B e f o r e :
THE HONOURABLE MR JUSTICE SINGH ____________________
____________________
(Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7404 1424 Official Shorthand Writers to the Court)
Stephanie Harrison (instructed by Bhatt Murphy) for the Claimant Julie Anderson (instructed by Treasury Solicitor) for the Defendant Hearing dates: 20th, 21st & 22nd March 2012 ____________________
HTML VERSION OF JUDGMENT ____________________
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Mr Justice Singh:
Introduction
By this claim for judicial review the Claimant challenges the lawfulness of (i) decisions to continue to authorise his administrative detention under section 36(1)(a) of the UK Borders Act 2007 (the 2007 Act); and (ii) the conditions of that detention.
The Claimant's detention was first authorised by the Defendant under the 2007 Act as from 27 August 2009. However, the initial period of his detention is not challenged in these proceedings. The focus of his challenge is on two periods: first, the period from on or about 16 January to 5 July 2010; and, secondly, the period from 5 November to 15 December 2010. During those periods the Claimant was detained at various Immigration Removal Centres (IRCs).
In the interim period, from 5 July to 5 November 2010, the Claimant was an in-patient at Hillingdon Hospital, receiving compulsory treatment for mental illness, at a time when he had been transferred under section 48 of the Mental Health Act 1983 (the 1983 Act). That period of detention, when the Claimant was still held under the 2007 Act but had been transferred to a hospital under the 1983 Act, is not the subject of challenge in these proceedings, although, as will become apparent, the Claimant questions whether the power of transfer in section 48 of the 1983 Act was as a matter of law available in his case.
The Claimant was granted bail by this Court (Kenneth Parker J) on 15 December 2010. He voluntarily left the United Kingdom in December 2011 and now pursues this claim in order to obtain various declarations and damages.
Permission to bring this claim for judicial review was granted by Lindblom J on 15 February 2011. It was agreed by the parties that the hearing before me should be confined to the issue of liability and that, if necessary, there should be a further hearing to consider quantum.
Brief Chronology
The Claimant is a Nigerian national who was born on 25 December 1977. He entered the United Kingdom on a visitor's visa for six months in 2005 but overstayed. On 11 June 2007 he applied for a European Economic Area (EEA) residence card on the basis of alleged marriage to a German national. This application was refused for lack of sufficient evidence on 22 February 2008.
On 23 March 2009 the Claimant was convicted at Newcastle Crown Court of an offence of being concerned in the supply of Class C drugs, namely cannabis. Shortly before this, on 20 March 2009, he applied for asylum while he was on remand in custody.
On 28 May 2009 a second application for an EEA residence card was refused.
On 1 July 2009 the Claimant was sentenced to 14 months imprisonment for his offence of being concerned in the supply of Class C drugs. Because this sentence was longer than 12 months, it triggered the "automatic deportation" provisions of the 2007 Act, which I set out later in this judgment.
On 18 August 2009 authority to detain the Claimant under the 2007 Act was sent to Durham prison where he was then being held. His release date from his sentence of imprisonment, taking into account time served on remand, was 27 August 2009. From that date he was detained under the 2007 Act.
On 25 September 2009 the Claimant was transferred to Dungavel IRC and then to various other IRCs until July 2010.
On 16 January 2010, while he was detained at Brook House IRC, the Claimant was seen by a psychiatrist, Dr Spoto, who recommended (in a report which was completed on 21 January 2010) that the Claimant should be transferred to a mental hospital for assessment and treatment there. In fact this did not occur for several months, which is the source of the first set of complaints by the Claimant in these proceedings.
The Claimant was admitted to Hillingdon hospital under section 48 of the 1983 Act on 5 July 2010 and placed on Colne Ward.
The Claimant was finally interviewed for the purpose of his asylum claim on 8 October 2010.
On 5 November 2010 the Claimant was returned to Harmondsworth IRC. The Claimant's detention from that date until he was granted bail by Kenneth Parker J on 15 December 2010 is the source of his second set of complaints in these proceedings.
The Facts in More Detail
In a letter dated 18 August 2009, informing the Claimant that he was liable to detention under section 36(1)(a) of the 2007 Act, the reasons given by the Secretary of State for detaining him were: "You are likely to abscond if given temporary admission or release. There is insufficient reliable information to decide whether to grant you temporary admission or release."
During his prison sentence at HMP Durham the Claimant began to experience psychiatric problems. On 19 August 2009 he was referred to a mental health team. On that date there was filled in a mental health referral form in respect of the Claimant, which stated:
The notes from HMP Durham indicate that on 26 August 2009 the Claimant was seen by the Community Psychiatric Nurse, Kathy Livingstone. It is recorded that the Claimant was neither eating nor drinking. This was said to be on religious grounds. He was said to worship voodoo and said this was God's will. The notes state that: "Doctor [Steve] Boll has suggested discussing with Chris Anderson with a view to admission to HCC [Healthcare Centre] for a spell of observation of both physical and mental health."
On 28 August 2009 the Claimant was seen by Dr Boll at HMP Durham. The notes indicate that the Claimant was apparently not eating and explained that his religion recommended fasting. He also implied that some of the food he collected from the servery had been tampered with and he had thrown his food into the bin as he felt the workers had interfered with it. It was noted that he stated that he had come to the UK in 2005 and settled in Newcastle, a point which the Secretary of State has stressed before me. The notes state that:
On behalf of the Claimant it was emphasised before me that there was already at that stage reference to "paranoid ideations." However, the Defendant stresses that Dr Boll did not feel that the Claimant was "overtly psychotic" at that time.
On 31 August 2009 the Claimant was seen by Andrea Alexander at the prison. He was seen as part of an "ACDT review" [this is a reference to self-harm measures known as Assessment Care in Detention and Teamwork], and stated he was fasting due to his religious beliefs. He stated that he had no intent to harm or kill himself. It was noted that he was currently located in a camera cell so that any food or fluid intake could be observed. He was to be offered his meal at every meal time and his response was to be documented and all intake/output was to be recorded as accurately as possible.
On 4 September 2009 Sonia Moody observed that the Claimant was filling his drinking cup with toilet water and then continued to wash his face and hands with the same.
On 7 September 2009 Mark Fowler, who was on night duty, noted that although the Claimant was not observed eating food he had had the occasional sip of flushed toilet water. His sleep pattern was erratic and he had ignored staff attempts to communicate with him. Later that morning Alison Richardson observed that the Claimant had refused breakfast and that he had not been drinking fluids that morning. She recorded that: "He has continued lying on his cell floor on his mattress for most of the morning."
Later that same day Dr Boll observed that the Claimant was in his cell lying on his bed with a cardboard cross in his mouth. He was undressed but covered with a single sheet. He would not engage in conversation. He had had no food over the weekend and had not been seen drinking. Dr Boll's comment was: "I am extremely concerned for this man and feel we need an urgent psych assessment and possible hospital transfer."
On 9 September 2009 Tracy Smith saw the Claimant in the psychiatric clinic and commented that: "Reviewed by Doctor Kaler and he is going to review in a week's time in order to assess if he needs urgent medical/physical treatment." A letter from Dr Kaler to Dr Boll dictated on 8 September and typed up on 9 September 2009 was to similar effect.
On 10 September 2009 an attempt was made to interview the Claimant at HMP Durham for the purpose of his asylum claim. There is a manuscript note by the relevant officer, S Smyth, who recorded that the Claimant was unwell and was in the healthcare unit. The notes continued that the Claimant had been refusing food for two weeks after previously claiming that his food had been tampered with and poisoned. The notes also included reference to the fact that the Claimant had been drinking water from the toilet bowl.
On 11 September 2009 an e-mail was sent to Guy Brewer, of the United Kingdom Border Agency (UKBA), which included some of the details to which I have already referred, including the fact that the Claimant had been drinking water from a toilet bowl. However, it should also be observed that, on 18 September 2009, Mr Brewer compiled a note to say that the Claimant was much better and had left the health wing and that a request for a new asylum interview had been made. On behalf of the Defendant it has been emphasised before me that the Claimant's state of health was not uniformly bad during this period up to late 2009 but in fact fluctuated.
On 25 September 2009 the Claimant was transferred to Dungavel IRC in Scotland. It appears that the Claimant's medical records were not obtained by the Defendant and/or not made available to or obtained by the IRC when he was transferred from prison. No medical risks were identified. The Claimant did, however, exhibit disturbed behaviour and was again refusing food.
On 7 October 2009 the Claimant was transferred to Colnbrook IRC.
On 9 October 2009 the Claimant was transferred to Dover IRC. His behaviour was disturbed and strange; he was refusing food and was reviewed by a CPN. He was placed in segregation. He was placed on an ACDT. On 23 October 2010 Dover IRC sent a fax to the Defendant stating that the Claimant had "serious mental health problems and needs to be transferred to a more suitable establishment". It is recorded that the Claimant had been seen by a CPN and a consultant psychiatrist. At the hearing before me I was told that, despite a request for disclosure of documents about any such psychiatric assessment, none has been made available to the Claimant's representatives.
On 24 October 2009 the Claimant was transferred to Harmondsworth IRC. On 28 October 2009 a referral for a psychiatric assessment was made. The Claimant was held in segregation under Rule 42 of the Detention Centre Rules 2001 (the 2001 Rules) between 30 October 2009 and 2 November 2009.
On 3 November 2009 the Claimant was again transferred to Colnbrook IRC in segregation. His medical records were not transferred with him and the Claimant was assessed by three people, including a Registered Mental Health Nurse (but not a psychiatrist), as having "nil psychotic symptoms" and his behaviour was attributed to his personality. As will become apparent, this was later mistakenly thought to be the view of a qualified psychiatrist.
A UKBA record of 9 November 2010 identified the Claimant's "special needs" as including "serious mental health problems" and as a result of this he was transferred to Brook House IRC on that date. The Claimant was exhibiting bizarre behaviour but the nurse's earlier record of "nil psychotic symptoms" was repeated and wrongly attributed to a psychiatrist. On that date the Claimant was again placed in segregation because of concerns about his behaviour and interaction with others.
On 13 November 2009, a Doctor Gascoyne, with "no background information available" and unable to make a mental state examination, identified possible "paranoid psychosis" and stated that the Claimant "may eventually need transfer to an appropriate UNIT for psy. input".
On 18 December 2009 healthcare at Brook House put in a request to transfer the Claimant to a medical bed and for an assessment at Harmondsworth IRC. On 20 December 2009 Harmondsworth IRC informed the Defendant that it would not have the Claimant back because he was "not suitable due to history of food refusal, bizarre behaviour, refusing to take medication and refusing to leave R40 [Rule 40 of the 2001 Rules]" and they already had "7 in health care and on ACDT".
On 22 December 2009 the Claimant was seen by a physician, Dr Ian Anderson, in the GP surgery. His comments were:
On 23 December 2009 a referral was made to a psychiatrist for an assessment because the Claimant was still "sleeping in toilet area refusing to wash, bizarre behaviour alienates him from others." A letter was sent from Saxonbrook medical at Brook House IRC to a consultant psychiatrist at Longley House in Crawley. This letter observed that the Claimant:
On 25 December 2009 a form was signed by Dr Sherpao. This noted that possible actions needed were: "Single occupancy and/or transfer to another centre for psychiatric treatment".
On 30 December 2009 it was noted that Harmondsworth IRC had again refused to accept a transfer of the Claimant because he had previously been non-compliant.
On 21 January 2010 a psychiatrist, Dr Spoto, completed a report to Dr Thomas of Saxonbrook Medical Centre in Crawley. He noted that he had seen the Claimant at Brook House on 16 January. He observed that the Claimant's history was that his behaviour was bizarre and he was largely unco-operative. The Claimant would lie on the floor on a mattress lying halfway in the toilet facility, sleeping at most times. In the report Dr Spoto stated that:
It can be observed that Dr Spoto had fallen into the same error as many others (no doubt because of the records to which he had access) in thinking that the Claimant had been assessed by a psychiatrist at Colnbrook IRC.
In his report Dr Spoto then conducted a written review of the previous medical records that were available to him. His diagnosis was: "Uncertain but likely to be suffering from a psychotic illness." Dr Spoto's opinion was expressed as follows:
The doctor's recommendations were:
As will become apparent later, the reference to section 48 of the Mental Health Act 1983 is a reference to a power of transfer to a hospital which arises in cases which are urgent. On behalf of the Claimant it has been emphasised before me that Dr Spoto was recommending an urgent transfer of the Claimant to hospital.
Although Dr Spoto's full report was only compiled on 21 January 2010, senior officers at the UKBA were aware of his visit and concerns before that date. On 18 January 2010 Simon Edwards, the UKBA manager at Brook House IRC, wrote an e-mail to the DEPMU [Detainee Escorting and Population Management Unit] Duty Chief Immigration Officer, which was copied to a number of recipients, including Bob Evans. The e-mail referred in some detail to the facts of the Claimant's case. It said:
On 20 January 2010 an e-mail was sent by Bob Evans to Duncan Partridge (a UKBA area manager) and Phil Schoenenberger (Assistant Director in Detention Services at the UKBA). It stated:
On 21 January 2010 a form was filled in under Rule 35 of the Detention Centre Rules 2001 (which I set out later). Under "relevant clinical information" this stated: "odd behaviour – refusing to engage? Behavioural – seen by Psychiatrist on 16/01/10. Detainee refused to engage – completely ignored his presence." On the continuation sheet it was stated that "….psychiatrist feels that he ought to be sectioned with a view to make a better assessment – has not had a wash for quite some time. ….."
This was considered in a file minute from Mr Brewer on 21 January 2010 addressed to his superior, Joanne Soloman. After setting out the case history this file note stated as its proposal:
Earlier on 21 January 2010 an e-mail was sent by Duncan Partridge to Phil Schoenenberger and Bob Evans, which was copied to Simon Edwards. This stated that the Claimant had had a mental health assessment on 16 January. It continued:
The e-mail also noted that the Claimant's initial asylum screening had taken place on 8 April 2009 "with little action since". Finally the e-mail said: "It is clear to me that [the Claimant] requires a move from Brook House to break this cycle although I am mindful that this is difficult to achieve without a recent assessment. ….."
On 22 January 2010 Alan Kittle, the Director of Detention Services at the UKBA, sent an e-mail to Bob Evans, which stated:
This was in response to an e-mail of 21 January which stated "…..a difficult one…I don't want him moved because the sectioning process would have to start again….how long can we justifiably keep him in Rule 40 under these circumstances?"
Also on 22 January 2010 Mr Brewer wrote to the Claimant giving his formal decision in response to the notification he had received under Rule 35. He stated:
On 25 January 2010 Simon Edwards wrote an e-mail to Bob Evans and Alan Kittle, which was copied to a number of other recipients including Duncan Partridge and Phil Schoenenberger. It said:
On 1 February 2010 Mr Brewer wrote to the Claimant in the following terms:
On 5 February 2010 Simon Edwards sent an e-mail to Bob Evans and Alan Kittle and a number of other recipients. He stated:
On 8 February 2010 Mr Edwards sent an e-mail to Mr Kittle and Mr Evans copied to others that stated:
On 12 February 2010, Mr Evans wrote to a Sarah Eliot in Newcastle seeking to speed up the assessment and in so doing so stated:
Mr Evans also made reference to the criticism by the HM Chief Inspector of prisons for "the tardy resolution of a similar case because of the concerns of the detainee's welfare and I have equal concerns in this case".
On 7 March 2010 the Claimant was in fact transferred from Brook House IRC to Harmondsworth IRC. The Claimant invites me to draw the inference that an impending inspection by the HM Chief Inspector of Prisons at Brook House IRC on 15 March 2010 was a factor in the timing of the move. However, the evidence for this is not clearcut on the documents before the Court and, in the absence of live evidence and cross-examination (for which no application has been made), I am not prepared to draw that inference of what would be improper behaviour. Nor, in my view, is it necessary for the resolution of the issues in this case, for reasons that will become apparent.
Once he was at Harmondsworth IRC, the Claimant was transferred directly into Rule 40 segregation and not into a medical bed. This was authorised by Philip Schoenenberger. Shortly afterwards he was, in fact, transferred into Rule 42 confinement and the use of force was authorised. He remained in segregation for the following 4 months or so.
The Claimant continued to show disturbed and erratic behaviour. No psychiatric assessment took place on 15 March 2010. I was told by counsel for the Defendant that this was not because the Claimant had been moved to Harmondsworth IRC, since the Newcastle PCT was aware of this and was expected to examine him there but did not do so.
On 29 March 2010 a fresh referral was made to Hillingdon Mental Health Services for assessment but no steps appear to have been taken actively to ensure that this took place and no assessment did take place despite reiteration of the urgent need for it. The Claimant was eventually referred to Hillingdon again on 19 June 2010.
On 24 June 2010, the visiting psychiatrist, Dr Ahmad (who had seen the Claimant on two occasions previously), was asked to sign the relevant form and a psychiatrist from Hillingdon Hospital finally recommended his transfer to hospital on the same date. This was faxed to the Hillingdon Unit by the Ministry of Justice (MOJ) on 25 June 2010. A further section 48 report was obtained from a General Practitioner on 1 July 2011. On that date a warrant was issued by the MOJ for the Claimant's transfer to hospital. That transfer took place on 5 July 2010.
The hospital staff noted that the Claimant was expressing paranoid delusions, that he was self-neglecting, and had bizarre behaviour with persecutory delusions. Initially the Claimant would not eat in the dining room and would only eat bread and milk for fear of being poisoned. He slept on the floor because of his fears.
In August 2010 the Claimant was assessed by the psychiatric team at the hospital as suffering from a psychotic illness requiring medication. On at least three occasions drugs were administered by injection without his consent.
In October 2010 the Claimant instructed Bhatt Murphy Solicitors and a detailed letter before claim was written on 14 October 2010 challenging the legality of his past and continuing detention. It also asked the Defendant to confirm that the Claimant would not be transferred back to detention when clinically fit to be discharged from the hospital. A request was made for a response to that letter within seven days but no substantive response was provided before the application for judicial review was lodged on 28 October 2010.
An application for an urgent oral hearing for interim relief prior to any transfer of the Claimant back to detention was made on the papers. Kenneth Parker J was of the view that the Defendant should be given an opportunity to give a response in summary grounds before any such hearing and ordered that the grounds be served by 8 November 2010.
The Claimant's solicitors sought urgent confirmation from the Defendant that no steps would be taken to transfer the Claimant back to detention at an IRC before he could have access to the court. Following the request by the Claimant's solicitors for him to be granted temporary release a letter was sent by Toni Tomney of the UKBA on 2 November 2010, which stated:
In the meantime, on 26 October 2010 Dr Moodley wrote a letter to Toni Tomney. She stated:
On 3 November 2010 Dr Moodley signed a form which stated:
On 4 November 2010 Dr Moodley wrote to Toni Tomney answering questions which had been raised with her in the following terms:
On 5 November 2010, without notice, the Claimant was transferred back to Harmondsworth IRC and detention was maintained by the UKBA on 8 November 2010.
On 11 November 2010 bail was refused at a hearing before Treacy J. This was primarily on the basis of the Defendant's submission that the evidence available at the time did not disclose that detention of the Claimant in an IRC had caused deterioration in his mental health and that he could not now be adequately and properly treated within an IRC.
On 6 December 2010 a report was written To Whom It May Concern by Dr Wilhelm Skogstad, a consultant psychiatrist who had been instructed by the Claimant's solicitors. He stated that he had conducted a psychiatric examination of the Claimant at Harmondsworth IRC over two hours on 4 December 2010. He said that, while he was preparing a psychiatric report to be completed by 20 December, he thought he needed to express his "serious concerns as a matter of urgency." He continued:
As I have mentioned, at a further bail hearing on 15 December 2010, the Claimant was granted bail (by Kenneth Parker J), this time without objection from the Defendant.
Reviews of the Claimant's Detention
Monthly reviews of the Claimant's detention under the 2007 Act were undertaken by the UKBA.
The first review of the Claimant's detention took place on 25 September 2009. The initial review was conducted by Mr Guy Brewer. After setting out the brief case summary and noting that this was the first detention review in this case, Mr Brewer said that:
Under the heading "Proposal" Mr Brewer continued:
The case then went to Mr Brewer's superior officer, Joanne Soloman, who had to consider whether to grant authority to maintain the claimant's detention. She said:
The second detention review took place on 22 October 2009. Mr Brewer was again the case officer and expressed himself in similar terms to his first review. Mr Brewer also said: "All known facts of this case have been considered and there are no compassionate circumstances to prevent further detention pursuant to deportation action." He concluded his proposal for continued detention as follows:
On this occasion the authority to maintain detention was given by Alex Forbes, Assistant Director at the UKBA.
The third detention review took place on 20 November 2009. The review and proposal by Mr Brewer were expressed in very similar terms to the second review. On this occasion the authority to maintain detention was given by Martin Fullick, an acting higher executive officer. In granting that authority Mr Fullick said:
Although it is not entirely clear, it would appear that the inability to secure an interview with the Claimant, which may well have been due to his medical condition or difficulties arising from it, was being regarded at this time as wilful non-compliance and therefore further "proof" that he would not comply with any conditions of release.
The fourth detention review occurred on 17 December 2009. The report and proposal by Mr Brewer were again expressed in very similar terms to his earlier views. This time it was Joanne Soloman again who granted authority to maintain detention. In doing so she made this request to Mr Brewer:
It would appear that at this stage therefore the UKBA had come to the view that asylum was going to be refused and that this was going to occur on the ground that the Claimant had not complied with the relevant requirements.
The fifth detention review took place on 14 January 2010. Again the review and proposal by Mr Brewer were expressed in very similar terms to his earlier views. It was Joanne Soloman again who granted authority to maintain the claimant's detention. However this time the request was as follows:
It would appear therefore that by now Joanne Soloman was not regarding the case as fit for immediate refusal of asylum but nevertheless still regarded the Claimant as being non-compliant and having failed to attend for interview.
The sixth detention review took place on 9 February 2010. It will be noted that by this time Dr Spoto had issued his report and a Rule 35 notice had been passed on to the UKBA as well. In his report Mr Brewer noted under the heading 'Changes in Circumstances (Include full details of notified Human Rights factors)':
Under the heading 'Likelihood of removal within a reasonable timescale' Mr Brewer said:
Under the heading 'Proposal' Mr Brewer set out in materially the same terms what he had proposed in the past. There was no reference to the Claimant's medical condition or the information which had been brought to Mr Brewer's attention by this time. In his report Mr Brewer also said:
In granting authority to maintain detention, Joanne Soloman said:
The seventh detention review occurred on 10 March 2010. On this occasion the case worker was not Mr Brewer but Sarah Littledyke. After setting out a brief case summary she said under the heading 'Progress since last review':
It is of some concern that under the heading 'Changes in Circumstances' there was in fact reference simply to what had already been said in the February review about events in January and early February 2010. The proposal to continue detention was expressed in very similar terms to what Mr Brewer had said previously but this time Sarah Littledyke added at the end:
The eighth detention review took place on 12 April 2010. On this occasion the case officer was Aina Parry. Under the heading 'Progress since last review' she said:
Again it is of some concern that under the heading 'Changes in Circumstances' the same words that had been used in the previous two reviews were repeated without in fact any record being given of any changes since the last review. The proposal was the same as before and ended in the same way:
There then appeared this:
It will be observed that there was no mention of the Claimant's mental health in the lengthy section which closed the proposal by Aina Parry.
In granting authority to maintain detention, Joanne Soloman made this request of the case worker:
The eighth detention review took place on 7 May 2010. This time the case worker was again Mr Brewer although the report was signed by Pam Merkell on his behalf. Under the heading 'Progress since last review' it was noted that on 12 April 2010 the Claimant was served with his previous detention review, which he placed in the bin. On 20 April 2010 the case owner faxed Harmondsworth IRC requesting advice as to when they would be obtaining a psychiatric report or moving the claimant to Brook House. A response was received on the same day stating that the health care manager at Harmondsworth had confirmed that the Claimant had been referred to Hillingdon PCT but that they had not indicated when they might be able to make an assessment despite being chased by him.
Again it is of some concern that under the heading 'Changes in circumstances' there was simply repeated what had been said as long ago as February 2010. The proposal was in very similar terms to the one which had been drafted by Aina Parry the previous month. In granting authority to maintain detention, Joanne Soloman asked:
The ninth detention review took place on 7 June 2010. The report and the proposal by Mr Brewer were in very similar terms to what had been said in the previous review. In granting authority to maintain detention, Alex Forbes said:
The ninth detention review took pace on 1 July 2010. The report was again compiled by Mr Brewer. Under the heading 'Changes in circumstances' he said:
The proposal was in very similar terms to the previous recent occasions. In view of the length of time that the Claimant had by now been in detention, the case had to be considered by the CCD Deputy Director, Jackie Gallop. In submitting the case to her, Joanne Soloman said that she agreed with Mr Brewer's recommendation to maintain detention. She said:
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.
Authority to maintain detention was given by Jackie Gallop. She said:
Detention Reviews after the Claimant's transfer to hospital
The Claimant's detention was again reviewed on 10 August 2010. On this occasion Toni Tomney was the case worker and the Senior Executive Officer Operations Manager who made a recommendation to the Deputy Director was Shakira Bukhari. The Deputy Director was Jackie Gallop. In the recommendation by the case worker on this occasion it was said:
Shakira Bukhari in her report to the deputy director said:
The deputy director did agree that detention was appropriate and said that the Claimant had been convicted of a drugs offence, had previously used false documents and had not co-operated with asylum interviews. She concluded:
The documentation for the next detention review is not available in full. However, there is before the Court a report by Toni Tomney dated 27 August 2010. This includes a section headed 'Compassionate Circumstances/Medical Conditions (including mental health issues)'. This stated:
The next detention review took place on 22 September 2010. The case worker again was Toni Tomney. Her report under the heading 'Compassionate Circumstances etc' she said:
In her recommendation she said:
In her report to the Deputy Director Sarah O'Flaherty said:
The Deputy Director on this occasion was Nick Hearn, who gave authority to maintain detention and said:
After the Claimant had been returned from hospital to Harmondsworth IRC, the final detention review in his case took place on 8 November 2010. In the section headed 'Progress since last detention review' Toni Tomney said:
In a note to the case owner the Deputy Director said:
The recommendation for continued detention was expressed in very similar terms to the previous occasion. In granting authority to maintain detention the Director of the Criminal Casework Directorate (CCD), Richard Quinn, himself took the decision and said:
Material Legislation
The 2007 Act
Section 32 of the 2007 Act provides that:
Section 33 lists specified exceptions to the otherwise mandatory requirements of section 32(4) and (5). One such exception is where removal of a person would breach the United Kingdom's obligations under the Refugee Convention: see subsection (2). Another exception is where a transfer direction under section 47 of the Mental Health Act 1983 has effect in respect of the person concerned: see subsection (6)(c). I will return to this later.
Section 36 of the 2007 Act provides that:
The 1983 Act
Section 2 of the 1983 Act provides for the compulsory admission to a hospital and detention there of a person for the purpose of assessment, where both the substantive and the procedural criteria in that section are satisfied. The maximum period for such detention for the purpose of assessment is 28 days: see subsection (4).
Section 4 of the 1983 Act provides for some of the criteria in section 2 to be dispensed with where assessment is needed in cases of emergency but this permits compulsory admission for up to 72 hours only.
Section 136 of the 1983 Act provides for cases that may be even more urgent. Subsection (1) states that, if a constable finds in a place to which the public have access a person who appears to him to be suffering from mental disorder and to be in "immediate need of care or control", the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety. A person removed to a place of safety may be detained there for a period not exceeding 72 hours for the purpose of enabling him to be examined by a registered medical practitioner and to be interviewed by an approved mental health professional and of making any necessary arrangements for his treatment or care: see subsection (2).
Section 3 of the 1983 Act provides for the compulsory admission to a hospital and detention there of a person for the purpose of treatment, where the substantive and procedural criteria in that section are met.
It can be seen, therefore, that the 1983 Act seeks to cater for the various scenarios that may arise, in which very urgent cases, cases calling for assessment and cases calling for treatment can be dealt with using compulsory powers if necessary and with appropriate safeguards and time limits for the use of those powers.
Section 47 of the 1983 Act addresses the situation where a person serving a sentence of imprisonment needs to be transferred to a hospital for treatment because he is suffering from a mental disorder. It enables the Secretary of State to make a "transfer direction" where the substantive and procedural criteria in that section are satisfied. It does not directly address the situation of a person who is detained under administrative powers conferred by immigration legislation but is cross-referred to in the next provision in the 1983 Act.
Section 48 of the 1983 Act provides that:
(2) This section applies to the following persons, that is to say –
…..
No challenge has been made in these proceedings to the lawfulness of the Claimant's transfer from an IRC to hospital under section 48 of the 1983 Act. However, at the hearing before me it was submitted that as a matter of law such a power is not available because there is no reference in section 48(2(d) to detention under the 2007 Act. If that submission were correct, and the Secretary of State disputed it, it was agreed before me that it raises an important issue of interpretation of potentially wider application on which I should express a view.
It was also submitted on behalf of the Claimant that this interpretation receives support from the fact that, when Parliament enacted the 2007 Act, it expressly had in mind certain provisions of the 1983 Act and referred to them in terms: section 33(6) includes express reference to transfer under section 47, but does not refer to transfer under section 48. I do not find that subsidiary argument persuasive. This is because, in my view, the reference to section 47 is sufficient to include a transfer under section 48 too. Close reading of those two sections of the 1983 Act makes it clear that there is no separate power to make a transfer direction under section 48. Rather, the drafting technique adopted is that under section 48(1) the Secretary of State is given the same power to make a transfer direction "under that section", i.e. section 47, as if the detainee were serving a sentence of imprisonment.
Nevertheless, I do see force in the Claimant's primary argument, that section 48 simply does not apply to detention under the 2007 Act since it does not refer to it, whereas it does refer to detention under the Immigration Act 1971 or section 62 of the Nationality, Immigration and Asylum Act 2002. It should be noted that, when Parliament enacted the latter provision, it expressly amended section 48 of the 1983 Act. In contrast, the 2007 Act did not amend the 1983 Act as it could have done. Nor can it be said that detention under the 2007 Act is simply to be regarded as an example of detention under the Immigration Act 1971: although section 32(4) of the 2007 Act cross-refers to the 1971 Act, that is only for the purpose of deeming a foreign criminal's deportation to be conducive to the public good. It is clear that section 36(1) of the 2007 Act confers an additional, and distinct, power of detention and was not treated by Parliament as simply an example of the exercise of the power of detention in the 1971 Act. The 2002 Act similarly refers to the 1971 Act but also confers an additional, and distinct, power of detention. Yet, when enacting that Act, as I have already said, Parliament thought it necessary to amend section 48 of the 1983 Act and make express reference to section 62 of the 2002 Act.
I have considered whether a purposive construction should be given to section 48, since otherwise a detainee who needs urgent treatment for a mental disorder may not receive it as the power to transfer will not be available to the Secretary of State. I am not persuaded that such a purposive construction is necessary, since there are other provisions available in the 1983 Act itself which would cater for the need for compulsory detention of a person in an emergency (section 4 or, in more limited circumstances, section 136), for the purpose of assessment (section 2) or for the purpose of treatment (section 3). In any event, however desirable a construction may be, it can provide no warrant for departing from the natural meaning of the words used by Parliament in the present context. In my view, it is difficult, if not impossible to read the words of section 48(2)(d) of the 1983 Act as if they included reference to detention under section 36 of the 2007 Act when they simply do not. If that interpretation is considered to be an unfortunate one, the remedy must lie with Parliament, which may need to consider amending section 48.
The Public Sector Equality Duties
Section 71 of the Race Relations Act 1976 (the 1976 Act), as amended, in the version that was in force at the material time (before its repeal and replacement by the Equality Act 2010), provided that:
Section 49A of the Disability and Discrimination Act 2005 (the 2005 Act) was also in force at the relevant time, although it too has been repealed and replaced by the Equality Act 2010. Section 49A, in the version that was in force at the material time, provided that:
"(1) Every public authority shall in carrying out its functions have due regard to –
It was common ground before me that "disability" in this context includes a mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out day-to-day activities, as the statutory definition in section 1 of the Disability Discrimination Act 1995 itself made clear.
The duties in section 71 of the 1976 Act and section 49A of the 2005 Act are often referred to as the "public sector equality duties". Although those provisions are no longer in force, having been repealed by the Equality Act 2010, they have been replaced by similar provisions in section 149 of that Act, which has the sidenote "Public sector equality duty."
Human Rights Act 1998
The provisions of the Human Rights Act 1998 (HRA) are too well-known to need lengthy citation here. The Claimant submits that the Defendant acted unlawfully under section 6(1) of the HRA by reason of conduct which was in breach of the following Convention rights, as set out in Sch. 1: Article 3 (in particular the prohibition on inhuman and degrading treatment); Article 5 (right to personal liberty) and Article 8 (right to respect for private life).
Lawfulness of Detention during the First Period
The Claimant's first main ground of challenge is to the lawfulness of his detention on or after 16 January to 5 July 2010. He submits that there were relevant errors of public law which vitiated the decisions to continue his detention during that period. Accordingly, he submits, that detention was unlawful.
The relationship between public law errors and the tort of false imprisonment was recently and authoritatively considered by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 . The main judgment was given by Lord Dyson JSC.
At para. 62 of his judgment Lord Dyson rejected the approach which had found favour in the Court of Appeal and which became known in the case as the "causation test". He said:
At para. 63 Lord Dyson accepted that the Court of Appeal had been right to say that the mere existence of an unlawful policy is not sufficient to establish that any particular exercise of a statutory discretion is unlawful. The decision to detain and/or continue detention will not be vitiated on the grounds of an unlawful policy "unless the policy has been applied or at least taken into account by the decision maker." But in Lord Dyson's view this did not shed any light on the correctness of the causation test.
At para. 64 Lord Dyson said:
In the same paragraph Lord Dyson quoted from the opinion of Lord Griffiths in Murray v Ministry of Defence [1988] 1 WLR 692 , 703A-B, where he said:
At para. 65 Lord Dyson said:
At para. 66 Lord Dyson said:
At para. 68 Lord Dyson said:
Later in his judgment Lord Dyson made it clear that, although damage is not necessary to establish liability for the tort of false imprisonment, it will be highly relevant to the quantification of damages. This is because, as he put it at para. 95:
I derive the following principles from those passages:
The Claimant also placed reliance on a passage in R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR 1299 , at para. 86, where Lord Kerr JSC said:
The Claimant submits that the detention reviews in his case were inadequate and flawed and did not have "the quality or character required to justify the continuance of detention." He relies on a number of alleged flaws in the decision-making process.
Initially the Claimant's submissions, as made in writing, made a number of complaints in relation to the decision-making process from September 2009 until mid-January 2010. However, it became clear at the hearing before me that the real focus of the Claimant's challenge was to the lawfulness of his detention on or after 16 January 2010. If the complaints relating to that earlier period had been pursued, I would not have been inclined to accept them. In the months between August 2009 and January 2010, as the Defendant has submitted to me, the Claimant's condition fluctuated and was not uniform. Even Dr Spoto in his report of 21 January 2010 was not saying that the Claimant was mentally ill but recommending transfer to a hospital precisely so that he could be assessed in an appropriate psychiatric unit. As the Defendant submitted before me, even once the Claimant had been admitted to hospital, it was not immediately apparent that he was suffering from mental disorder and this was clearly diagnosed only about two months into his stay there.
The Claimant's first contention in this context is that the Defendant acted contrary to relevant policy in the course of the decision-making process and that this vitiates the authority to continue his detention in January/February 2010.
Rule 35 of the Detention Centre Rules 2001 provides:
The Claimant submits that the purpose of Rule 35 is to ensure that persons considered unsuitable for detention in an IRC because their continued detention is likely to be injurious to their health are released promptly.
The Claimant also relies upon the policy in the Defendant's Enforcement Instructions and Guidance (EIG) in which Chapter 55.8 provides that, once a Rule 35 report is received by the Secretary of State, caseworkers must review continued detention in light of the information in the report and respond to the IRC, within two working days of receipt, using the appropriate Rule 35 pro forma.
As I have indicated in the earlier summary of the facts, the decision made on 22 January 2010 refusing to release the Claimant was on the basis that "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 within a reasonable timeframe". The Claimant submits that it was unlawful, in particular because:
Furthermore, the Claimant submits, no reference was made to the further information available to the Defendant through its officers and/or servants or agents, Mr Evans, Mr Schoenenberger and Mr Partridge, that the Claimant was:
The Claimant also submits that it is clear from Mr Evans' email of 12 February 2010 that he did not consider that the Claimant was "fit to be detained" in accordance with Rule 35 and/or its purpose but nowhere was this view addressed in any decision to continue to detain the Claimant.
As I have mentioned in the summary of the facts, a further decision was issued on 1 February 2010, although it is unclear why. It may be that further time was needed in order to digest the information which had been provided to the UKBA, including the report of Dr Spoto of 21 January and the exchange of emails between officials in late January. In the absence of clear evidence I am prepared to make that assumption in favour of the Defendant: at the hearing before me counsel for the Claimant realistically accepted that the focus of her complaint was to the decision to continue detention from 1 February 2010.
In essence, I accept the submissions for the Claimant on this issue. In my judgement, the Defendant's decision to authorise the Claimant's continued detention was flawed from 1 February 2010, when the Defendant had had the opportunity to consider the matter more fully and in particular to digest the implications of the report by Dr Spoto of 21 January 2010 and the Rule 35 notice. In my view, the way in which the UKBA responded to that report and the other information emanating from senior officials both at Brook House IRC and in the UKBA itself was flawed as a matter of public law.
The Defendant had no real answer to these submissions. In substance her response was to accept that the Claimant was in need of a transfer at about that time for assessment and, if necessary, treatment in a psychiatric setting but to deny that it was her responsibility that this did not happen as quickly as it might have done, that responsibility lying with others such as the Primary Care Trust. I will return to that submission later. However, what is important in the present context is that it does not begin to answer this particular part of the Claimant's complaints. At this stage of the argument, the Claimant focuses squarely on the Defendant's own decision-making process and contends that her authority to continue his detention was flawed as a matter of public law because of errors in that decision-making process. As I have already said, the decision to detain the Claimant was at all times that of the Defendant and nobody else. The Defendant's attempts to answer this have failed because she has been unable to meet that fundamental point.
The consequence is that, in my judgement, the apparent authority to detain the Claimant was ultra vires and a nullity as from 1 February 2010, in accordance with the principles set out by Lord Dyson in Lumba .
Accordingly, the Claimant's detention was unlawful from then. It remains to be seen what, if any, loss flowed from that but, as the Supreme Court held in Lumba , proof of special damage is not required to establish liability for false imprisonment. Questions of loss and causation go to quantum. The Claimant accepted before me that he would have been liable to some continued detention since he was appropriately detained in a mental hospital as he needed compulsory treatment there. However, the Claimant submitted that his detention should and would have come to an end earlier than it did; and also that questions of aggravated or exemplary damages may arise. Such questions will have to be considered at a quantum hearing in this case.
In the light of my conclusions on the lawfulness of the Claimant's detention, it is not necessary to lengthen this judgment unduly by consideration of the alternative submission by the Claimant that, in any event, his detention was unlawful by reference to the well-known principles in R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704 , at 706 (Woolf J), as approved by the Supreme Court in Lumba , at para. 22 (Lord Dyson), and as modified in the context of section 36(1) of the 2007 Act in R (Rashid Hussein) v Secretary of State for the Home Department [2009] EWHC 2492 (Admin) , at para. 44 (Nicol J).
Article 5
The Claimant submits that his detention was incompatible with Article 5(1)(f) as an arbitrary interference with his right to liberty because it was, for the reasons set out earlier, contrary to domestic law: R v Governor of Brockhill Prison, ex p. Evans (No. 2) [2001] 2 AC 19 , 38C (Lord Hope of Craighead). Although that is right, that submission does not add anything of substance to his argument.
However, the Claimant also submits that, in any event, his detention was (from on or after 16 January 2010) in breach of Article 5(1)(f) because the Claimant was held in a place and in conditions (including in prolonged segregation) which were wholly unsuitable and he required urgent admission to a mental health facility and treatment for a psychotic mental illness, which did not occur for over 5 months.
The Claimant placed reliance on two Strasbourg authorities. The first, and main authority, is Aerts v Belgium (2000) 29 EHRR 50 . In that case, as the European Court of Human Rights noted at para. 45 of its judgment, the Committals Chamber of the Liège Court of First Instance found that the applicant had committed acts of violence. It ordered his detention on the ground that at the material time he had been severely mentally disturbed to the point where he was incapable of controlling his actions. As he was not criminally responsible, there could be no conviction within the meaning of Article 5(1)(a), and in any case the Committals Chamber could not give such a ruling. At para. 46 the Court reiterated that in order to comply with Article 5(1), the detention in issue must take place "in accordance with a procedure prescribed by law" and be "lawful". As the Court said, the Convention here refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law, but it requires in addition that any deprivation of liberty should be in keeping with the aim of Article 5, namely to protect the individual from arbitrariness. Furthermore there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the "detention" of a person as a mental health patient would only be "lawful" for the purposes of sub-paragraph (e) of paragraph 1 if effected in a hospital, clinic or other appropriate institution. In the circumstances of the particular case before it the Court found, at paras. 47 to 49, that the proper relationship between the aim of the detention and the conditions in which it took place was deficient. As the mental health board itself had found, the situation was harmful to the applicant, who was not receiving the treatment required by the condition that had given rise to his detention. Accordingly the Court found there to have been a breach of Article 5(1).
The second case on which the Claimant relies in this context is Pankiewicz v Poland (application number 34151/04, judgment of 12 February 2008), at paras. 38 to 46 of the judgment of the European Court of Human Rights, a case which was similar to Aerts .
I do not accept these submissions that there was a breach of Article 5 independent of domestic law. As the Defendant submitted, the submissions involve an element of hindsight. It was not clear that the Claimant was suffering from a severe mental illness until about two months into his compulsory admission to hospital where he could be assessed by psychiatrists. He was detained at all times under the 2007 Act, in other words for immigration purposes, although a transfer was made under sections 47 and 48 of the 1983 Act. He was not detained in an IRC on the ground that he had a mental illness. In other words, his detention at IRCs was covered by Article 5(1)(f) (for the purposes of deportation) and not Article 5(1)(e) (persons of "unsound mind").
It is for that reason, in my judgement, that the two authorities on which the Claimant placed reliance, Aerts and Pankiewicz , can be distinguished. In both of those cases the state sought to invoke Article 5(1)(e) to justify the applicant's detention (i.e. that he had a mental illness or, in the words of that provision, was of "unsound mind") and yet he was detained in a non-therapeutic setting. Such detention was therefore unlawful under Article 5(1). In contrast, the general position under Article 5 is that it covers the lawfulness of detention and not simply the conditions of detention: see Ashingdane v United Kingdom (1985) 7 EHRR 528 , at para. 52. There the Court was addressing the right to a judicial remedy to challenge the lawfulness of detention in Article 5(4) but also referred to Article 5(1) in the following terms:
Transfer to Hospital for Assessment and Treatment
The Claimant submits that the Defendant breached her duty to transfer him to hospital and, in particular, that the delay between 16 January, when Dr Spoto saw him at Brook House and shortly after recommended urgent transfer to hospital, and 5 July 2010, when in fact he was transferred, was unacceptable.
In support of this submission the Claimant relies, by way of analogy, upon the decision of Stanley Burnton J (as he then was) in R (D) v Secretary of State for the Home Department and another [2005] 1 MHLR 17, which concerned a prisoner rather than an immigration detainee. At para. 33 Stanley Burnton J said:
The Claimant submits that, even if (as I have already indicated) section 48 of the 1983 Act does not apply to detention under the 2007 Act, the Defendant has the means to transfer immigration detainees to hospital by a variety of other means:
The Claimant also relies on the policy governing the use of the power in section 48 of the 1983 Act in relation to immigration detainees in prison at the relevant time, which was contained in Prison Service Instruction (PSI) 50/2007 and Joint Guidance issued in conjunction with the Department of Health. No such specific policy was in place for detainees in IRCs but I was informed (without contradiction by the Defendant) that it was treated by the Defendant as equally applicable in that context. The following passages were emphasised by the Claimant:
Immigration Act Detainees
I accept the Claimant's submissions on this point. Although I have already indicated that section 48 of the 1983 Act is not available in cases of detention under the 2007 Act, and so the policy in relation to that is not directly in point, the principle of law identified by Stanley Burnton J in D is, in my judgment, equally applicable in the context of detention in IRCs, including detention under the 2007 Act. It is a principle of public law. A public authority has a duty to act rationally and will not be acting rationally if it breaches the principle identified by Stanley Burnton J. This will be particularly important in the context of a person, like this Claimant, whose transfer is recommended by a psychiatrist as a matter of urgency.
It is the Defendant who is in law responsible for the decision to detain the Claimant. Moreover, the Defendant is in overall control and management of IRCs through the UKBA manager and his/her team who are on the ground in an IRC. Furthermore, it is clear that, on the facts of this case, the Defendant's officers (at a senior level) were aware of this particular case and the need for the Claimant's urgent transfer to hospital.
In my judgement, as from the time when Dr Spoto made the recommendation that he did on 21 January 2010, the Defendant had a duty to take reasonable steps to secure the Claimant's transfer to a hospital for appropriate assessment and treatment and to do so reasonably expeditiously. Although such arrangements cannot necessarily be made overnight, or even within a few days, on any view, the delay of over five months in this case was manifestly unreasonable.
I do not regard it as unreasonable that the Defendant initially sought to liaise with the Newcastle PCT with a view to the Claimant's transfer. As the Defendant points out, the Claimant had given an indication that he had been settled in the Newcastle area. However, even if the delay in agreeing an assessment of the Claimant by the Newcastle PCT until 15 March 2010 was reasonable, and although the reason why the assessment did not take place on that date was not, it would seem, due to the fact that the Claimant had been moved from Brook House to Harmondsworth IRC in early March, there was then an undue delay, in my view, before the local PCT for Harmondsworth, Hillingdon, was goaded into action in June 2010. No active steps appear to have been taken after the initial referral to Hillingdon on 29 March 2010 until 19 June 2010. It is noteworthy that, when active steps were taken in late June and early July 2010, it was possible to secure the Claimant's transfer within a few weeks.
Article 3
The following principles relating to Article 3 are well-established in the Strasbourg jurisprudence and can be summarised by reference to the decision of the European Court of Human Rights in Kudla v Poland (2002) 35 EHRR 11 , although many other cases could be cited:
The Claimant also relies upon Kalashnikov v Russia (2008) 36 EHRR 34, where the Court said, at para. 95:
No such improper purpose was alleged in the present case. However, as the Claimant submits, that is not decisive.
Although the primary obligation in Article 3 is a negative one, the Court has recognised that a positive obligation to protect individuals from ill-treatment may also arise under it. In particular, as the Claimant points out, detained persons have frequently been said by the Court to be "in a vulnerable position" and "the authorities are under a duty to protect them": e.g. Edwards v United Kingdom (2002) 35 EHRR 19 , para. 56. This includes persons in administrative detention for immigration purposes: Slimani v France (2006) 43 EHRR 49 .
Furthermore, an obligation may even arise under Article 3 where there is no ill-treatment from the state or from other people. As the Court put it in Pretty v United Kingdom (2002) 35 EHRR 1 , at para. 52:
The Claimant submits, placing reliance on Bensaid v UK (2001) 33 EHRR 10 , at para. 37, that the suffering associated with relapse in mental health could in principle, fall within the scope of Article 3.
As Keenan v United Kingdom (2001) 33 EHRR 38 , paras. 110-115, illustrates, the distinction between negative and positive obligations is not always clearcut when a person with mental health problems is in custody and there may be a combination of factors, both acts and omissions, which leads to the overall conclusion that there has been a breach of Article 3. In Keenan the following factors led the Court to make a finding of inhuman and degrading treatment in breach of Article 3: inadequate medical records; lack of recourse to specialist psychiatric input; the imposition of seven days of segregation; and punishment in the form of an additional period of 28 days imprisonment for an assault on officers.
The Claimant submits that from on or after 16 January 2010 he was subjected to a combination of acts and omissions which together cross the high threshold of inhuman or degrading treatment required by Article 3. In summary the Claimant relies upon the following factors:
Furthermore, the Claimant submits that senior officials within the UKBA were aware of the main features of the Claimant's case by 1 February 2010, particularly after they had received not only Dr Spoto's report of 21 January but also various other accounts of the Claimant's behaviour and the fact that he was having to be kept in segregation.
In essence I accept those submissions on behalf of the Claimant. The Defendant submitted that it was not her responsibility but that of other authorities. It was submitted on her behalf that the Claimant was seeking to mount what was in essence a clinical negligence action against those who had responsibility for his care and treatment. In my judgement, that is not the right way to look at it. The Claimant has not sought to mount a negligence action but submits that, in all the circumstances of his case, the combination of acts and omissions of those for whom the Defendant is in law responsible crossed the threshold of ill-treatment required by Article 3. I agree that there was a breach of Article 3 in this case: the Claimant suffered degrading treatment within the meaning of that provision.
In the light of that conclusion it is not necessary to address the Claimant's alternative submission, that there was a breach of Article 8. For similar reasons, it is unnecessary to address the separate submissions on behalf of the Claimant that the use of the power to keep him in segregation under Rules 40 and 42 of the 2001 Rules was unlawful.
The Challenge to the Policy on or after 26 August 2010
The policy which was in place until 26 August 2010 provided in Chapter 55.10 of the EIG that certain categories of person were considered unsuitable for detention as follows:
Those suffering from serious medical conditions or the mentally ill"
The reformulation of the policy, to use what I hope is a neutral word since the Defendant disputed that there was a policy change, was introduced on 26 August 2010 and provides as follows:
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."
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 [2009] EWHC 2496 (Admin) , paras. 51-55 (the decision was upheld by the Court of Appeal: [2010] EWCA Civ 1140 ).
The written policy went from stating that "the mentally ill" were "normally considered suitable for detention in only very exceptional circumstances" to treating those suffering from mental illness as being suitable for detention unless "suffering serious mental illness which cannot be satisfactorily managed within detention".
The understanding of the Defendant as to the intended effect of the reformulation of the policy was that it related to "a practical consideration" (see Mr Barrett's witness statement, para. 37) where "the evidence indicates clearly that intensive physical or mental medical management is needed as to whether, exceptionally, those conditions cannot be managed within the special conditions that apply within immigration detention". At para. 39 Mr Barrett explains the concern that led to the change in the EIG as follows: "the words (of the pre-August policy) led the Court to attribute a meaning to the guidance which did not reflect the actual policy. The Secretary of State was concerned that there was a disjuncture between the guidance as interpreted and the policy, so the terms of the guidance were updated by the addition of a few words to say explicitly what had always been understood as the policy".
The review and decision to reformulate the policy was introduced without any prior notice or consultation with relevant government departments, for example the Department of Health; or Primary Care Trusts, in particular those serving the main detention centres such as Hillingdon PCT; or relevant non-governmental organisations like MIND, the Medical Foundation, Bail for Immigration Detainees and Medical Justice.
Concern about the implementation of this and other policy changes without consultation and regard to the public sector equality duties was raised by the Immigration Law Practitioners Association in a letter dated 11 October 2010 with particular emphasis on the mentally ill at paragraphs 7-21.
A response to this letter was provided on 20 December 2010 by Alan Kittle, the Director of Detention Services, in which he confirmed that the reformulation of the policy was not "considered to be a change in policy rather it reflected more explicit statement of our existing policy. It follows that we did not consider it necessary to consult on the issue and that it was not necessary to prepare an equality impact assessment". It was acknowledged that there had never been any equality impact assessment [EIA] of the original policy and it was said that "we will undertake an EIA when we are in a position to do so."
A similar point is made in the evidence of Mr Barrett at para. 39, who states that there was no need to make any assessment of the impact of the change for the purpose of the equality and disability legislation as it would have produced nil returns since there "can be no impact if there is no actual change".
The Claimant submits that the following principles are now well-established in respect of the public sector equality duties:
The Claimant also submits that on the evidence before the Court, which includes evidence filed on behalf of a number of relevant non-governmental organisations, it is clear that there are serious concerns which have been raised about the impact that the new wording of the policy in August 2010 may have on people with mental illness (hence the relevance of section 49A of the 2005 Act) and on people from minority ethnic communities, since detention for immigration purposes affects foreign nationals (hence the relevance of section 71 of the 1976 Act).
In my judgement there was a change in at least the stated policy. There was obviously a change of wording, in other words a reformulation of it. Even if the Defendant did not intend that to be a substantive change in her own policy, there are two reasons why the public sector equality duties were triggered by that reformulation. The first is that the meaning of a policy is an objective matter: whatever the subjective intentions of its authors, the formulation matters because the words which express a policy affect the public, not just officials within a department, for example individuals who are liable to detention and those who advise them. The reason why public law has in recent years come to recognise the importance of adherence (in general) to policy statements is that they serve an important function in maintaining the rule of law, which is of particular importance when fundamental rights such as the right to personal liberty are at stake.
The second reason is that, even on the Defendant's own evidence, she was seeking to reformulate the policy to re-align it to what had been thought within the department to be its practice all along. The courts had given an interpretation to the policy which did not accord with the practice of the Defendant's department. But that is implicitly to acknowledge that in fact there was a change of policy if not of practice. It was common ground before me that, in the present context at least, the meaning of a policy is ultimately a question for the courts, not one for the executive. If that is right, then when the words of a policy are altered, that is a change in policy. It was clearly intended to have some effect, otherwise it would have been a pointless exercise.
It was argued on behalf of the Claimant that, even if there was no change in policy, the public sector equality duties were applicable since they do not require there to have been a change: they apply in the exercise of a public body's functions generally. Although I see force in that submission, it is unnecessary to consider it further since the Defendant accepts in these proceedings that, if there was a change of policy in August 2010, the usual practice under the public sector equality duties was not followed. For example, there was no equality impact assessment. In my judgement, there was a breach of the duties in section 71 of the 1976 Act and section 49A of the 2005 Act.
It was common ground before me that, nevertheless, the Court has a discretion whether to grant any remedy. I was invited to exercise that discretion in favour of the Defendant, especially since I was informed that the Defendant is currently in the process of carrying out an equality impact assessment. However, it became clear after the hearing that, in fact, this has not yet started. In a witness statement filed on 23 March 2012 Mr Kittle, who is the Director of the Returns Directorate of the UKBA, informs the Court, at para. 2, that:
"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."
At para. 3, Mr Kittle provides an undertaking to the Court in these terms:
"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."
I do not consider that it would be appropriate to exercise the Court's discretion to refuse any remedy to the Claimant in this regard, for the following reasons. First, as has been acknowledged in the authorities, the duties are important ones and non-compliance cannot be regarded as unimportant. Secondly, they must normally be followed before a relevant decision is taken, not afterwards. This is in accordance with normal principles of administrative law: whenever a relevant consideration is not taken into account, the normal remedy will be for the Court to quash the resulting decision, or at least declare it to be unlawful: see e.g. Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655, 694A and 695A (Lord Diplock); and R (C) v Secretary of State for Justice [2008] EWCA Civ 882 , at paras. 41 and 85. It is not normally for the Court to anticipate or pre-empt what a lawful decision would be if the correct process had been followed. This is precisely because the function of the court in judicial review cases is to assess the legality of the executive's actions and not to substitute its own view of the merits of a decision or policy. Thirdly, it seems to me that the context of personal liberty is important. It may well be that individuals have been detained under the new formulation of the policy who would not have been detained under the old one. Fourthly, although section 71 of the 1976 Act and section 49A of the 2005 Act have been repealed, they have been replaced by similar provisions in section 149 of the Equality Act 2010. As Mr Kittle's witness statement makes clear in the passages I have already quoted, the Defendant takes those duties seriously and is committed to undertaking a full EIA in the present context. The issue is on any view far from academic.
The Claimant further submitted that the policy was unlawful because it creates an unacceptable risk or serious possibility of unlawful decision making and, in particular, a risk of violation of human rights under Articles 3 and 8. However, it seems to me to be unnecessary to address that submission in the light of my decision that the policy was unlawful because it failed to comply with the public sector equality duties. There will have to be a reconsideration of the policy in the light of this judgment. Furthermore, the Defendant is committed to a consultation exercise, as Mr Kittle says in the passages I have quoted, in which the views of interested organisations will be taken into account. The policy may well end up in a form which is satisfactory to those organisations or which, on any view, does not carry the risks of which the Claimant complains.
Application of the Policy in this case
The Claimant submits that, even if the policy was a lawful one, the Defendant acted in breach of that policy in detaining the Claimant on 5 November 2010 because he clearly had a serious mental illness which had not been and could not be satisfactorily managed within the IRC.
I accept that submission. In particular, I note that the Claimant's illness was not satisfactorily managed in detention for many months before his transfer in July 2010 and he had required in-patient treatment in a hospital to manage to treat his condition; on the information that was before the Defendant, in particular the letter by Dr Moodley dated 4 November 2010, it was likely that any prolonged detention would cause deterioration in his mental health which could not be managed in the IRC setting; medication could not be administered by force within the IRC; and any further need for treatment that required hospitalisation was likely to be subject to delay.
In all the circumstances of this case I conclude on this issue that the Defendant acted irrationally since no reasonable Secretary of State could have reached the conclusion that the Claimant could be detained in an IRC on or after 5 November 2010 in a manner which would be compatible with her then policy.
Human Rights issues in relation to the Claimant's return
The Claimant also contends that his return to detention in November 2010 was in breach of his rights under Article 3 and/or 8 since it subjected the Claimant to a further distressing and disturbing episode in which his recently stabilised mental health began to deteriorate, with the return of strong auditory hallucinations and paranoia causing him fear and anguish at the prospect of relapse. The Claimant submits that the Defendant acted in breach of her negative duties and also failed to comply with her positive duties.
The Claimant points out that his mental health did in fact deteriorate (as anticipated) upon his return to detention: he had signs of psychosis which were not picked up or treated adequately. He did not see a psychiatrist at all for the five weeks that he was in detention and he only saw a Registered Mental Health Nurse (RMN) because he referred himself on 8 December 2010.
In my judgement, the Claimant's return to detention at an IRC in November 2010 and his subsequent detention there until 15 December 2010 was in breach of Article 3. This is borne out not only by the Claimant's witness statement in these proceedings but also Dr Skogstad's letter of 6 December 2010 and other evidence from him which is before the Court. The Defendant had also been warned of what the likely consequences of return would be by Dr Moodley, for example in her letter of 4 November 2010.
By the time of his compulsory return to an IRC it was known that the Claimant had a severe mental illness which had not been treated for many months when he was previously in IRC detention. It was known that his mental illness had been stabilised (but not eradicated) by the use of medication, which had to be administered using force. It was known that the IRC did not have the medical facilities that the Claimant would need if he suffered a relapse. It was known that the nature of the Claimant's illness concerned in part a paranoia about IRC staff. It was also known that, when he had been in IRC detention previously, he had had to be in segregation for many months and had engaged in behaviour that was described as "odd" or "bizarre" and which included self-neglect and drinking water from the toilet. In all the circumstances of the case, in my view, to force the Claimant to return to and stay in IRC detention in November and December 2010 was at least degrading treatment and, if it were necessary to say so, inhuman treatment, contrary to Article 3: I make this last point because by this stage, unlike the first period of detention between January and July 2010, the Claimant's serious medical condition was clearly known to the Defendant. It was therefore unlawful by virtue of section 6(1) of the Human Rights Act 1998. Again, it is unnecessary to consider the Claimant's alternative argument under Article 8.
Conclusion
For the reasons I have given this application for judicial review is granted. In summary my conclusions are that:
(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.
I will consider the parties' submissions as to remedies and also as to the further directions which may be required in this case in relation to a hearing on quantum.