|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Alemi, R (on the application of) v Secretary of State for the Home Department  EWHC 3858 (Admin) (20 November 2014)
Cite as:  EWHC 3858 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
(on the application of)
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Andrew Deakin (instructed by The Treasury Solicitors) for the Defendant
Hearing dates: 5 November 2014
Crown Copyright ©
Mr Justice Wyn Williams:
"New reception from police station,
Arrived in UK yesterday, states stayed in UK five years from 2007 to 2011. Been in detention in heathrow 2010 that's four months.
Declared H/0 chest pain, headache, eye problem, depression, stated that he took medication for depression in Belgium but doesn't know the English name.
Referred to MO and mental health triage.
H/0 self about 1½ year ago in Belgium, states he had counselling after.
Appeared settled in mood, denies any thoughts of self-harm at present."
"History: seen in Hythe House. Tried to strangulate himself. Is non responsive. Has been worried about Immigration issues and about likely transfer to Belgium. See earlier entries. Awaiting counselling.
Examination: non communicative, no eye contact, low mood, no overt psychosis.
Diagnosis: depression reactive due to Immigration issues.
Plan: staff in Hythe to find out if he has RDs, keep ACDT open. Commence anti-depressants ."
Some two hours later a further assessment took place. The note in relation to this assessment reads:-
"Attended assessment, Care in Custody and Team Review .review conducted by SO Barry Richards. Mr Alemi feeling very low and says he is "hopeless". Initially very reluctant to engage in the review and just sat with his head in his hands and kept pulling at his fingers. He wants to join his brother who has a business in Nottingham but his brother has returned to Afghanistan on a short visit as their mother is seriously ill. He will not be home until 7 March. Mr Alemi has been given the contact details of several solicitors and advised to contact one of them to take his case. He cannot say he will not attempt further self-harm and will therefore remain on constant watch in Hythe Unit. For review again tomorrow."
"Prisoner has received medication for mental health problems (YX019) states that he wishes to be released or transferred to a mental hospital.
He describes that he will attempt to end his life if he remains in detention. He reports that he reacts to situations in which he feels wronged or slighted by trying to end his life.
Overview notes client was found suspended in a hanging suicide attempt 6 days ago. .
Overview notes currently on constant obs after a hanging attempt.
Detained in hospital under section 46 of the MHA 1983 he states that he attended a psychiatric hospital in Belgium on a voluntary basis. This cannot be confirmed.
H/O: psychiatric disorder no.
Prisoner has received medication for mental health problems no.
Computer records I have explored his record and spoken with staff.
Summary of needs Mr Alemi presented with good personal hygiene and maintained good eye contact. He sat appropriately through the interview but began to wring his hands during our conversation. He stated that he had pain in his heart and that hurtful things happen in his life. When he feels upset by people or not in control he stated that he has thought of ending his life. He has lived in the UK since 2007 but reports that he did not make attempts while in the community and has never received treatment. He reports attending a mental health unit voluntarily in Belgium. He stated he wants to be released or transferred to a mental health hospital.
I can find no evidence of disordered thinking or perceptual abnormality. His low mood and anxiety appears to be in the context of his detention and imminent RD's (18.04.13).
He declined any treatment and does not meet the criteria for transfer to hospital.
His suicidal ideation seems functional and a response to receiving his R.D.'s.
He should remain on constant watch at present .."
"Mr Alemi has made two serious attempts at suicide/self-harm. He is presently being managed within the ACDT process and is under constant supervision.
Mr Alemi is presently taking ante-depressants and Anxiolytics due to situational depression and anxiety.
He does not suffer from any mental illness and his presentation is due to anxiety and worry of imminent removal. He remains a significant risk of further attempts at self-harm/suicide."
"73. It is accepted that the Claimant's initial detention was lawful as an illegal entrant in the UK in accordance with the Defendant's IS.151A.
74. However, it is submitted that the Defendant has failed to adequately review this position upon the Claimant claiming asylum in the UK on 7 March 2013. Instead the Defendant has erred in law by applying paragraph 353 of the Immigration Rules to the Claimant's asylum claim following the Claimant's solicitor's telephone conversation with the Defendant's Kent casework team on 12 March 2013."
It is worth observing that the Claimant's mental condition was not mentioned, specifically, in relation to the lawfulness of detention; rather, as a discrete ground, it was alleged that the decision to remove the Claimant was unlawful because he was unfit to fly on account of his mental illness.
"Your case has been reviewed. It has been decided that you will remain in detention:
- Because there is reason to believe you will fail to comply with any conditions attached to the grant of temporary admission or release.
- To effect your removal from the United Kingdom.
This decision has been reached on the basis of the following factors:
- You have previously failed to comply with the conditions of your stay, temporary admission or release.
- You have previously absconded or escaped.
- You have failed to observe United Kingdom Immigration Laws by entering via actual clandestine means.
- You have not produced satisfactory evidence of your identity, nationality or lawful basis to remain in the United Kingdom.
- You do not have enough close ties to make it likely that you will stay in one place."
"I write in response to your letter 3 May 2013 in which you have submitted a report by Dr Rachel Thomas which recommends that your client should be transferred to a secure psychiatric facility.
In your letter you have also suggested that your client would benefit from being assessed by an approved mental health professional who is trained in the sectioning procedure.
The contents of the report have been discussed and as a result we are currently reviewing the appropriateness of your client's continuing detention. As part of this review we are gathering the relevant information and exploring your suggestion of a secure facility. Once we have all the information to hand, we will be able to make an informed decision concerning your client's future care.
You have mentioned a secure facility, it is presumed that you have somewhere in mind or a recommendation to make regarding the location of such a facility."
"I write in response to your letters of 10 and 20 May 2013 in which you state your client is not fit for detention and should be assessed by Dr Eugene Connell from Dover Health Care who is a section 12 approved practitioner.
1. Your client has been assessed by Dr Connell and Dover Health Care advises that a copy of this report will be sent to you on Thursday 23 May 2013. TCU have not seen a copy of this report as yet.
2. To date, Dover Health Care has not given any indication that your client's condition cannot be managed in detention. Your client's health and well being is reviewed on an almost daily basis and he is afforded all possible assistance.
3. We continue to be guided by Dover Health Care and the recommendation of Dr Connell. Unless advised to the contrary, your client will remain detained.
4. Your client judicial review against removal to Afghanistan was recently concluded at the paper hearing stage stating 'permission refused and totally without merit'.
5. With the above in mind there is currently no bar to your client being removed to Belgium where he applied for asylum and was granted temporary residence.
6. Your client will be assessed in line with removal guidelines and procedures regarding his fitness to fly. Should Dr Connell's report state that your client is not fit to be detained or that he should be transferred to a secure unit then removal will not be possible."
Despite further requests from the Claimant's solicitors the Defendant did not disclose any written report of the assessment apparently undertaken on 16 May 2013.
"I can confirm that I carried out a nursing assessment on Mr Alemi on 23.05.2013. I feel that he presents with personality difficulties suggestive of emotionally instability. He does not meet the criteria for transfer under section 48 of the mental health act as his condition is not of a nature and degree which would require detention in hospital for urgent treatment. Mr Alemi has access to treatment options which meet N.I.C.E. guidelines. He currently declines these interventions. Mr Alemi's physical safety is managed appropriately by the D.I.R.C. with the use of constant supervision in response to Mr Alemi's impulsive acts of self-harm. "
This document is signed by Mr Connell and, for the first time, it became apparent to the Claimant's solicitors that Mr Connell was a nurse since that is how he describes himself beneath his signature.
The Defendant's Policy on Detaining Persons who are Mentally Ill
"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 prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In criminal casework 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 to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
Those suffering from serious mental illness which can be satisfactorily managed in detention (in criminal casework cases cases, please contact a 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."
"In summary, it seems to me that in submitting that it is for the court to determine as primary decision maker whether detention was in accordance with the policy, Mr Southey has allied the question whether the decision-maker directed himself correctly as to the meaning of the policy (a matter on which the court is the ultimate decision-maker) and the question whether, if so, the decision-maker acted within the limits of his discretion when applying the policy to the facts of the case (a matter in relation to which a Wednesbury test applies)."
During the course of his judgment Richards LJ acknowledged that the view set out above was made obiter. However, in R (O) v- SSHD  EWCA Civ 919 the Court of Appeal considered the approach taken in LE Jamaica and expressly approved it.
MR JUSTICE WYN WILLIAMS: I understand that some typographical corrections have been provided and I am grateful you have acted so quickly if they have been. Obviously they will be incorporated into the final judgment. I am not sure of the technical term when handing down a judgment subject to typographical corrections, but that is what I have just done.
MR JACOBS: I ask for an order for anonymity for the claimant.
MR JUSTICE WYN WILLIAMS: Has there been anonymity to date?
MR DEAKIN: I understood there was anonymity in the Court of Appeal. It went there as DA (Afghanistan). The Secretary of State has no objection if the court is happy but we are in your hands.
MR JUSTICE WYN WILLIAMS: To be more inquisitive than normal, what happened before Mr Philip Mott QC because that is a written judgment? Was there anonymity in respect of that?
MR JACOBS: There was no anonymity in respect of that.
MR JUSTICE WYN WILLIAMS: Has the horse not bolted?
MR JACOBS: It might have done. I am not sure if Philip Mott's judgment, because effectively it was an adjournment - - - - -
MR JUSTICE WYN WILLIAMS: The fact that you were able to produce, in effect, a corrected copy of it - - has it an EWCA number?
MR JACOBS: I do not have it with me.
MR DEAKIN: It is available on Lexis.
MR JUSTICE WYN WILLIAMS: It is.
MR DEAKIN: It is on Lexis.
MR JUSTICE WYN WILLIAMS: If it is publicly available, Mr Jacobs, I think it would be wrong for me to make an anonymity order.
MR JACOBS: Very well. In that case some of the corrections I proposed fall by the wayside.
MR JUSTICE WYN WILLIAMS: Putting in - - - - -
MR JACOBS: "Mr A".
MR JUSTICE WYN WILLIAMS: I take it you both think that is right. I think it is very difficult to justify an anonymity order when, in effect, the substance of the litigation is already in the public domain.
MR DEAKIN: That seems sensible. The Secretary of State is neutral on the point.
MR JUSTICE WYN WILLIAMS: I cannot see how it protects any interest of your client in those circumstances.
MR JACOBS: The only interest is that he has been an asylum seeker. There may not have been mention of that in the judgment. I cannot recall. He may repeat his claim in the further representations. The Court of Appeal took the cautious approach. I think it is the Court's practice to anonymise in all immigration cases.
MR JUSTICE WYN WILLIAMS: You learn something everyday. I thought we were all being told we had to be as open as reasonably possible. At the moment I am not prepared to make an anonymity order. I will check the status of Mr Mott's judgment. If I consider that the horse has not bolted - though Mr Deakin says it is on Lawtel (sic) but I will look at the content of it - and if there are things which are still capable of being properly anonymised then I will send an e.mail to you both and invite you to say anything you want in the light of that.
MR DEAKIN: It is Lexis, not Lawtel.
MR JUSTICE WYN WILLIAMS: On a public search engine.
MR DEAKIN: Yes.
MR JACOBS: As far as the order is concerned, could I ask for an order for the claimant's costs in respect of the liability aspect of the hearing.
MR JUSTICE WYN WILLIAMS: Subject to anything Mr Deakin says, that seems to be right.
MR JACOBS: And also an order for detailed assessment of the claimant's costs.
MR JUSTICE WYN WILLIAMS: I do not need to grant any specific relief, do I, or are the terms of the judgment sufficient?
MR JACOBS: My understanding is that the terms of the judgment are sufficient.
MR JUSTICE WYN WILLIAMS: Obviously, you would like me to transfer the case to the Queen's Bench Division for disposal.
MR JACOBS: Yes. If I could draw an order it would say "upon the court having found the claimant was unlawfully detained" between those dates.
MR JUSTICE WYN WILLIAMS: Yes.
MR JACOBS: I can e.mail that to your clerk. With regard to the Dublin II part of the claim, there is a consent order that has just been agreed. I can inform you as to what the terms are. It is upon the defendant no longer seeking to transfer the claimant to Belgium at this time or in the future under the provisions of the Dublin regulation and upon the claimant agreeing to submit a human rights application to be considered on behalf of the claimant within six months of receiving further representations to be submitted within two months of the receiving of this order by the claimant's representatives - by consent it is ordered that the claimant do have leave to withdraw his claim insofar as it related to the Dublin regulation ground which was granted permission by Beatson LJ on 4 October 2013 and the defendant to pay the claimant's reasonable costs of work undertaken in the Administrative Court and the Court of Appeal in relation to the Dublin II regulation issue. It says, for the avoidance of doubt, the hearing on 5 November 2014 in relation to the work undertaken on the Dublin II issue to be assessed if not agreed. And then the details of assessment.
MR JUSTICE WYN WILLIAMS: Is it anticipated that that remain a separate order or perhaps should it be the case that everything is incorporated into one order because it is only one set of proceedings?
MR JACOBS: It could be incorporated into one.
MR JUSTICE WYN WILLIAMS: I think that would be better. It lessens the chances of any administrative mistakes if there is just one order. Mr Deakin, what do you want to say about any of this?
MR DEAKIN: Nothing, apart from one point. The Secretary of State obviously accepts that the claimant is entitled to costs to be assessed and also a transfer is appropriate. The Secretary of State is neutral as to whether it is transferred to the Queen's Bench Division or Central London County Court. I am not clear what the level of damages sought is likely to be.
MR JUSTICE WYN WILLIAMS: I am going to transfer it to the Queen's Bench Division for the moment; and if you would incorporate into your order that there should be a case management conference before a Master within, shall we say, two months.
MR JACOBS: Yes.
MR JUSTICE WYN WILLIAMS: And at that case management conference he can decide who best to try the hearing if, by then, you have not sorted it all out.
MR JACOBS: Those instructing me may have funding difficulties if it has to go to the County Court.
MR JUSTICE WYN WILLIAMS: If I make the order I suggest, then you will have a few months to sort it out and if you cannot the Master can dictate the appropriate level judge.
MR DEAKIN: The other point to mention is the Secretary of State will find it very difficult to proceed in any way in this case without her own expert evidence. One way of dealing with it would be to wait for the CMC before the Master. The other way would be for you to order now to grant permission for the Secretary of State to obtain the evidence and she can get cracking on it.
MR JUSTICE WYN WILLIAMS: I am very conscious that on the face of it the Secretary of State should have her own expert evidence. In the past there has been some suggestion that your client would not co-operate. Is that still the position, Mr Jacobs?
MR JACOBS: His instructions are that he does not want the Home Office on its own to lodge a report because of what happened with Mr Conway in the past. He would be happy for there to be a joint report, jointly instructed expert, but does not want the Home Office. My instructions are that if the Secretary of State obtains her own expert those who instruct me would wish to rebut anything in that. It might be an issue that is best left for the Master because I can imagine there will be some - - - - -
MR JUSTICE WYN WILLIAMS: It does mean that the period between now and the Master is left in limbo.
MR JACOBS: It might be that the parties can agree between them what is to be done at that point. I can ask those who instruct me to take further instructions from my lay client. But at the moment his instructions are that - - - - -
MR JUSTICE WYN WILLIAMS: I do not wish to be heavy-handed but from my experience of PI cases where occasionally the claimant is refusing to be examined by a reputable doctor the court has power to stay the proceedings which is of no use to your client either.
MR JACOBS: Of course.
MR JUSTICE WYN WILLIAMS: I think I am going to direct that the defendant be at liberty to obtain expert evidence as to the claimant's mental health. I will also order that the defendant disclose that report whether or not she intends to rely upon it. If I have not power to do that you had better tell me, Mr Deakin, but I think I have in the particular context of cases like this. In any event, if you do not disclose it it will be obvious that it does not help you.
MR DEAKIN: Yes. I have heard of orders like that in the case of defendants asking for permission for further medical experts. I have not heard it done first time off, but I do not know.
MR JUSTICE WYN WILLIAMS: Perhaps that is unnecessary. If I simply direct that you have permission to obtain your own expert evidence. By the time it gets to the Master, if we say in the order there should be a CMC on the first open date after three months, it means there is bound to have been sufficient time if the Secretary of State acts expeditiously for the report to be obtained. If there is any argy-bargy about it then the Master can deal with it.
MR JACOBS: It had been previously agreed through parties that a representative of Duncan Lewis would attend that appointment with the claimant. If that could be incorporated into the order that might sway the claimant.
MR JUSTICE WYN WILLIAMS: Unless Mr Deakin disagrees, I do not see anything unreasonable about that. So incorporate into the order that at any examination undertaken by the expert witness the claimant is to be accompanied by a representative of the solicitors.
MR JACOBS: Yes. Those instructing me may want to obtain an order.
MR JUSTICE WYN WILLIAMS: We get to that point if and when we see what they say.