MXV, R (On the Application Of) v Secretary of State for the Home Department

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

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.

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.

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”).