18/01/2016

Julie Anderson and Belinda McRae to appear in the Supreme Court on 19-20 January 2015

Julie Anderson and Belinda McRae (led by Robin Tam QC of Temple Garden Chambers) act for the Secretary of State in R (O) v Secretary of State for the Home Department (UKSC 2014-0227).

By way of background, the Appellant entered the UK illegally and committed offences upon her arrival. Following a term of imprisonment, she was placed in immigration detention pending deportation. She brought a damages claim for unlawful detention by way of judicial review, alleging that her continued detention was not in compliance with the published government policy in the light of her mental health condition. The Court of Appeal’s decision ([2014] EWCA Civ 990, [2015] 1 WLR 641) is notable for its consideration of the proper role of the Court when considering a challenge to the lawfulness of detention based on whether that detention was in compliance with the relevant policy.

The appeal before the Supreme Court will consider four issues. In broad terms, they are:

(1) What is the appropriate standard of review in assessing policy compliance? Is the Court to act as the primary decision-maker? Or should it apply the Wednesbury test, or another intermediate approach?

(2) What is the meaning of the “satisfactorily managed” requirement within the published policy in relation to the detention of the mentally ill?

(3) Was the approach of the Court of Appeal to a public law error in the form of a failure to conduct a proper detention review correct?

(4) What relevance (if any) does the Appellant’s unsuccessful bail applications have to the question of the lawfulness of her detention?

The appeal will be heard by Lady Hale, Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson.