R (O) v SSHD  EWHC 2899 (Admin),  MHLO 149
Another immigration case with mental health background. [Summary required.]
CO/9574/2011 Neutral Citation Number:  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 Computer‑Aided Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) 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  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  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.
Possible Bailii link (not there when last checked, but it might have appeared since 0700 this morning!)