R Gusztav Krisztian Gasztony v Secretary of State for the Home Departmemt
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 30 October 2019 |
| Neutral Citation | [2019] EWHC 2879 (Admin) |
| Date | 30 October 2019 |
| Docket Number | Case No: CO/4578/2018 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 2879 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/4578/2018
and
Mr Raza Halim (instructed by Fadiga & Co.) for the Claimant
Ms Jennifer Thelen (instructed by Government Legal Department) for the Defendant
Mr Mungo Wenban-Smith (instructed by Government DAC Beachcroft) for the Interested Party
Hearing dates: 3 October 2019
Approved Judgment
Introduction
The Claimant, to whom I will refer as GKG, 1 is a national of Hungary. He moved to the UK in 2009. Between July 2013 and December 2017, he was convicted 8 times of 12 offences. These include sexual offences – in particular, the stalking and harassing of women. GKG has autistic spectrum disorder (‘ASD’) and has from time to time suffered from psychotic symptoms. On 20 February 2018, he was detained under immigration powers by officers in the Nexus High Harm Case Unit. After initially being held at Gloucester Police Station, he was moved to Colnbrook Immigration Removal Centre (‘IRC’) on 22 February 2019. He was detained for just over 16 months at Colnbrook IRC and Harmondsworth IRCs, until 26 June 2019. On any view, that is a very substantial period.
This claim for judicial review, challenging the Secretary of State's decision to detain GKG and failure to release him, was issued on 16 November 2018. The relief then sought was: an order that the Claimant be released ‘ to a secure mental health unit within seven days’; a declaration that his detention was unlawful; and damages, including aggravated and exemplary damages. On 1 March 2019, Mr Dan Squires QC, sitting as a Deputy High Court Judge, granted permission to apply for judicial review and expedited the claim, directing that it be heard as soon as possible after 4 June 2019. On 3 April 2019, Thornton J joined the Secretary of State for Health as an Interested Party. On 18 June 2019 Supperstone J joined NHS England, also as an Interested Party.
GKG was released from detention on 26 June 2019. The relief now sought is therefore backward-looking. It is limited to a declaration that GKG's detention was unlawful and damages. On GKG's behalf, Mr Raza Halim advances three grounds of challenge: first, that he was detained in breach of the Secretary of State's Adults at Risk in Immigration Detention (‘AAR’) policy; second, that his detention was in breach of the second and third Hardial Singh principles ( R v Governor of Durham Prison ex p. Hardial Singh [1984] 1 WLR 704) and contrary to Article 5 ECHR; and, third, that his detention violated his rights under Article 3 and/or Article 8 ECHR. Before turning to these grounds in detail, it is necessary to summarise the relevant facts and the applicable provisions of law and policy.
The relevant facts
There are a great number of documents recording what was done by the Secretary of State in this case. The records of regular detention reviews and the GCID notes were diligently completed. These and the other records were helpfully summarised in a referenced chronology prepared initially by Ms Thelen but then agreed with amendments by Mr Halim. What follows is a summary of the most relevant events.
February to 11 July 2018
As noted above, GKG was detained on 20 February 2018, initially at Gloucester Police Station. He had been sleeping rough. On the day of his detention, it was noted that he had ASD and, because of that, required an ‘ appropriate adult’ to be present when he was interviewed. He was assessed as a ‘Level 2’ adult at risk under the AAR Policy. The view was taken that detention was justified in light of the immigration control factors applicable in his case.
On 22 February 2018, GKG was moved to Colnbrook IRC, where he was assessed by Dr Hillier, a consultant forensic psychiatrist. Dr Hillier noted that in 2013 GKG had been detained in a secure psychiatric hospital under ss. 47 and 49 of the Mental Health Act 1983 (‘MHA’). He noted:
‘History of previous decompensation of mental health in detention environment is of concern. Indicates a high risk that detention is likely to have a detrimental impact on his mental-health. His illness is not amenable to medication given its inherent nature.’
On the case record sheet, the following was recorded:
‘His condition is not one which is amenable to treatment with medication being primarily improved by modifications to his environment.’
On 27 February 2018, in the light of Dr Hillier's view, GKG was re-assessed as a Level 3 adult at risk. Ms Knott of the Operations Nexus High Harm Team in her witness statement explains that it was ‘ not considered appropriate or reasonable to release him to no fixed abode’. The case owner therefore began to explore a release address and contacted the Adults At Risk Accommodation Team (‘AARAT’). On 1 March 2018, he was served with a Notice of Liability to Deportation, which offered him an opportunity to waive his appeal rights and return to his country of origin.
On 7 March 2018, information was received from Gloucestershire Police that GKG was a ‘ potential danger to females’. The view was expressed that if he were released into the public domain he would re-offend quickly. On 8 March 2018, the AARAT were chased for advice on a possible release address.
On 14 March 2018, an urgent medical report was sought under rule 35 of the Detention Centre Rules 2001 (SI 2001/238). It was provided on 15 March 2018, again by Dr Hillier. He noted that GKG had a diagnosis of ASD and had previously been admitted to a psychiatric unit with complex mental health problems. He added:
‘Individuals with such disorders are unable to cope for long periods with situations of detention other than for therapeutic purposes and with special adaptations to take account of their vulnerabilities.
…
As his mental state deteriorates and he is increasingly withdrawn and expressing evidence of low mood in the context of his developmental disorder I am of the view that detention is having a detrimental impact on his mental-health.’
The rule 35 report form then asked:
‘Can remedial action be taken to minimise the risks to the detainee's health whilst in detention? If so, what action and in what timeframe?’
Dr Hillier answered as follows:
‘Remedial efforts have been made in terms of caring for him off the main wing, as well as to report him to the Local Safeguarding Team, although treatment of his mental health problem of a pervasive developmental disorder is a highly specialist area.’
The form then asked:
‘If the risks to the detainee's health are not yet serious, are they assessed as likely to become so in a particular timeframe (ie in a matter of days or weeks, or only if detention continued for an appreciably longer period)?’
Dr Hillier responded:
‘I would consider that the time frame for deterioration is gradual but present in the (2–3 weeks period [ sc since GKG was detained]) and I am mindful of previous unexpected and rapid deteriorations during a previous custodial episode.’
The rule 35 report prompted an ad hoc detention review on 19 March 2018. (Article 5 ECHR requires detention to be regularly reviewed; and the Secretary of State's policy prescribes the points at which such reviews must be carried out and the levels of seniority of the reviewer. Reviews other than at the prescribed points are referred to as ad hoc reviews.) The review on 19 March 2018 said this:
‘[GKG] has been assessed as an adult at risk level 3 given the medical reports and advice received from the IRC. His medical is being closely monitored. If removal cannot be effected within a reasonable timescale or his conditions deteriorate the submission may be considered to release. This was previously considered but [GKG] could not provide a release address. Further medical information has now been received and it is deemed [GKG] should be released from detention. His health and vulnerabilities mean he cannot be released to no fixed abode therefore Schedule 10 accommodation has been requested. Once sourced it is considered [GKG] should be released from detention. Meanwhile, his conditions can be monitored in the IRC.’
On the same day a request was made to the Criminal Casework Accommodation Team in the Home Office (‘CCAT’) for Schedule 10 accommodation. (This is accommodation provided, exceptionally, by the Secretary of State pursuant to Schedule 10 to the Immigration Act 2016, rather than by a local authority.)
On 22 March 2018, the CCAT assessed GKG as not meeting the criteria for Schedule 10 accommodation. The reasons for this were explained as follows:
‘While it is considered that [GKG] has been diagnosed with Autism Spectrum Disorder, as an EEA national, he has the ability to access public funds and seek the appropriate care from the NHS.
His Rule 35 report was assessed by our independent medical advisor who did not assess that [GKG] was unable to leave the UK.
There is a charity called Shelter who have ties to local authorities who may be better able to assist with sourcing accommodation for [GKG].’
On the same day (22 March 2018), the Secretary of State made and served on GKG a decision to make a deportation order and GKG's detention was re-reviewed. The reviewing officer considered the presumption of liberty, but concluded that this was outweighed by the need to protect the public from the risk of harm and to maintain effective immigration control. Reference was made to GKG's offending behaviour. So far as his mental-health was concerned, the following was said:
‘[GKG] has been assessed as an Adult at Risk (level 3) given the medical reports and advice received from the IRC. His...
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