QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF AA||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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Miss Cathryn McGahey and Mr David White (instructed by Treasury Solicitors) appeared on behalf of the Defendant
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MR JUSTICE CRANSTON:
(a) The claimant's immigration history
"This appellant is an economic migrant from Nigeria ... His story is an invention from beginning to end and is implausible and a clear fabrication."
"This is a low risk of harm [case] with the subject having been convicted of documentary fraud. He has been in our detention for 7 months and has been compliant. There are still barriers to his removal and he has been self-harming in detention. I believe release is appropriate, with CM and EM as he does pose some risk of absconding."
The reference to "CM" and "EM" is to methods of control after release such as electronic monitoring. On 18 May Lin Homer refused to authorise the claimant's release. Subsequently, in early June the Treasury Solicitor wrote to the court apologising for the significant error in the summary grounds.
"43. On reviewing the medical evidence upon which there was no adverse submissions made for the respondent, I accept such expert evidence that the risk of suicide is very high or as expressed in the Winton report, 'as high as it gets' ... I am satisfied in the light of the medical evidence that despite the conceded lack of any objectively founded fear on return to Nigeria it is clear that the appellant's subjective fear is only too real."
The Secretary of State has not appealed that decision.
(b) Detention reviews
"You need to be detained whilst alternative arrangements are made for your care."
"He has immediate access to any medical care he requires and is under constant watch to ensure his suicide attempts are not successful."
(c) Medical reports
"68. The effect of release from custody with or without removal of the deportation order would have to be observed very carefully as I believe that there would remain a very high risk that he would attempt to kill himself again. If this were to be attempted I feel that he should be transferred to an NHS facility under the Mental Health Act and the level of observation reduced over time according to his mental state. It would not be safe to release him straight into the community."
"We expect that his mental health would improve dramatically should he be released into the community."
In his opinion and that of the staff at HMP Chelmsford, the claimant did not present any threat to the public and had behaved perfectly well with all members of staff and prisoners. The next day Dr Albrecht sent a further e-mail recording that the claimant was receiving the best available care and was on constant supervision 24 hours a day at the prison. The prison could provide cognitive behaviour therapy and medication. Not being involved in the claimant's care regarding his mental health he, Dr Albrecht, was unable to provide an opinion regarding the question as to whether the patient's condition would deteriorate should he be transferred to another establishment.
"I find this e-mail from the GP deeply disturbing. We must get him out of HMP ASAP."
"His release from custody would depend upon whether he is going to be eventually deported or not. If he was released from custody with the threat of deportation still present it is my opinion that he would definitely kill himself. I do not believe that his condition could be managed in the community by a local mental health team. His needs would best be met via a Mental Health Act assessment with a view to admission to a psychiatric in-patient unit under section."
Dr Winton went on to comment that knowledge of the deportation would cause the ongoing nature of the claimant's current difficulties. He would still require continuous observation and his depression would remain severe, although it would still fluctuate.
"Thus, by default, the most appropriate place for his treatment would be the Healthcare Wing of the prison with psychiatric support."
"51. Paragraph 55.10 provides that those mentally ill are normally considered suitable for detention in only 'very exceptional circumstances'. To my mind the existence of very exceptional circumstances demands both a quantitative and qualitative judgment. Were this provision to stand in isolation in the policy the power to detain the mentally ill could only be used infrequently, and the circumstances would have to have a quality about them which distinguished them from the circumstances where the power is frequently used. Otherwise effect would not be given to the requirement that the circumstances not simply be exceptional but very exceptional.
55. The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy. The phrase needs to be construed in the context of the policy providing guidance for the detention of all those liable to removal, not just foreign national prisoners. It seems to me that there is a general spectrum which near one end has those with mental illness who should be detained only in "very exceptional circumstances" along it – the average asylum seeker with a presumption of release – and near the other end has high risk terrorists who are detained on national security grounds. To be factored in, in individual cases, are matters such as the risk of further offending or public harm and the risk of absconding. When the person has been convicted of a serious offence substantial weight must be given to these factors. In effect paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified."
The Secretary of State's case
Discussion and conclusion