relevant treatment plan. Earlier in the guidance (see the first bullet point in the same extract) HIV is given as an example of complex medical conditions in respect of which specialised services might provide treatment. Returning to the final bullet point, decision makers are then told by AAR that where treatment has paused, stopped or not started, the continuity of it “may not be a relevant consideration, because the plan will already have been disrupted”.

Ms Meredith argued that this guidance is incompatible with the duty imposed by Article 3. I do not agree. I see nothing wrong with the guidance as far as it goes. In my view whether treatment is being adhered to, or instead has paused, stopped or not started is likely to be a relevant consideration. It is by thinking about this factor that a decision-maker can determine the appropriate practical response to secure compliance with Article 3 ECHR. As for the indication that, where treatment has paused or stopped, continuity of treatment may not be a relevant consideration, that seems to me equally unobjectionable. Where there is no extant treatment plan, the relevance of maintaining continuity of active treatment is not engaged; rather, the point being made is that continuity may not be the appropriate conceptual focus. Further the policy leaves room for continuity to remain relevant, depending on the circumstances, even where there has been a pause or stoppage in treatment. It simply indicates it “may not” be.

However, in the case of HIV and ART, these considerations are not the end of the story. Where (as in MXV’s case) ART had not been taken for some years, Article 3 requires the Secretary of State’s officials to take all reasonable steps to offer the detainee a referral to a specialist clinic to consider recommencement of appropriate ART. This is not specifically outlined in AAR. The guidance is left on the basis that it is for officials to assess the risk and take into account the factors referred to. Ms Meredith submitted that without a specific direction to officials to make a referral for a clinical assessment in the case of individuals with HIV in the circumstances of MXV, AAR did not provide an effective system in Article 3 terms.

Like Bourne J, I do not consider it proportionate for a policy such as AAR to have to deal with every specific medical condition. Mr Anderson rightly pointed to the evidence of active consideration given by the Secretary of State to this point. He submitted that many other conditions will have specific characteristics which one might think should be specifically mentioned. Nonetheless, as was identified in R (CSM), HIV affects a significant number of people and it is important that an appropriate framework is put in place to ensure that cases are properly dealt with, including by making timely referrals to specialist HIV services.

The fact that AAR does not expressly deal with the issues surrounding HIV and ART, including the need for a timely referral to a specialist clinic for those in the position of MXV, has given me considerable pause for thought. Ultimately, however, I have concluded that no failure to implement an effective system has been established in this case. I accept Mr Anderson’s submission that it is ultimately for the Secretary of State to determine what her policy should be, and it is for her to do so taking into account broader concerns than those of (for example) BHIVA and NAT who produced the BHIVA Guidelines. The systems duty does not require the Secretary of State to publish condition-specific guidance for every serious illness, and the Court must be cautious not to dictate the content of policy. The question is whether there is in place an effective framework capable of securing the health and well-being of detainees so as to avoid harm of a kind that would engage Article 3. The framework here includes AAR, which requires officials to consider serious conditions, specialist treatment plans, the clinical impact of disruption, and the practicability of securing medication and specialist input, and it requires the rationale for detention decisions to be documented. The framework accommodates the specific circumstances of each case through individual assessment. On the evidence before the Court, those mechanisms are capable of functioning effectively: in this case staff who dealt with MXV upon his detention responded to his HIV and lack of ART, and made an appropriate and timely referral to the GUM clinic, where he was assessed in accordance with specialist clinical judgment. These features support the conclusion that the Secretary of State had in place an administrative and clinical framework capable of addressing the relevant risk. In all the circumstances, I am not satisfied that a systems-duty breach has been established.

In oral argument, Ms Meredith also relied on the Secretary of State having failed to file any evidence concerning how staff were trained on AAR. She observed that Bourne J had raised concerns about training in R (CSM). Whether or not this point is squarely raised in the pleaded case, I was not satisfied that a training deficiency was established or that it contributed to what occurred in MXV’s case.

For the above reasons, I conclude that no breach of the Article 3 ECHR systems duty has been established on the facts of this case.

Unlawful Detention

MXV argues his detention pursuant to paragraph 2(3) of Schedule 3 IA was unlawful because the Secretary of State breached the principles deriving from Hardial Singh; and/or acted incompatibly with Article 5(1)(f) ECHR.

Section 5(5) IA provides that:

“The provisions of Schedule 3 to this Act have effect with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and with respect to the detention or control of persons in connection with deportation.”

Paragraph 2(3) of Schedule 3 IA confers a power to detain as follows:

“Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on immigration bail under Schedule 10 to the Immigration Act 2016.”

The power to detain pursuant to paragraph 2(3) is not unfettered; it must be exercised in compliance with public law requirements, including the Hardial Singhprinciples. Those principles have been approved at the highest level: see R (Lumba) v SSHD [2012] 1 AC 245 at §§22, 171 and R (Kambadzi) v SSHD[2011] 1 WLR 1299 at §12.

In R (I) v SSHD [2002] EWCA Civ 888, Dyson LJ summarised the principles as follows (§46):

“(i)

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii)

The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii)

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv)

The Secretary of State should act with reasonable diligence and expedition to effect removal.”

Principles (ii) and (iii) are relied on by MXV in this case. In R (I), Dyson LJ explained how these principles are conceptually distinct, and identified factors relevant to the question of how long it is reasonable to detain a person pending deportation (§§47-8):

“47.

Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.

48.

It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.”

Once the period of detention has become unreasonable, or once apparent that the Secretary of State cannot effect deportation within a reasonable period, the law affords the Secretary of State a ‘period of grace’ within which release must be effected. That recognises that there are practical matters that must be arranged to avoid the detainee simply being ejected from detention. The principles governing the assessment of the period of grace were reviewed by the Court of Appeal in R (AC (Algeria)) v SSHD [2020] 1 WLR 2893: see §§31-33. At §33, Irwin LJ summarised the principles as follows:

“It is clear from that review: (1) that the “grace periods” are granted for practical purposes, reflecting the facts of each case and applying a test of reasonableness; (2) that this court has declined to set any overall or absolute limit to such a period as a “long-stop” for all purposes; (3) that the periods have more usually been short, often a few days, but running up to a month, and (4) that there has been some tendency for the periods to increase.”

In addition to those domestic principles, MXV also places reliance on Article 5(1)(f) ECHR, which provides that:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

In a number of cases it has been accepted that the analysis of the lawfulness of detention under Article 5(1)(f) ECHR mirrors the domestic application of Hardial Singh principles: see e.g. R (Lumba) (§30: “all that the Hardial Singh principles do is that which article 5(1)(f) does”) and R (A) v SSHD[2007] EWCA Civ 804 (§§74-5). This is consistent with the recognition by the European Court of Human Rights in JN v UK (Application No. 37289/12) (19 May 20216) that (§97):

“…The test applied by the United Kingdom courts is therefore almost identical to that applied by this Court under Article 5 § 1(f) of the Convention in determining whether or not detention has become “arbitrary”.”

See also Ahmed v UK(Application No 59727/13) (2017) 65 EHRR 18 at §39 and VM v UK (Application No 49734) (2017) 64 ERR 7 at §72.

Until relatively recently, the role of the Court when assessing compliance with Hardial Singh principles was well-settled. In R (A), Toulson LJ explained that (§62):

“Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction).”

In a concurring judgment, Keene LJ considered it a “remarkable proposition” that the Court should have only a limited role in a case where the liberty of the individual is curtailed by detention. When considering Hardial Singhprinciple (ii), he held “it must be for the court itself to determine whether such a reasonable period has been exceeded” (§71). Keene LJ went on to refer to Tan Te Lam v Superintendent of Tai A Chai Detention Centre [1997] AC 97 in which Lord Browne-Wilkinson explained:

“If a jailor could justify the detention of his prisoner by saying ‘in my view, the facts necessary to justify the detention exist’ the fundamental protection afforded by a habeas corpus would be severely limited. The court should be astute to ensure that the protection afforded to human liberty by habeas corpus should not be eroded save by the clearest words.”

Keene LJ also dealt with the coming into force of section 6 of the Human Rights Act 1998 and the decision of the House of Lords in Huang v SSHD[2007] 2 WLR 581. There it was held, on a statutory appeal, that it was for the Tribunal “to make its own decision as to whether a refusal of leave to enter or remain in this country was compatible or not with a Convention right and thus lawful or unlawful” (§74). Keene LJ held this applied equally to a Court considering compatibility with Article 5 ECHR of immigration detention. Thus, at §75, he said:

“…it must be for the court to decide whether or not there is such a breach, as s 6(1) [Human Rights Act 1998] requires. Of course, the court will in most cases attach considerable weight to any assessment emanating from a government department about the progress of negotiations with foreign governments or with airlines about securing the return of deportees. But the ultimate decision is, in my judgment, for the court. I therefore would reject the Secretary of State’s submission as to the limited role of the court in cases such as this.”

This approach is reflected in a number of subsequent judgments, see for example AXD v The Home Office [2016] EWHC 1133 at §176 per Jay J. The Judge there added that “I would add that in my judgment the Defendant knows more than judges sitting in this jurisdiction about the absconding risk of immigration detainees.”

On 28 September 2023, section 12 of the Illegal Migration Act 2023 entered into force. Section 12(2) inserted additional provisions into paragraph 2 of Schedule 3 IA, immediately after paragraph 2(3) which I have extracted above. The additional provisions read as follows:

“(3A)

A person liable to be detained under sub-paragraph (1), (2) or (3) may be detained for such period as, in the opinion of the Secretary of State, is reasonably necessary to enable the deportation order to be made, or the removal to be carried out.

(3B)

Sub-paragraphs (1) to (3) apply regardless of whether there is anything that for the time being prevents the deportation order from being made or the removal from being carried out.

(3C)

Sub-paragraphs (3A) and (3B) are subject to sub-paragraph (4ZA) and section 60 of the Immigration Act 2016 (limitation on detention of pregnant women).

(3D)

Sub-paragraph (3E) applies if, while a person is detained under sub-paragraph (1), (2) or (3), the Secretary of State no longer considers that the deportation order will be made or the removal will be carried out within a reasonable period of time.

(3E)

The person may be detained under that sub-paragraph for such further period as, in the opinion of the Secretary of State, is reasonably necessary to enable such arrangements to be made for the person's release as the Secretary of State considers to be appropriate.”

There was a dispute before this Court as to the effect of those provisions.

Mr Anderson, for the Secretary of State, argued that the insertion of these sub-paragraphs had the effect of changing the role of the Court. He relied on Lord Bingham’s observations at §8 of R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687 that:

“…Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”

He further relied on the Explanatory Notes accompanying the Illegal Migration Act 2023 and the description of the intention behind the amendments (see §§101-2):

“101 This section replaces, in part, the common law Hardial Singh principles with a codified statutory version of the second and third principles. The four Hardial Singh principles, which apply with necessary modification to all immigration detention powers, are as follows:

• the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

• the deportee may only be detained for a period that is reasonable in all the circumstances;

• if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, they should not seek to exercise the power of detention;

• the Secretary of State should act with reasonable diligence and expedition to effect removal.

102 As well as codifying, in part, the Hardial Singh principles, this section also overturns the common law principle established in R(A) v SSHD [2007] EWCA Civ 804 (and later authorities) that it is for the court to decide, for itself, whether there is a reasonable or sufficient prospect of removal within a reasonable period of time.

I was also referred to §§103-105 for further detail. At §104, dealing with similar amendments to Schedule 2, the following description appears:

“…The effect of this section is to clarify that it is for the Secretary of State, rather than the courts, to determine what is a reasonable period to detain an individual for the specific statutory purposes (for example, to effect removal from the UK), subject to any statutory limitations on the period of detention where relevant. If the Secretary of State does not consider that the examination, decision, removal or directions will be carried out, made or given within a reasonable period of time, the person may be detained for a further period that is, in the opinion of the Secretary of State, reasonably necessary to enable arrangements to be made for release that the Secretary of State considers to be appropriate. …”

Mr Anderson argued that whilst Parliament did not modify the substance of Hardial Singh principles (ii) and (iii), it did make an important change concerning how compliance is assessed. Mr Anderson submitted that, in accordance with paragraph 2(3A) and (3D), it is now clear that the Secretary of State is the primary decision maker when it comes to assessing the reasonableness of the period of detention, and whether deportation can be effected within such a reasonable period. He submitted the Court retains a role: one of reviewing the Secretary of State’s assessment for public law error. However, the question for the Court is no longer, for example, whether it considers the period of detention reasonable, but rather whether the Secretary of State’s decision about the period was a reasonable/rational assessment.

Mr Anderson submitted that conceptually, there was no difficulty with Parliament introducing this change. The exercise of reviewing the decision of a primary decision maker arises in contexts too numerous to mention. He accepted that the Court will scrutinise anxiously decisions taken where the context of the decision in question concerns the liberty of the individual. He submitted that existing public law principles concerning the stringency of rationality review were capable of intensifying the review commensurate to the context. Accordingly, he submitted, in many cases the change in the law was unlikely to make much difference in the result. Nonetheless, he emphasised that Parliament’s change in the law was deliberate and must be respected by the Court.

Referring to §34 of the ECHR Memorandum accompanying the Illegal Migration Bill (as it then was), Mr Anderson submitted that the amendments were not incompatible with Article 5 ECHR. He submitted there was no reason to think that the amendment, requiring deference to the executive’s assessment on particular matters, would give rise to concerns on the part of the ECtHR given its approach in cases such as JN.

On behalf of MXV, Ms Meredith submitted that the amendments introduced by section 12 of the Illegal Migration Act 2023 are not accurately described in the Explanatory Notes and ultimately do not change the role of the Court as primary decision maker. She started by reminding me that when interpreting statutory provisions, the Court’s focus should be on the wording Parliament chose to use; external aids to interpretation (such as Explanatory Notes (Footnote: ⁹)) should play a secondary role (see Lord Hodge’s observations at §§29-30 in R (O) v SSHD [2023] AC 255).

Ms Meredith argued that the right to liberty is a fundamental and constitutional human right recognised both as a matter of the common law and under Article 5 ECHR. This, she said, had consequences for the exercise of statutory interpretation. She placed reliance on the summary of the principle of legality set out in R (O) at §33. There, Lord Hoffmann’s description in R v SSHD, ex p Simms [2000] 2 AC 115 was cited with approval as follows:

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights . . . The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.”

In the present context, Ms Meredith submitted that very clear wording would be required before one could conclude that Parliament had restricted the Hardial Singh principles by requiring the Court to defer to the views of the Secretary of State. The provisions, she submitted, must be narrowly construed. In support of these points, she relied upon the following dicta:

Ms Meredith submitted that the addition of the words “in the opinion of the Secretary of State” did not supplant or fundamentally alter the Court’s role as the primary decision maker. She did accept, however, that as the additional wording was introduced by primary legislation, it must be given some effect. She submitted that this can be achieved by interpreting the words as requiring the Court to take into account the Secretary of State’s opinion when reaching its own decision.

Whatever the effect of the amended provisions on the domestic application of Hardial Singh principles, Ms Meredith argued that paragraph 2(3A) to (3E) did not affect the analysis under Article 5(1)(f) ECHR. She submitted that when considering Article 5, and assessing conduct pursuant to section 6 of the Human Rights Act 1998, the Court was required to reach its own decision on all aspects of the Article 5 enquiry, including the proportionality of any immigration detention: see R (A) at §§74-5. The amendments did not change that approach. To the extent necessary, Ms Meredith relied on section 3 of the Human Rights Act 1998 to invite the Court to read and give effect to the Illegal Migration Act 2023, and the amended provisions of Schedule 3 IA, in a way which is compatible with Article 5, so far as it is possible to do so.

Finally, it is right for me to record that the researches of Counsel for both parties did not reveal a previous case in which the dispute outlined above had been squarely adjudicated upon. I was, however, referred the following judgments, albeit that no concluded views are set out within them:

In my view it is correct to start by acknowledging that the amendments introduced by section 12 of the Illegal Migration Act 2023 operate in the context of determining the lawfulness of detention. That context necessarily engages with a fundamental right, viz the liberty of the individual. It follows that MXV is correct to submit, by reference to cases such as R (O) and ex p Simms, that the principle of legality requires Parliament by express language, or by necessary implication, directly to confront any inroads or restrictions to that fundamental right. Otherwise, it is to be presumed that Parliament intended to legislate in a way which was not intended to abrogate such basic rights of the individual. Furthermore, any restriction on a fundamental right must be clear and narrowly construed. Re Mahmod, Khawaja, and Tan Te Lam have all applied these principles in this context.

The Explanatory Notes accompanying the Illegal Migration Act 2023 clearly evince an intention to “overturn” the principle that it is for the Court to determine for itself whether the Hardial Singh principles have been complied. The Explanatory Notes are, however, only a secondary guide to interpretation and, as is clear from R (O), the focus must be on the true effect of the words introduced into paragraph 2 of Schedule 3 IA.

Turning to the wording used:

If MXV’s primary submission were correct, the Secretary of State’s opinion would, at most, constitute a factor for the Court to take into account when it continued to assess, for example, the reasonableness of the overall period of detention. In my judgment, such an approach cannot be reconciled with the statutory wording or purpose. This is so even if the Secretary of State’s opinion were to be given particular or significant weight in the analysis. It is in my view clear from the language deployed, supported by the Explanatory Notes, that Parliament intended to make a change in the law and for the Secretary of State to become the primary decision maker in respect of the Hardial Singh principles covered by sub-paragraphs (3A) to (3E). Parliament has, by the express language used, confronted the implications sufficiently to effect that change. The primary legislation must be respected.

Provisions that potentially limit the right to liberty must, however, be given a narrow construction consistent with the statutory wording and purpose. The amendments with which I am concerned only concern Hardial Singh principles (ii) and (iii). No substantive change is made to principles (i) and (iv), nor to how the Court assesses compliance with them. It follows that in respect of principles (i) and (iv) the Court’s approach is unchanged. In respect of principles (ii) and (iii), however, it is now the Secretary of State’s determinations under sub-paragraphs (3A) to (3E) that fall to be reviewed by the Court.

Notwithstanding these conclusions, it seems to me that the modified approach is likely to have a more muted practical impact than at first sight might appear. There are two main reasons for this.

First, the Court retains an important role to play in reviewing the Secretary of State’s determinations under sub-paragraphs (3A) to (3E). As Mr Anderson accepted, when assessing the rationality of the Secretary of State’s conclusions the test of unreasonableness falls to be applied with sensitivity to the fact that the liberty of the individual is at stake. The consequences of the Secretary of State taking a particular view may well be grave: detention or continued detention. The nature and gravity of what is at stake is likely therefore to lead the Court to conduct heightened (or more anxious) review so as to narrow the range of rational decision making. This is in accordance with established principles: see, for example, Bugdaycay v SSHD [1987] AC 514, Pham v SSHD [2015] 1 WLR 1591 and the recent review of the authorities in R (KP) v Secretary of State for Foreign, Commonwealth and Development Affairs [2025] EWHC 370 (Admin) §§58-63; 75-78. In addition, determinations under sub-paragraphs (3A) to (3E) may be reviewed for other types of public law error. For example, challenges may arise concerning the extent to which the Secretary of State has complied with her published policies, has informed herself sufficiently of the relevant circumstances, or has made material errors of fact.

Secondly, the amendments introduced in the 2023 Act do not affect the ability of a detained person to challenge the lawfulness of their detention under Article 5(1)(f) ECHR, nor the approach of the Court in determining such a challenge. Where the claim is made that the Secretary of State has acted unlawfully under section 6 of the Human Rights Act 1998 by breaching Article 5 ECHR, it is for the Court to assess whether breach is made out: see R (A) at §§74-5. Any restriction on the ability to pursue such a claim, or change in the role of the Court when assessing it, would in my view require clear statutory wording. I agree with Ms Meredith that there is nothing in the amendments that attempts to limit or change the nature of such a challenge. It follows that where Article 5 is relied upon, the Court will remain able to assess for itself the relevant factors, including the concept of proportionality. As the case law previously recognised, this broadly reflects the exercise the Court was engaged in when assessing compliance with the Hardial Singhprinciples prior to the 2023 Act.

With those principles in mind, I turn to the question of whether the Secretary of State unlawfully detained MXV in breach of the Hardial Singh principles and/or Article 5(1)(f) ECHR.

MXV’s primary case concerns Hardial Singh principle (iii). MXV argues that from the outset of his detention (or alternatively at a point thereafter) there was no sufficient or realistic prospect of deportation within a reasonable period. Reliance is placed on: (a) MXV having been diagnosed with HIV and paranoid schizophrenia; (b) that he could not be removed without specialist treatment including ART and antipsychotic depot injections; (c) him being a refugee who could not lawfully be removed until the completion of a lawful assessment of (i) his refugee status, (ii) whether the cessation clause in Article 1C(4) of the Refugee Convention 1951 and para 339A(vi) Immigration Rules were correctly applied, and (iii) whether removal would breach his ECHR rights; and (d) the statutory prohibition on removal (Footnote: ¹²) once the FTT appeal was admitted, having regard to the future timescales of the appeal.

Having considered the evidence both at the outset and during the period of MXV’s detention, I am satisfied that until 17 May 2024:

My reasons are as follows:

The Secretary of State is permitted a grace period to allow for practicalities such as reassessment of the case after a development (such as the relisting of the appeal) and to make arrangements for release (such as arranging accommodation and imposing appropriate conditions). The appropriate grace period is sensitive to the particular facts of the case. Prior to the entry into force of the Illegal Migration Act 2023, in accordance with R (AC)it fell to the Court itself to assess the reasonableness of a grace period. For the reasons I have given, that remains the position in respect of an Article 5 ECHR challenge. Having assessed reasonableness myself by reference to the particular facts of this case, I have concluded that it is appropriate to allow a period of grace for the Secretary of State (i) to react to the relisting of the appeal by the FTT and then (ii) to make practical arrangements for MXV’s release by sourcing accommodation and imposing bail conditions. The reasonableness of the grace period must take into account that during that period MXV’s liberty is restricted by detention. Given this, and in light of the discussion in R (AC),it is not reasonable for the grace period to start only from 3 June 2024 when the Secretary of State conducted her review of detention. The grace period should run from the relisting of the appeal on 17 May 2024. That is something the Secretary of State will have known about on the day, or shortly thereafter. In my view, considering all the facts of this case, a reasonable period of grace was one of no more than 2 weeks, reflecting the need to make practical arrangements for a managed release (including accommodation and appropriate conditions). I therefore conclude that MXV ought to have been released by 1 June 2024 and his detention was unlawful after that date.

Paragraph 2(3E) of Schedule 3 IA provides that it is for the Secretary of State to determine the further period that is reasonably necessary to enable arrangements for release. On my analysis above, this applies to the domestic application of Hardial Singh principle (iii). In my view, however, the Secretary of State could not rationally reach the view that a period of grace extending to 19 June 2024 was reasonably neccessary. That would be to allow a period of over a month which is excessive given the practical steps that needed to be taken.

It follows that MXV’s primary case fails save for the period from 1 June until his release on 19 June 2024.

MXV’s secondary case concerns Hardial Singh principle (ii). He argues that the total period of his detention was unreasonable, having regard to the impact of being detained, that the risk of absconding and offending were not trump cards, and that he had been largely compliant with medication in the community.

I do not accept those submissions. Conducting the assessment myself for the purposes of the Article 5 ECHR analysis, I conclude that the overall period of detention was not unreasonable. Relevant factors include:

It follows that I do not accept MXV’s submission that the overall period of detention was unreasonable so as to breach Article 5. Further, in my view the Secretary of State was entitled to reach the view that MXV was detained for a reasonable period in accordance with paragraph 2(3A) of Schedule 3 and Hardial Singh principle (ii).

Accordingly, I conclude that MXV’s detention was lawful, save for the period of 1 June 2024 to 19 June 2024.

Failure to Comply with Published Policies and other Public Law Errors

The final ground of challenge was that MXV’s detention was vitiated by public law error because the Secretary of State failed, without good reason, to adhere to her published policies.

There was no dispute before me that, if established, this could amount to a public law wrong which could render detention unlawful: see, for example, R (Kambadzi) at §§40-2. The correct approach is set out in the judgment of the Court of Appeal in R (ZS (Afghanistan)) v SSHD [2015] EWCA Civ 1137. At §24, Burnett LJ explained that the Court should first determine the meaning of the policy, avoiding any temptation to subject it to fine analysis as one might to a statute. Secondly, compliance with the policy limitations should be reviewed on rationality grounds.

Four specific issues were raised in the pleading in relation to adherence to policy.

First, MXV argued that the Secretary of State failed to comply with AAR because her officers did not properly consider whether MXV was “suitable for detention” due to his specialist condition (HIV) requiring treatment. It was argued that it was irrelevant whether he complied with the ART regimen in the community. I reject this challenge. As I have set out at paragraph 92 above, AAR requires consideration as to whether healthcare services can “maintain the individual’s current treatment plan”. If not, then the policy states it is “unlikely” that the person will be suitable for detention. In this case, the Secretary of State enquired into MXV’s medical conditions and current treatment before detention. It was ascertained that he was not on ART but did take medication for his paranoid schizophrenia. Arrangements were made to ensure that the medication MXV was taking would be continued and that a prescription for more could be obtained. Having done so, MXV was considered suitable for detention. In my judgment that complied with the published policy. I do not accept that it was irrelevant whether MXV was currently on ART or whether he had (as was the case) stopped taking it sometime previously. That factual position was relevant to the policy question of whether there was a current treatment plan capable of being maintained within the meaning of AAR. No public law error is made out in this respect.

Secondly, it is argued that the Secretary of State failed to comply with AAR when assessing MXV on 26 March 2024 following the Rule 35(3) report dated 25 March 2024. On that day it was determined that MXV was at AAR level 2 rather than level 3.

AAR sets out what is meant by the two different levels in question as follows:

“Level 2

Professional evidence (for example from a social worker, medical practitioner or nongovernment organisation (NGO)), or official documentary evidence, which indicates that the individual is (or may be) an adult at risk should be afforded greater weight. Such evidence should normally be accepted and consideration given as to how this may be impacted by detention. Representations from the individual’s legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.

Level 3

Professional evidence (for example from a social worker, medical practitioner or NGO) stating that the individual is at risk and that a period of detention would be likely to cause harm, for example, increase the severity of the symptoms or condition that have led to the individual being regarded as an adult at risk, should be afforded significant weight. Such evidence should normally be accepted and any detention reviewed in light of the accepted evidence. Representations from the individual’s legal representative acting on their behalf in their immigration matter would not be regarded as professional evidence in this context.

When considering the likely risk of harm for the period identified, decision-makers are entitled not to place decisive weight on assertions that are unsupported by medical evidence.

Given the difficulty involved in validating cases in which the only evidence available is the self-declaration of the individual concerned, the distinction between such cases and cases of those who are not considered to be at risk may not be great. However, the expectation, where the weight of the evidence is at level 1, is that this will act as a flag to all those involved in managing the case, and that particular attention will be paid to pursuing voluntary return options and progressing the case. The flag should also act as an alarm should additional risk issues emerge as the case progresses, particularly if the person is already detained or, if not, following their detention.”

The supporting statutory guidance makes clear that when considering the level of risk faced by an individual, an evaluative approach should be taken to the evidence. Further in order to ensure detention decisions are informed by all relevant information, this “may” involve additional information being sought: see §5.

The assessment under challenge here is that of 26 March 2024. It is set out in a letter from David Fidge following a review of the GP’s report. The letter noted the contents of the GP’s report and extracted relevant parts. It then stated:

“A primary consideration when detaining any individual under immigration powers is the imminence of removal. There are currently no barriers to your removal from the UK. However, you have been assessed at level 2 of the Adults at Risk in Immigration Detention Policy for which detention can be considered if removal can be fixed within a reasonable period or there are public protection or compliance concerns.

Your schizophrenia is being treated with medication under the guidance of the IRC Healthcare Team and you have an appointment with an HIV specialist consultant on 02 April 2024.

Without prejudice, once your schizophrenia medical treatment is stabilised and your specialist HIV appointment has taken place, you may be removed from the UK within 4-6 weeks using your Emergency Travel Document.”

I am satisfied that this assessment constituted a reasonable application of the AAR on 26 March 2024. The GP’s Rule 35 report was completed on the basis of concerns that MXV may have been a victim of torture (rather than due to concerns his health was likely to be adversely affected by detention). Nonetheless, the report did record MXV’s report that his mental health was deteriorating and the GP’s assessment that he looked stressed and anxious. The GP noted the referral to mental health for further assessment and asked for a further review and investigation “as you feel necessary”. It was nonetheless open to the reviewing officer to conclude that medication for the mental health condition had been prescribed (Footnote: ¹⁴) and that, once that had stabilised, and once the HIV appointment had taken place, removal could be anticipated within the time scales indicated. I do not consider that an assessment at level 2 was unreasonable. That is so even though an assessment was made at level 3 the day before, and prior to the GP’s report. I have considered Ms Quinn’s evidence that in her view that earlier assessment ought to have been at level 2. I have some sympathy with that view, but be it as it may, I do not consider the different prior assessment necessary renders the subsequent assessment at level 2 unreasonable.

I further accept Mr Anderson’s submission that, in any event, even had MXV been assessed at level 3 on 26 March 2024, detention would still have been maintained on the evidence then available as can be seen from the detention reviews immediately before (25 March 2024) and after (6 May 2024). Any error would therefore not have been material.

For these reasons, I reject this second challenge.

MXV’s third point is that the Secretary of State failed to comply with the Detention Centre Rules 2001, Rules 34, 35(1) and 35(3) by failing to make a referral or produce a report under Rule 35(1) within 24 hours of his detention.

Rule 34 requires every detained person to be given a physical and mental examination by a medical practitioner within 24 hours of his admission to the detention centre.

Rule 35(1) and (3) provide that:

“(1)

The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

…

(3)

The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture (Footnote: ¹⁵).

(4)

The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.”

I do not consider MXV’s challenge to be sound. The evidence in this case shows that the Secretary of State complied with her obligations under the Rules. MXV was initially seen by a nurse on the day he was detained: see para 38 above. The next day, and within 24 hours of detention, he was then seen by a GP for a Rule 34 assessment: see paragraph 40 above. That satisfied the Secretary of State’s obligations under Rule 34.

I further accept Mr Anderson’s submission that Rule 35 imposes obligations on the medical practitioner rather than the Secretary of State. So much is clear from the face of the Rule. I therefore do not accept the submission that there was a relevant failure on the part of the Secretary of State by failing to produce a report within 24 hours. The Secretary of State’s obligation under Rule 35 is to consider a report produced by a medical practitioner. In this case when, on 20 March 2024, MXV was seen by a GP for the purposes of Rule 35, a report was produced on 25 March 2024 and sent to the Secretary of State. The Secretary of State then considered that the next day.

In these circumstances, I am unable to detect any failure by the Secretary of State to adhere to the Detention Centre Rules.

Finally, MXV argues that the Secretary of State breached Detention Services Order 04/2020 by failing to ensure training or appropriate support or treatment to MXV as a disabled person with HIV and schizophrenia in accordance with §6 of Schedule 1 to the Equality Act 2010.

The part of the Detention Services Order 04/2020 relied on is the following:

“Process: To provide staff with the guidance necessary to ensure that appropriate support is offered to: those who lack decision making capacity, those with disability arising from mental impairment and those who have a mental health condition; and that, for those with a disability, adjustments are made to support the individual whilst in immigration detention.”

I do not accept that MXV has made out a public law error in this respect. The Detention Services Order focuses on mental impairments and disabilities relating to them. Here, the staff did identify MXV’s paranoid schizophrenia both prior to and upon detention. A plan for a referral was made at the 24 hour GP assessment on 12 March, and MXV saw a psychiatrist on 14 March 2024. His treatment was reviewed and he was provided clinically indicated treatment throughout his detention. Although the Court was not shown material concerning the training of the relevant individuals who cared for MXV, nothing in the evidence suggested that a lack of training resulted in a failure to identify MXV’s needs or to respond to them appropriately. For all these reasons I am unable to detect any public law error or breach of the Detention Services Order.

In addition to adherence to policy, two other public law challenges are raised by MXV:

It follows that I dismiss MXV’s challenges under this ground.

Disposal

For the reasons I have given, I conclude that MXV was falsely imprisoned and is entitled to compensatory damages in respect of the period from 1 June to 19 June 2024. Those damages are to be assessed if not agreed. The order I make will direct that unless the parties indicate to the Court that damages have been agreed, the assessment of damages shall be transferred for determination to the County Court.

Otherwise MXV’s remaining claims are dismissed.

I conclude by thanking counsel for their assistance with this case.