MM,R (on the application of) v Secretary of State for the Home Department [2026] EWHC 448 (Admin)

[2026] EWHC 448 (Admin)Case No AC-2024-LON-000215IN THE HIGH COURT OF JUSTICE KINGS BENCH DIVISION ADMINISTRATIVE COURTVenue Royal Courts of Justice Strand London, WC2A 2LLDate Wednesday 28 th January 2026
Before
PAUL BOWEN KC(Sitting as a Deputy Judge of the High Court)
Between
R (ON THE APPLICATION OF MM)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
MS S LUH (instructed by Bhatt Murphy) appeared for Claimant MR J HOLBORN and MR M HOWARTH (instructed by Government Legal Department) appeared on behalf of the Defendant
APPROVED JUDGMENT
Digital Transcription by Epiq Europe Ltd,Lower Ground, 46 Chancery Lane, London WC2A 1JEWeb: www.epiqglobal.com/en-gb/Email: civil@epiqglobal.co.uk(Official Shorthand Writers to the Court)This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

Paul Bowen KC DHCJ:

[1]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ Paul Bowen KC DHCJ: These are applications for judicial review brought by the Claimant MM acting by hislitigation friend, Catherine Istifanis. Appearing before me are Ms Shu Shin Luh for the Claimant, instructed by Bhatt MurphySolicitors, and for the Defendant, Mr Jack Holborn and Mr Matthew Howarth, instructedby the Government Legal Department. I am very grateful to all of them for theirsubmissions. The decisions under challenge The claim involves challenges to(1) a decision to deport the Claimant taken undersection 3(5)(a) of the Immigration Act 1971 on 2nd October 2023 (‘the First Decision’),and(2) the fact and circumstances of the subsequent detention of the Claimant in thelight of that deportation decision from 11th October 2023 until 12th May 2024 (‘theSecond Decision’). Grounds of judicial review Ground 1 is a challenge to the deportation decision (First Decision). TheClaimant alleges that the decision was unlawful, first, because it wasprocedurally unfair; and, second, because it involved a breach of theDefendant's reasonable adjustments duty under sections 20 and 29 of theEquality Act 2010. Ground 2 challenges the Claimant's detention (Second Decision). The detentionwas authorised, or purportedly authorised, under paragraph 2 of schedule 3 ofthe Immigration Act 1971 as amended by section 12 of the Illegal MigrationAct 2023. The Grounds of challenge are that there has been a breach of theHardial Singh principles, as modified by section 12 of the 2023 Act. It is alsoalleged that the detention is a breach of the Defendant's own policy and violatedthe Claimant's rights under the Human Rights Act, namely Article 5, Article 3and Article 8. Ground 3 alleges an unlawful breach of the reasonable adjustments duty undersections 20 and 29 of the Equality Act 2010, but this time in relation to thedecisions to detain and to use segregation against the Claimant (SecondDecision).[2]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ The preliminary issues I turn first to the preliminary issues as they have been identified. Ground 1: Equality Act 2010 claim (First Decision) The Defendant raises four preliminary issues: First, the Defendant seeks leave to amend her detailed grounds of defence toargue that the discrimination claim in relation to the deportation order isexcluded by operation of paragraph 16 of schedule 3 of the Equality Act 2010.In short, paragraph 16 excludes a claim for disability discrimination undersection 29 of the Equality Act in relation to certain immigration decisions,including, the Defendant submits, a decision to deport under section 3(5)(a) onthe ground that deportation is conducive to the public good. The Defendantsubmits that Ground 1 should therefore be dismissed or struck out to the extentit is based upon the Equality Act 2010. This argument emerged on the first dayof the trial after I had raised the issue with counsel by email overnight. Second, the Defendant argues that the deportation order has now beenwithdrawn so that Ground 1 is academic, at least insofar as the public lawGrounds are concerned, and should therefore be dismissed. Third, the Defendant argues that, so far as the claim under the Equality Act isconcerned, the appropriate forum for determination of that claim is the CountyCourt, not the Administrative Court. Accordingly, if Ground 1 is not dismissedit should be transferred to the County Court under CPR Part 54.20 and CPR Part30. 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 basedon the individual facts of the Claimant's case, but as developed in the skeletonargument has expanded to include systemic challenges which are not pleaded. Ground 2: false imprisonment and human rights damages claim (Second Decision) The Defendant raises three preliminary issues requiring determination in relation toGround 2: First, the Defendant seeks leave - for the first time today, without any writtenapplication - to raise a new argument by way of defence to Ground 2 under theBorder Security, Asylum and Immigration Act 2025, section 44.[3]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ The only outstanding issue is the damages claim for false imprisonment andbreach of the Human Rights Act which is more appropriately determined in theCounty Court. The remaining aspect of Ground 2 should therefore also betransferred 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 forjudicial review is concerned) and that the Equality Act claim is more suitably consideredin the County Court and should be transferred. Facts Before I turn to my consideration of those issues and applications, I will set out the factsin brief summary. The Claimant is a national of Niger. His birth date is presently unknown. He is believedto have arrived in the United Kingdom on or about 23rd August 2021, perhaps, but againit is not known, by small boat. He was either apprehended or surrendered to bordercontrol officers and was removed to the Kent Intake Unit. On 31st August 2021 he lodgedan asylum claim and then on 1st September 2021 he was released on immigration bailwith conditions. He was initially in the community receiving section 98 asylum support and was assistedwith an application for section 95 asylum support. On 28th January 2022 he was arrestedand convicted of threatening behaviour, possession of a bladed article and failing toattend and received a sentence of 12 weeks which was suspended. He was released inFebruary 2022. On 12th May 2023 he was arrested for assault and arson. He was remanded in custodyand was later convicted at Lincoln Crown Court for arson and assault by beating andreceived a sentence of six months in prison. On or about 2nd October 2023 he was due to be released. The Secretary of State, theDefendant 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 schedule3 of the Immigration Act 1971. These are the decisions under challenge.

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

[4]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ As I said, he was detained initially at HMP Lincoln until 18th October, until anauthorisation for detention under the Immigration Act had been made which was, Iunderstand, made on 11th October 2023, and on 18th October 2023 he was transferredfrom HMP Lincoln to Colnbrook IRC. Following the service of the notice to deport, the Claimant had been brought to theattention of Medical Justice, a charity that is concerned with supporting migrants. Theymade representations on his behalf and arranged for him to be represented by thesolicitors who currently represent him at Bhatt Murphy and proceedings were, in duecourse, brought against the Defendant challenging the deportation order and detention.Proceedings were also brought against the relevant local authority. Several hearings tookplace in which applications were made for interim relief requiring the Claimant to bereleased and to be suitably housed either by the local authority or by the Defendant. On24th April 2024 an order was made by Mr Andrew Kinnear KC DHCJ directing the localauthority to provide the Claimant with suitable accommodation and he was released fromimmigration detention on 12th May 2024. The period of detention that I understand isunder challenge ranges from the date of the detention under the authorisation of detentionon 11th October 2023 until 12th May 2024. As I have indicated the Claimant suffers from significant mental impairment and therehave also been proceedings brought in the Court of Protection on his behalf. On 6thSeptember 2024 an order was made in the Court of Protection on an interim basisdeclaring that he lacked capacity to litigate. In these proceedings he is represented by alitigation friend. There have been further incidents that have taken place since his release fromimmigration detention which I will mention although they are not directly relevant to theoutcome of today's hearing. He was arrested on 29th October 2024 for arson and wasremanded in custody at HMP Tameside and, while in custody, was transferred to hospitalunder section 2 of the Mental Health Act on 17th May 2025. He has since been detainedfor treatment under section 3 of the Mental Health Act and, as I understand it, he remainsin 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 CountyCourt. 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[5][112] In circumstances where the SSHD had actual (not just constructive)knowledge of MM’s potential disability, it was incumbent on him to grapplewith whether and what additional support or adjustments are required before

Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/

[6]making a decision notifying MM of his intention to deport him and serving iton him, requiring him to provide a response. The SSHD has not demonstrated,on the available documents before the Court, that she complied with her dutyto make reasonable adjustments for MM in respect of his ability to understandthe Stage 1 deportation decision, or to make representations in response to thedecision. The SSHD has unlawfully discriminated against MM in breach of hisreasonable adjustments duty in respect of his decision-making concerningMM’s deportation. (3). The first requirement is a requirement, where a provision, criterion orpractice [PCP] of A's puts a disabled person at a substantial disadvantage inrelation to a relevant matter in comparison with persons who are not disabled,to take such steps as it is reasonable to have to take to avoid the disadvantage. In this case the relevant PCPs, at least in the context of Ground 1, are said to be thestandard processes for serving and explaining immigration decisions. The relevantdisadvantage that the Claimant, the ‘disabled person’, suffered is that he was unable tounderstand and make representations in relation to an immigration-related decision (theStage 1 Notice) without suitable support. The relevant adjustments that, it is said, theDefendant should have made include the provision of relevant support to enable theClaimant 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 reasonableadjustments: section 21(1). Section 21(2) then states:
‘A discriminates against a disabledperson if A fails to comply with [the reasonable adjustments duty] in relation to thatperson.’
One turns then to Section 29. Section 29(4) makes clear that the reasonableadjustments duty applies, materially, to a person who exercises public functions. Section29(6) then provides that ‘a person must not, in the exercise of a public function that isnot the provision of a service to the public or a sector of the public, do anything thatconstitutes discrimination’. The remedy for such discrimination is a claim for damageswhich is generally brought in the County Court (s 114) but may be brought in theAdministrative Court by way of judicial review: s 113(1). So, on the face of it (and absent paragraph 16 of Schedule 3), the reasonable adjustmentsduty applies to ‘the exercise of a public function’ and the Defendant’s decision to deportthe Claimant is, in principle, capable of being challenged by way of a discriminationclaim brought in the Administrative Court by way of judicial review.[8]16 Disability Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ (1). This paragraph applies in relation to disability discrimination. (2). Section 29 does not apply to—(a) a decision within sub-paragraph (3);(b) anything done for the purposes of or in pursuance of a decision withinthat sub-paragraph. (3). A decision is within this sub-paragraph if it is a decision (whether or nottaken in accordance with immigration rules) to do any of the following on theground that doing so is necessary for the public good— (a) to refuse entryclearance;(b) to refuse leave to enter or remain in the United Kingdom;(c) tocancel leave to enter or remain in the United Kingdom;(d) to vary leave toenter or remain in the United Kingdom;(e) to refuse an application to varyleave to enter or remain in the United Kingdom. (4). Section 29 does not apply to— (a) a decision taken, or guidance given, bythe Secretary of State in connection with a decision within sub-paragraph (3);(b) a decision taken in accordance with guidance given by the Secretary ofState in connection with a decision within that sub-paragraph. The Defendant's case is that a deportation decision under section 3(5)(a) of theImmigration Act is a decision either ‘for the purposes of’ a decision to refuse leave toenter the UK for the purposes of paragraph 16(2)(b) or ‘in connection with’ such adecision within the meaning of paragraph 16(4)(a). Accordingly, the Defendant as ‘aperson exercising public functions’ cannot be liable for disability discrimination as thisis 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 cancelledin the Claimant’s case, there has been no ‘decision’ to which the exclusion in paragraph16 applies. Although the parties advanced oral submissions in support of their positions, given thatit was only relied upon at the eleventh hour by the Defendant there are no writtenarguments and the parties frankly admit that they will need more time to research anddevelop their arguments. In my judgment, this is a complex issue of statutory interpretation of wider publicimportance which is clearly arguable. I give leave for the Defendant to amend herdefence 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) nowacademic given D has withdrawn the deportation decision [DGD, 41] (124), GLD letterof 26.1.26 (DSK25).[13]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ In relation to this point, the Defendant has said she will withdraw the claim but did notactually withdraw it until the second day of the hearing. I have been shown a copy ofthe decision which also makes clear that the Secretary of State is still keeping thequestion of deportation under active review. There is clearly a significant risk that thesame 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 Iwas taken yesterday, in particular Zoolife International Ltd v Secretary of State for theEnvironment, Food and Rural Affairs [2007] EWHC 2995 (Admin), paragraph 36. Thatcase (among many others) establishes that, where a decision has become academic, thecourt should determine it only in exceptional circumstances and generally only wheretwo 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 challengehas become academic. This case is not academic because there remains a significant riskthat the Claimant will be the subject of a further deportation order. In any event, the procedural unfairness point is inextricably linked with the Equality Actcomponent of Ground 1, which clearly is not academic as it creates a statutory tortsounding in damages. The fact that the deportation order has been withdrawn does notrender the damages part of the claim academic. The only real question is whether Ground1 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 individualEquality 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 Courtby way of judicial review: s 113(1). The Defendant submits the claim should betransferred to the County Court; the Claimant disputes that, arguing that it should remainin the Administrative Court. The parties were not able to take me to any case-law inwhich this issue has been specifically considered. It is therefore necessary to start fromfirst principles. 54.20. The court may—(a) order a claim to continue as if it had not been startedunder this Section; and(b) where it does so, give directions about the futuremanagement of the claim.[15](Part 30 (transfer) applies to transfers to and from the Administrative Court)[16]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ (2). The matters to which the court must have regard include—(a) the financialvalue of the claim and the amount in dispute, if different;(b) whether it wouldbe more convenient or fair for hearings (including the trial) to be held in someother court;(c) the availability of a judge specialising in the type of claim inquestion and in particular the availability of a specialist judge sitting in anappropriate regional specialist court;(d) whether the facts, legal issues,remedies or procedures involved are simple or complex;(e) the importance ofthe outcome of the claim to the public in general;(f) the facilities available tothe court at which the claim is being dealt with, particularly in relation to— (i)any disabilities of a party or potential witness; (ii) any special measures neededfor potential witnesses; or (iii) security;(g) whether the making of a declarationof incompatibility under section 4 of the Human Rights Act 1998 has arisen ormay arise;(h) in the case of civil proceedings by or against the Crown, asdefined in rule 66.1(2), the location of the relevant government department orofficers of the Crown and, where appropriate, any relevant public interest thatthe matter should be tried in London. Sub-paragraphs (2)(b), (c), (d), (e) and (g) are of particular relevance in consideringwhether a discrimination claim should be transferred from the Administrative Court tothe County Court.[18]86 The general rule is that the evidence of a witness is accepted unless giventhe opportunity to rebut the allegation made against them, or there is undisputedobjective evidence inconsistent with that of the witness that cannot sensibly beexplained away so that the witness’s testimony is manifestly wrong. A courthearing a judicial review will generally accept the evidence of the publicauthority: and will not normally decide contested issues of fact: see, forexample, 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 HighSchool [2008] EWHC 1865 (Admin), [2008] FCR 203 at [135]; R (Safeer) vSecretary of State for the Home Department [2018] EWCA Civ 2518 at [18]).[19]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ heard in the County Court. A discrimination claim that is concerned only with thelawfulness of a public authority’s past conduct, particularly where there are contestedissues of fact, will usually be more appropriately heard in the County Court rather thanthe Administrative Court. Applying CPR Part 30.3(2)(b), in such cases ‘it would bemore 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 casesare 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 tohear and determine discrimination claims brought by way of judicial review and therewill be some cases where that is the more appropriate forum. In my judgment, a hearingin the Administrative Court is likely to be more appropriate where there is a combinationof some, preferably all, of the following factors:(i) resolution of the issues in the claimdoes not turn on contested issues of fact which are more suitably resolved by way of oralevidence and cross-examination (see CPR Part 30.3(2)(b));(ii) the case raises publiclaw issues that are novel and/ or complex and most suitably determined by a specialistjudge or deputy judge authorised to sit in the Administrative Court (see CPR Part30.3(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 thattransfer of the discrimination claim to the County Court would only duplicateproceedings and increase costs; and(iv) resolution of the claim is of wider publicimportance, 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 ofindividuals) 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 AdministrativeCourt that is binding on the County Court as a matter of stare decisis and which isfunctionally binding on other High Court judges applying principles of judicial comity.[20]any previous judgment.

A decision in this case will be relevant not only to the

[21]past treatment of the Claimant but also his and others’ treatment by the[22]Defendant in future. It is also likely to influence the development of the Defendant’s policy in relation to reasonable adjustments for mentally impairedindividuals in the context of immigration decision making generally. Thenovelty and complexity of the issue, as well as the public benefit in a bindingjudgment of the High Court militates in favour of the claim being heard in theAdministrative Court rather than the County Court.[23]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ The pleading point The Defendant submits that the Equality Act Ground was not adequately pleaded. It issaid that the statements of facts and Grounds do not make it clear that the Equality ActGround is a systems challenge as opposed to a fact-based, individual challenge. First, the systemic nature of the challenge is apparent from paragraphs 111 to112 of the Claimant’s Statement of Facts and Grounds when read in the light ofthe legal framework and the rest of Ground 1. Second, a claim based on a breach of the reasonable adjustments duty involvesidentification of a PCP. The Defendant appears to accept that a number of PCPsfall to be questioned by the Equality Act Grounds. As the Court of Appeal madeclear in R (VC) v Secretary of State for the Home Department [2018] 1 WLR4781 case at paragraph 157, discharge of the reasonable adjustments dutyinvolves a duty to make anticipatory adjustments to a PCP for a class ofindividuals 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 theindividual claimant but other individuals within the same class. In my judgment, the claim as articulated is certainly wide enough to encompass the kindof systemic challenges which lie at the heart of Ground 1 as developed in the skeletonargument. 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, thatshe should be given leave to amend her defence to rely upon Section 44 of the BorderSecurity, Asylum and Immigration Act 2025; second, Ground 2 is academic and shouldtherefore be dismissed; and third, in any event, the false imprisonment part of the claimshould 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 Act2025[24]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ even if a notice to deport is subsequently quashed as unlawful. Moreover, by virtue s44(17) the amendments are retrospective in effect and therefore govern the lawfulnessof 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 andthe 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?[25]The overriding objective requires that cases are allotted an appropriate share ofthe court’s resources, see CPR Part Part 1.1(2)(e). Parties are required to helpthe court to further the overriding objective, see CPR Part Part 1.3. Therefore,once the appellant had been released from detention both parties should haveaddressed their minds to the issue of whether the claim should have beentransferred either to the Queen’s Bench Division or the County Court. Therewould also have been many advantages in such a transfer for both the Appellantand Respondent. So far as the Appellant is concerned there would have beenno need to obtain permission to bring the claim, and there were contested issuesabout the grant of permission to apply for judicial review in this case, becausethere would have been unfettered access to the Queen’s Bench Division orCounty Court. There would have been a process for calling witnesses and forcross examination. This would have meant that the Appellant could give oralevidence in support of his case that he had disclosed the fact that he wasdepressed to the nurse at Larne House Short Term Holding Facility. As it wasthe judge rejected this evidence contained in a witness statement withouthearing the Claimant crossexamined because of the inconsistency of theAppellant’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) mustalso be taken into account by virtue of CPR 54.20.[26]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ As to the overriding objective and the allocation of appropriate resources, I have alreadydecided that Ground 1 must be heard in the Administrative Court. A transfer of Ground2 to the County Court would simply take up more resources, not less. First, the new argument that the Defendant now wishes to raise concerning theamendments to paragraph 2 and 2(a) of schedule 3 of the Immigration Actintroduced by the Border Security and Asylum and Immigration Act, Section44 raises a public law issue of complexity and novelty which it is moreappropriate 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 avery real question as to the human rights compatibility of that provision. If thatprovision is incompatible, then consideration will be given to the making of adeclaration of incompatibility under s 4 Human Rights Act 1998. Such an ordercannot be made by the County Court: Section 4(5). While I have given theDefendant leave to raise this argument by way of defence, it wholly underminesher application that the case should be transferred to the County Court. Third, Ground 2 also raises the question of how the Hardial Singh principlesare to be applied following amendments by section 12 of the Illegal MigrationAct 2023, which introduced subparagraphs 3(a) to 3(e) to the power to detainon immigration Grounds in schedule 3 paragraph 2 of the Immigration Act. Inparticular, 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 enablethe deportation order to be made or the removal carried out. I have been shownno case law that has explored the difference in the approach that this court mustnow take in determining whether that provision has been complied with.Clearly, authoritative guidance from the Administrative Court on theseamendments will be in the public interest. This is a further reason for retainingthe case in the Administrative Court. Ground 2 should therefore remain in the Administrative Court. If there are contestedissues of fact that require resolution then the procedures of the Administrative Court arecapable of adaptation, although if the Claimant seeks to rely upon oral evidence or tocross-examine the Defendant’s witnesses a suitable application will need to be made anddetermined well in advance of the substantive hearing. Ground 3: Equality Act 2010 claim challenge to the Claimant’s detention andsegregation (Second Decision)[27]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ I accept that there are not the same novel issues of law involved in Ground 3. That isbecause 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 hasestablished the existence of a duty to make reasonable adjustments under the EqualityAct in relation to the detention of mentally impaired migrants. I also accept that thiscase law has led to a review of government policy which is ongoing. These factors werereferred to by Mr Justice Dexter Dias in R (Medical Justice) v. Secretary of State for theHome Department [2025] EWHC 2368in September 2025. The judge refusedpermission to apply for judicial review of the Defendant’s immigration detentionprocesses. The claim was brought by Medical Justice as a public interest litigant withno supporting individual claimant. It was systemic in nature and sought to challenge theabsence of adequate support for immigration detainees who lack mental capacity. The judge’s primary reason for refusing permission was because the Claimant ‘has notnominated any identifiable individual who has been harmed.’ So, ‘the claim lacks ameasure of specificity and any concrete exemplar to illustrate the alleged harm.’ Thejudge continued:
‘a generalised challenge to the Defendant's operational and managerialjudgment is not suitable for determination in a claim for judicial review.’
The lawfulnessof the treatment of any individual person is highly context and fact specific and ‘theconceptual 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 theconcerns raised by the Claimant about unlawfulness, but no such case is before thecourt.’ The judge then went on to identify a second reason for refusing permission, whathe referred to as a ‘core difficulty with the Claimant's approach’, which is ‘that thissituation is complex and evolving’ because ‘a new scheme is in development and underactive and ongoing consideration.’ The challenge to that scheme was premature,notwithstanding the fact that ‘this process has been protracted and has not progressedwith a hopeful expedition.’[28]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/ to the overriding principle to transfer Ground 3 to the County Court while Grounds 1 and2 are determined in the Administrative Court. Conclusion and ruling[29]Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JEwww.epiqglobal.com/en-gb/