England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/06/2017

Miss Rose QC:

1. By this claim for judicial review, the Claimant challenges the lawfulness of the Defendant's decisions to detain him on 9 February 2016, and to continue to detain him between that date and 29 March 2016, when he was released.
2. The Claimant challenges the decisions on the following grounds:

i) It is alleged that the Defendant failed correctly to apply the relevant policy, and, in particular, paragraphs 55.3 and 55.10 of Chapter 55 of the Enforcement Instruction Guidance ("the EIG") (ground 1);

ii) It is alleged that, in any event, there were no grounds on which it could rationally be concluded that the Claimant would not comply with the conditions of temporary admission or temporary release (grounds 2 and 3);

iii) It is alleged that the Defendant was in breach of the public sector equality duty ("PSED") under section 149 of the Equality Act 2010 ("the 2010 Act") (ground 4).

Facts

3. The Claimant is an Indian national, born on 15 June 1990, who entered the United Kingdom in January 2010 as a Tier 4 student, with entry clearance valid until 19 July 2011.
4. When his visa expired, the Claimant remained in the UK and made no attempt to regularise his stay. He was encountered during an immigration enforcement visit to a residential address on 9 February 2016 and detained. The decision to detain him was made on the ground that he was likely to abscond if given temporary admission or release, on the basis of the following factors:

i) He did not have enough close ties to make it likely that he would stay in one place;

ii) He had previously failed to comply with conditions of his stay;

iii) He had not produced satisfactory evidence of his lawful basis to be in the UK; and

iv) He had previously failed or refused to leave the UK when required to do so.

5. On 16 February 2016, the Claimant claimed asylum.
6. An asylum screening interview was conducted on 2 March 2016. At that interview, the Claimant made the following statements, amongst others:

i) In answer to the question "why have you come to the UK?" he stated: "student visa. I came because I was tortured";

ii) In answer to the question "do you have any medical conditions disabilities infectious diseases medication that you are or should be taking?" he answered "No serious problems, surgery on my nose, constipation, depression";

iii) In answer to the question "is there anything else you would like to tell me about your physical or mental health?" he answered: "Mental problems – memory is poor. Memory is very poor";

iv) He stated that he did not have any dependants or family in the UK or Europe;

v) Under the heading "Basis of asylum claim" and in answer to a request briefly to explain all the reasons why he could not return to his home country, he stated that he was tortured by police and the Congress Party in September 2009, and explained: "Leader of Congress Party. I had an affair with his niece. She got pregnant, then they tortured me. They killed the daughter and then arrested and raped me";

vi) Under the heading "Detention suitability", and in answer to the question "Can you tell me if there are any particular reasons why you should not be detained while your claim is considered?" he stated: "depression in detention. Mental health issues. Tried to make appt."

7. The answers given by the Claimant during the screening interview constituted the entirety of the information available to the Defendant as at 2 March 2016, when the decision to detain the Claimant was reviewed. The Claimant has not put forward any evidence in these proceedings to explain these statements further. For example, he has not explained what was the nature of the appointment he stated he had tried to make, or when he tried to make it, and whether he was successful.
8. A detention review decision was taken on 2 March 2016. The reviewing officer was Andrew Jones, who had conducted the interview described above.
9. The review decision assessed the Claimant's removability as low, because of his asylum claim.
10. In relation to his risk of absconding, it referred to his failure to regularise his stay or leave the UK when required to do so, and the fact that he had admitted working illegally whilst being in the UK. It stated that now that he was aware of the Home Office's intention to remove him, he could be considered a high risk.
11. As regards his "known or claimed medical conditions (including mental health and/or self-harm issues", the decision stated that no information had been received from healthcare to indicate that he was unsuitable or unfit for detention. The decision did not mention his claimed depression, referred to above.
12. As regards "conditions rendering person suitable for detention only in very exceptional circumstances", referring to section 55.10 of the EIG, the decision stated: "currently subject has no exceptional circumstances that would cause section 55.10 to be considered."
13. The decision noted the Claimant's lack of close family ties or dependants in the UK.
14. The decision referred to the Claimant's asylum claim, and noted that he had only claimed asylum after he had been detained, which might be an attempt to frustrate removal. Continued detention was recommended on the basis that (i) he had no known close ties in the UK to ensure he remained in one place; (ii) there was no information received from healthcare to indicate that he was unsuitable or unfit for detention; and (iii) given his immigration history, there were serious doubts over the likelihood of his complying with any conditions or restrictions attached to a grant of temporary admission, and he was a significant absconder risk.
15. The authorising officer accepted the recommendation, for the same reasons.
16. On 14 March 2016, the Claimant's solicitors, Duncan Lewis, sent a letter under the judicial review pre-action protocol challenging, amongst other matters, the detention of the Claimant despite the vulnerabilities he had raised in the screening interview.
17. The letter included the new information that the Claimant was suffering from anxiety, flashbacks and nightmares, as well as depression.
18. There was a further review of the Claimant's detention on 15 March 2016. The decision to detain him was maintained for the same reasons given on 2 March 2016.
19. On 26 March 2016, the Claimant sent to the Defendant a Rule 35 report completed by Dr Khalid from the Helen Bamber Foundation, stating that he had injuries that were consistent with his account of torture. On 29 March 2016, the Defendant decided to release him, on the basis that the report constituted independent evidence of torture, which rendered him suitable for detention only in very exceptional circumstances, which did not apply in his case.
20. On 23 June 2016, a letter from the Claimant's GP was provided to the Defendant, in the somewhat different context of his failure to attend his substantive asylum interview. The letter stated that he suffered from lethargy and tiredness, for which he took vitamin D and iron, and from anxiety and depression for which he had been prescribed Citalopram "about two months ago" (ie, in late April, after his release from detention). The letter stated that as at 23 June he was not able to face any interviews, but did not suggest that his conditions could not be satisfactorily managed in detention. It is of course obvious that this material was not available at the time of the Claimant's detention. It is the only medical evidence that has been provided in this case in relation to the Claimant's mental health. The Claimant has not filed any witness statement in support of his claim.

Procedural history

21. These proceedings were issued on 18 March 2016. They were to a large extent concerned with the Defendant's decision to include the Claimant in the Defendant's Detained Asylum Casework process ("the DAC"), and for that reason were stayed behind other claims raising similar issues.
22. However, following amendment of the claim, permission to claim judicial review was given on 22 November 2016, limited to the complaints that his detention was unlawful because:
23. There were no very exceptional circumstances justifying his detention, given that he stated that he was suffering from depression and mental health problems, including flashbacks and nightmares (Ground 1); and
24. There were no grounds for concern that he would not comply with conditions of temporary admission (Grounds 2 and 3).
25. Following an oral hearing on 31 March 2017, the Claimant was in addition given permission to argue that the Defendant had failed to have regard to her duties under s. 149 of the 2010 Act in respect of the decisions to detain and to process the Claimant's claim in detention (Ground 4).

Legal framework

(i) Chapter 55

26. Chapter 55 of the EIG sets out the Defendant's policies on immigration detention and temporary release.
27. It stresses that there is a presumption in favour of temporary admission or release, and that alternatives to detention are to be used wherever possible.
28. Paragraph 55.3.1 of the EIG applies to all decisions whether or not to detain. It identifies factors influencing a decision to detain. It states that "all relevant factors must be taken into account when considering the need for initial or continued detention". The potentially relevant factors are listed, including, amongst others, the likelihood of removal; evidence of previous absconding or failure to comply with temporary release or bail; participation in a determinate attempt to breach the immigration laws; and ties with the UK.
29. The paragraph specifically asks whether the subject has a history of torture, and whether he has a history of physical or mental ill health.
30. Paragraph 55.10 identifies persons considered unsuitable for detention. It states that certain persons are normally considered suitable for detention in only very exceptional circumstances. These include "those suffering from serious mental illness which cannot be satisfactorily managed within detention", and "those where there is independent evidence that they have been tortured".
31. The Court of Appeal considered the meaning of paragraph 55.10 as it relates to mental illness in the case of R (Das) v Secretary of State for the Home Department [2014] EWCA Civ 45 [2014] 1 WLR 3538. At paragraph 57, Beatson LJ, with whom the other members of the Court agreed, stated that the cases "take the words "suffering from a serious mental illness which cannot be satisfactorily managed within detention" as a whole. It is clear from them that the diagnosis is not in itself the key to the applicability of the policy, even if the individual has been referred for treatment by specialist secondary services. It is also necessary for the individual concerned to be "suffering" and for the illness to be one which "cannot be satisfactorily managed within detention"." He went on, in the same paragraph: "The effects of the illness on the particular individual, the effect of detention on him or her, and on the way that person's illness would be managed if detained must also be considered."

(ii) The PSED

32. Under s. 149 of the 2010 Act, a public authority must, in the exercise of its functions have "due regard" to the need to:

i) Eliminate discrimination, harassment, victimisation and any other conduct prohibited by or under the 2010 Act;

ii) Advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it; and

iii) Foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

33. The PSED is a duty to take certain matters into account. It is not a duty to achieve any particular outcome.
34. In the case of R (Hossain) v Secretary of State for the Home Department [2016] EWHC 1331, Cranston J held (on 7 June 2016 – ie., after the period of detention at issue in this case) that as at that date the Secretary of State had failed to comply with the PSED in considering asylum claims in detention. Specifically, at paragraphs 163 and 166, he noted that the Secretary of State had taken some steps, including the publication of a Policy Equality Statement on Mental Health in Detention in November 2014, but that the steps that had been taken "are not comprehensive in addressing the protected characteristics encompassed by the duty". Cranston J held that the Secretary of State had accordingly not paid due regard "in all aspects" to her PSED in the context of the consideration of asylum claims in detention.
35. I interpret Cranston J's judgment as meaning by this that although the Secretary of State had considered the impact of her policy for the consideration of asylum claims in detention on some protected groups (including those suffering from mental illness), she had not had due regard to the effect of her policies on all the protected characteristics, which include race, sex, age and sexual orientation amongst others.
36. Following this decision, the Defendant in August 2016 published a Policy Equality Statement on processing asylum claims in detention.

Ground 1

37. Under Ground 1, the Claimant submits:

i) That the Claimant met the threshold for the application of paragraph 55.10;

ii) That the Defendant failed properly to apply that paragraph; and

iii) In any event, the Defendant failed properly to take into account the mandatory relevant considerations of mental illness and a history of torture, pursuant to paragraph 55.3.

38. In my judgment, none of these submissions is made out on the facts of this case.
39. There was no evidence before the Defendant (and, indeed, is no evidence before me) that the Claimant was suffering from a serious mental disorder that could not be satisfactorily managed within detention. Even taking his case at its highest, and considering all the evidence relating to his mental health, including material unknown to the Defendant at the time of his detention, the position was that he reported depression and poor memory, together with flashbacks and nightmares, and anxiety. These conditions apply to many immigration detainees, and there is no basis for concluding that they cannot be satisfactorily managed in detention. It is notable that on the pro forma for the Rule 35 Report, there was a box that stated "this detainee's health is likely to be injuriously affected by continued detention." That box was not ticked by Dr Khalid, who completed the report.
40. In these circumstances, I conclude that paragraph 55.10 was not engaged in this case.
41. Paragraph 55.3 was engaged, and I have considered whether the Defendant failed to take into account the Claimant's reported mental disorder, and history of torture. I have concluded that these matters were taken into account, having regard to the following matters:

i) The review report was completed by the same officer who had conducted the screening interview with the Claimant, and on the same day. That officer was obviously aware of what the Claimant had said about his depression and history of torture;

ii) The asylum claim was specifically referred to, and accordingly the history of torture was taken into account. However, little weight was given to the claim because the Claimant had not claimed asylum until after he had been arrested and detained;

iii) As regards the Claimant's mental health, it was correctly noted that there was no information from healthcare indicating that he was unsuitable for detention.

42. Accordingly, I dismiss ground 1 of this claim.

Grounds 2 and 3

43. Under these grounds, the Claimant submits that there was no rational basis on which he could properly have been regarded as a high abscond risk, and that, accordingly, there was no justification for his detention.
44. Miss Brown on behalf of the Claimant submitted, in particular, that the Defendant had wrongly relied on his failure to comply with conditions. Since he had not come to the attention of the Home Office at all until he was arrested in February 2016, he was not subject to any conditions, and there was thus no reason to believe he would not comply with them if granted temporary admission.
45. In my judgment, the Defendant's conclusion that the Claimant was a high abscond risk cannot be characterised as irrational. He had successfully evaded any form of immigration control over a five year period, until he was discovered during an enforcement visit. He had failed to claim asylum until after his arrest. He had no family ties or dependants, and has given no evidence of any other ties in the UK. There is no good reason why a person who has evaded any form of immigration control should be regarded as a lower abscond risk than a person who is known to the authorities, but does not comply with conditions imposed on them.
46. Accordingly, I dismiss grounds 2 and 3 of this claim.

Ground 4

47. I consider that the complaint based on section 149 of the 2010 Act has no merit. The declaration made by Cranston J was based on his conclusion that the Defendant had failed comprehensively to have regard to all the protected characteristics when considering her policy in relation to the determination of asylum claims in detention. However, it is clear from the findings he made that, in fact, the Defendant had had regard to the impact of her policy on those with mental health difficulties.
48. Moreover, the Claimant was unable to point to any disadvantage or prejudice suffered by the Claimant as a result of the asserted breach of the PSED. It was claimed that officers ought to have had more training, in order to be able to assess his vulnerabilities. However, it is clear from paragraphs 3 and 6 of the evidence of Tom Carlton, and paragraphs 32 – 35 of the evidence of Simon Barrett, on behalf of the Defendant, that appropriate training was being provided. The Claimant has not identified any deficiency in the training described in that evidence. In any event, there is no evidence of any deficiency in the way that the Claimant's vulnerabilities were assessed and dealt with in this case. He was released from detention only three days after receipt of the Rule 35 report.
49. It was originally suggested on behalf of the Claimant that damages could be awarded for a breach of the PSED. Given the findings I have just made, this issue does not arise. In any event, that suggestion was withdrawn after further consideration of the relevant provisions of the 2010 Act. It is clear from ss., 113, 114, 119 and 156 of that Act that no damages may be claimed for a breach of the s.149 duty. In particular, by s. 156, such a breach does not confer a cause of action at private law.
50. Accordingly, I dismiss ground 4 of this claim.

Conclusion

51. For all the reasons set out above, I dismiss this claim for judicial review.