R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lady Hale,Lord Reed,Lord Hughes,Lord Toulson |
| Judgment Date | 27 April 2016 |
| Neutral Citation | [2016] UKSC 19 |
| Date | 27 April 2016 |
| Court | Supreme Court |
[2016] UKSC 19
Lady Hale, Deputy President
Lord Wilson
Lord Reed
Lord Hughes
Lord Toulson
Appellant
Hugh Southey QC Ranjiv Khubber
(Instructed by Lawrence Lupin Solicitors)
Respondent
Robin Tam QC Julie AndersonBelinda McRae
(Instructed by The Government Legal Department)
Interveners (Bail for Immigration Detainees and Medical Justice)
Michael Fordham QC Laura DubinskyJason Pobjoy
(Instructed by Allen & Overy LLP and Deighton Pierce Glynn)
(with whom Lady Hale, Lord Reed, Lord HughesandLord Toulsonagree)
The appellant, O, is a woman of Nigerian nationality, aged 38. In November 2003, with her son, then aged three, she illegally entered the UK. In July 2008 she pleaded guilty to offences of cruelty towards her son, who had returned to live in Nigeria, and the court sentenced her to 12 months' imprisonment and recommended that she be deported. On 8 August 2008 her sentence came to an end, whereupon the respondent, the Home Secretary, detained her — at first pending the making of a deportation order and then, following the making of such an order, pending her deportation pursuant to it. O's detention, which was at the Immigration Removal Centre ("IRC") at Yarl's Wood in Bedfordshire, continued until 6 July 2011 when, pursuant to a grant of bail on 1 July 2011, she was released. It follows that O was detained at Yarl's Wood for almost three years. The court knows nothing about her circumstances after 6 July 2011 but infers that she has not, or not yet, been deported.
In her first claim for judicial review, O, acting (as now) by the Official Solicitor, her litigation friend, challenged the lawfulness of the earlier period of her detention, namely from 8 August 2008 to 22 July 2010. In the Administrative Court her claim failed entirely but on appeal it succeeded to a limited extent. By its decision, entitled R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 and dated 28 July 2011, the Court of Appeal held that for most of that earlier period, namely until 28 April 2010, O had been the subject of unlawful detention but was entitled only to nominal damages in respect of it and that for the remainder of that earlier period she had not been the subject of unlawful detention at all.
In the present proceedings, which — chronologically — encompass her fourth claim for judicial review, O challenges the lawfulness of the later period of her detention, namely from 22 July 2010, and in particular from say 4 March 2011, until 6 July 2011. The object of the present proceedings has never been to secure her release, which had already occurred at the time of their issue. The object has been to secure a declaration that the detention was unlawful and, perhaps in particular, an award of substantial damages for false imprisonment. But on 3 April 2012 Lang J refused to grant permission for this claim to proceed and on 17 July 2014 the Court of Appeal (by a panel which comprised Arden LJ, who gave the substantive judgment, and Underhill and Floyd LJJ, who agreed with it) dismissed her appeal: [2014] EWCA Civ 990, [2015] 1 WLR 641. O now asks this court to grant permission for the claim to proceed and therefore to remit it to the Administrative Court, so that, following the filing by the Home Secretary of detailed grounds for contesting it and of any written evidence on which she wished to rely, it might proceed to substantive determination.
O has the misfortune to have suffered for many years from serious mental ill-health. So the appeal requires this court to consider the Home Secretary's policy relating to the detention of the mentally ill pending deportation; and perhaps also to identify the criterion by which the court should determine a complaint that she has failed to implement some aspect of her policy relating to it. Furthermore the Home Secretary is obliged to conduct monthly reviews of whether a person's detention pending deportation should continue. There were, as the Court of Appeal held, defects in the Home Secretary's conduct of the monthly reviews of O's detention between March and July 2011. The appeal requires this court to identify the effect of the deficiencies on the lawfulness of her detention during those four months, particularly in the light of the Court of Appeal's decision in R (Francis) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2014] EWCA Civ 718, [2015] 1 WLR 567. Supported by Bail for Immigration Detainees which, jointly with Medical Justice, also intervenes in the present appeal, O contends that the Francis case was wrongly decided.
(a) It was within days of their arrival in the UK in November 2003 that O committed the offence of cruelty to her son, contrary to section 1 of the Children and Young Persons Act 1933.
(b) In 2004, upon being charged with that offence, O was granted bail but she absconded and did not attend court on the date in February 2005 for which the trial had been fixed.
(c) Meanwhile, earlier in 2004, O's claim for asylum or for discretionary leave to remain in the UK under the European Convention on Human Rights ("the ECHR") was refused and her appeal against the refusal dismissed.
(d) In July 2005, while she remained unlawfully at large, O gave birth to a daughter, whom, to O's great distress, a court later authorised to be placed for adoption.
(e) In September 2007 O was arrested and charged with making a false instrument, namely a false identity document which she had used in an attempt to open a bank account, for which she was later convicted and sentenced to imprisonment for nine months.
(f) In due course it was realised that O was the subject of the outstanding charge of child cruelty, to which in due course she pleaded guilty and for which, in July 2008, she became subject to the sentence of 12 months' imprisonment and to the recommendation for deportation. In that the length of the sentence was such as, subject to exceptions, to oblige the Home Secretary to order O to be deported under section 32(5) of the UK Borders Act 2007 ("the 2007 Act"), no such recommendation would nowadays be given: R v Kluxen [2010] EWCA Crim 1081, [2011] 1 WLR 218.
(g) On 5 August 2008, three days prior to O's release from prison and the beginning of her detention at Yarl's Wood, the Home Secretary served notice of her intention to make a deportation order in respect of O.
(h) On 25 November 2010, following conclusion of the family proceedings relating to O's daughter, the Home Secretary made the deportation order in respect of O.
(i) On 7 December 2010 O applied to the Home Secretary to revoke the deportation order on human rights grounds but on 13 January 2011, confirmed on 8 April 2011, the Home Secretary rejected the claim and certified it as clearly unfounded.
(j) On 18 January 2011 the Home Secretary made directions for O's removal to Nigeria on a flight booked for 7 February 2011.
(k) On 24 January 2011 O issued her second claim for judicial review, which was by way of challenge to the Home Secretary's certificate.
(l) On 4 February 2011 the court enjoined the Home Secretary from effecting O's removal to Nigeria on 7 February.
(m) On 7 March 2011 a tribunal judge refused to grant bail to O, whereupon she issued her third claim for judicial review by way of challenge to the refusal.
(n) On 20 May 2011 a court refused to permit O to proceed with her third claim but permitted her to proceed with her second claim, which ultimately, in November 2012, was upheld, with the result that the Home Secretary's certificate was quashed.
(o) Meanwhile, on 17 June 2011, a tribunal judge again refused to grant O bail but on 1 July 2011 she granted it, whereupon, on 6 July 2011, she was released from detention.
(p) On 5 October 2011 O issued her fourth claim for judicial review, in which she brings the present appeal.
During the period of her imprisonment and of her detention at Yarl's Wood O displayed signs of serious mental ill-health, including by a number of attempts at suicide and other acts of self-harm; by suffering hallucinations; and by unpredictable mood-swings and impulsive outbursts. There she was mainly treated with high doses of anti-psychotic and anti-depressant medication.
In May 2008, for the purposes of the court in sentencing her for the offence of child cruelty, Dr Olajubu, a specialist registrar in forensic psychiatry, diagnosed O as suffering a recurrent depressive disorder and an emotionally unstable personality disorder. He considered that in prison she would have access to all appropriate psychological interventions.
On 30 April 2009 Professor Katona, a consultant psychiatrist, made the first of a series of reports on O at her request. At that time he agreed with the diagnosis of Dr Olajubu but on 21 September 2009 he reported a considerable deterioration in O's condition and recommended that the Home Secretary should direct her transfer from Yarl's Wood to hospital under section 48 of the Mental Health Act 1983.
On 12 March 2010, following an attempt to suffocate herself, O was admitted to the psychiatric wing of Bedford Hospital for assessment. On 15 March 2010 Dr Ratnayake, a consultant psychiatrist there, led the assessment and, by letter of discharge to Yarl's Wood of that date, he expressed agreement with Dr Olajubu's diagnosis of O as having an emotionally unstable personality disorder, which Dr Ratnayake said was of a borderline type. He added that his team found no true psychosis in her and that her needs, in particular for constant observation and continued medication, would be adequately met at...
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