QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF (HA) (NIGERIA))
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Official Shorthand Writers to the Court)
Julie Anderson (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 20th, 21st & 22nd March 2012
Crown Copyright ©
Mr Justice Singh:
The Facts in More Detail
"After a long conversation which involved several strange dreams and allusions to 'strange pastors' (maybe witch doctors) conversations with wing staff suggest odd behaviour. May have been involved in demonic or witchcraft in Nigeria."
"Throughout the interview he did not appear distracted or distressed and although stating some paranoid ideations I do not feel he is overtly psychotic at present. However he does appear to have lost a fair amount of weight."
"Continues to demonstrate odd behaviour. Standing when I came to visit today. Stared at me from rel close. Did not answer my questions and did not say anything all the time I was in the room. Then started to pace forwards and backwards in front of the window whilst looking out of it. D/W PP CPN [this appears to be short for "discussed with Perry Peryagh, the Community Psychaitric Nurse"]: PP will tell UKBA to find out what they are planning re his transfer. If no transfer imminent PP will refer him to the psychiatrist."
"sleeps on the floor on a mattress lying halfway in the toilet facility, sleeping at most times. He refuses to wash/shower or socialise with other detainees or resorts to insulting other detainees on the wing. His bizarre behaviour rather alienates him from other detainees who refuse to have any involvement with him around. Currently he is not on any medication."
"The patient is however thought not to be psychotic or to be exhibiting psychotic symptoms. Indeed according to the psychiatrist that assessed him at Colnbrook IRC he is not suffering from a psychotic illness. He is not on any medication."
"It is clear that on the 16 January 2010 it was impossible to assess [the Claimant]. I should say he certainly did appear at the time to be electively mute.
However his behaviour in my opinion is unlikely to be deliberate. It is both random, and therefore likely to be meaningless, and also to have been consistent for a considerable time. Secondary gain therefore in my opinion is unlikely to provide a suitable explanation.
I strongly suspect that he is suffering from a psychotic illness, and this obviously must be excluded as a priority. This is likely to entail a trial of anti-psychotic medication.
It is not possible for this patient to undergo a full psychiatric assessment at Brook House or other similar custodial setting and although previously thought not to be psychotic it is clear that the assessment was also carried out in a custodial setting."
"Further assessment is recommended in a suitable Mental Health Unit and early transfer to other secure non-custodial setting appears to be necessary. There is no ground to recommend release from detention.
Transfer to a suitable secure unit under section 48 of the Mental Health Act is recommended."
"He has shown bizarre behaviour throughout his time at Brook House since he arrived on 9th November 2009. According to notes in CID [Case Information Database] he has shown this type of behaviour previously when he had short stays (less than 2 weeks) at Dungavel, Dover, Harmondsworth and Colnbrook and where there were clear concerns for his mental state. However he had a psychiatric assessment at H/W where they deemed his issues behavioural only.
He moved into RFA [Removal from Association] on 10th December after refusing to lock up at the required time at Brook House. On 18th December healthcare at Brook House put in a request to transfer the subject to a medical bed and for an assessment at Harmondsworth which was refused. He has been deemed single occupancy as he is unsuitable to share and on 22nd December was told that he could leave RFA. However, he has since refused to move from this area despite numerous attempts each day to persuade him to do so from both UKBA and G4S staff. On 16th January a Dr attempted to engage with him and carry out a psychiatric assessment, however he has continually refused to engage with healthcare here.
Although unable to engage with him, the Dr has indicated that he may need to be sectioned and possibly forced medication in order to assess him regarding this. If officially sectioned then there are obviously serious issues to be considered with regards to his removal and the length of time he might remain in the UK. He has recently claimed asylum and one attempt to interview him has proved unsuccessful. We are constantly in touch with his case owner to see how we can move this forward but there seems no quick fix.
In short, I think it would be prudent to move him for the following reasons:
He has remained in RFA since 10th December, albeit because for the vast majority of this time he has chosen to. This is obviously not what this area should be used for and, although all of the notes clearly outline the circumstances of his case, he cannot remain here indefinitely. It would be better to move him into another centre under normal association rather than have him refuse to leave RFA at Brook House.
He refuses to engage in conversation with UKBA staff or healthcare staff here.
He has asked for a move to another centre, preferably Harmondsworth. I think that he may display more normal behaviour under different circumstances and in a different environment. I believe that we should attempt to move him to another centre before healthcare here start the process of possibly sectioning him. He was only at Harmondsworth and Colnbrook short-term for 16 days in total previously."
"If there has been an asylum claim which may take some time to process and he needs a mental health assessment we should be considering whether he is fit for detention under Rule 35 [of the 2001 Rules] …"
"The Detention Centre Rule 35 letter requests that the SCW reviews the decision to maintain detention within 2 working days. The medical authorities at Brook House are considering sectioning the subject under section 2 of the Mental Health Act and/or transferring him to an alternative IRC to break his behaviour.
Given the subject has used deception to enter the UK and has entirely failed to comply with immigration authorities I propose that detention be maintained as the subject is highly likely to abscond and reoffend should he be released at this stage." [Emphasis in original]
"We have been informed by the visiting mental health professional that it will take up to 45 days to get [the Claimant] sectioned. We have arranged with Saxonbrook here at Brook House to complete a Rule 35 referral today, however due to the lack of a valid assessment this will only include observations of his behaviour. We have also requested this morning that they push for [him] to be sectioned."
"Was a R35 report submitted? What was the response?
Could he go to one of the healthcare beds in Colnbrook?
Brook House should in the interim be raising this with the local mental health commissioner for the PCT [Primary Care Trust].
If you want me to flag this up with the DoH [Department of Health] then let me know."
"I am writing to you to acknowledge receipt of a report dated 21 January 2010 from Brook House notifying us that you may have a special illness or condition.
Information in the report has been considered and the decision to detain you has been reviewed.
Detention is being maintained as you are liable to deportation, your asylum claim will be refused on grounds of non-compliance, you pose a danger to the public and deportation is achievable in a reasonable timeframe."
"A Rule 35 was put in and detention is being maintained as, according to the response, it is considered that deportation is achievable within a reasonable timeframe. Myself and Duncan spoke to Dr Thomas, the head of the healthcare unit here, this morning and he advised that [the Claimant] refused to engage with a psychiatric Dr who came to assess him last weekend. In light of this, and of his current and previous behaviour, it is his opinion that we should be looking to section him. He has stated that he can only make an assessment from the information he has because of [the Claimant's] refusal to engage with him. We have advised Dr Thomas that he is very unlikely to be moving to another centre, therefore the sectioning process should take place asap.
Dr Thomas has confirmed that he will speak today to the detainee's local PCT prior to being detained to ensure that they take responsibility for his case and start the process off asap. …."
"I am writing to you to acknowledge receipt of a report 21 January 2010 from Brook House notifying us that you may have a special illness or condition. The referral was made following concerns regarding your withdrawn behaviour as you refuse to engage with others. When you do engage you come across as verbally abusive and aggressive. An attempt was made to assess you by a psychiatrist on 16 January 2010, but you refused to engage with him or indeed acknowledge his presence. You also spend a major part of the day and sleep in the toilet area which is raising further cause for concern.
I have reviewed the decision to detain you after careful consideration of the information in the report. I have decided that detention will be maintained at this time in light of your behaviour. I consider that your behaviour is indicating that you will pose a risk of harm to yourself and others should you be released at this time. In addition, the fact that you have not washed for some time indicates a lack of ability to care for yourself adequately. I therefore consider that you will receive the medical attention and support that you require in detention and that you would not seek this assistance for yourself if released.
The detention centre medical staff have confirmed that an appointment is being set up in an attempt to further evaluate your mental health.
Your detention will continue to be monitored and reviewed regularly, with an update sent every 28 days."
"[The Claimant] remains in RFA and continues to generally refuse with staff in the Centre. Healthcare have established that his local PCT is in Newcastle. They have stated that they will not come to see him until they have received the report which we are still awaiting from the local Dr who saw him previously. Healthcare are chasing this. My concern at this point is that due to the timeframes involved in this process he is more than likely going to be sitting in RFA when the HMCIP [Her Majesty's Chief Inspector of Prisons] inspectors come to visit us on 15th March. He will most probably be sleeping in the toilet area in his room, where he normally is, and the question may be asked as to why he is not in more appropriate accommodation i.e. a healthcare bed at one of our other Centres and he has remained in RFA since December. Both G4S and UKBA staff have ensured that the paperwork has been kept up to date and he is visited at least once a day. ……"
"….I have just spoken to Dr Thomas for an update this morning. All the necessary paperwork has, in fact, been sent to the PCT responsible for coming to see [the Claimant] and this referral is being chased each day by himself and his staff in order to establish when he is going to be seen by them. …."
"The G.P. who attends Brook House (Dr Thomas) has completed the referral paperwork to start the process for sectioning this young man and is extremely concerned that any delay in this process will have a detrimental effect on the young man's condition. Although he is unclearly unfit for detention (under section 35 of Detention Centre Rules 2001 detainees who have mental health problems fall into this category) we cannot release him in to the community until a full assessment has been completed and a care plan formulated. (Emphasis added)
"You have asked that your client is granted temporary release when it is decided that on clinical grounds he no longer needs in-patient treatment at Hillingdon Hospital and that he is not transferred back into immigration detention….your request for temporary release has been carefully considered. However, on the information that you have provided, I regret to inform you that I am not minded to grant temporary release. ……"
"[The Claimant] suffers a mental illness of Paranoid Schizophrenia and has been on Colne Ward since 5 July 2010 on a Section 48/49 (assessment/treatment order with restriction direction). His current medications include Zuclopenthixol Decanoate (Clopixol), an injectable anti-psychotic preparation which he receives fortnightly.
[He] has made considerable progress since commencement of anti-psychotic medication, and is likely to continue on this over the next few years in order to maintain stability of his mental state. He is currently developing insight into his mental illness and his self-care, affect, and inter-personal relationships have improved since admission. He has not made any attempts to abscond, and there have been no recent incidents of aggressive, disturbed behaviour on the unit…."
"[The Claimant] suffers paranoid schizophrenia, a severe mental illness and will need to continue on medication (Clopixol injection) every 2 weeks in order to remain well. The nature of his illness is such that when he deteriorates in mental state, he self-neglects by refusing fluid and food and neglects his personal hygiene. Risk of self-neglect = severe.
No risk of violence or aggression towards others noted.
No risk of deliberate harm to self in the form of suicide or deliberate self harm noted."
"[The Claimant] is currently significantly improved in his mental state and therefore ready for discharge from the Psychiatric Intensive Care Unit. In the absence of a Section 48/49 he would have been ready for discharge in the community.
Question 1: It is likely that [the Claimant's] mental health will deteriorate significantly were he to remain in an Immigration Removal Centre for a prolonged period of time. His past history indicates that it was several months before his aberrant behaviour (lying in a toilet for months; restricting food intake to 4 slices of white bread and milk) was recognised as possibly being related to a mental illness as opposed to him being a difficult person.
He remains vulnerable as he suffers from a severe mental disorder within the meaning of the Mental Health Act 1983 (amended 2007) and should his mental health deteriorate, he may need enforced treatment which cannot be provided in an Immigration Removal Centre, and this may lead to considerable delays before appropriate treatment is given.
Question 2: Whilst [the Claimant] continues to take medication he is currently stable in terms of his mental state and recognises the need for continuing treatment. He is independent in his activities of daily living. He does not require placement in a hostel or other supported accommodation and is able to obtain accommodation himself.
Question 3: [The Claimant] suffers from a severe mental disorder and remains detained under Section 48/49. He is entitled to Section 117 after care services when discharged into the community. …."
"In my view there is a significant risk to [the Claimant's] mental health through the detention, the inappropriateness of this setting with a severe mental illness and the lack of adequate psychiatric care within it.
[The Claimant] suffers from paranoid schizophrenia. He was transferred to a psychiatric hospital only having suffered from this condition in detention for over half a year, probably 9 months, without any psychiatric treatment. By then his condition had become so severe that he required a lengthy psychiatric admission of 4 months for his condition to improve and stabilise. This was only possible with adequate treatment and in an appropriate environment.
Since his transfer back to Harmondsworth IRC on 4 November his mental state has deteriorated again. Psychotic symptoms have returned, in particular auditory hallucinations (i.e. hearing of voices) as well as accompanying symptoms of profound sleeplessness and a tendency to isolate himself. [The Claimant] told me that since his return to Harmondsworth he has not seen a psychiatrist or a psychiatric nurse, only a general nurse who administered the injections. There has not even been a response to his repeated request in the last week to see a psychiatric nurse because of his deteriorating state.
[The Claimant] is currently still in a mental state where he has insight into his illness and expresses the wish to be helped and treated however, if his condition is allowed to deteriorate further, he may well return rapidly to a much worse mental state in which he has no such insight, as was the case before he was treated in a psychiatric hospital, and would then again require sectioning and forced treatment.
….I am of the opinion as a psychiatric expert that [the Claimant] cannot be adequately treated in detention and without mental health workers experienced in the treatment of such a severe condition. A continuation of his detention therefore poses a severe risk to his mental health and is likely to lead to a further deterioration of his psychiatric condition."
Reviews of the Claimant's Detention
"The subject requires a substantive asylum interview. Should the asylum claim be refused we have supporting evidence to submit to the Nigerian authorities for an Emergency Travel Document. It is believed that should the subject become appeal rights exhausted his removal from the United Kingdom will be achieved in a reasonable timeframe."
Under the heading "Proposal" Mr Brewer continued:
"The subject has admitted to using a false passport to gain entry into the United Kingdom consolidating the argument that there is a risk of him continuing to use deception to prolong his stay in the UK, and if released there would be a high risk of him failing to comply with the conditions of his release and absconding. The serious nature of his offence demonstrates the risk of harm he poses to the public as well as the risk of harm if he were to reoffend.
Although he has an outstanding asylum claim he only claimed asylum following his conviction for a drug offence. [Strictly speaking that is not correct as he claimed asylum three days before his conviction.] This would suggest that he has only claimed asylum to frustrate the removal process and prolong his stay in the United Kingdom.
I therefore propose to maintain the detention at the one month stage."
"I agree with your recommendation to maintain detention. The sub has an outstanding asylum claim. An asylum interview has been booked for the 30th September. If sub's asylum claim is refused, then deportation action can commence.
Based on the presumption to release, I have considered whether the continued detention of [the Claimant] is lawful. In light of his risk of further offending and the harm that this may cause, as well as his likelihood of absconding, I consider these additional factors outweigh the presumption to release. I therefore authorise his detention for a further 28 days."
"The decision to detain is balanced and proportionate to protect the public, risk of harm and risk of reoffending therefore, to maintain detention is considered appropriate for the subject. I therefore, conclude that the presumption for liberty is outweighed by the individual circumstances of this case."
"….The subject today failed to report for his asylum interview record interview which is further proof that he would fail to comply with any conditions of release. ….."
"Case owner – can you refer this case to the asylum team and request that asylum be refused under non compliance. Can you also draft the deportation documents so that they can be submitted with the asylum refusal. …."
"Case owner – Can you arrange another asylum interview for sub. If he refuses to attend again, can you ask the asylum team to refuse the sub's asylum claim on non compliance grounds? …."
"On 21 January 2010 immigration at Brook House wrote to CCD Team 3 expressing concern regarding the subject's behaviour and mental well being. A response to 'Detention Centre Rule 35' was drafted and reasons for continued detention were sent to immigration at Brook House on 1 February 2010. A psychiatrist is due to assess the subject regarding his mental health."
"The subject has expressed the wish to claim asylum, however, has failed to cooperate with the UK Border Agency and his asylum claim will fall to be refused on grounds of non compliance. An ETD will be obtained once the asylum decision has been made. Removal from the United Kingdom will be achieved in a reasonable timeframe."
"All known facts of this case have been considered and there are no compassionate circumstances to prevent further detention pursuant to deportation action."
"…Case owner I would suggest that you get sub's asylum claim refused under non-compliance and have this served on sub with DO and deportation documents. …."
"Several attempts have been made to interview the subject both in relation to his asylum claim and to offer him FRS [Facilitated Return Scheme], however, he has failed to appear for these. A third asylum interview was attempted on 29 January 2010, however, the subject was again non-compliant.
No further attempts have been made to interview him since the last review.
On 5 March 2010 health care from Brook House have agreed with the health care dept. at Harmondsworth that he will be transferred to a medical bed there from Rule 40. DEPMU are to set up the move."
"We should continue to detain until [the Claimant's] mental health is being assessed."
"On 23 March 2010 spoke to Helen in immigration at Harmondsworth regarding the possibility of the subject being given a psychiatric assessment. Helen stated that there are plans to return the subject to Brook House as the subject was not going to be assessed at Harmondsworth.
Subject remains on Rule 40 and continues to show erratic behaviour by laying next to the toilet and refusing to communicate."
"We should continue to detain until [the Claimant's] mental health is being assessed."
There then appeared this:
"I have assessed this case for release under the current detention criteria and conclude that the subject is not suitable for release under conditions of temporary release due to the following facts:
While it is the UK Border Agency's policy for a presumption in favour of release, this presumption is weighed against the criteria for maintaining detention. Having considered his immigration history, his criminality, the likelihood of reoffending, the seriousness of the crime, and protecting the public, it is submitted at this stage, in the light of the above, that the subject should remain in detention until such time as to when we can remove him from the UK.
The subject presents a serious risk of harm to the public given the nature of his crime namely being concerned in the supply of a Class C controlled drug. It is strongly believed that the subject could reoffend. Furthermore, the subject has demonstrated a total disregard for the UK laws, moreover, he is aware that the UK Border Agency intends on deporting him, it is considered that the subject would have little incentive to comply with any release restrictions that would be placed upon him. All known facts of this case have been considered and there are no compassionate circumstances to prevent further detention pursuant to deportation action.
The decision to detain is balanced and proportionate to protect the public, risk of harm and risk of reoffending therefore, to maintain detention is considered appropriate for the subject.
I therefore, conclude that the presumption for liberty is outweighed by the individual circumstances of this case." (Emphasis added)
"Case owner – Can you get the asylum decision done asap and have this served on sub. Has he been assessed as yet with regard to his mental health? If not, can you arrange for this to be done asap."
"Case owner – Can you ensure that the psychiatrist report is received by the next review. If there are problems can you refer to team leader to chase."
"… Please continue to chase the psychiatric assessment as this will be important in establishing whether we maintain detention."
"Harmondsworth have advised that the subject has now been given an initial psychiatric assessment, however, he requires a second medic to make a further assessment in order for the subject to be admitted to a psychiatric unit for treatment. Harmondsworth have advised that they are finding it problematic finding a medic to make a further assessment."
"This sub has mental issues and has been assessed by a psychiatrist but no report has been received. We are trying to get sub seen by a second psychiatrist but this is proving difficult.
The subject has claimed asylum but refuses to comply with the interview, therefore, his asylum claim will be referred to the asylum team to refuse his asylum under non compliance.
- To escalate case to G7 with regard to the second psychiatrist's assessment as this is needed to assess whether sub should be maintained in detention or sectioned.
- To continue daily contact with Harmondsworth to assess sub's health.
- To refuse his asylum claim under non compliance.
Based on the presumption in favour of release, I have weighed up the facts and due to the nature of his offence the risk of harm and reoffending or absconding, the risks outweigh the presumption in favour of release therefore, can you consider whether continued detention should be maintained for a further 28 days."
Authority to maintain detention was given by Jackie Gallop. She said:
"I have considered the presumption of liberty and the policy of detaining those with mental illness, but am satisfied that detention remains appropriate. The immigration history, including the use of fake documents suggests he would be unlikely to comply with conditions if released. There is also a risk he will reoffend. Once other barriers are removed we should be able to obtain an ETD for removal."
Detention Reviews after the Claimant's transfer to hospital
"It has been taken into account that those with a mental illness can only be detained under immigration powers in exceptional circumstances. [The Claimant] is currently in hospital under section 48 of the Mental Health Act but his Responsible Clinician has said that at the end of the assessment period he will be well enough to return to immigration detention. He has no known ties to the United Kingdom who could influence him to remain in contact with the UKBA if released and it is believed that he would abscond.
A medical report has been requested and should be available shortly together with details of the CPA [Care Programme Approach]. It is proposed that he should continue to be detained at this time and that this should be reviewed when all of the information is available and he has been returned to immigration detention."
"[The Claimant] was sectioned in July 2010, and was transferred over to the MDO [Mental Disordered Offenders] team. Since the case was transferred the case owner has been liaising with the Responsible Clinician in order to assess whether [the Claimant] requires ongoing treatment under the Mental Health Act. As highlighted above initial assessments have been completed and although the case plan meeting did not take place on the 9th August 2010, the Responsible Clinician is of the opinion that [the Claimant] will not need prolonged detention in hospital and that he will be fit and well to return to immigration detention in the next couple of weeks. [The Claimant's] transfer back will be arranged by the MDO team so that the original CCD team may proceed with deportation action that has been initiated.
In light of the above and whilst we await the final medical report I recommend the continued detention of [the Claimant] do you agree?"
"I note that he has been transferred to hospital under section 48 of the Mental Health Act, but we anticipate he will be able to return to an IRC shortly."
"[The Claimant] is currently hospitalised under section 48 of the MHA 1983. A care plan assessment meeting scheduled for 9 August 2010 was cancelled but his RC advised that she thought he would be declared well enough to be released back into immigration detention at the end of the 6 weeks assessment period. However, I spoke to her today and she has said that they had not thought that Mr A had a mental illness but he has now been seen by a consultant in whose opinion Mr A has psychotic ideas about the prison service and immigration. They consider that he is paranoid and have started treating him but he is resisting and has had a forced injection. He functions around the system but has paranoid delusions about HMPS and immigration. Dr Moodley said that they are concerned that when he is well he will be returned to detention and it would be better for him to be removed from hospital if possible."
"…On 22 September 2010 Dr Moodley advised that Mr A is still receiving treatment by injection, he does not take it willingly. There is some improvement and he may only remain there for a few more weeks. He still holds psychotic beliefs about immigration but is responding to medication. He does not want to be removed to Nigeria from hospital but wants to return to an IRC."
"Full consideration has been given to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance. It has also been taken into account that those with a mental illness can only be detained under immigration powers in exceptional circumstances. [The Claimant] has been diagnosed with paranoid delusions. There is a serious risk of harm, offending and absconding and the presumption in favour of liberty is outweighed in this case. Having considered his immigration history, his criminality, the likelihood of reoffending, the seriousness of the crime, and protecting the public, it is submitted that at this stage [the Claimant] should remain in detention until his doctor declares that he is fit for discharge when his continued detention should be reviewed."
"[The Claimant] was previously detained in immigration detention but became unwell and so was hospitalised under section 48 of the Mental Health Act on 5 July. He has been assessed as having paranoid delusion but it is expected that he will be well enough to leave hospital within 2 weeks. However I am concerned that we have been advised that his return to immigration detention could result in a relapse due to delusions he has about the immigration authorities. The case owner will therefore have to seek the advice of the IRC regarding [the Claimant's] possible discharge.
In the meantime it is appropriate for him to remain in the Riverside Centre….."
"A high risk of absconding given his current mental condition for which he is receiving appropriate treatment. He is also likely to pose a risk of harm. These factors outweigh the presumption of liberty."
"Mr A was transferred back to Harmondsworth on 5 November 2010, having been released from section 48 of the Mental Health Act 1983. Mr A's RC has stated that it is likely that [his] health will deteriorate significantly should he remain in Immigration Detention for a prolonged period of time. His past history indicates that it was several months before his aberrant behaviour (lying in a toilet for month; restricting food intake to 4 slices of white bread and milk) was recognised as possibly being related to a mental illness as opposed to being a difficult person.
He remains vulnerable as he suffers from a severe mental disorder within the meaning of the Mental Health Act 1983 and should his mental health deteriorate, he may need enforced treatment which cannot be provided in an Immigration Removal Centre, and this may lead to considerable delays before appropriate treatment is given.
Whilst Mr A continues to take medication he is currently stable in terms of his mental state and recognises the need for continuing treatment. He is independent in his activities of daily living. He does not require placement in a hospital or other supported accommodation and is able to obtain accommodation himself….
Consideration has been given to proposing to release Mr A however, there is no evidence that the release address is suitable. The reps have provided copies of a tenancy card and other documents but on 5/11/10 I wrote to the reps asking for handwritten evidence that the surety's tenancy agreement allows her to accommodate Mr A and that she is willing to do so indefinitely."
"What is the realistic timescale for removal having regard to the asylum claim and obtaining an ETD [Emergency Travel Document]?
Please discuss this case with your assistant director and subject to the suitability of the sureties consider referring this case for release to the Strategic Director."
"I note the current status of this case and agree the proposed next step. I agree with the assessment of risk in relation to reoffending and absconding, but also note the effect detention has on his mental state. Based on the presumption of liberty, the risks highlighted outweigh a decision to release. I therefore authorise his detention for a further 28 days."
The 2007 Act
"(1) In this section 'foreign criminal' means a person –
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months……
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). ..."
"(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State –
(a) while the Secretary of State considers whether section 32(5) applies, and
(b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order. ..."
The 1983 Act
"(1) If in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of Section 47 above that –
(a) that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(b) he is in urgent need of such treatment; and
(c) appropriate medical treatment is available for him;
the Secretary of State shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment.
(2) This section applies to the following persons, that is to say –
(d) persons detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State). …."
The Public Sector Equality Duties
"(1) Every body or other person specified in Schedule 1A or of a description falling within that Schedule shall, in carrying out its functions, have due regard to the need –
(a) to eliminate unlawful racial discrimination; and
(b) to promote equality of opportunity and good relations between persons of different racial groups.…"
"(1) Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate discrimination that is unlawful under this Act;
(b) the need to eliminate harassment of disabled persons that is related to their disabilities;
(c) the need to promote equality of opportunity between disabled persons and other persons;
(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably that other persons;
(e) the need to promote positive attitudes towards disabled persons;
(f) the need to encourage participation by disabled persons in public life."
Human Rights Act 1998
Lawfulness of Detention during the First Period
"The causation test entails the surprising proposition that the detention of a person pursuant to a decision which is vitiated by a public law error is nevertheless to be regarded as being lawfully authorised because a decision to detain could have been made which was not so vitiated. In my view, the law of false imprisonment does not permit history to be rewritten in this way."
"Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. An action lies even if the victim does not know if he was imprisoned. … By contrast, an action on the case (of which a claim in negligence is the paradigm example) regards damage as the essence of the wrong."
"The law attaches supreme importance to the liberty of the individual and if he suffers a wrongful interference with that liberty it should remain actionable even without proof of special damage."
"All this is elementary, but it needs to be articulated since it demonstrates that there is no place for a causation test here. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so. …"
"… a purported lawful authority to detain may be impugned either because the defendant acted in excess of jurisdiction (in the narrow sense of jurisdiction) or because such jurisdiction was wrongly exercised. Anisminic Ltd v Foreign Compensation Commission  2 AC 147 established that both species of error render an executive act ultra vires, unlawful and a nullity. In the present context there is in principle no difference between (i) a detention which is unlawful because there was no statutory power to detain and (ii) a detention which is unlawful because the decision to detain, although authorised by statute, was made in breach of a rule of public law. For example, if the decision to detain is unreasonable in the Wednesbury sense, it is unlawful and a nullity. The importance of Anisminic is that it established that there was a single category of errors of law, all of which rendered a decision ultra vires…."
"… It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain."
"Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. [Turning to the facts of the cases before the Court] If the power to detain had been exercised by the application of lawful policies….it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages."
(1) The tort of false imprisonment requires proof that the Claimant was detained directly and intentionally.
(2) The Defendant must then be able to show that there was lawful authority for that detention.
(3) If the Defendant had the power to detain but exercised that power in a way which is vitiated by an error of public law, the apparent authority will fall away and the Defendant will not in truth have the lawful authority she needs in order to justify the detention.
(4) Not all public law errors will vitiate the authority to detain, only those which bear upon and are relevant to the decision to detain.
(5) Since the tort is actionable per se and does not require proof of damage, the Defendant will have committed that tort even if, had she not made the relevant error of law, she could and would have detained the Claimant. There is no requirement for 'causation' in that sense.
(6) However, the question of whether the Claimant would have been detained in any event will be relevant to quantum of compensatory damages.
"…If it is illegal to hold a person in detention where it has been established that there are no good grounds for doing so, can it be lawful to hold someone without examining whether such grounds continue to exist? In my view it cannot. Since it has been recognised, in cases such as the appellants, periodic review is necessary in order to vouch the continued justification for detention, where that review does not take place, the detention can no longer be considered justified. The justification for continued detention cannot be said to exist and, absent such justification, the detention is unlawful. Likewise, in my opinion, where the review does take place but does not partake of the quality or character required to justify the continuance of detention, it becomes unlawful and gives rise to a right to claim false imprisonment."
"(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care."
(1) no regard was had to the policy contained within Rule 35 and explained in Chapter 55.8 of the EIG not to detain those where to do so is likely to be injurious to health; and
(2) the Claimant's asylum claim was not and/or could not lawfully be refused on non-compliance grounds given his mental state.
(1) likely to be suffering from a psychotic illness;
(2) had been held for a prolonged period in segregation and could not be moved out of it;
(3) required urgent psychiatric assessment;
(4) such assessment was not likely to be obtained promptly, at that stage estimated as taking up to 45 days (six weeks).
"[the applicant] was claiming an entitlement to accommodation and treatment in the more 'appropriate' conditions of a different category of psychiatric hospital, a matter not covered by paragraph 1(e) of Article 5."
Transfer to Hospital for Assessment and Treatment
"Once the prison service have reasonable grounds to believe that a prisoner requires treatment in a mental hospital in which he may be detained, the Home Secretary is under a duty expeditiously to take reasonable steps to obtain appropriate medical advice, and if that advice confirms the need for transfer to a hospital, to take reasonable steps within a reasonable time to effect that transfer. In many cases, the medical advice as to the appropriateness of a transfer will serve as the reports required by section 47 [of the Mental Health Act 1983]. The steps that are reasonable will depend on the circumstances, including the apparent risk to the health of the prisoner if no transfer is effected. Inappropriate retention of a prisoner in a prison or YOI [Young Offenders Institution] may infringe his rights under Article 8. If the consequences for the prisoner are sufficiently severe, his inappropriate retention in a prison may go so far as to bring about a breach of Article 3, in which case the State is under an absolute duty to prevent or bring to an end his inhumane treatment."
(a) granting temporary admission or bail to permit access to community services on a voluntary basis;
(b) release on temporary admission or bail on condition of transfer to a specified hospital;
(c) release on temporary admission or bail on condition of transfer to a specified hospital and, if considered necessary, under compulsion by virtue of section 2 and/or section 3 of the 1983 Act;
(d) a direction for detention in a hospital, under what is now paragraph 3(1)(d) of the Immigration (Places of Detention) Direction 2011 (there was a similar provision in a Direction of 2009, which was in force at the material time).
"Need for urgency in identifying and transferring mentally ill prisoners
The Head of Healthcare (HHC) at the prison, in conjunction with the Prison Mental Health Team, must ensure that prisoners, who may need treatment in hospital, are identified as soon as possible. It is Government policy that people who are suffering from mental disorder who require specialist medical treatment need to receive it from Health and Social Services. The fact that the person is a prisoner must not prevent or delay access to appropriate care and treatment, in hospital if necessary. (p.11)
Immigration Act Detainees
For those detained under the Immigration Act, Border Immigration Agency (BIA) case-workers will need to be approached by the Healthcare Manager initially for a decision on whether Temporary Admission is appropriate. Admission may be by Sections 2 / 3 if the case-worker decides on Temporary Admission. Where continued detention is required transfer will be by Section 48. If Section 48 is used it is imperative that the Border Immigration Agency case-worker is informed by the Healthcare Manager and that there is good subsequent communication between the case-worker and the patients' RMO [Responsible Medical Officer]. (p.13)" [Emphasis added]
(1) Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (para. 90).
(2) However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (para. 91).
(3) The Court has considered treatment to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either bodily injury or intense physical or mental suffering (para. 92).
(4) It has deemed treatment to be degrading because it was such as to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing them (para. 92).
(5) On the other hand, the Court has consistently stressed that the suffering and humiliation involved must go beyond that inevitable element connected with a given form of legitimate treatment or punishment (para. 92). Measures depriving a person of liberty may often involve such an element (para. 93).
(6) It cannot be said that Article 3 lays down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to receive a particular kind of medical treatment (para. 93). Nevertheless, the state must ensure that a person is detained in conditions which are compatible with his dignity and that the manner and method of execution of measures used do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance (para. 94).
"In considering whether a particular form of treatment is 'degrading' within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3."
No such improper purpose was alleged in the present case. However, as the Claimant submits, that is not decisive.
"… The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible." (Emphasis added)
(1) as was eventually recognised, the Claimant was suffering from a serious mental illness while he was in detention at IRCs;
(2) his behaviour, which was described by many observers as "odd" or "bizarre", included acts which violated his own dignity in that:
(a) he spent prolonged periods of time in isolation in segregation or temporary confinement;
(b) he was sleeping on the floor, often naked, in a toilet area;
(c) he drank and washed from the toilet;
(d) he was self-neglecting by not maintaining adequate nutrition;
(e) he did not wash or change his clothes for prolonged periods, perhaps for over one year, and was described as "grossly unkept" on arrival at the hospital;
(f) he suffered insomnia;
(3) his behaviour alienated him from others in the IRCs, so that he had to be segregated;
(4) he was not given appropriate medical treatment to alleviate his mental illness for a prolonged period of more than 5 months;
(5) the use of force against the Claimant was authorised on several occasions.
The Challenge to the Policy on or after 26 August 2010
"Certain persons are normally considered suitable for detention in only very exceptional circumstances. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances...
- Those suffering from serious medical conditions or the mentally ill"
"Certain persons are normally considered suitable for detention in only very exceptional circumstances... In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances...
- those suffering from serious medical conditions which cannot be satisfactorily managed within detention;
- those suffering serious mental illness which cannot be satisfactorily managed within detention."
185. As Cranston J had previously held (in October 2009), the original form of the policy created a strong presumption in favour of release for those with a mental illness: R (Anam) v Secretary of State for the Home Department  EWHC 2496 (Admin), paras. 51-55 (the decision was upheld by the Court of Appeal:  EWCA Civ 1140).
(1) The obligation to have due regard to the need to eliminate discrimination and promote equality of opportunity etc. is mandatory and is a continuing one.
(2) The duty must be fulfilled before and at the time that a particular policy or decision is under consideration, not afterwards. For example, in R (Elias) v Secretary of State for Defence  1 WLR 3213, at para. 274:
"It is the clear policy of section 71 [of the 1976 Act] to require public bodies to whom that provision applies to give advance consideration of race discrimination before making any policy decision that might be affected by them. This is a salutary requirement, and this provision must be seen as an integral and important part of the mechanisms for ensuring the fulfilment of anti-discrimination legislation. It is not possible to take the view that the Secretary of State's non-compliance with that provision was not a very important matter."
(3) The duty applies to both formulation of policy and decisions of public authorities: R (Baker) v Secretary of State for Communities and Local Government  EWCA Civ 141, at para. 29 and R (JL) v Islington LBC  EWHC 458 (Admin), at para. 114.
"the Secretary of State takes the duties under the Disability Discrimination Act 1995 (DDA 1995) [sic] and Race Relations Act 1976 (RRA 1976) seriously across the full range of areas of responsibility. The Secretary of State benefits from a whole range of sources of ongoing information and advice on issues arising in relation to administrative detention generally and detention of those with mental illness in particular including public bodies and non-governmental organisations."
"The Secretary of State is committed to undertaking a formal Equality Impact Assessment of the policy concerning the detention under immigration powers of those suffering from mental illness. I undertake to ensure that this EIA is commenced within 7 days from the date of this statement."
Application of the Policy in this case
Human Rights issues in relation to the Claimant's return
(1) The Claimant was unlawfully detained from 1 February to 5 July 2010 and from 5 November to 15 December 2010.
(2) The length of time that it took to secure the Claimant's transfer to hospital between 1 February and 5 July 2010 was manifestly unreasonable and unlawful.
(3) The policy introduced on 26 August 2010 in relation to detention of people with mental illness was unlawful in breach of the Defendant's duties under section 71 of the Race Relations Act 1976 and section 49A of the Disability Discrimination Act 2005.
(4) The circumstances of the Claimant's detention were unlawful in breach of section 6(1) of the Human Rights Act 1998 as being incompatible with the Claimant's rights under Article 3 of the Convention rights, both in the period from 1 February to 5 July 2010 and the period from 5 November to 15 December 2010.