Practice and Procedure

HIV positive detainees

PUBLISHED December 13, 2011

Court of Appeal

Published December 13, 2011

R (MN (Angola)) v Secretary of State for the Home Department

R (TN (Vietnam)) v Same

R (CJ (Dominica)) v Same

Before Lord Justice Maurice Kay, Lady Justice Arden and Lord Justice Patten

Judgment November 1, 2011

The Home Secretary was not obliged to adopt the British HIV Association advice as a legal standard for providing for the healthcare needs of HIV positive detainees in immigration detention centres.

The Court of Appeal so stated, inter alia, when dismissing the appeals of MD an Angolan citizen, TN a Vietnamese citizen and CJ a Dominican citizen against a refusal by Mr Justice Cranston in the Administrative Court on July 30, 2010, of their applications for judicial review of the Home Secretary?s removal decisions and decisions to detain them prior to, and in order to carry out, removal. All three had been diagnosed as HIV positive prior to detention.

Mr Michael Fordham, QC and Mr Tim Buley for the applicants;Mr Jonathan Swift, QC and Miss Julie Anderson for the Secretary of State; Mr Paul Bowen and Miss Alison Pickup for the Migrants? Law Project intervening.

LORD JUSTICE MAURICE KAY said that no one questioned the appropriateness of the British HIV Association publication Detention, Removal and People Living with HIV of June 2009, sub-titled ?Advice for healthcare and voluntary sector professionals?. However, it was clear from its foreword that it was intended to be an outline of best practice and a resource of practical advice. His Lordship could not see how it could be elevated as a universal minimum standard.

By taking steps including making the Detention Centre Rules 2001 (SI 2001/238), the Detention Centre Operating Standards, various Detention Services Orders and ensuring certain contractual obligations since the centres were operated or managed by outside contractors, the Home Secretary had put in place a system which was compliant with the European Convention on Human Rights.

It was dependent upon healthcare staff in and outside the immigration removal centres doing their jobs competently. They included in-house doctors and nurses, as well as others outside the centres. There were no doubt areas that were left to the clinical and professional judgment of those involved. It had not been suggested that they were not properly qualified and trained.

Whatever might be the position in relation to the detailed treatment of the applicants, there was no basis for a human rights claim based on the failure of the Home Secretary to adopt the advice or something equivalent as a legal standard.

Lady Justice Arden delivered a concurring judgment and Lord Justice Patten agreed,

Solicitors: Pierce Glynn; Treasury Solicitor; Ms Sonal Ghelani, Migrants? Law Project, Islington.