R (HA) (Nigeria)) v Secretary of state for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 17 April 2012 |
| Neutral Citation | [2012] EWHC 979 (Admin) |
| Docket Number | Case No: CO/11283/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 17 April 2012 |
[2012] EWHC 979 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Singh
Case No: CO/11283/2010
Stephanie Harrison (instructed by Bhatt Murphy) for the Claimant
Julie Anderson (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 20 th, 21 st & 22 nd March 2012
Introduction
By this claim for judicial review the Claimant challenges the lawfulness of (i) decisions to continue to authorise his administrative detention under section 36(1)(a) of the UK Borders Act 2007 (the 2007 Act); and (ii) the conditions of that detention.
The Claimant's detention was first authorised by the Defendant under the 2007 Act as from 27 August 2009. However, the initial period of his detention is not challenged in these proceedings. The focus of his challenge is on two periods: first, the period from on or about 16 January to 5 July 2010; and, secondly, the period from 5 November to 15 December 2010. During those periods the Claimant was detained at various Immigration Removal Centres (IRCs).
In the interim period, from 5 July to 5 November 2010, the Claimant was an in-patient at Hillingdon Hospital, receiving compulsory treatment for mental illness, at a time when he had been transferred under section 48 of the Mental Health Act 1983 (the 1983 Act). That period of detention, when the Claimant was still held under the 2007 Act but had been transferred to a hospital under the 1983 Act, is not the subject of challenge in these proceedings, although, as will become apparent, the Claimant questions whether the power of transfer in section 48 of the 1983 Act was as a matter of law available in his case.
The Claimant was granted bail by this Court (Kenneth Parker J) on 15 December 2010. He voluntarily left the United Kingdom in December 2011 and now pursues this claim in order to obtain various declarations and damages.
Permission to bring this claim for judicial review was granted by Lindblom J on 15 February 2011. It was agreed by the parties that the hearing before me should be confined to the issue of liability and that, if necessary, there should be a further hearing to consider quantum.
Brief Chronology
The Claimant is a Nigerian national who was born on 25 December 1977. He entered the United Kingdom on a visitor's visa for six months in 2005 but overstayed. On 11 June 2007 he applied for a European Economic Area (EEA) residence card on the basis of alleged marriage to a German national. This application was refused for lack of sufficient evidence on 22 February 2008.
On 23 March 2009 the Claimant was convicted at Newcastle Crown Court of an offence of being concerned in the supply of Class C drugs, namely cannabis. Shortly before this, on 20 March 2009, he applied for asylum while he was on remand in custody.
On 28 May 2009 a second application for an EEA residence card was refused.
On 1 July 2009 the Claimant was sentenced to 14 months imprisonment for his offence of being concerned in the supply of Class C drugs. Because this sentence was longer than 12 months, it triggered the "automatic deportation" provisions of the 2007 Act, which I set out later in this judgment.
On 18 August 2009 authority to detain the Claimant under the 2007 Act was sent to Durham prison where he was then being held. His release date from his sentence of imprisonment, taking into account time served on remand, was 27 August 2009. From that date he was detained under the 2007 Act.
On 25 September 2009 the Claimant was transferred to Dungavel IRC and then to various other IRCs until July 2010.
On 16 January 2010, while he was detained at Brook House IRC, the Claimant was seen by a psychiatrist, Dr Spoto, who recommended (in a report which was completed on 21 January 2010) that the Claimant should be transferred to a mental hospital for assessment and treatment there. In fact this did not occur for several months, which is the source of the first set of complaints by the Claimant in these proceedings.
The Claimant was admitted to Hillingdon hospital under section 48 of the 1983 Act on 5 July 2010 and placed on Colne Ward.
The Claimant was finally interviewed for the purpose of his asylum claim on 8 October 2010.
On 5 November 2010 the Claimant was returned to Harmondsworth IRC. The Claimant's detention from that date until he was granted bail by Kenneth Parker J on 15 December 2010 is the source of his second set of complaints in these proceedings.
The Facts in More Detail
In a letter dated 18 August 2009, informing the Claimant that he was liable to detention under section 36(1)(a) of the 2007 Act, the reasons given by the Secretary of State for detaining him were: "You are likely to abscond if given temporary admission or release. There is insufficient reliable information to decide whether to grant you temporary admission or release."
During his prison sentence at HMP Durham the Claimant began to experience psychiatric problems. On 19 August 2009 he was referred to a mental health team. On that date there was filled in a mental health referral form in respect of the Claimant, which stated:
"After a long conversation which involved several strange dreams and allusions to ' strange pastors' (maybe witch doctors) conversations with wing staff suggest odd behaviour. May have been involved in demonic or witchcraft in Nigeria."
The notes from HMP Durham indicate that on 26 August 2009 the Claimant was seen by the Community Psychiatric Nurse, Kathy Livingstone. It is recorded that the Claimant was neither eating nor drinking. This was said to be on religious grounds. He was said to worship voodoo and said this was God's will. The notes state that: "Doctor [Steve] Boll has suggested discussing with Chris Anderson with a view to admission to HCC [Healthcare Centre] for a spell of observation of both physical and mental health."
On 28 August 2009 the Claimant was seen by Dr Boll at HMP Durham. The notes indicate that the Claimant was apparently not eating and explained that his religion recommended fasting. He also implied that some of the food he collected from the servery had been tampered with and he had thrown his food into the bin as he felt the workers had interfered with it. It was noted that he stated that he had come to the UK in 2005 and settled in Newcastle, a point which the Secretary of State has stressed before me. The notes state that:
"Throughout the interview he did not appear distracted or distressed and although stating some paranoid ideations I do not feel he is overtly psychotic at present. However he does appear to have lost a fair amount of weight."
On behalf of the Claimant it was emphasised before me that there was already at that stage reference to "paranoid ideations." However, the Defendant stresses that Dr Boll did not feel that the Claimant was "overtly psychotic" at that time.
On 31 August 2009 the Claimant was seen by Andrea Alexander at the prison. He was seen as part of an "ACDT review" [this is a reference to self-harm measures known as Assessment Care in Detention and Teamwork], and stated he was fasting due to his religious beliefs. He stated that he had no intent to harm or kill himself. It was noted that he was currently located in a camera cell so that any food or fluid intake could be observed. He was to be offered his meal at every meal time and his response was to be documented and all intake/output was to be recorded as accurately as possible.
On 4 September 2009 Sonia Moody observed that the Claimant was filling his drinking cup with toilet water and then continued to wash his face and hands with the same.
On 7 September 2009 Mark Fowler, who was on night duty, noted that although the Claimant was not observed eating food he had had the occasional sip of flushed toilet water. His sleep pattern was erratic and he had ignored staff attempts to communicate with him. Later that morning Alison Richardson observed that the Claimant had refused breakfast and that he had not been drinking fluids that morning. She recorded that: "He has continued lying on his cell floor on his mattress for most of the morning."
Later that same day Dr Boll observed that the Claimant was in his cell lying on his bed with a cardboard cross in his mouth. He was undressed but covered with a single sheet. He would not engage in conversation. He had had no food over the weekend and had not been seen drinking. Dr Boll's comment was: "I am extremely concerned for this man and feel we need an urgent psych assessment and possible hospital transfer."
On 9 September 2009 Tracy Smith saw the Claimant in the psychiatric clinic and commented that: "Reviewed by Doctor Kaler and he is going to review in a week's time in order to assess if he needs urgent medical/physical treatment." A letter from Dr Kaler to Dr Boll dictated on 8 September and typed up on 9 September 2009 was to similar effect.
On 10 September 2009 an attempt was made to interview the Claimant at HMP Durham for the purpose of his asylum claim. There is a manuscript note by the relevant officer, S Smyth, who recorded that the Claimant was unwell and was in the healthcare unit. The notes continued that the Claimant had been refusing food for two weeks after previously claiming that his food had been tampered with and poisoned. The notes also included reference to the fact that the Claimant had been drinking water from the...
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