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|AM (Afghanistan) v SSHD (2017) EWCA Civ 1123||Immigration tribunal - fair hearing, litigation friends||In this judgment the Court of Appeal gave guidance on the general approach to be adopted in FTT and UT immigration and asylum cases to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited. In relation to litigation friends, despite there being no provision in the tribunal rules for litigation friends, the court decided that: "[T]here is ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent him/herself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules are not broad enough to confer that power, the overriding objective in the context of natural justice requires the same conclusion to be reached."|
|ARF v SSHD (2017) EWHC 10 (QB), (2017) MHLO 17||Damages for unlawful immigration detention||"In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers. The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant's human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4."|
|BA v SSHD (2017) UKAITUR IA343212013||Article 3 immigration case||"The Appellant is a citizen of Nigeria born on 26th February 1980. His appeal against a refusal to vary leave was allowed by First-tier Tribunal Judge Abebrese on Article 8 grounds on 23 rd May 2016. ... The Appellant sought permission to appeal against the Article 3 findings only ... On the basis of the factual findings, the opinion in the Amnesty International Report and the opinion of Dr Bell, the Appellant is likely to suffer a breakdown at some point on return to Nigeria whether that be at the airport or some time later. He is likely to come to the attention of the police if he has such a breakdown and he would not be able to access the psychiatric hospital in Lagos because he is unable to afford treatment there. Accordingly, it is likely that he would be held in prison where the conditions for this particular Appellant with his particular condition would result in treatment in breach of Article 3. ... The Applicant would not be at risk of Article 3 treatment because of a heightened risk of suicide. He would, however, be at risk of inhuman and degrading treatment in breach of Article 3 because of the conditions of return. ... The medical evidence indicates that the Appellant is vulnerable to relapse even in the UK and without the threat of removal. His removal to Nigeria is likely to trigger a relapse and his behaviour will draw hostile attention. His treatment by the authorities in detaining him under the Lunacy Act 1958 would amount to inhuman and degrading treatment. There is a reasonable degree of likelihood that he would be detained in a prison, there would be no treatment for his mental health, his situation would deteriorate, the length of detention is indeterminate, there is no right of appeal and there is no requirement for him to consent to treatment. Accordingly, I allow the Appellant's appeal on Article 3 grounds."|
|CQC v Hillgreen Care Ltd (2018) MHLO 50||Prosecution of care home provider||(1) The care home provider charged with failing between 1/4/15 and 1/12/15 to comply with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 by failing to provide care and treatment in a safe way for service users (reg 12) and failing to put in place, and operate effectively, systems and processes to protect service users from abuse, including sexual abuse (reg 13). The provider had known since 2004 that its resident XX posed risk a of causing sexual abuse. Following an allegation of anal rape of a woman in 2008 his care plan stated that he "identifies with both male and female around his sexual orientation" and that he "needs to be supported at all times and not to be left alone unsupervised when around other service users and when in the community". XX admitted to having sex with two other residents, neither of whom had capacity to consent: a female resident AA in April 2015 and a male resident YY on 1/11/18. The provider had not followed the care plan and the district judge concluded that "[t]he incident with YY could not have happened had there been an extra member of staff on duty to watch XX and where he went." It was found guilty of both charges and was fined £300,000. (2) The judgement states that the CQC's inspection of the care home and seizure of documents took place on 27/7/17: this is the same day as a critical article in the Times (Andrew Norfolk, 'CQC covered up suspected rape in care home' (Times, 27/7/17)). Information about the chronology can be found in the CQC's subsequent report (CQC, 'CQC publishes independent investigation into its regulation of 14 Colne Road' (press release, 13/6/18)).|
|PAA v SSHD (2019) UKUT 13 (IAC)||Oral tribunal decision||The UT's summary of this judgment is as follows: "(1) In accordance with rule 29(1) the First-tier Tribunal may give a decision orally at a hearing. (2) If it does so, that is the decision on the appeal, and the effect of Patel v SSHD Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 is the same as rule 29(1) of the immigration and asylum rules cited above.B is that there is no power to revise or revoke the decision later. The requirement to give written reasons does not mean that reasons are required in order to perfect the decision. (3) If the written decision, when issued, is inconsistent with the oral decision, both decisions, being decisions of the Tribunal, stand until set aside by a court of competent jurisdiction; but neither party is entitled to enforce either decision until the matter has been sorted out on appeal. (4) In such a case, as in any other, time for appealing against the decision given at the hearing runs, under rule 33 (2) and (3), from the date of provision of the written reasons, however inappropriate the reasons may appear to be, subject to any successful application for extension of time." Rule 41(1) of the|
|R (Adegun) v SSHD (2019) EWHC 22 (Admin)||Damages for unlawful immigration detention||"There are two bases of challenge to Mr Adegun's detention which, in broad outline, are as follows. ... There is first an issue, which I shall call the "rule 34 issue", as to whether Mr Adegun declined a medical examination pursuant to rule 34 of the Detention Centre Rules when he was taken into detention. ... The second issue I shall call the "paragraph 55.10 issue". It arises because there is evidence, not disputed by the Secretary of State, that Mr Adegun was suffering from a mental health condition which was not recognised by the Home Office until some time after his admission into detention and was not treated with medication until 19 January 2016. ... I therefore propose to award nominal damages in respect of the early period of Mr Adegun's detention and substantial damages in respect of 40 days' detention."|
|R (ASK) v SSHD (2017) EWHC 196 (Admin)||Immigration detention||"The issue in this case concerns an allegation that in 2013 the Claimant - 'ASK' - was unlawfully detained in an Immigration Removal Centre pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts. The case raises a number of issues. First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home DepartmentM and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) B. In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC. Second, the extent of the duty on the Secretary of State to make inquiries as to a person's mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained? Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law? Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends? Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 what is meant by?'"`UNIQ--nowiki-00000049-QINU`"'?prompt?'"`UNIQ--nowiki-0000004A-QINU`"'? transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee? Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent (ex post facto) expert reports which rely upon earlier notes and clinical reports."|
|R (ASK) v SSHD (2019) EWCA Civ 1239||Immigration detention||"These appeals raise important issues concerning the powers of the Respondent Secretary of State to detain those who suffer from mental health conditions pending removal from the United Kingdom. In each case, the Appellant is a foreign national who satisfied the statutory criteria for detention pending removal, but who suffered from mental illness such that it is said that, for at least some of the period he was detained, he was not only unfit to be removed and/or detained in an immigration removal centre ("IRC"), but did not have mental capacity to challenge his detention and/or engage with the procedures to which he was subject as a detainee. As a result, it is submitted that, in detaining each Appellant, the Secretary of State acted unlawfully in one or more of the following ways. ..."|
|R (Jalloh) v SSHD (2020) UKSC 4||DOL and common law||"The right to physical liberty was highly prized and protected by the common law long before the United Kingdom became party to the European Convention on Human Rights. A person who was unlawfully imprisoned could, and can, secure his release through the writ of habeas corpus. He could, and can, also secure damages for the tort of false imprisonment. This case is about the meaning of imprisonment at common law and whether it should, or should not, now be aligned with the concept of deprivation of liberty in article 5 of the ECHR."|
|R (Jollah) v SSHD (2018) EWCA Civ 1260||False imprisonment and damages||"The context is one of immigration detention. The claimant, who is the respondent to this appeal (and who for present purposes I will call "IJ"), was made subject to a curfew restriction between the hours of 23.00 and 07.00 for a period between 3 February 2014 and 14 July 2016, pending potential deportation. Such curfew was imposed by those acting on behalf of the appellant Secretary of State purportedly pursuant to the provisions of paragraph 2 (5) of Schedule 3 to the Immigration Act 1971 (as it then stood). It has, however, been accepted in these proceedings that, in the light of subsequent Court of Appeal authority, there was no power to impose a curfew under those provisions. Consequently, the curfew was unlawfully imposed. The question arising is whether IJ is entitled to damages for false imprisonment in respect of the time during which he was subject to the unlawful curfew. The trial judge, Lewis J, decided that he was. Having so decided, the judge at a subsequent hearing assessed the damages at £4,000:B; B. The Secretary of State now appeals, with leave granted by the judge, against the decision that IJ was entitled to damages for false imprisonment. IJ cross-appeals, with leave granted by Singh LJ, against the amount of the award of damages. It is said on behalf of IJ that a much greater award should have been made."|
|R (JS) v SSHD (2019) UKUT 64 (IAC)||Litigation friends for children in immigration tribunal proceedings||The Upper Tribunal provided mainly age-based guidance on whether a child applicant in immigration proceedings requires a litigation friend, and on the role of the litigation friend.|
|R (Maguire) v HM's Senior Coroner for Blackpool and Fylde (2019) EWHC 1232 (Admin)||Inquest and DOLS||"First, the claimant contends that the defendant erred in law by determining at the end of the evidence that article 2 no longer applied under Parkinson, thereby prejudging a matter that should have been left to the jury. Secondly, the Coroner erred in law by determining that the jury should not be directed to consider whether neglect should form part of their conclusion. ... That the case law has extended the positive duty beyond the criminal justice context in Osman is not in doubt. The reach of the duty, beyond what Lord Dyson called the "paradigm example" of detention, is less easy to define. We have reached the conclusion, however, that the touchstone for state responsibility has remained constant: it is whether the circumstances of the case are such as to call a state to account: Rabone, para 19, citing Powell. In the absence of either systemic dysfunction arising from a regulatory failure or a relevant assumption of responsibility in a particular case, the state will not be held accountable under article 2. ... We agree that a person who lacks capacity to make certain decisions about his or her best interests - and who is therefore subject to DOLS under the 2005 Act - does not automatically fall to be treated in the same way as Lord Dyson's paradigm example. In our judgment, each case will turn on its facts. ... [The Coroner] properly directed himself as to the appropriate test to apply to the issue of neglect and having done so declined to leave the issue to the jury."|
|R (VC) v SSHD (2016) EWHC 273 (Admin), (2016) MHLO 7||Immigration detention||Repatriation case with mental health background. "There are two strands to the contentions made by the Claimant in this claim, as argued before me: (1) a challenge to the lawfulness of his detention on the basis that it was in breach of (a) the Defendant's policy on detaining the mentally ill which, had it been applied lawfully, would have precluded the Claimant's detention; (b) Hardial Singh principle 3 because from 31 October 2014 there was no realistic prospect of the Claimant's removal within a reasonable timescale; and (c) Hardial Singh principle 2 because the Claimant was detained for an unreasonable length of time. (2) a challenge to the treatment of the Claimant in detention on the basis that it was: (a) in violation of Article 3 ECHR; (b) contrary to the Mental Capacity Act 2005; (c) discriminatory, contrary to the Equality Act 2010; and (d) procedurally unfair."|
|R (VC) v SSHD (2018) EWCA Civ 57||Immigration detention||"There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 of the procedures under which mentally ill detainees can make representations on matters relating to their detention."|
|R v SSHD, ex p Leech (No 2) (1993) EWCA Civ 12||Prison Rules and solicitor-client letters||"Section 47 (1) of the Prison Act 1952 empowers the Secretary of State to make rules for the regulation and management of prisons. Rule 33 (3) of the Prison Rules 1964 provides as follows: "(3) Except as provided by these Rules, every letter or communication to or from a prisoner may be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length." The principal question arising on this appeal is whether Rule 33 (3) is ultra vires section 47 (1) of the Act on the ground that it permits the reading and stopping of confidential letters between a prisoner and a solicitor on wider grounds than merely to ascertain whether they are in truth bona fide communications between a solicitor and client."|
|SSHD v KE (Nigeria) (2017) EWCA Civ 1382||Deportation following hospital order||"This is an appeal [which] gives rise to the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is 'a foreign criminal who has been sentenced to a period of imprisonment of at least four years' for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights to deport him."|
|SSHD v Skripal (2018) EWCOP 6||Nerve agent poisoning||"On 4 March 2018 Sergei Skripal and Yulia Skripal were admitted to hospital in Salisbury. Tests carried out by Defence Science and Technology Laboratory at Porton Down concluded that they had been exposed to a nerve agent. Both Mr and Ms Skripal remain in hospital under heavy sedation. The precise effect of their exposure on their long term health remains unclear albeit medical tests indicate that their mental capacity might be compromised to an unknown and so far unascertained degree. The fact of their exposure to a nerve agent has already had significant consequences on the wider domestic and international stage which I need not go into for the purposes of this judgment. However central to the application before me is the fact that on 14 and 16 March 2018 the UK government issued a formal invitation to the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) to send a team of experts to the United Kingdom 'to assist in the technical evaluation of unscheduled chemicals in accordance with Article VIII 38(e).' This in effect is to independently verify the analysis carried out by Porton Down. In order to conduct their enquiries the OPCW wish to: (i) Collect fresh blood samples from Mr and Ms Skripal to (a) undertake their own analysis in relation to evidence of nerve agents, (b) conduct DNA analysis to confirm the samples originally tested by Porton Down are from Mr and Ms Skripal; (ii) Analyse the medical records of Mr and Ms Skripal setting out their treatment since 4 March 2018; (iii) Re-test the samples already analysed by Porton Down. Because Mr Skripal and Ms Skripal are unconscious and neither are in a position to consent to the taking of further blood samples for these purposes or to the disclosure of their medical records Salisbury NHS Foundation Trust have quite properly confirmed to the UK Government that a court order would be required to authorise (a) and (b) above."|