MXV v Secretary of State for Home Department: HIV detention and Article 3 duties clarified

The High Court's decision in MXV v Secretary of State for Home Department [2026] EWHC 251 (Admin) provides important clarification on the state's obligations when detaining foreign nationals with HIV for deportation purposes, whilst also addressing significant changes to detention law introduced by the Illegal Migration Act 2023.

MXV, a Zimbabwean national with indefinite leave to remain subsequently revoked following criminal convictions, had been diagnosed with HIV and paranoid schizophrenia. Crucially, at the time of his detention in March 2024, he had not taken antiretroviral treatment (ART) for approximately three years since 2021, having previously disengaged from HIV care.

The case raised four principal issues: whether detention breached the operational and systems duties under Article 3 ECHR; compliance with the Hardial Singh principles as modified by the Illegal Migration Act 2023; and adherence to published detention policies.

Article 3 operational duty

Deputy Judge Marcus Pilgerstorfer KC accepted that the operational duty was engaged, given the real and immediate risk of substantial harm from untreated HIV. However, he distinguished this case from R (CSM) v Secretary of State for Home Department [2021] 4 WLR 110, where the claimant was actively adhering to prescribed ART at detention.

The court held that where a detainee has not taken ART for a significant period, the operational duty requires all reasonable steps to offer a referral to a specialist clinic as soon as possible to consider recommencement of treatment. This differs from cases involving active prescriptions, where the focus is on maintaining continuity of existing treatment.

The Secretary of State was found to have complied with this duty. MXV was referred to the genitourinary medicine clinic within days of detention, saw a specialist on 8 April 2024 (within the recommended 2-4 week timeframe), and commenced ART on 3 May 2024 following clinical assessment and prescription.

Impact of the Illegal Migration Act 2023

The court addressed for the first time the effect of section 12 of the Illegal Migration Act 2023, which inserted new sub-paragraphs into Schedule 3 of the Immigration Act 1971. These provisions make the Secretary of State the primary decision-maker regarding the reasonableness of detention periods, with courts reviewing those decisions for public law error.

Whilst acknowledging this change affects Hardial Singh principles (ii) and (iii), the court emphasised that heightened scrutiny remains appropriate given the fundamental right to liberty at stake. Importantly, the amendments do not affect Article 5 ECHR challenges, where courts retain full decision-making authority on compatibility.

Unlawful detention period

The court found MXV's detention lawful until 1 June 2024. Following the relisting of his deportation appeal to September 2024 on 17 May, removal could no longer be effected within a reasonable period. Allowing a two-week grace period for practical release arrangements, detention from 1 June to 19 June 2024 was deemed unlawful.

Implications

This judgement establishes that the state's Article 3 obligations when detaining individuals with HIV depend critically on whether they are currently adherent to treatment. Where treatment has lapsed, the focus shifts from maintaining continuity to facilitating timely clinical assessment and supported re-engagement with care.

The decision also confirms that whilst the Illegal Migration Act 2023 repositions the Secretary of State as primary decision-maker on detention reasonableness, robust judicial review remains available, particularly through Article 5 ECHR challenges where courts retain full evaluative powers.

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