QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of Hubert Hall)
|- and -
|The Secretary of State for the Home Department
Miss Susan Chan (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 11 March 2011
Crown Copyright ©
Mr Justice Keith:
(i) On 8 March 2008, Dr Vara said that Mr Hall was fit to travel by sea, though he would require access to a hospital which provided emergency medical care if his condition were to deteriorate suddenly.
(ii) On 1 April 2008, Dr Vara confirmed that Mr Hall was not fit to fly.
(iii) On 16 April 2008, Dr Charmian Goldwyn, a volunteer doctor with a medical charity, thought that Mr Hall was "a heart attack waiting to happen", and that he was neither fit to fly nor fit to be detained.
(iv) On 22 May 2008, he was considered to be fit to fly, but would require medical escorts.
In the light of that last assessment, Mr Hall was to be included on a forthcoming flight to Jamaica, but on 31 May 2008 he was taken to hospital with a suspected heart attack, and on 14 June 2008 he was released from detention on the ground that he was not fit to be detained.
(i) On 15 February 2010, Mr Hall complained of chest pains. An ECG was performed. The results of the ECG were considered by Dr Elizabeth Wilkinson, another of the doctors who worked at Colnbrook. The results were consistent with his known medical history, and she advised that he should be reviewed if his symptoms recurred.
(ii) On 16 February 2010, Mr Hall was seen again by Dr Goldwyn. She was concerned about his condition. She noted that since she had last seen him he had had a pulmonary embolism and a heart attack. He was showing signs of heart failure with breathlessness on exertion and his blood pressure was very high. She said that Mr Hall would be "extremely stressed if put on a flight", and would be at risk of a heart attack, stroke or pulmonary embolism. She did not say in terms that he was not fit to be detained, but she did say that his condition was worse than on the two occasions she had seen him in 2008, and she left a note for the other doctors at Colnbrook asking them to complete a rule 35 form, so it can be inferred, I think, that she thought that Mr Hall was not fit to be detained.
(iii) On 18 February 2010 Mr Hall was seen by Dr Vara. He complained of chest pains and shortness of breath, although his heart sounded normal. That day, Dr Vara wrote to Hillingdon Hospital asking for Mr Hall to be reviewed at the Cardiology Department as a matter of urgency. He did not think that Mr Hall was fit to fly. He must have thought that Mr Hall was fit to be detained because otherwise he would have had to complete a rule 35 form, though he said that Mr Hall's fitness for detention would have to be reviewed once the cardiological assessment had been made.
(iv) On 22 February 2010, Mr Hall's medical notes were reviewed by Dr Christopher Morris, another of the doctors working at Colnbrook. It looks as if he did so because Mr Hall was due to be removed to Jamaica by air the following day, and it was necessary to ascertain whether he was or was not fit to travel by air. That inquiry had been prompted by the claim for judicial review which had been or was about to be filed that day, and which relied on Dr Goldwyn's view that Mr Hall was not fit to fly. Despite the fact that arrangements had been made for Mr Hall to be escorted by a paramedic, and for oxygen to be available for him, Dr Morris thought that Mr Hall could not fly until the assessment from the cardiologist had been received. His fear was that the pressure in most aircraft is equivalent to the pressure at an altitude of 8,000 feet, and he was unsure whether Mr Hall could cope with that or whether the oxygen which would be available for him would be sufficient. Dr Morris thought that Mr Hall was fit enough to travel by sea, but he was concerned about a trip by sea as far as Jamaica in case Mr Hall became unwell on the trip, and required medical attention of the kind which was not available on the ship. In the light of Dr Morris' opinion (which confirmed that of Dr Goldwyn) about Mr Hall's inability to fly, the directions set for Mr Hall's removal to Jamaica by air on 23 February 2010 were cancelled, and the UKBA began to consider whether his removal by sea with medical escorts and adequate medical supplies was feasible.
(v) On 25 February 2010, Mr Hall was seen by Dr Vara again. He asked for the review by the Cardiology Department at Hillingdon Hospital to be chased up. He must have thought that for the time being Mr Hall could continue to be detained because otherwise he would have completed a rule 35 form. He did not himself consider whether removing Mr Hall by sea was feasible.
(vi) On 5 March 2010, Mr Hall was seen by Dr Nithya Nanda, another of the doctors at Colnbrook. He must have thought that Mr Hall was fit to be detained because otherwise he would have completed a rule 35 form. However, since it had become necessary for the Secretary to State to respond to the claim for judicial review, Dr Nanda was expressly asked for his view on Mr Hall's fitness for detention and fitness for travel by sea. On 16 March 2010, Dr Nanda reported that Mr Hall had been fit for detention on the day he had been detained. He thought that he was not fit to fly – essentially for the reasons Dr Morris had given – but he thought that Mr Hall was fit to be removed by sea.
(vii) On 21 March 2010, Mr Hall was seen by Dr Jabbar again. He was complaining of constipation. Dr Jabbar thought that Mr Hall was still fit to be detained, but he remained unfit to travel (by which I am sure Dr Jabbar meant unfit to fly for the reasons given in  above), because (a) Mr Hall was still experiencing shortness of breath on exertion, and (b) he had not yet been seen at Hillingdon's Cardiology Department.
(viii) On 6 April 2010, Mr Hall was seen by Dr Wilkinson. He was still complaining of shortness of breath. She prescribed the use of an inhaler and noted that Mr Hall was awaiting his cardiac review. She must have thought that Mr Hall was fit to be detained because otherwise she would have completed a rule 35 form.
(ix) On 8 April 2010, Mr Hall was seen again by Dr Goldwyn. He had a new symptom: he was coughing and there was blood in his sputum. She was concerned that he might have tuberculosis. She understood that Mr Hall had been diagnosed as schizophrenic, as having post-traumatic stress disorder and as having been suicidal in the past. He was depressed and fearful of his possible removal from the UK. She thought that he had aged prematurely. She described him as being in hospital, but that must have meant that he was on Colnbrook's hospital wing. She did not say that he was unfit to be detained, but she did say that he was not fit to travel any distance by any means. As for the possibility of his removal by sea, she said:
"He would find a sea journey very difficult, adjusting to the movement of the boat and the possible storms in the Atlantic. If he has medical escorts they would need to be expert in emergency care. He may have a heart attack, stroke or pulmonary embolus. They would need to be able to set up an intravenous line and care for him until he could be removed to hospital. His transfer to hospital should be as rapid as possible."
(x) On 11 April 2010, Mr Hall was seen by Dr Jabbar again. This was when Dr Jabbar took the view for the first time that Mr Hall was not fit to be detained. Mr Hall presented with a number of symptoms which suggested heart failure, pulmonary embolism, tuberculosis and other possibilities. A treatment plan was put in place, and a battery of tests was ordered, including a review of Mr Hall's psychiatric condition. Dr Jabbar asked nursing staff to chase up the appointment for Mr Hall at Hillingdon's Cardiology Department. Because Mr Hall was no longer fit for detention, he asked for a rule 35 form to be completed.
(xi) On 12 April 2010, Mr Hall was transferred to Hillingdon Hospital. He was discharged from hospital ten days later on 22 April 2010. The discharge summary showed that he had "serious decompensated cardiac failure" with "a cardiac ejection fracture of less than 20%". Dr Wilkinson saw that the same day. It suggested to her a poor prognosis and a significantly shortened life expectancy. That was the first time she thought that Mr Hall was unfit for detention, since there had not been a confirmed diagnosis of his condition before then. The UKBA was informed of that that day, and Mr Hall was released from detention on the following day, 23 April 2010.
Mr Hall's case
(i) Although what is reasonable will depend on the circumstances of the case, the risk of the detainee absconding or committing offences if he is not in detention is a factor to be taken into account in determining what is a reasonable time to effect a particular detainee's removal, but one should guard against giving too much weight to factors of that kind.
(ii) The mere fact that there are difficulties in effecting someone's removal will not necessarily justify their release from detention. So long as there remains some prospect of their removal, their detention may continue to be authorised.
(iii) Whatever steps the Secretary of State is taking to effect the detainee's removal, the Secretary of State must act with reasonable diligence and expedition in his efforts to effect the detainee's removal.
(iv) The court's role is to decide for itself whether the detention was lawful. The court is not reviewing the detention on conventional public law grounds. No deference will be given to the view of the Secretary of State, save where there is a factor on which the Secretary of State is better placed to make the appropriate judgment than the court.
This is, in effect, a summary of what Miss Susan Chan for the Secretary of State said were the relevant principles, and Mr Lee agreed.
The lawfulness of Mr Hall's detention