QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Pratima Das
|- and -
|The Secretary of State for the Home Department
Mr Paul Greatorex (instructed by Treasury Solicitor) for the Defendant
Hearing date: 13/3/13
Crown Copyright ©
Mr Justice Sales :
"55.10. Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In CCD [Criminal Cases Directorate] 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, whether in dedicated immigration detention accommodation or prisons:
- unaccompanied children and young persons under the age of 18 (but see 55.9.3 above);
- the elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention;
- pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl's Wood);
- 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 (in CCD cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act;
- those where there is independent evidence that they have been tortured;
- people with serious disabilities which cannot be satisfactorily managed within detention;
- persons identified by the Competent Authorities as victims of trafficking (as set out in Chapter 9)."
"With regard to her base line mental state during this period I do not have any records of the assessment of her mental state during and after the detention. I can assume that she was unwell mentally as a result of the long term and ongoing stresses. It is quite apparent that she was also going through the legal processes of seeking asylum which is also stressful. Her current mental state does somehow reflect the effect of detention and it appears that the detention has contributed to her distress and the present symptoms of post traumatic stress disorder. Her fear of visiting official places, nightmares and general persecutory feelings can also be attributed to such incidents of detaining her. This may have also contributed to her increased vulnerability and risks to herself."
(i) Breach of duty of inquiry
(ii) Breach of policy / breach of legitimate expectation
"It seems to me that on normal compensatory principles it would be for a claimant to prove his loss on the balance of probabilities. It may well be that in circumstances such as these the burden shifts to the defendant to prove that the claimant would and could have been detained if the power of detention had been exercised lawfully, but again I see no reason why the standard of proof should be anything other than the balance of probabilities."