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In August 2012 BID and the Association of Visitors to Immigration Detainees (AVID) met with UKBA and officials from the Department of Health involved in the transfer of commissioning of healthcare in IRCs from the Home Office to the Department of Health.  This was part of a series of meetings held by the two organisations as the Mental Health in Immigration Detention Project policy initiative.  As a result of the meeting it was identified that the DoH was not fully aware of the legal basis of immigration detention and relase, and how this might articulate with the Mental Health Act.  We felt this would hamper attempts to improve the currently unacceptable way that mentally ill people are identified and treated while they are in administrative detention. We approached ILPA, who kindly agreed to produce this briefing. 

We are grateful to Sue Willman (Deighton Pierce Glynn), Jed Pennington, and Hamish Arnott (both at Bhatt Murphy) for their help.  

The legal basis for detention under immigration powers, and for release from immigration detention, allows for a wide range of options for release and treatment of mentally ill detainees.  These have been outlined in this briefing.   We consider that decisions regarding hospitalisation or community treatment for people in immigration detention with serious mental illness should be driven by clinical considerations.

Despite the positive duty of care of the Secretary of State towards people held in administrative detention under immigration powers, the full range of releases available to the UK Border Agency are not being deployed where mentally ill detainees are identified and where release is clinically indicated.  The four cases with findings of breaches of Article 3 of the European Convention on Human Rights in the case of severely mentally ill immigration detainees over the last year indicate this. 

Guidance produced by the Department of Health on transfers under section 47 and section 48 of the Mental Health Act 1983 does not reflect this full range of options for release and is therefore misleading.  It requires urgent review, together with consequential revision of some Ministry of Justice documentation for such transfers.

The 2011 Department of Health guidance document should be revised to reflect the current legal basis for both detention and release under immigration powers, and the articulation of these powers in the context of the Mental Health Act 1983.

The briefing can be downloaded from the very bottom of the right hand column on this page.