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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> BA, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin) (26 October 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/2748.html Cite as: [2011] EWHC 2748 (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 Deputy Judge of the High Court
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The Queen on the application of 'BA' |
Claimant |
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- and - |
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Secretary of State for the Home Department |
Defendant |
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Mr Robert Kellar (instructed by Treasury Solicitors ) for the Defendant
Hearing dates: 30 September and 7 October 2011
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Crown Copyright ©
ELISABETH LAING QC :
a. The Secretary of State failed to comply with her policy about detention. There are two aspects of this:i. The Secretary of State has failed to carry out detention reviews as required by her Enforcement Instructions and Guidance ("EIG").ii. Where reviews were conducted, the Secretary of State failed to apply her policy about detention of those suffering from mental illness.b. BA's detention breaches the principles in R v Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704.
c. BA's detention is contrary to articles 2, 3, 5 and 8 of the European Convention on Human Rights ("the ECHR") because it has exposed him to intense distress, and because the Secretary of State has failed to monitor his condition properly.
d. If BA's detention is compatible with the the Secretary of State's current policy, that policy is unlawful. This last ground has not been developed in argument. There is another case pending in which this issue is due to be decided, and I say no more about it. Mr Buley has indicated that he reserves his position on this point, should this case go further.
a. The factual backgroundb. The decisions about detention in this case
c. The legal framework (including my decisions on the legal issues)
d. Discussion
e. Conclusion.
A. Factual Background
(1) BA's arrival and arrest
(2) BA's conviction and sentence
(3) steps taken in connection with the deportation of BA
(4) BA's asylum claim
(5) BA's first transfer to hospital
(6) BA's transfer to the Wells Road Centre
(7) BA's return to HMP Nottingham
(8) BA's second transfer from prison
(9) BA's mental illness while in prison
(10) the transition between hospital and Harmondsworth IRC
(11) the healthcare available at Harmondsworth IRC
(12) BA's condition during his detention in Harmondsworth IRC
B. the decisions concerning detention in this case
(a) 9 December 2010
(b) 28 March 2011
(c) 14 April 2011
(d) 26 April 2011
(e) 19 May 2011
(f) 17/21 June 2011
(g) 19 July 2011
(h) high-level review on 29 July
(i) high level review 1 August 2011
(j) 16 August 2011
(k) 21 September 2011
C. The Legal Framework
(1) the relevant statutory powers
(a) under the Mental Health Act 1983 ("the 1983 Act")
"47.— Removal to hospital of persons serving sentences of imprisonment, etc.
(1) If in the case of a person serving a sentence of imprisonment the Secretary of State is satisfied, by reports from at least two registered medical practitioners -
(a) that the said person is suffering from mental disorder; 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
(c) that appropriate medical treatment is available for him;
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 as may be specified in the direction; and a direction under this section shall be known as 'a transfer direction'…
…
(3) A transfer direction with respect to any person shall have the same effect as a hospital order made in his case."
"48.— Removal to hospital of other prisoners.
(1) 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
(a) that person is suffering from mental disorder of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment; and
(b) he is in urgent need of such treatment; and
(c) appropriate medical treatment is available for him.
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.
(2) This section applies to the following persons, that is to say—
........
(d) persons detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002 (detention by Secretary of State).
(3) Subsections (2) and (3) of section 47 above shall apply for the purposes of this section and of any transfer direction given by virtue of this section as they apply for the purposes of that section and of any transfer direction under that section."
(b) under the Immigration Act 1971 ("the 1971 Act")
"(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(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).
(4) In relation to detention under sub-paragraph (2) or (3) above, paragraphs 17, 18 and 25A to 25E of Schedule 2 to this Act shall apply as they apply in relation to detention under paragraph 16 of that Schedule; and for that purpose the reference in paragraph 17(1) to a person liable to detention includes a reference to a person who would be liable to detention upon receipt of a notice which is ready to be given to him.
(4A) Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), (2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule.
(5) A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State.
(6) The persons to whom sub-paragraph (5) above applies are—
(a) a person liable to be detained under sub-paragraph (1) above, while by virtue of a direction of the Secretary of State he is not so detained; and
(b) a person liable to be detained under sub-paragraph (2) or (3) above, while he is not so detained."
"We consider, first, that it is necessary to distinguish between the detention of FNPs under sub-paragraph (1) of paragraph 2 of Schedule 3 to the 1971 Act and detention under sub-paragraphs (2) or (3) . Sub-paragraph (1) is itself legislative authority for the detention of a FNP who has been sentenced to imprisonment and who has been the subject of a recommendation for deportation. If an unlawful decision is made by the Secretary of State not to direct his release, the Court may quash the decision and require it to be retaken, but the legislative authority for his detention is unaffected. It follows that the FNP will have no claim for damages for false imprisonment in such circumstances."
An "FNP" is a foreign national prisoner.
(2) the authorities on paragraph 2(2) and 2(3)
(a) the Hardial Singh principles
a. The Secretary of State must intend to deport the person and can only use that power to detain for that purpose.b. The deportee can only be detained for a period that is reasonable in all the circumstances.
c. If before the expiry of a reasonable period, it becomes apparent that the Secretary of State will not be able to deport the detainee within a reasonable period, he should not seek to exercise the power of detention.
d. The Secretary of State should act with reasonable diligence and expedition to effect removal.
(b) what is the effect of a breach of the Secretary of State's policies in relation to the exercise of powers under paragraph 2 of Schedule 3?
(c) damages for unlawful detention
(3) the relevant parts of the EIG
(a) Criminal Casework Directorate ("CCD") cases
(b) mental illness and the assessment of risk
"55.10 Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or in prisons. 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. There may be cases where the risk of harm is such that it outweighs factors that would otherwise normally indicate that a person is 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 mental illnesses which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases, it may be necessary for detention at a removal centre or prison to continue while individuals are waiting to be assessed, or are awaiting transfer under the Mental Health Act".
a. Effect must be given to the words "very exceptional". Considered in isolation, those words suggest that the power to detain the mentally ill should be used infrequently, and in cases which were in nature different from those in which the power is frequently used.b. There must be available objective evidence establishing that a detainee is suffering from mental illness which is serious enough to entail consideration of whether his circumstances are sufficiently exceptional to warrant detention. The nature and severity of the illness, and the likely effect on it of continued detention must be considered.
c. Weight must be given to other aspects of paragraph 55, such as the risk of re-offending, and the seriousness of harm to the public if the detainee were to re-offend.
d. Absconding is also a consideration.
e. While a "strong presumption in favour of release" will operate in as a result of a person's mental illness, there are other factors which go into the balance. The policy applies to a range of detainees, not just to foreign national prisoners. There is a spectrum of cases involving mental illness, with an asylum seeker at one end, and a high risk terrorist detained on grounds of national security. Risks of re-offending and absconding are also to be factored in. "When the person has been convicted of a serious offence substantial weight must be given to those factors. In effect, paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified". At paragraph 68, he said that there must be "an elevated risk of absconding and re-offending to counter the strong presumption in favour of release."
(c) detention reviews
(4) detention of a person suffering from serious illness and the ECHR
D. Discussion
a. BA's detention, or any period or periods of detention, were unlawful; if sob. BA is entitled to more than nominal damages in respect of that period or those periods;
c. BA's detention breached his rights under the ECHR.
(A) the lawfulness of detention
(1) the first decision
(i) was there a breach of the policy?
(ii) was BA falsely imprisoned?
(iii) would BA have been entitled to damages?
(2) the period between 8 January 2011 and 28 March 2011
(i) was there a breach of the policy?
(ii) was BA falsely imprisoned?
(iii) would BA have been entitled to damages?
(3) the decision of 28 March 2011
(i) was there a breach of the policy?
(ii) was BA falsely imprisoned?
(iii) would BA have been entitled to damages?
(4) the decision of 26 April 2011
(i) was there a breach of the policy?
(ii) was BA falsely imprisoned?
(iii) would BA have been entitled to damages?
(5) the refusal to grant temporary admission on 14 April 2011
(f) the decision of 19 May 2011
(i) was there a breach of the policy?
(ii) was BA falsely imprisoned?
(iii) would BA have been entitled to damages?
(6) the decision of 17/21 June 2011
(i) was there a breach of the policy?
(ii) was BA falsely imprisoned?
(iii) would BA have been entitled to damages?
(7) the decision of 18/19 July 2011
(i) was there a breach of the policy?
(ii) was BA falsely imprisoned?
(iii) would BA have been entitled to damages?
(i) the high level reviews of 29 July and 1 August 2011
(8) the decision of 12 August 2011
(9) the decision of 21 September 2011.
(B). Articles 3 and 8
E. Conclusion
a. Despite the various breaches of the Secretary of State's policy which I have described, the statutory warrant for BA's detention was not undermined until 21 June 2011, at which point the further detention of BA breached the Hardial Singh principles.b. He is entitled to damages for false imprisonment, to be assessed, from that date until the date when the Secretary of State released him pursuant to the interim order I made on 7 October 2011.
c. BA's article 3, alternatively, article 8, rights were breached by his detention between 4 July and 6 August 2011.