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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> OM (Nigeria) v Secretary of State for the Home Department [2010] EWHC 2147 (Admin) (13 August 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/2147.html Cite as: [2010] EWHC 2147 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
Sitting as a High Court Judge
____________________
OM (Nigeria), acting via her Litigation Friend, the Official Solicitor |
Claimant |
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- and - |
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The Secretary of State for the Home Department |
Defendant |
____________________
Gilda Kiai
(instructed by Fisher Meredith) for the Claimant
Eleanor Grey (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 22 July and 23 July 2010
____________________
Crown Copyright ©
HIS HONOUR JUDGE McMULLEN QC
Sitting as a High Court Judge
The issues
i) What is the law and policy, contained in the Enforcement Instructions and Guidance manual ("The EIG") relating to the detention of a person with a mental illness;ii) Was it considered and applied by the Defendant in the Claimant's case?
iii) If not, did it make the Claimant's detention unlawful?
iv) Anyway, has the detention exceeded the time impliedly limited for lawful detention contrary to the principles in Re Hardial Singh [1984] 1 WLR 704?
i) in respect of medical evidence relating to her mental health and to circumstances affecting it on her return to Nigeria (specifically Article 3 ECHR);ii) in respect of her family and private life (specifically Article 8 ECHR)?
Legislation and policy
Detention
Where a recommendation for deportation made by a court is in force in respect of any person, … he shall, unless the court by which the recommendation is made otherwise directs,…,be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.
47. If in the case of a person serving a sentence of imprisonment the Secretary of State if satisfied, by reports from at least two registered medical practitioners (a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital…
48… if in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of section 47 above that that person is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and that he is in urgent need of such treatment, the Secretary of State shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment.
a) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
b) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
c) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
d) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
e) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.
Cases concerning foreign national prisoners – dealt with by the Criminal Casework Directorate (CCD) – are subject to the general policy set out above in 55.1.1, including the presumption in favour of temporary admission or release. Thus, the starting point in these cases remains that the person should be released on a temporary admission or release unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the "deportation criteria") are met, the risk of re-offending and the particular risk of absconding should be weighted against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.
The deportation criteria include conviction for a single sentence of 12 months and it will be noted that this criterion was met irrespective of the Judge's recommendation. Further guidance is given in 55.1.3:
In CCD cases concerning foreign national prisoners, if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. If detention is appropriate, a foreign national prisoner will be detained until either deportation occurs, the foreign national prisoner (FNP) wins their appeal against deportation (see 55.12.2. for decisions which we are challenging), bail is granted by the Asylum & Immigration Tribunal, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful (see 55.3.2 and 55.20.5). In looking at the types of factors which might make further detention unlawful, caseowners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject's criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is included in the list at 55.3.2.1, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public.
As has been set out above, public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release may well be outweighed by the risk to the public of harm from re-offending or the risk of absconding, evidenced by a past history of lack of respect for the law. However, detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life could be shown to be disproportionate. In assessing what is reasonably necessary and proportionate in any individual case, the caseworker must look at all relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences. A list of those offences which UKBA considers to be more serious is set out below at 55.3.2.1.
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere. Others are unsuitable for Immigration detention accommodation because their detention requires particular security, care and control. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere: …
- Those suffering from serious medical conditions or the mentally ill.
Fresh claims
353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
i) had not already been considered; and
ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.
Human rights
Article 3: No one shall be subjected to torture or inhumane or degrading treatment or punishment
Article 5: (1) Everyone has the right to liberty and security of person. no one shall be deprived of his liberty save in the following cases and in accordance with the procedure prescribed by law:…
(f) the lawful arrest or detention of a person to prevent his affecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
Article 8: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of his right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Bail
a) The length of detention
b) The obstacles that stand in the way of removal
c) The speed and effectiveness of any steps taken by the Secretary of State to surmount such obstacles
d) The conditions in which the applicant is detained
e) The effect of detention upon the applicant and his/her family
f) The risk of absconding
g) The danger that if released he/she will commit criminal offences
The guidance further cites Dyson LJ: "the relevance of the likelihood of absconding, if proved, should not be overstated".
Evidence and previous Judgments
Facts
The proceedings
69. In making both a care order and a placement order I have considered the relevant articles of the convention. I am satisfied that the undoubted interference with the mother and father's family life these orders will constitute is justified in law, pursues a legitimate aim, namely, securing the long term welfare of M, and, in the circumstances, fulfils a pressing social need, the planning for a young child's future stability. I believe the orders are a just and proportionate response to the very sad and difficult realities this family now faces. Very sadly, neither of these parents is in a position to assume the full time care of their daughter on any acceptable timescale, or in anything approaching acceptably clear circumstances.
"I cannot be satisfied that the appellant would not present a risk to herself and others if released on bail into the community. Continuing detention is necessary, therefore, for her own protection and others NASS accommodation, without any effective monitoring and control by outside agencies, is entirely inadequate and no sureties were forthcoming".
Discussion and conclusions.
The EIG
Was the detention unlawful?
Has the detention become unlawful?
a) The Secretary of State must intend to deport the person and can use the power to detain only for that purpose;
b) The deportee may be detained only for a period that is reasonable in all the circumstances;
c) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, she should not seek to exercise the power of detention;
d) The Secretary of State should act with the reasonable diligence and expedition to effect removal.
In R (A) v SSHD [2007] EWCA Civ 804 Toulson LJ said at paragraph 44
"The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty."
Fresh claims under paragraph 353.
i) There is no appeal against a decision of the SSHD refusing representations alleging a fresh claim. As such the decision could be challenged only by way of judicial review (para 8)ii) The principles of public law challenge have to be coupled with "anxious scrutiny" by the reviewing court because of the seriousness of the subject matter (paras 9-10)
iii) The threshold to be crossed under that rule is not high (para 7)
iv) The essential question for the SSHD is whether there is a realistic prospect that an Immigration Judge would think that the Claimant would be exposed to a real risk of persecution on return to her country, or face a breach of her rights under ECHR. The task of the Administrative Court is to determine whether the SSHD had asked herself that question rather than substituting her own views as to whether the claim was a good one or should succeed. This review has to be coupled with the need for anxious scrutiny (para 11).
"In short I consider that the Secretary of State should…in all cases, treat a claim as having a realistic prospect of success unless it is clearly unfounded."
Since the judgment in D v the United Kingdom, the Court has never found a proposed removal of an alien from a Contracting State to give rise to a violation of Article 3 on grounds of the applicant's ill-health.
In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles.
Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant's circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.
Conclusion