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

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Paul Bowen KC DHCJ:

These are applications for judicial review brought by the Claimant MM acting by his litigation friend, Catherine Istifanis.

Appearing before me are Ms Shu Shin Luh for the Claimant, instructed by Bhatt Murphy Solicitors, and for the Defendant, Mr Jack Holborn and Mr Matthew Howarth, instructed by the Government Legal Department. I am very grateful to all of them for their submissions.

The decisions under challenge

The claim involves challenges to (1) a decision to deport the Claimant taken under section 3(5) (a) of the Immigration Act 1971 on 2 nd October 2023 ( ‘the First Decision’ ), and (2) the fact and circumstances of the subsequent detention of the Claimant in the light of that deportation decision from 11 th October 2023 until 12 th May 2024 ( ‘the Second Decision’ ).

Grounds of judicial review

Ground 1 is a challenge to the deportation decision (First Decision). The Claimant alleges that the decision was unlawful, first, because it was procedurally unfair; and, second, because it involved a breach of the Defendant's reasonable adjustments duty under sections 20 and 29 of the Equality Act 2010 .

Ground 2 challenges the Claimant's detention (Second Decision). The detention was authorised, or purportedly authorised, under paragraph 2 of schedule 3 of the Immigration Act 1971 as amended by section 12 of the Illegal Migration Act 2023. The Grounds of challenge are that there has been a breach of the Hardial Singh principles, as modified by section 12 of the 2023 Act. It is also alleged that the detention is a breach of the Defendant's own policy and violated the Claimant's rights under the Human Rights Act, namely Article 5, Article 3 and Article 8.

Ground 3 alleges an unlawful breach of the reasonable adjustments duty under sections 20 and 29 of the Equality Act 2010 , but this time in relation to the decisions to detain and to use segregation against the Claimant (Second Decision).

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The preliminary issues

I turn first to the preliminary issues as they have been identified.

Ground 1: Equality Act 2010 claim (First Decision)

First, the Defendant seeks leave to amend her detailed grounds of defence to argue that the discrimination claim in relation to the deportation order is excluded by operation of paragraph 16 of schedule 3 of the Equality Act 2010 . In short, paragraph 16 excludes a claim for disability discrimination under section 29 of the Equality Act in relation to certain immigration decisions, including, the Defendant submits, a decision to deport under section 3(5) (a) on the ground that deportation is conducive to the public good. The Defendant submits that Ground 1 should therefore be dismissed or struck out to the extent it is based upon the Equality Act 2010 . This argument emerged on the first day of the trial after I had raised the issue with counsel by email overnight.

Second, the Defendant argues that the deportation order has now been withdrawn so that Ground 1 is academic, at least insofar as the public law Grounds are concerned, and should therefore be dismissed.

Third, the Defendant argues that, so far as the claim under the Equality Act is concerned, the appropriate forum for determination of that claim is the County Court, not the Administrative Court. Accordingly, if Ground 1 is not dismissed it should be transferred to the County Court under CPR Part 54.20 and CPR Part 30.

A fourth point is made relating to the inadequacy of the Claimant’s pleadings. In essence, it is argued that the claim form as pleaded is limited to grounds based on the individual facts of the Claimant's case, but as developed in the skeleton argument has expanded to include systemic challenges which are not pleaded.

Ground 2: false imprisonment and human rights damages claim (Second Decision)

First, the Defendant seeks leave - for the first time today, without any written application - to raise a new argument by way of defence to Ground 2 under the Border Security, Asylum and Immigration Act 2025 , section 44 .

The only outstanding issue is the damages claim for false imprisonment and breach of the Human Rights Act which is more appropriately determined in the County Court. The remaining aspect of Ground 2 should therefore also be transferred to the County Court under CPR Part 54.20 and CPR Part 30.

Ground 3: Equality Act 2010 challenge to the Claimant’s detention and segregation (Second Decision)

The Defendant also argues that Ground 3 is academic (at least so far as the claim for judicial review is concerned) and that the Equality Act claim is more suitably considered in the County Court and should be transferred.

Facts

Before I turn to my consideration of those issues and applications, I will set out the facts in brief summary.

The Claimant is a national of Niger. His birth date is presently unknown. He is believed to have arrived in the United Kingdom on or about 23 rd August 2021, perhaps, but again it is not known, by small boat. He was either apprehended or surrendered to border control officers and was removed to the Kent Intake Unit. On 31 st August 2021 he lodged an asylum claim and then on 1 st September 2021 he was released on immigration bail with conditions.

He was initially in the community receiving section 98 asylum support and was assisted with an application for section 95 asylum support. On 28 th January 2022 he was arrested and convicted of threatening behaviour, possession of a bladed article and failing to attend and received a sentence of 12 weeks which was suspended. He was released in February 2022.

On 12 th May 2023 he was arrested for assault and arson. He was remanded in custody and was later convicted at Lincoln Crown Court for arson and assault by beating and received a sentence of six months in prison.

On or about 2 nd October 2023 he was due to be released. The Secretary of State, the Defendant to these proceedings, served him with a Stage 1 Liability To Deport Notice (Stage 1 Notice) and notice that he was to be detained under paragraph 2(2) of schedule 3 of the Immigration Act 1971 . These are the decisions under challenge.

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As I said, he was detained initially at HMP Lincoln until 18 th October, until an authorisation for detention under the Immigration Act had been made which was, I understand, made on 11 th October 2023, and on 18 th October 2023 he was transferred from HMP Lincoln to Colnbrook IRC.

Following the service of the notice to deport, the Claimant had been brought to the attention of Medical Justice, a charity that is concerned with supporting migrants. They made representations on his behalf and arranged for him to be represented by the solicitors who currently represent him at Bhatt Murphy and proceedings were, in due course, brought against the Defendant challenging the deportation order and detention. Proceedings were also brought against the relevant local authority. Several hearings took place in which applications were made for interim relief requiring the Claimant to be released and to be suitably housed either by the local authority or by the Defendant. On 24 th April 2024 an order was made by Mr Andrew Kinnear KC DHCJ directing the local authority to provide the Claimant with suitable accommodation and he was released from immigration detention on 12 th May 2024. The period of detention that I understand is under challenge ranges from the date of the detention under the authorisation of detention on 11 th October 2023 until 12 th May 2024.

As I have indicated the Claimant suffers from significant mental impairment and there have also been proceedings brought in the Court of Protection on his behalf. On 6 th September 2024 an order was made in the Court of Protection on an interim basis declaring that he lacked capacity to litigate. In these proceedings he is represented by a litigation friend.

There have been further incidents that have taken place since his release from immigration detention which I will mention although they are not directly relevant to the outcome of today's hearing. He was arrested on 29 th October 2024 for arson and was remanded in custody at HMP Tameside and, while in custody, was transferred to hospital under section 2 of the Mental Health Act on 17 th May 2025. He has since been detained for treatment under section 3 of the Mental Health Act and, as I understand it, he remains in mental health detention today.

Discussion in relation to the preliminary issues

Ground 1: Equality Act 2010 claim (First Decision)

The Defendant submits Ground 1 should either be dismissed or transferred to the County Court. She also applies to raise a new ground of defence. I will address this first.

The new defence to Ground 1: para 16 of Sch. 3 Equality Act 2010

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making a decision notifying MM of his intention to deport him and serving it on him, requiring him to provide a response. The SSHD has not demonstrated, on the available documents before the Court, that she complied with her duty to make reasonable adjustments for MM in respect of his ability to understand the Stage 1 deportation decision, or to make representations in response to the decision. The SSHD has unlawfully discriminated against MM in breach of his reasonable adjustments duty in respect of his decision-making concerning MM’s deportation.

In this case the relevant PCPs, at least in the context of Ground 1, are said to be the standard processes for serving and explaining immigration decisions. The relevant disadvantage that the Claimant, the ‘disabled person’, suffered is that he was unable to understand and make representations in relation to an immigration-related decision (the Stage 1 Notice) without suitable support. The relevant adjustments that, it is said, the Defendant should have made include the provision of relevant support to enable the Claimant to understand and make representations in the light of the Stage 1 decision.

Section 21 of the Equality Act provides that a failure to comply, materially, with the ‘first requirement’ in Section 20(3) is a failure to comply with a duty to make reasonable adjustments: section 21(1). Section 21(2) then states: ‘A discriminates against a disabled person if A fails to comply with [the reasonable adjustments duty] in relation to that person.’ One turns then to Section 29. Section 29(4) makes clear that the reasonable adjustments duty applies, materially, to a person who exercises public functions. Section 29(6) then provides that ‘a person must not, in the exercise of a public function that is not the provision of a service to the public or a sector of the public, do anything that constitutes discrimination’. The remedy for such discrimination is a claim for damages which is generally brought in the County Court (s 114) but may be brought in the Administrative Court by way of judicial review: s 113(1).

So, on the face of it (and absent paragraph 16 of Schedule 3), the reasonable adjustments duty applies to ‘the exercise of a public function’ and the Defendant’s decision to deport the Claimant is, in principle, capable of being challenged by way of a discrimination claim brought in the Administrative Court by way of judicial review.

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The Defendant's case is that a deportation decision under section 3(5) (a) of the Immigration Act is a decision either ‘for the purposes of’ a decision to refuse leave to enter the UK for the purposes of paragraph 16(2)(b) or ‘in connection with’ such a decision within the meaning of paragraph 16(4)(a). Accordingly, the Defendant as ‘a person exercising public functions’ cannot be liable for disability discrimination as this is excluded by virtue of paragraph 16(2).

The Claimant disputes that. It is submitted on his behalf that there must have been a ‘decision’ within the meaning of paragraph 16(3) for paragraph 16(2)(b) or (4)(a) to bite. Given that leave to enter or remain has never been granted, refused, varied or cancelled in the Claimant’s case, there has been no ‘decision’ to which the exclusion in paragraph 16 applies.

Although the parties advanced oral submissions in support of their positions, given that it was only relied upon at the eleventh hour by the Defendant there are no written arguments and the parties frankly admit that they will need more time to research and develop their arguments.

In my judgment, this is a complex issue of statutory interpretation of wider public importance which is clearly arguable. I give leave for the Defendant to amend her defence to rely upon it subject to her filing and serving a suitably amended defence.

Is Ground 1 (procedural unfairness in making Stage 1 deportation decision) now academic given D has withdrawn the deportation decision [DGD, 41] (124), GLD letter of 26.1.26 (DSK25).

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In relation to this point, the Defendant has said she will withdraw the claim but did not actually withdraw it until the second day of the hearing. I have been shown a copy of the decision which also makes clear that the Secretary of State is still keeping the question of deportation under active review. There is clearly a significant risk that the same decision will be taken again in the Claimant’s case.

I do not consider this case to be academic within the meaning of the case law to which I was taken yesterday, in particular Zoolife International Ltd v Secretary of State for the Environment, Food and Rural Affairs [2007] EWHC 2995 (Admin) , paragraph 36. That case (among many others) establishes that, where a decision has become academic, the court should determine it only in exceptional circumstances and generally only where two conditions are satisfied: first, there are a large number of similar cases and, second, the outcome of the decision is fact sensitive. However, that only applies if the challenge has become academic. This case is not academic because there remains a significant risk that the Claimant will be the subject of a further deportation order.

In any event, the procedural unfairness point is inextricably linked with the Equality Act component of Ground 1, which clearly is not academic as it creates a statutory tort sounding in damages. The fact that the deportation order has been withdrawn does not render the damages part of the claim academic. The only real question is whether Ground 1 should be transferred to the County Court or heard in the Administrative Court.

Should Ground 1 be transferred to the County Court for determination of the individual Equality Act 2010 claim?

A claim for disability discrimination can either be brought in the County Court (s 114(1)) or (at least where the claim is brought against a public body) in the Administrative Court by way of judicial review: s 113(1). The Defendant submits the claim should be transferred to the County Court; the Claimant disputes that, arguing that it should remain in the Administrative Court. The parties were not able to take me to any case-law in which this issue has been specifically considered. It is therefore necessary to start from first principles.

(Part 30 (transfer) applies to transfers to and from the Administrative Court)

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Sub-paragraphs (2)(b), (c), (d), (e) and (g) are of particular relevance in considering whether a discrimination claim should be transferred from the Administrative Court to the County Court.

86 The general rule is that the evidence of a witness is accepted unless given the opportunity to rebut the allegation made against them, or there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away so that the witness’s testimony is manifestly wrong. A court hearing a judicial review will generally accept the evidence of the public authority: and will not normally decide contested issues of fact: see, for example, R v. Board of Visitors of Hull Prison ex p St. Germain (No. 2) [1979] 1 WLR 1401 at page 1410H and R (Watkins-Smith) v. Aberdare Girls High School [2008] EWHC 1865 (Admin) , [2008] FCR 203 at [135]; R (Safeer) v Secretary of State for the Home Department [2018] EWCA Civ 2518 at [18]).

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heard in the County Court. A discrimination claim that is concerned only with the lawfulness of a public authority’s past conduct, particularly where there are contested issues of fact, will usually be more appropriately heard in the County Court rather than the Administrative Court. Applying CPR Part 30.3(2)(b), in such cases ‘it would be more convenient or fair for hearings (including the trial) to be held’ in the County Court. That is also more likely to accord with the overriding objective which requires that cases are allotted an appropriate share of the court’s resources, see CPR Part 1.1(2)(e).

Nevertheless, Parliament has conferred the jurisdiction on the Administrative Court to hear and determine discrimination claims brought by way of judicial review and there will be some cases where that is the more appropriate forum. In my judgment, a hearing in the Administrative Court is likely to be more appropriate where there is a combination of some, preferably all, of the following factors: (i) resolution of the issues in the claim does not turn on contested issues of fact which are more suitably resolved by way of oral evidence and cross-examination (see CPR Part 30.3(2)(b)); (ii) the case raises public law issues that are novel and/ or complex and most suitably determined by a specialist judge or deputy judge authorised to sit in the Administrative Court (see CPR Part 30.3(2)(c) and (d)); (iii) the discrimination claim is being brought alongside other, arguable public law claims that can only be heard in the Administrative Court so that transfer of the discrimination claim to the County Court would only duplicate proceedings and increase costs; and (iv) resolution of the claim is of wider public importance, for example where the claim is likely to affect a number of other individuals (such as a ‘systemic’ claim involving a challenge to a PCP affecting a class of individuals) or to influence the making of government policy (see CPR Part 30.3(2)(e)). In such a case there is a public benefit in an authoritative ruling from the Administrative Court that is binding on the County Court as a matter of stare decisis and which is functionally binding on other High Court judges applying principles of judicial comity.

any previous judgment.

past treatment of the Claimant but also his and others’ treatment by the

Defendant in future.

Defendant’s policy in relation to reasonable adjustments for mentally impaired individuals in the context of immigration decision making generally. The novelty and complexity of the issue, as well as the public benefit in a binding judgment of the High Court militates in favour of the claim being heard in the Administrative Court rather than the County Court.

The pleading point

The Defendant submits that the Equality Act Ground was not adequately pleaded. It is said that the statements of facts and Grounds do not make it clear that the Equality Act Ground is a systems challenge as opposed to a fact-based, individual challenge.

First, the systemic nature of the challenge is apparent from paragraphs 111 to 112 of the Claimant’s Statement of Facts and Grounds when read in the light of the legal framework and the rest of Ground 1.

Second, a claim based on a breach of the reasonable adjustments duty involves identification of a PCP. The Defendant appears to accept that a number of PCPs fall to be questioned by the Equality Act Grounds. As the Court of Appeal made clear in R (VC) v Secretary of State for the Home Department [2018] 1 WLR 4781 case at paragraph 157, discharge of the reasonable adjustments duty involves a duty to make anticipatory adjustments to a PCP for a class of individuals as well as a continuing duty to make adjustments in individual cases. A PCP is therefore a ‘system’, the lawfulness of which will affect not only the individual claimant but other individuals within the same class.

In my judgment, the claim as articulated is certainly wide enough to encompass the kind of systemic challenges which lie at the heart of Ground 1 as developed in the skeleton argument.

Ground 2: false imprisonment and human rights damages claim (Second Decision)

Three preliminary points were taken by the Defendant in relation to Ground 2. First, that she should be given leave to amend her defence to rely upon Section 44 of the Border Security, Asylum and Immigration Act 2025; second, Ground 2 is academic and should therefore be dismissed; and third, in any event, the false imprisonment part of the claim should be transferred to the County Court. I consider the applications in that order.

The new defence to Ground 2: Section 44 Border Security, Asylum and Immigration Act 2025

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even if a notice to deport is subsequently quashed as unlawful. Moreover, by virtue s 44(17) the amendments are retrospective in effect and therefore govern the lawfulness of the Claimant’s detention, even though the new provision was not in force at the time. This is clearly a novel and important issue and, notwithstanding the late application and the absence of any written application, I give the Defendant leave to amend her defence, subject to a suitable written amendment being filed and served.

Is Ground 2 academic or should it be transferred to the County Court?

The overriding objective requires that cases are allotted an appropriate share of the court’s resources, see CPR Part Part 1.1(2)(e). Parties are required to help the court to further the overriding objective, see CPR Part Part 1.3. Therefore, once the appellant had been released from detention both parties should have addressed their minds to the issue of whether the claim should have been transferred either to the Queen’s Bench Division or the County Court. There would also have been many advantages in such a transfer for both the Appellant and Respondent. So far as the Appellant is concerned there would have been no need to obtain permission to bring the claim, and there were contested issues about the grant of permission to apply for judicial review in this case, because there would have been unfettered access to the Queen’s Bench Division or County Court. There would have been a process for calling witnesses and for cross examination. This would have meant that the Appellant could give oral evidence in support of his case that he had disclosed the fact that he was depressed to the nurse at Larne House Short Term Holding Facility. As it was the judge rejected this evidence contained in a witness statement without hearing the Claimant crossexamined because of the inconsistency of the Appellant’s evidence with the contemporaneous notes of the examination. 73.

Although not cited in ZA , the factors set out in CPR Part 30.3(2) (set out above) must also be taken into account by virtue of CPR 54.20.

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As to the overriding objective and the allocation of appropriate resources, I have already decided that Ground 1 must be heard in the Administrative Court. A transfer of Ground 2 to the County Court would simply take up more resources, not less.

First, the new argument that the Defendant now wishes to raise concerning the amendments to paragraph 2 and 2(a) of schedule 3 of the Immigration Act introduced by the Border Security and Asylum and Immigration Act, Section 44 raises a public law issue of complexity and novelty which it is more appropriate for the Administrative Court to decide.

Second, whether Section 44 applies retrospectively, as section 44(17) envisages, is not only a novel and complex issue but, as Ms Liu submitted, also raises a very real question as to the human rights compatibility of that provision. If that provision is incompatible, then consideration will be given to the making of a declaration of incompatibility under s 4 Human Rights Act 1998 . Such an order cannot be made by the County Court: Section 4(5) . While I have given the Defendant leave to raise this argument by way of defence, it wholly undermines her application that the case should be transferred to the County Court.

Third, Ground 2 also raises the question of how the Hardial Singh principles are to be applied following amendments by section 12 of the Illegal Migration Act 2023, which introduced subparagraphs 3(a) to 3(e) to the power to detain on immigration Grounds in schedule 3 paragraph 2 of the Immigration Act. In particular, it is now a question for the Secretary of State, rather than the court, to determine the reasonableness of the period of detention necessary to enable the deportation order to be made or the removal carried out. I have been shown no case law that has explored the difference in the approach that this court must now take in determining whether that provision has been complied with. Clearly, authoritative guidance from the Administrative Court on these amendments will be in the public interest. This is a further reason for retaining the case in the Administrative Court.

Ground 2 should therefore remain in the Administrative Court. If there are contested issues of fact that require resolution then the procedures of the Administrative Court are capable of adaptation, although if the Claimant seeks to rely upon oral evidence or to cross-examine the Defendant’s witnesses a suitable application will need to be made and determined well in advance of the substantive hearing.

Ground 3: Equality Act 2010 claim challenge to the Claimant’s detention and segregation (Second Decision)

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I accept that there are not the same novel issues of law involved in Ground 3. That is because there has been a succession of case law since the Court of Appeal decision in R (VC) v Secretary of State for the Home Department [2018] 1 WLR 4781 that has established the existence of a duty to make reasonable adjustments under the Equality Act in relation to the detention of mentally impaired migrants. I also accept that this case law has led to a review of government policy which is ongoing. These factors were referred to by Mr Justice Dexter Dias in R (Medical Justice) v. Secretary of State for the Home Department [2025] EWHC 2368 in September 2025. The judge refused permission to apply for judicial review of the Defendant’s immigration detention processes. The claim was brought by Medical Justice as a public interest litigant with no supporting individual claimant. It was systemic in nature and sought to challenge the absence of adequate support for immigration detainees who lack mental capacity.

The judge’s primary reason for refusing permission was because the Claimant ‘has not nominated any identifiable individual who has been harmed.’ So, ‘the claim lacks a measure of specificity and any concrete exemplar to illustrate the alleged harm.’ The judge continued: ‘a generalised challenge to the Defendant's operational and managerial judgment is not suitable for determination in a claim for judicial review.’ The lawfulness of the treatment of any individual person is highly context and fact specific and ‘the conceptual problems argued for by the Claimant presently lack clear and concrete focus.’ On the other hand, ‘it may be that a relevant case would bring into vivid relief the concerns raised by the Claimant about unlawfulness, but no such case is before the court.’ The judge then went on to identify a second reason for refusing permission, what he referred to as a ‘core difficulty with the Claimant's approach’, which is ‘that this situation is complex and evolving’ because ‘a new scheme is in development and under active and ongoing consideration.’ The challenge to that scheme was premature, notwithstanding the fact that ‘this process has been protracted and has not progressed with a hopeful expedition.’

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to the overriding principle to transfer Ground 3 to the County Court while Grounds 1 and 2 are determined in the Administrative Court.

Conclusion and ruling

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