R (O) v SSHD [2012] EWHC 2899 (Admin), [2012] MHLO 149

Another immigration case with mental health background. [Summary required.]

Transcript

                                                                    CO/9574/2011



Neutral Citation Number: [2012] EWHC 2899 (Admin)


IN THE HIGH COURT OF JUSTICE


QUEEN'S BENCH DIVISION


ADMINISTRATIVE COURT



                                                         Royal Courts of Justice




                                                                          Strand




                                                                 London WC2A 2LL




                                                         Tuesday, 3rd April 2012









                                  B e f o r e:




                                MRS JUSTICE LANG




                                    Between:









                       THE QUEEN ON THE APPLICATION OF O



                          (By her litigation friend, the Official Solicitor)



                                                                        Claimant




                                       v




                   SECRETARY OF STATE FOR THE HOME DEPARTMENT




                                                                       Defendant









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Mr R Khubber (instructed by Lawrence Lupin Sols) appeared on behalf of the
Claimant


Miss J Anderson (instructed by Treasury Solicitors) appeared on behalf of the
Defendant








                                    Judgment




                            As Approved by the Court




                                Crown copyright©



1.     MRS JUSTICE LANG:  This is a renewed application for permission to apply
for judicial review.  The claimant is a protected party by reason of mental
illness and acts by her litigation friend, the Official Solicitor.  The claim
was lodged on 5th October 2011.  On 16th January 2012 permission was refused on
the papers.


2.     The claimant is a national of Nigeria, who entered the UK illegally in
November 2003.  She applied unsuccessfully for asylum.  A deportation order was
served on 25th November 2010, following her convictions for child cruelty.  A
detailed decision refusing to revoke was made on 13th January 2011.


3.     She seeks permission to challenge the decision to detain her between 24th
July 2010 and 6th July 2011, the date upon which she was granted bail with
residential reporting restrictions. This is the claimant's fourth application
for judicial review.  The only outstanding claim is fixed for hearing on 30th
October 2012.  This is a challenge to the refusal to revoke the deportation
order against her, to refuse her human rights claims and to make arrangements to
deport her.  This challenge is also going to incorporate a claim under Article
14 of the European Convention.


4.     The basis for detention is to be found in Schedule 3 to the 1971 Act
paragraph 2(3):


"(3)Where a deportation order is in force against any person, he may be detained
under the authority of the Secretary of State pending his removal or departure
from the United Kingdom (and if already detained by virtue of sub‑paragraph (1)
or (2) above when the order is made, shall continue to be detained unless [he is
released on bail or] the Secretary of State directs otherwise)."


5.     The Secretary of State has formulated policy in relation to detention,
set out in her Enforcement Instructions Guidance (EIG).  Of particular relevance
here is the policy in relation to those suffering from mental illness in
paragraph 55.10:


6.     "Persons considered unsuitable for detention":


"The following are normally considered suitable for detention in only very
exceptional circumstances...


o those suffering from serious medical conditions which cannot be satisfactorily
managed within detention.


...


In exceptional cases it may be necessary for detention at a removal centre or
prison to continue while individuals are being or waiting to be assessed, or are
awaiting transfer under the Mental Health Act..."


7.     In R (OM) v Secretary of State [2011] EWCA Civ 909, the Court of Appeal
considered the legality of this claimant's detention prior to 24th July 2010,
i.e. prior to the period which is the subject of this claim.  The Secretary of
State conceded the first period, 8th August 2008 to 28th February 2010, was
unlawful because of a failure to take into account the relevant policy regarding
detention of those with mental illness.  However, the court was satisfied that
if the policy had been properly taken into account, detention would have been
ordered because of the factors favouring detention which had to balanced against
the mental illness. The detention was not unlawful under Hardial Singh
principles.  For similar reasons the court concluded that detention during the
second period, which was not conceded to be unlawful by the Secretary of State,
would also have been lawful.  The second period was 28th April to 23rd July
2010.


8.     Having listened to the submissions today, I am not satisfied that the
claimant has an arguable claim for judicial review in relation to the final
period of her detention from 24th July 2010 to 6th July 2011, for the reasons
put forward by the defendant.


9.     Under ground 1, namely, the application of Hardial Singh principles,
which in this case also covers the basis of the claim under Article 5, I accept
the defendant's submission that applying the Hardial Singh principles, the
length of detention was not so long as to render detention unlawful and there
was always a sufficient prospect of removal to justify detention.  The delay in
removal was a result of the claimant's legal challenges to the decisions of the
Secretary of State, not because of any intrinsic obstacle to removal.  I accept
there are cases in which a pending legal challenge may mean that detention is no
longer justified and of course this issue was addressed by Lord Dyson in Lumba.
But in my judgment this is not such a case and it is fair to point out that the
detention reviews kept careful note of the litigation which the claimant was
undertaking and the likely length of time it would take. There was a reasonable
expectation that such litigation would be expedited in the case of someone who
was in detention.


10.     I also accept the defendant's submission that the findings of the Court
of Appeal, namely, that there was a very high risk of absconding and a
significant risk of re‑offending were the claimant to be released, remained
highly relevant over this period and indicate that the criteria for detention
were met. In my judgment, it is unrealistic to argue that these findings of the
Court of Appeal were no longer relevant merely because they relate to a slightly
earlier period.  Any reliable assessment of the claimant would have to consider
the claimant's past as well as present behaviour and state of mind, and previous
assessments of her.


11.     In the Court of Appeal Richards LJ said:


"31. Although some detention reviews said that the risk of reoffending was low,
the general tenor of the material we have seen was to place substantial - and in
my view justifiable - weight both on the risk of reoffending and on the
seriousness of the harm that might result from reoffending.  The judge put the
main weight of his analysis on the risk of economic crime, but the offence of
child cruelty was also a reason for serious concern. It was a serious offence,
the precise circumstances of which were unclear. There was an obvious risk that
the appellant, if released, would come into contact with children even though S
had returned to Nigeria and M had been taken into care. It is not surprising
that an assessment by the liaison nurse in March 2010 put the risk to children
as 'high'. The appellant's mental state was an important consideration. For
example, in refusing bail in January 2009, an immigration judge pointed to the
psychiatric evidence that the appellant's anger could be directed internally or
externally and observed that the risk of harm could not be minimised without
successful psychological intervention. In a report in March 2010, Dr Ratnayake
expressed the view that the appellant remained 'very high risk due to her
impulsivity and unpredictability'; and although the focus of his report was on
risk to the appellant herself (an issue considered below), there were
implications for risk to others if she were released from detention. It is
notable that none of the medical experts at any time recommended her release
into the community. Even Professor Katona's recommendation was for transfer to
hospital, not for release. The detention reviews also pointed to the lack of
support and funds available to the appellant in the community as a factor
increasing the risk of reoffending. The judge rejected Mr Khubber's attempt to
argue that the appellant was at all times entitled to benefit; and, to the
extent that Mr Khubber sought to advance similar points before us, I was not
persuaded by his arguments. In my view the risk of reoffending would plainly
have been increased by the relative lack of support and limited means available
to the appellant in the community.


 "32. Another theme running through the material is the perceived risk of
suicide or self-harm if the appellant were to be released ... I am prepared to
... proceed on the basis that the risk of suicide or self-harm in the community
should not therefore be taken into account as a factor weighing in favour of
detention. But I consider the point to be of only limited significance in the
present case because the appellant's impulsivity and unpredictability, and the
assessment that her anger could be directed internally or externally, make it
impossible to draw any clear-cut line between, on the one hand, the risk of
suicide or self-harm and, on the other hand, the risk of harm to others: in
terms of assessment of risk, the two aspects march hand in hand."


...


 "34. A further factor to consider is the risk of absconding. As the judge said,
there was plain evidence of that risk, in that the appellant had disappeared for
over two years while on bail for the offence of child cruelty. He also said that
the absence of family and ties in the United Kingdom and of home, employment and
sources of income were all matters to be considered. He accepted that the
appellant's wish to remain in contact with M indicated an inclination not to
abscond, but he said that that was only one factor."


"35. In addition to the point about contact with M, Mr Khubber submitted to us
that the incentive to abscond was reduced by the fact that the tribunal had held
that the appellant should not be deported while the care proceedings in respect
of M remained unresolved. He submitted that this was not a case where it could
be said that the risk of absconding was high.


36. I disagree. In the light of the appellant's history, her mental state and
the vulnerability of her position if released into the community, the risk of
absconding would in my view have been very high notwithstanding the desire for
contact with M and the knowledge that she could not be deported until the care
proceedings in respect of M had come to an end. Her history also illustrates the
existence of a real link between the risk of absconding and the risk of
reoffending."


12.     I do not accept that the subsequent grant of bail demonstrates that the
previous detention was unlawful. As Mr Khubber rightly states, the grant of bail
presupposes detention is lawful. The point here is that, by that stage,
circumstances had changed, in particular improved mental health and a care
package from a local authority.  I will return to those issues in more detail
later on.


13.     The claimant states that she relies on the same argument to support the
claim under Article 5, for the same reasons I do not consider they are likely to
succeed.


14.     Under Ground 2, the claimant argues the defendant was in breach of the
relevant guidance.  I accept the defendant's submissions on this issue.  The
position under the old guidance up until 25th August 2010 was the same as
considered by the Court of Appeal in its judgment.  There was no material
change.


15.     In relation to the second period, the modified guidance or amended
guidance posed a less stringent test than before, justifying detention if the
illness can be satisfactorily managed in detention.  It seems highly unlikely
that the claimant would succeed in challenging the ongoing judgments of the
Secretary of State that the claimant's mental illness could be satisfactorily
managed in detention.


16.     I consider that the claimant's detailed critique of the detention review
reports demanded too much of those who write the reports and I do not consider
that they demonstrate the errors either on the facts or the law which the
claimant contends.


17.     The complainant complains that the conclusion that her condition could
be satisfactorily in detention was not supported by the medical evidence.  In
the judgment of the Court of Appeal, there was a summary of some of the medical
evidence from the judgment of His Honour Judge McMullen:


"8. It is not in dispute that the appellant suffers from mental illness, though
there has been a disagreement as to the extent of her problems and how best to
manage them. Judge McMullen referred to this at some length in his judgment,
from which I take the following:


'33. Throughout the whole period of her imprisonment and detention the Claimant
has demonstrated the effects of her psychotic illness by self harm, difficult
relations with others and attempted suicide. ... In short the Claimant has been
under supervision in prison and detention and has been transferred from both to
hospital as a result of self harm throughout the almost three years of her
remand, imprisonment and detention.


34. Dr Olajubu, specialist registrar in forensic psychiatry gave his report on
29 May 2008 for the purposes of sentencing at Snaresbrook. He confirmed his
diagnosis of recurrent depressive disorder and emotionally unstable personality
disorder but this was not of such a nature as would fulfil the criteria for
treatment under the Mental Health Act 1983. ... [I]f the Claimant was sentenced
to imprisonment 'she could continue to receive ongoing psychiatric follow up
from the prison "In Reach" team and individual psychological interventions as
deemed appropriate'. This report was extant at the time of the deportation
decision. The Defendant's officials plainly knew of it ....


35. Professor Katona made the first of a series of reports on 30 April 2009. He
agreed with the diagnosis of Dr Olajubu and disagreed with findings of previous
immigration Judges ... refusing bail on the ground that the Claimant is better
off in detention. He gave his opinion that her health was likely to deteriorate
in response to continued detention. She was not suitable for treatment under the
Mental Health Act 1983. By 21 September 2009 her condition had deteriorated
considerably and she would now benefit from hospital treatment. He recommended
transfer under section 48 of the Mental Health Act. The deterioration was due to
detention. On 10 October 2009 his opinion was that the Claimant had
significantly deteriorated to the extent that she was no longer able to conduct
her proceedings and she should be transferred to hospital under section 48.


36. Dr Shah acting consultant at Bedfordshire and Luton Mental Health and Social
Care Partnership NHS Trust on 21 February 2010 acknowledged the diagnoses
previously given of Doctors Mann, Olabuju and Professor Katona. The Claimant was
admitted to Dr Shah's care because she attempted to hang herself. Professor
Katona again examined her and gave a report dated 1 March 2010. He noted her
continued deterioration due to her continued detention and reiterated his
opinion that she should be transferred under section 48.


37. Nurse Munday examined the Claimant at hospital, where the Claimant was being
held. ... She gave her opinion that her health problems could not be met
adequately in her current setting i.e. at Yarl's Wood. She assessed a risk of
harming children on grade 3 within a risk of 0 to 3. She was at risk of suicide,
deliberate self harm and other offending behaviour at 2 giving her a summary
risk to herself of 2 and risk to others of 3. That is why on 15 March 2010 Dr
Ratnayake consultant psychiatrist at Bedfordshire leading a team of himself,
another consultant psychiatrist and Nurse Munday decided that the Claimant's
needs were met at Yarl's Wood where she would be under constant observation.
Hospital admission would not provide management different to that. She was
discharged back to Yarl's Wood.


38. On 23 March 2010 Professor Katona considered this report and other materials
and disagreed with it to some extent. Professor Katona pointed out that the
opinion of Dr Ratnayake as to the best place for constant supervision was
disputed by Dr Shah, Mr Kupshnik and Ms Munday all of whom recommended
psychological intervention in a secure in‑patient setting.'"


The Court of Appeal commented on the evidence at paragraph 33:


"A related issue is the deterioration in the appellant's mental health as a
result of her continued detention: as the judge made clear in the passage quoted
at [8] above, it was Professor Katona's view that such a deterioration was
occurring and that the appellant should be transferred to hospital. This is
undoubtedly a factor to be taken into account in the application of the policy
to the mentally ill. Indeed, concern about the potential impact of detention on
the mentally ill is presumably one of the main reasons why paragraph 55.10 makes
special provision for them. On the facts, however, the point carries little
weight since the balance of expert advice was to the effect that the appellant's
needs could be managed appropriately in detention, and even Professor Katona was
recommending a transfer to hospital rather than release into the community."


18.     In this case bail was in fact granted by the Immigration Judge on 1st
July 2011, with effect from 6th July, once accommodation had been secured.  So
the question arises:  was there a change in circumstances between the summer of
2010 and the summer of 2011, giving rise to an arguable case that detention
became unlawful during this period?


19.     The claimant draws my attention to a number of points.  First of all,
what is described as positive developments in her litigation challenges.  In
April 2011 she was granted permission to appeal to the Court of Appeal in
relation to the detention claim. In May 2011, she was granted permission to
challenge the decision to refuse to revoke the deportation order on medical
grounds.  It is said that this provided an incentive to her not to abscond, a
relevant factor under the guidance.  It is questionable in this case when the
claimant lacked capacity and was said to be unable to understand the nature of
her legal position and the challenges to her immigration status, whether grants
of permission would operate on her mind in such a way as to dissuade her from
absconding when she might otherwise be attempted to do so.


20.     Second, at the application for bail on 1st July 2011, some sureties
provided witness statements for the claimant. Whilst this was both supportive
and helpful and no doubt assisted in the supporting the strength of the bail
application, it should be noted that those sureties had been available to the
claimant for quite some time, including, I am told, in the earlier time period
considered by the Court of Appeal.  In my judgment, they were hardly decisive.


21.     More important, in my view, was the change in the medical evidence.
There was a report from Dr Anthony Davis dated 10th February 2011, who expressed
the opinion that the claimant could not access the mental health services needed
from a detention centre, and that detention was detrimental to her mental
health.  He also made a further diagnosis of post-traumatic stress disorder
(PTSD).


22.     On 30th June 2011 Dr Katona produced a further report agreeing with Dr
Anthony Davis that she would be best off receiving treatment in the community
and he departed from his earlier recommendation that she should be treated in
hospital. He considered that her mental health had improved, her behaviour
improved, the risks of re‑offending were reduced, the risks of self‑harm were
reduced and she could be managed effectively in the community.


23.     Then there was a further supplementary report from Dr Anthony Davis of
30th June 2011, recommending the structured care package and the community care
which would be more appropriate to address the nature of her illness.


24.     It is notable that on 7th March 2011 bail was still refused. The refusal
of bail was then challenged in a judicial review claim and Mitting J, after
giving it full consideration in May 2011, refused to grant a judicial review in
respect of the refusal of bail. I am told that a separate bail application which
was before the High Court on the day was not pursued.  On 17th June 2011 a
further bail application was successful.


25.     The issue of course which arises before me today is not whether or not
it was appropriate to grant bail at any earlier stage but whether the
circumstances had changed such that the detention had become arguably unlawful
either under Hardial Singh principles, as submitted, or because of an arguable
failing on the part of the Secretary of State properly to apply her policy on
the mentally ill.  As I have already indicated, I am not satisfied that the
changes identified meant that detention had become arguably unlawful under
Hardial Singh principles or that they meant that she could no longer be
satisfactorily managed in detention.  Indeed, as the defendant points out, the
improvement in her mental health identified by the doctors in 2011 supported the
view that her condition could be satisfactorily managed in detention.


26.     For all these reasons, the renewed application for permission is
refused.


27.     MISS ANDERSON:  My Lady I ask for costs of the acknowledgement of
service and as my Lady may knows, where right to remove the order made by the
judge below falls away and it falls to this court to decide whether or not to
allow the costs of acknowledgement of service. I do not ask any costs for today.



28.     MRS JUSTICE LANG:  Who would pay them?


29.     MISS ANDERSON:  It is actually all completely technical my Lady, it is
just subject to the normal legal aid restriction.  There is a standard form of
order that I am sure the Associate has ‑‑


30.     MRS JUSTICE LANG:  A Football Pools order.


31.     MISS ANDERSON:  It is my Lady, although it has now changed. It was a
National Lottery order and now it is a new wording: that it is not to be
enforced without further assessment of the court.  The defendant has to make an
application under section 136 of the Act but any way I know your Associate will
have the wording.  I ask for the order subject to that restriction.


32.     MRS JUSTICE LANG:  I had better hear from Mr Khubber.


33.     MR KHUBBER:  My Lady, I have some submissions to make on that, although
it is a technical order, as it were, as opposed to a practical order bearing in
mind the claimant's circumstances.  There are issues here as to why the amount
asked by the Secretary of State is appropriate     .  The amount asked in this
case, you will probably have seen is much more than is usually sought for
summary grounds.  It is £1300.


34.     MRS JUSTICE LANG:  I do not think I have that bit of paper... You are
opposing it in principle?


35.     MR KHUBBER:  My Lady, I am opposing it in principle and I am opposing it
in terms of the amount because in the circumstances of this case, I appreciate
that pursuant to the Practice Direction the court can make that order as regards
the provision of that order (inaudible) the permission has been refused.  But
here we have a practical situation which I do say has some bearing in terms of
what the court should do.


36.     Secondly, in terms of the amount, I would ask your Ladyship to
appreciate that in the context of this case, an important omission is the
failure of the defendant to actually properly respond to a letter before action
that was sent in fairly full and careful terms by the claimant's solicitors.  I
can indicate to your Ladyship that the letter before action was sent and it is
in the bundle, indicating the nature of the challenge and it was obviously sent
prior to any proceedings being issued.  One could see it there, in tab B, dated
13th September, at pages 1 to 11.  A response was requested bearing in mind that
this was put forward as being a prelude to potential action.  The only response
that was received was that of 21st September, stating that there was an
intention to respond before the deadline on 27th September.  But no response was
provided.  In those circumstances the claimant was entitled to pursue the claim.
I appreciate it has been unsuccessful in light of your Ladyship's judgment.  In
terms of the context of the litigation, it is important to appreciate, certainly
from the defendant's perspective and the court's perspective the need to comply
with the pre‑action protocol.  What we then have then is very detailed grounds,
title summary grounds, which are certainly more detailed that usually would be
the case which respond to this challenge.  In my submission that is a notable
feature that should be respected in terms of the omission by the defendant in
public law proceedings.


37.     MRS JUSTICE LANG:  Well, I am against you on the principle but as to the
amount, why is it so high?


38.     MISS ANDERSON:  My Lady, actually in unlawful detention cases it usually
is because the law is complex and there is a lot to say.  Because it is a
factual challenge, damages claim as well as just a public matter and the State
has to deal with the facts as well as with the principles.  It is not unusual in
the context of unlawful detention to have this kind of figure.  It is a bit hard
to respond in some ways because it is not as if a normal figure is then put
forward and this is said to be that much more.


39.     MRS JUSTICE LANG:  I see a lot of paper applications and I see what the
Treasury Solicitor usually asks for and it is quite a bit more than that.


40.     MISS ANDERSON:  I think perhaps the difference as well my Lady might lie
in that this was drafted by counsel and so is rather more full than the grounds
of the Treasury Solicitor does themselves.


41.     MRS JUSTICE LANG:  All right, I will make the order but obviously on the
basis that this is a legally aided claimant.  Can I ask the Associate to find
the right form of words. Did you want to say something?


42.     MR KHUBBER:  My Lady I just wanted to say that does not in any way
devalue or omit the need to actually comply with the pre‑action protocol.


43.     MRS JUSTICE LANG:  I really do not think in this case that it would have
made the slightest difference if the defendant had written back and put forward
their grounds, you would have come to court anyway.


44.     MR KHUBBER:  It makes a relevance in terms of the context in which the
litigation was pursued.


45.     MRS JUSTICE LANG:  You would have altered the way you ran the case?


46.     MR KHUBBER:  Well, it would have been relevant what they would have
said, is it not?  That is the point of CPR.  It is meant to be used as a
relevant tool to foreshadow litigation.


47.     MRS JUSTICE LANG:  I have a discretion and in this case I am afraid I do
not think it would have made any difference.  There are cases where it might
have done. But your client's  commitment to pursuing litigation is such that I
do not think it would have made any difference.


48.     MR KHUBBER:  My Lady that leaves then the application that I make for a
detailed assessment because we are publicly funded.


49.     MRS JUSTICE LANG:  Yes, granted.

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