R ASK (by his Litigation Friend the Official Solicitor) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Lord Justice Peter Jackson,Lord Justice Longmore |
| Judgment Date | 16 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1239 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case Nos: C4/2017/0748 & C4/2017/3078 |
| Date | 16 July 2019 |
[2019] EWCA Civ 1239
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE GREEN
NEIL CAMERON QC (SITTING AS A DEPUTY HIGH COURT JUDGE)
[2017] EWHC 2132 (Admin)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Lord Justice Hickinbottom
and
Lord Justice Peter Jackson
Case Nos: C4/2017/0748 & C4/2017/3078
and
and
and
and
Stephanie Harrison QC and Leonie Hirst (instructed by Bhatt Murphy) for the Appellant
ASK Amanda Weston QC and Leonie Hirst (instructed by Deighton Pierce Glynn) for the Appellant
MDA Sir James Eadie QC and Julie Anderson (instructed by Government Legal Department) for the Respondent
Patrick Green QC and Christopher Knight (instructed by Browne Jacobson LLP) for NHS England
Holly Stout (instructed by Government Legal Department) for the Secretary of State for Health and Social Care (written submissions only)
Julie Anderson (instructed by Government Legal Department) for the Secretary of State for Justice
Helen Mountfield QC (instructed by Keith Ashcroft, Equality and Human Rights Commission) for the Intervener (written submissions only)
Hearing dates: 14–16 May 2019
Further written submissions: 23 May 2019
Approved Judgment
Introduction
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.
i) He breached his common law duty to act fairly.
ii) He breached his common law duties to act consistently with the statutory purpose of the detention and rationally, contrary to the well-known common law principles set out by Woolf J in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 (“ Hardial Singh”) and article 5 of the European Convention on Human Rights (“the ECHR”).
iii) He breached his own detention policy, and his duty promptly to transfer to hospital a detainee whose mental illness could not be satisfactorily managed within an IRC.
iv) He breached article 3 of the ECHR because the treatment suffered by the Appellant was degrading treatment proscribed by article 3; but also because the Secretary of State breached the positive duty inherent in article 3 to have in place effective systems to prevent a breach of that article arising from the detention of individuals with mental illness and/or lacking mental capacity and/or a failure to transfer such individuals to hospital. Alternatively, it is said that that same treatment breached article 8 of the ECHR, because it adversely affected the Appellant's enjoyment of his private life. (All references in this judgment to “article 3” and “article 8” are to those articles in the ECHR.)
v) He breached his duty under sections 20 and 29 of the Equality Act 2010 (“the EA 2010”) to make reasonable adjustments to prevent disadvantage to detainees who are mentally ill; and the public sector equality duty under section 149 of the EA 2010 (“the PSED”).
In the course of this judgment, it will be necessary to look at the facts of each case in some detail but, briefly, MDA is a Somali national, who is a foreign national criminal and the subject of a deportation order. He was detained pending removal immediately following the expiration of the custodial part of a prison sentence on 4 November 2015 until he was released from immigration detention on 3 February 2017 to be detained in a secure psychiatric hospital unit under section 2 (and, later, section 3) of the MHA 1983.
Following a judgment dated 18 August 2017 ( [2017] EWHC 2132 (Admin)), Neil Cameron QC sitting as a Deputy High Court Judge (“the Deputy Judge”) granted MDA's claim for judicial review, finding that the whole period of detention was unlawful because the Secretary of State's failure to enquire into MDA's mental capacity was a breach of the common law duty of fairness; and, for essentially the same reason, there was a breach of the PSED.
The findings made by the Deputy Judge are not challenged by the Secretary of State. However, before us, on behalf of MDA it is submitted by Amanda Weston QC with Leonie Hirst that the Deputy Judge erred in not determining, in MDA's favour, a number of issues including:
i) whether there had been a breach of article 3;
ii) whether there had been a breach of sections 20 and 29 of the EA 2010; and
iii) whether damages should be substantive or nominal.
In respect of (i), the Deputy Judge held that there was no breach of article 3. In respect of (ii) and (iii), he remitted the issue to the county court for determination.
ASK is a Pakistan national. He was an overstayer who was liable to have removal directions served on him; and who was detained pending removal from 17 January 2013 after he was arrested by the police having refused to leave the Isleworth Mental Health Office, until 23 September 2013 when he was admitted to the Low Secure Psychiatric Unit at St Bernard's Hospital, Southall.
The claim that ASK's immigration detention was unlawful was heard by Green J who, in a judgment handed down on 9 February 2017 ( [2017] EWHC 196 (Admin)), refused it on all grounds.
Before us, for ASK, Stephanie Harrison QC with Ms Hirst submitted that the judge erred in a number of ways, and, had he not done so, he would have found the whole of ASK's detention to be unlawful. Ms Harrison helpfully split the detention up into four periods, as follows (in respect of each date, time running notionally from midday).
i) Period 1: 17 to 31 January 2013: During this period, the Secretary of State failed even to have regard to his own detention policy insofar as it applies to those with mental health conditions.
ii) Period 2: 31 January to 13 April 2013: Although the Secretary of State had his own detention policy in mind from 31 January 2013, he failed to construe and apply it properly.
iii) Period 3: 13 April to 18 July 2013: By 13 April 2013, the Secretary of State knew or ought to have known that it was necessary urgently to transfer ASK from the IRC into hospital; and, in not transferring him, he breached his own policy, his common law duties under the Hardial Singh principles and article 5 of the ECHR.
iv) Period 4: 18 July to 23 September 2013: By 18 July 2013 the Secretary of State had accepted that ASK should be transferred out of an IRC into a hospital; and therefore, it is submitted, ASK continued to be detained, not pending removal from the UK, but pending transfer to hospital. In not releasing ASK during this period, the Secretary of State was again in breach of not only his own detention policy, but also Hardial Singh and article 5.
Ms Harrison also submitted that, throughout the whole period of ASK's detention:
i) the Secretary of State's treatment of ASK breached his rights under article 3 and/or article 8;
ii) the Secretary of State's failure to enquire into MDA's mental capacity was a breach of the common law duty of fairness and, for essentially the same reason, there was a breach of the PSED; and
iii) the Secretary of State's failure to make reasonable adjustments in respect of ASK's mental condition and/or mental incapacity was a breach of sections 20 and 29 of the EA 2010.
I have identified the representation for the Appellants. Sir James Eadie QC and Julie Anderson appeared for the Secretary of State; and Patrick Green QC and Christopher Knight for NHS England. In addition, we had the benefit of written submissions on behalf of the Secretary of State for Health and Social Care, the Secretary of State for Justice, and the Equality and Human Rights Commission. At the outset, I thank all of the legal representatives for their contributions.
The Legal Framework
These appeals involve a number of overlapping statutory schemes; but the starting point is the Immigration Act 1971 (“the IA 1971”) which gives the Secretary of State various powers to detain individuals whom he intends to remove from the United Kingdom. MDA was detained under paragraph 2(3) of Schedule 3 which applies to those who have been served with a deportation order. ASK was detained under paragraph 16 of Schedule 2 to that Act which applies to those in respect of whom removal directions may be given. Given that these are powers which interfere with the liberty of the subject, they are to be strictly and restrictively construed ( Secretary of State for the Home Department v B (Algeria) [2018] UKSC 5; [2018] AC 418 at [5]); but it is uncontroversial that each Appellant satisfied the particular criteria in the...
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