The European Court of Human Rights has decided that the UK’s detention of a Nigerian illegal immigrant with mental health problems violated her right to liberty for 6 months out of her 2 year detention.
What is immigration detention?
The Home Office may keep people in immigration detention for a variety of reasons, such as:
- When people overstay their visa (and lose the right to remain in the UK legally);
- When people claim asylum and the Home Office needs to verify their identity, or thinks they are likely to abscond;
- When foreign people commit crimes and are waiting to be deported.
Is there a time limit on how long people can be held in immigration detention?
Not in the UK. Some countries have a time limit, but the UK judges the ‘reasonableness’ of the length of detention on the facts and circumstances of each case – without any upper limit. The European Court of Human Rights has previously confirmed that this lack of a maximum time period for detention is not automatically a human rights violation.
What about people with mental health issues?
Home Office policy states that individuals suffering from serious mental illnesses which cannot be satisfactorily managed in detention are only considered suitable for detention in “very exceptional circumstances.” Generally alternatives to detention (such as transfer to a hospital) should be favoured when it comes to mentally ill immigrants.
This policy means that sometimes the UK can keep seriously mentally ill people in immigration detention.
What happened in this case?
Ms V.M. is a Nigerian national who entered the UK illegally in 2003 with her son. She has depression and a personality disorder. In 2008 she was convicted of child cruelty. This is a serious crime so the judge recommended deportation. When Ms V.M.’s jail sentence had finished, she was kept in detention, waiting to be deported.
Between August 2008 and July 2010, Ms V.M. made a number of legal applications:
- Appeals against the decision to deport her – this was rejected;
- Twice asking to be granted bail – also rejected;
- Asking if she could make a fresh asylum claim – rejected after 6 months.
A medical expert found that Ms V.M.’s mental state had deteriorated considerably because of her continued detention; she self-harmed; experienced hallucinations and began attempting suicide. The medical expert and hospital staff agreed that Ms V.M. should be transferred to hospital. However another medical expert said she needed constant supervision, and that this could be done in detention. So she remained in detention.
Ms V.M. then brought a legal challenge over her detention, based on 3 key arguments:
1. Her detention between August 2008 and April 2010 was illegal;
2. She should have been transferred to hospital; and
3. The period of her detention was too long.
Two English courts rejected all of these arguments. They said that, since there was a serious risk of Ms V.M. absconding or re-offending, the detention was legal. Conflicting medical evidence meant that the decision not to transfer Ms V.M. to hospital was reasonable. The courts also declared that the overall detention period was not too long, although the Court of Appeal did say that the Home Office taking 6 months to reject Ms V.M’s fresh asylum claim was a “lengthy delay”. Ms V.M. took her case to the European Court of Human Rights.
What did the European Court say?
The European Court of Human Rights almost completely agreed with the UK courts. It said that:
- The UK had complied with all legal requirements, including taking into account Ms V.M.’s mental health. Her detention was legal.
- At no time did the UK authorities act in ‘bad faith’. The European Court agreed with the UK courts that the conflicting medical evidence made it reasonable not to transfer Ms V.M. to hospital.
Notably, the European Court of Human Rights re-affirmed its recent decision that the lack of fixed time limits and automatic oversight of immigration detention by a judge is not automatically a human rights violation.
However, on one point the Court disagreed with the UK. It expressed concern that the detention period was nearly 2 years. The Court said that, since it was clear Ms V.M’s mental health was deteriorating, the authorities had a greater duty to ensure she was detained for as short a time as possible. Since the main things stopping Ms V.M’s deportation were her own legal challenges, the Court concluded that the authorities for the most part had fulfilled their duty to conduct Ms V.M,’s detention with “due diligence”. However, the Court said that 6 months delay in rejecting Ms V.M’s fresh asylum claim was too long.
In summary, the Court decided there was a violation of Ms V.M’s right to liberty during the 6 month period between June 2009 and December 2009. While the Court did find one human rights violation, the vast majority of Ms V.M’s claims were rejected, with the European Court largely agreeing with the decisions of the UK courts.