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Cases > Subject : LGO decisions or Repatriation cases

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Page name Sentence Summary
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."

Bassetlaw CCG (19 006 727a) and Nottinghamshire Healthcare NHS Foundation Trust (19 006 727b) (2019) MHLO 67 (LGSCO)

Complaint not upheld by LGSCO

LGSCO summary: "The Ombudsmen found no fault by the Council, Trust or CCG with regards to the care and support they provided to a woman with mental health problems. The Ombudsmen did find fault with a risk assessment the Trust completed. However, we are satisfied this did not have a significant impact on the care the Trust provided."

Cash v Court of First Instance, Strasbourg, France (2018) EWHC 579 (Admin)

Extradition

"At the conclusion of the hearing on 13 March 2018 I allowed the Appellant's appeal and quashed the extradition order made by District Judge Grant on 15 March 2017. I did so on the grounds that it would be unjust and oppressive to extradite the Appellant because he is currently unfit to stand trial and is seriously mentally ill with paranoid schizophrenia, and thus the judge should have decided that extradition is barred by s 25 of the Extradition Act 2003."

Derbyshire Healthcare NHS Foundation Trust (17 012 839a) (2019) MHLO 44 (LGSCO)

Complaint about community care delay

LGSCO's summary: "The Ombudsmen do not consider Derbyshire County Council and Derbyshire Healthcare NHS Foundation Trust delayed providing support for Mrs X’s mental health needs. We have not found fault with the way the Council decided what support she needed. The Ombudsmen consider Derbyshire County Council delayed completing Mr X’s carer assessment and should have considered carrying out an integrated assessment with Mrs X. However, it has remedied the distress Mr X suffered."

Greater Manchester Mental Health NHS Foundation Trust (18 018 548a) (2019) MHLO 66 (LGSCO)

Carer's assessment failures

LGSCO summary: "The Ombudsmen have upheld Mrs G’s complaint about the way her carer’s assessments were carried out. We have not found fault with the way the Trust, Council and CCG arranged Mr H’s accommodation under s117 of the Mental Health Act or how the Trust communicated with Mrs G and Mr H about this."

LMN v Government of Turkey (2018) EWHC 210 (Admin)

Extradition

"It would be unlawful for this country to extradite the appellant to Turkey if he would there face a real risk of being treated in a manner which breached his Article 3 right not to be "subjected to torture or to inhuman or degrading treatment or punishment": see R (Ullah) v Special Immigration Adjudicator [2004] 2 AC 323B. It is for the appellant to establish that there are substantial grounds for believing that, if extradited, he will face such a risk; and the ill-treatment must reach a minimum level of severity before Article 3 would be breached. Given that Turkey is a member of the Council of Europe and a signatory to the European Convention on the Prevention of Torture, the respondent is entitled to rely on the presumption that the Turkish authorities will protect prisoners against breaches of their Article 3 rights. Mr Josse has not invited this court to decide the appeal on the basis of findings about the Turkish prison system as a whole, and in any event there is no evidence which would enable the court to do so. ... There are in my judgment two key aspects of the evidence relating to the Article 3 issue: the expert evidence as to the appellant's mental health; and the expert evidence as to prison conditions in Turkey following the attempted coup. ... In those circumstances, I accept the expert evidence now available as establishing that the appellant is presently suffering from a recognised medical condition, namely severe depressive episode; that he also presents some features of PTSD; that he is currently prescribed antidepressant medication, and in receipt of regular psychological counselling; that there is a continuing need for coordinated care management; and that there is a high risk of suicide in the event of extradition. ... The further evidence now before the court shows, as I have indicated, a continuing need for medication and healthcare. The appellant has very plainly raised the issues of whether his healthcare needs would in fact be met, and whether the healthcare which is in principle available in Turkish prisons would in fact be available to the appellant in the context of the greatly-increased prison population. There is simply no evidence that such care will be available to him. ... In my judgment, taking into account the risk of suicide, a failure to meet the mental healthcare needs of the appellant would in the circumstances of this case attain the minimum standard of severity necessary to breach his Article 3 rights. ... It follows that his extradition would not be compatible with Article 3 or with section 87 of the 2003 Act."

Milton Keynes CCG (17 018 823e) (2019) MHLO 61 (LGSCO)

Section 117 complaint

"Whilst the Trust was acting on behalf of the CCG in carrying out the s117 actions, the CCG is ultimately responsible for s.117 provision, along with the Council. ... The CCG, Trust and the Council should, by 23 December: (a) Write to Mrs B apologising for the impact of the fault in relation to not refunding the care fees relating to the supported living placement. (b) Confirm with Mrs B and refund the supported living fees which have not already been reimbursed. Mrs B may need to provide additional information to the organisations about fees paid as part of this. (c) Write to Miss A and Mrs B personally and apologise for the impact the lack of s.117 planning had on both of them individually due to the length of time Miss A went without adequate support. They should also apologise for the uncertainty caused by not knowing whether the incidents outlined above could have been avoided. (d) Pay Miss A £1500 and Mrs B £1000 each in recognition of the impact of the and length of time Miss A had a lack of s.117 support. By 20 February 2020, the Council, CCG and Trust should create an action plan of how they will notify and cooperate with each other to ensure patients are assessed promptly and s.117 care put in place in line with the MHA Code of Practice. This action plan should include a review of progress and the impact of any changes following implementation of the plan."

NHS Guilford and Waverley CCG (18 007 431a) (2019) MHLO 60 (LGSCO)

Section 117 complaint

"(1) Within one month of my final decision, the Council and CCG will: (a) Write to Miss X and Mr Y, acknowledging the fault identified in this decision and offering meaningful apologies; (b) Jointly pay Mr Y £500 for failure to provide support as outlined on his s117 aftercare plan, delayed care planning, loss of opportunity to re-engage him and distress as a result of poor communication around his care plan and eviction; (c) Jointly pay Miss X £150 for poor complaint handling, stress and inconvenience. (2) Within three months of my final decision, the Council and CCG will ensure that Cherrytrees and all other providers acting on their behalf under s117 review their policies and procedures to ensure compliance with the relevant parts of the Code of Practice: Mental Health Act Code 1983, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and the Care Act 2014, in relation to: (a) Care planning; (b) Daily record keeping; (c) Complaint handling, including ensuring all points are responded to adequately and complainants are properly signposted should they wish to escalate their complaint."

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 Department [2016] UKSC 19M 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) [2014] EWCA Civ 45B. 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-00000064-QINU`"'?prompt?'"`UNIQ--nowiki-00000065-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 (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 (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."

Rotherham Doncaster & South Humber NHS Foundation Trust (18 010 101a) (2019) MHLO 43 (LGSCO)

Failure to carry out carer's assessment

LGSCO's summary of decision: "The Trust and Council were at fault in not carrying out a carer’s assessment and not involving Mrs S during her husband’s period of treatment. There was also fault in record-keeping and delays in responding to the complaint. These failings caused an injustice to Mrs S as she lost the opportunity for additional support and is likely to have suffered additional distress. The Trust and Council have already taken action to address these failings and improve processes. The Trust and Council have agreed to pay Mrs S financial redress and the Trust has agreed to monitor and report on improvements in its complaints handling."

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 MZ (2020) UKUT 225 (IAC)

Insanity legislation and foreign criminals

A person sentenced to a hospital order following a finding under CPIA 1964 s5(1)(b) that he "is under a disability and that he did the act or made the omission charged against him" is not subject to s117C Nationality, Immigration and Asylum Act 2002 ("Article 8: additional considerations in cases involving foreign criminals") or paragraphs A398-399 (also concerning deportation of foreign criminals) of the Immigration Rules.

Staffordshire County Council (18 004 809) (2019) MHLO 41 (LGSCO)

Failure to carry out DOLS assessments

LGSCO decision: "The Council has acted with fault in deciding not to assess low and medium priority Deprivation of Liberty Safeguards applications. The Council is also taking too long to deal with urgent applications. This is causing a potential injustice to the thousands of people in its area who are being deprived of their liberty without the proper checks that the restrictions they are subject to are in their best interests." The final sentence of the conclusion states: "[I]t is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die."

Tees, Esk and Wear Valleys NHS Foundation Trust (19 012 290a) (2020) MHLO 21 (LGSCO)

Section status and aftercare

"Summary: The Ombudsmen find there was fault by a Trust in giving a family incorrect information about a mental health patient’s status. When this came to light it caused the patient’s wife considerable stress which has not yet been fully addressed. The Ombudsmen also find that fault by a Council meant the patient’s wife suffered this stress for too long. The Ombudsmen has recommended small financial payments to act as an acknowledgement of the outstanding injustice."

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