R DK v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Haddon-Cave |
| Judgment Date | 10 October 2014 |
| Neutral Citation | [2014] EWHC 3257 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: 9057/2011 |
| Date | 10 October 2014 |
[2014] EWHC 3257 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Haddon-Cave
Case No: 9057/2011
Paul Bowen QC and Michelle Knorr (instructed by Wilson LLP) for the Claimant
Julie Anderson (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 18 th & 19 th June 2014
INTRODUCTION
This is a claim for damages for unlawful administrative detention. The Claimant, a Turkish national, was detained by the immigration authorities from 10 December 2010, when his prison sentence expired and a deportation order was made, until 21 October 2011, when he was released on bail. The Claimant challenged his deportation on Article 3 ECHR grounds and was granted refugee status on 14 September 2012. By these proceedings, the Claimant claims that his immigration detention for this period of over 10 months was unlawful because of his mental condition and amounted to the tort of false imprisonment, for which he claims he is entitled to more than nominal damages.
Grounds of challenge
The Claimant challenges the lawfulness of his detention on two main grounds:
(1) First, the Secretary of State failed lawfully to consider, or apply, her policy in Chapter 55.10 Enforcement Guidance and Instructions ("EIG") (regarding the detention of persons with serious mental illness that cannot be satisfactorily managed in detention), both at the outset of detention and thereafter at the time of periodical reviews.
(2) Second, the Secretary of State breached Articles 3 and 8 ECHR and s 6(1) of the Human Rights Act 1998 ( HRA) in respect of the Claimant's detention because the Claimant was suffering at the time from a serious mental illness of which the Secretary of State was, or ought to have been, aware and failed to take the steps reasonably available to her, by either providing suitable treatment or releasing the Claimant from detention.
The Claimant seeks (i) a declaration that the Claimant's detention was unlawful; (ii) a declaration that the Claimant's Article 3 and 8 rights have been breached, contrary to s 6(1) HRA; and (iii) damages for false imprisonment and under s.8 HRA in respect of the breach of Articles 3 and 8 ECHR.
Administrative Court list
The rules provide that claims for damages alone may not be brought in the Administrative Court: see CPR 54.3(2) (which provides " a claim for judicial review may include a claim for damages … but may not seek such a remedy alone") and R(D) v Home Office [2006] 1WLR 1003 at [58] and [105]. The claim for a declaration that the past detention was unlawful adds nothing to the claim for damages. The claim for judicial review was lodged on 22 September 2011, i.e. whilst the Claimant was in detention and shortly before his release. Following his release, there was an application for the matter to be transferred to the Queen's Bench List. However, exceptionally, this case was allowed to remain in the Administrative Court list because of the legal issues raised.
I nevertheless draw attention to the following pertinent general observations of Dingemans J in Swaran v. SSHD [2014] EWHC 1062 (Admin):
"The Administrative Court seeks to make speedy decisions about the legality of administrative decision-making. The Administrative Court is heavily listed and should not become clogged up with what are, in reality, claims only for damages for wrongful detention within the jurisdiction of the Queen's Bench or County Court. The procedures of the Administrative Court are, in any event, not best suited to determine contested historic events where disclosure and cross-examination of witnesses may be necessary."
THE FACTS
The Claimant claims damages in tort for the whole period of his immigration detention from 10 December 2011 to 21 October 2012. The claim divides the detention into two periods: from 10 December 2010 to 19 May 2011 ('the First Period') and from 20 May 2011 to release on 21 October 2011 ('the Second Period'). The date of 19 May 2011 was selected on the basis that, from that date, express reference was made to the Claimant's mental health in the monthly detention reviews.
The following lengthy summary of the facts was drawn up and agreed by Counsel. It is to be queried whether a 14-page summary of the facts is either necessary or proportionate in a case such as this. It would not be a sensible use of court time, however, to attempt to cut it down.
The Claimant was born on 5 May 1972. He is a national of Turkey and is of Kurdish ethnicity.
On 12 February 2000, the Claimant arrived in the UK from Turkey via Germany and claimed asylum upon arrival. The Claimant indicated that he had come directly from Turkey. Checks were made and the German immigration authorities informed the Secretary of State that the Claimant had entered Germany on 11 October 1992 and was given leave to remain there until 19 November 1999. On 4 November 1999 the Claimant had claimed asylum in Germany but had left before the claim was decided. The German asylum claim was refused on 17 March 2000, after the Claimant arrived in the UK.
The Secretary of State states that the Claimant was listed as an absconder on 8 September 2000. There is a dispute between the parties about when the Claimant was required to report and whether he did report at any stage but this cannot be resolved on the material available.
On 20 October 2000, the Claimant's UK asylum claim was refused and certified on safe third country grounds. That decision was served on the Claimant at an interview at the Secretary of State's offices on 20 October 2000.
On 21 December 2004, a notice of the Claimant's asylum appeal hearing listed for 14 January 2005 was sent to Kidd Rapinet Solicitors. On 13 January 2005, the solicitors wrote to the Secretary of State informing them that they are no longer in contact with the Claimant and that he may therefore be unaware of the hearing. On 17 January 2005, the Claimant's appeal was dismissed in his absence.
On 30 March 2006, the Claimant was convicted of common assault at Marylebone Magistrates Court and fined £75.
On 14 September 2006, there is a referral from the Claimant's GP to a plastic surgeon at Chelsea and Westminster hospital. The referral concerned treatment for scars on the Claimant's head which he reported came from a fight in 2005 during which he was hit with a pistol and shot on the right side of the head (without penetrating the brain).
The Claimant came to the attention of the UKBA on 25 February 2007 when he was arrested for drink driving and possession of cocaine. On 26 February 2007, the Claimant was bailed to appear on 12 June 2007.
On 12 March 2007, the Claimant was issued with an IS96, notification of Temporary Admission, requiring him to report to the Secretary of State's offices on 22 March 2007 and weekly thereafter. The Claimant complied with the reporting requirement until 24 May 2007 when he ceased reporting.
On 25 May 2007, the Claimant was convicted at Southwark Crown Court on 3 counts of handling stolen goods and was given a 2-year suspended sentence and required to do 240 hours of community work.
On 9 June 2007 the Claimant was listed as an absconder having failed to report on 3 consecutive occasions.
Between 01 October 2007 and 31 January 2008 the Claimant committed 'fraud by false representation' offences for which he was later convicted. These are the offences that gave rise to deportation action.
On 30 October 2007, a visit to the Claimant's last known address indicated that he was not residing there.
On 28 February 2008, the Claimant was convicted at Southwark Crown Court for breach of a suspended sentence resulting from an original conviction on 25 May 2007 to live at the required address.
On 29 February 2008, the Claimant was convicted at Horseferry Road Magistrates Court for driving a motor vehicle with excess alcohol and fined £400 and disqualified from driving for 18 months. On the same day he was convicted also of common assault and sentenced to 6 weeks in custody.
On 21 April 2008 the Claimant was referred to a psychologist in primary care (in the name of GK) on the basis of having split up with his girlfriend who had cut off connection to her family with him and shut down his office. It is recorded that he has no known previous psychiatric history and was not on any medication and is a 'difficult historian'.
On 16 November 2008, the Claimant presented to A & E with depression and suicidal ideation. He was recorded with the name of DK as living at an address in Chelsea and so was referred to the "CRT South Kensington and Chelsea for admission" ("Crisis Resolution Team").
On 1 December 2008, the Central & North West London Mental Health NHS Trust CRT Case Summary by Dr Ansari confirmed that the Claimant reported that he was a property developer who is being harassed by his ex-girlfriend's father who has contacts with the police. He said that his time was being wasted fighting court cases in which he was innocent. Also, he said he had considered suicide by jumping of a bridge but had backed out at last moment. The Claimant reported hearing his dead father's voice over the previous 6 months, but the voice never told him to hurt himself or others but gave advice from his father. The issues were recorded as being largely resolved by the time of his discharge from the crisis team. It is recorded that no medication anti-depressant was needed as he was...
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