R (on the application of O) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Underhill,Lord Justice Floyd |
| Judgment Date | 17 July 2014 |
| Neutral Citation | [2014] EWCA Civ 990 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2012/1629 |
| Date | 17 July 2014 |
[2014] EWCA Civ 990
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT
Queen's Bench Division
Mrs Justice Lang
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Underhill
and
Lord Justice Floyd
Case No: C4/2012/1629
Mr Hugh Southey QC and Mr Ranjiv Khubber (instructed by Lawrence Lupin Solicitors) for the Appellant
Ms Julie Anderson (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 26 February 2014
Issue for this appeal
This issue on this appeal is whether the Secretary of State for the Home Department ("the Secretary of State") could continue lawfully to hold the appellant, O, in immigration detention from 24 July 2010 to 6 July 2011 notwithstanding a change in the diagnosis of her mental illness and medical opinion that she should be cared for in the community. This issue arises because O has sought permission to apply for judicial review of the Secretary of State's decision to detain her, in order to seek damages for unlawful detention for the period following that diagnosis. By her order dated 3 April 2012, Lang J refused her permission to apply for judicial review. I shall take the events in chronological order below but, as explained, this court has already considered the lawfulness of O's detention prior to 24 July 2010 and so that period of detention will not be further considered in this judgment.
The judge, in a short judgment, held that what she had to decide was:
"…whether the circumstances had changed such that the detention had become arguably unlawful under either Hardial Singh principles, as submitted, or because of an arguable failure on the part of the Secretary State properly to apply her policy on the mentally ill." (judgment, [26])
O had entered the UK illegally with her son, S, and unsuccessfully claimed asylum. O contends that she arrived in the UK in November 2003. She suffered from mental illness. O committed offences of child cruelty against S, who subsequently returned to Nigeria. She was given bail but absconded. She then had a daughter, M, and committed a further offence. She pleaded guilty to offences of child cruelty on 12 July 2008 and was sentenced to twelve months imprisonment with a recommendation that she should be deported at the end of the term. While she was in prison and during her detention she demonstrated the effects of her psychotic illness by self-harm.
On her release from prison on 8 August 2008, the Secretary of State decided that she should be deported. At the same time she decided to detain O and she was sent to a detention centre known as Yarl's Wood. That means that she was detained for a period of nearly three years, which is worryingly long. A deportation order was not made at this time because of concerns about O's mental health and because there were ongoing care proceedings about M.
In proceedings brought by O against the Secretary of State, prior to these proceedings, this court had held that O's detention up to 23 July 2010 was unlawful ( [2011] EWCA Civ 909, per Ward, Richards and Hughes LJJ). In those proceedings, the Secretary of State had conceded that she had not applied her then current policy on detention correctly in O's case during the period from 8 August 2008 to 28 February 2010, but this court had held that O did not suffer any loss because she could have been lawfully detained anyway during that period. There was evidence of a high risk of re-offending in relation to child cruelty. O acted on impulse and suffered from anger. There was also a high risk of absconding.
This court came to the conclusion that the policy was lawfully applied in the second period of detention from 28 February 2010 to 23 July 2010 (for which the Secretary of State did not make the same concession).
The present proceedings concern the period ("the third period") commencing on 24 July 2010 and ending on 6 July 2011, when O was released on bail from immigration detention.
O's mental condition
When O was sentenced following her conviction in July 2008 for child cruelty, she was diagnosed by a Dr Shah as having a recurrent depressive disorder and an emotionally unstable personality disorder. Opinions differed as to whether she would be better off in detention or in hospital but medical opinion was in favour of her continued detention either in a detention centre or in hospital. In 2009, Professor Katona became involved on her behalf. He noted by September 2009 that her condition had deteriorated considerably since 2008. On at least one subsequent occasion he recommended a transfer to hospital under section 48 of the Mental Health Act 1983. In addition, on 10 October 2009 he concluded that O's mental condition had deteriorated to the extent that she was no longer able to conduct her proceedings. The court has since appointed a litigation friend, who acts for her in these proceedings. Other doctors treating O in March 2010 recommended psychological intervention in a secure in-patient setting. On 15 March 2010 Dr Ratnayake, a consultant psychiatrist at the Bedfordshire and Luton Mental Health and Social Care Partnership NHS Trust advised the detention centre that O's needs were met at the detention centre and that she would not obtain any benefit from transfer to a hospital.
On 10 February 2011, Dr Roxane Agnew-Davies signed a report on O. Her view was that O was suffering severe Post-Traumatic Stress Disorder ("PTSD") and a depressive disorder. Her opinion was that O required a package of care and treatment in the community. This would involve specialist counselling over many years. She stated that in her opinion O presented a psychological profile and clinical history which was highly consistent with other victims of severe childhood abuse and neglect and victims who have been trafficked whom she had interviewed. She stated that the reviews of the research conducted by other named researchers suggested that PTSD and depressive disorder were long term mental health problems and required specialist treatment. While some women recovered spontaneously, O's mental health had been further damaged by her experiences of psychotic symptoms and a history of self harming behaviour which required specialist long term management. She considered that O's mental health depended on a sure and stable support network and ongoing contact with M while she remained awaiting adoption. She considered that O's PTSD, depressive and self harming symptoms would flare up if she was returned to Nigeria and have extremely negative consequences on her capacity to cope.
Professor Katona later wrote a report saying that he agreed with the opinion of Dr Agnew-Davies.
On 16 February 2011 the solicitors for O's litigation friend sent Dr Agnew-Davies' report to the Treasury Solicitor, then instructed by the Secretary of State to defend judicial review proceedings brought on O's behalf. Their letter explained her diagnosis and recommendations at length.
On 8 April 2011, the UK Border Agency ("UKBA") wrote a closely-reasoned 8-page letter in response. This stated that the report of Dr Agnew-Davies contained no new information or diagnosis that had not been previously addressed in the medical reports provided by various doctors between May 2008 and October 2010. The UKBA said that the impact of detention on O's mental health had been considered extensively in the judgment of HHJ McMullen dated 16 August 2010, which was later the subject of the decision of this court to which I have already referred.
The letter concluded that O's deportation would not have an impact of the severity required for a violation of Article 3 of the European Convention on Human Rights ("the Convention"). Since March 2010 there had been infrequent episodes of agitated behaviour. Over the last seven months O's mood and behaviour had been settled and stable in marked contrast to how she was in the early part of 2010. None of the nurses, GPs or counselling team or operational staff within the detention centre had raised concerns about deterioration in her mood or behaviour and it was clear that the coping strategies that O had learnt at Yarl's Wood were being used effectively. The letter also stated that no necessity had been identified for her to be reviewed by the mental health team. The psychiatry nurses at Yarl's Wood engaged with O on a regular basis and had not identified any concerns.
O applies for release on bail
In March and June 2011, O made applications for bail which were refused by the immigration judge. O applied for judicial review of the March decision but Mitting J refused that application on 10 May 2011. On 1 July 2011, O made a further application for bail, which was granted with conditions as to residence and sureties with effect from 6 July 2011.
O succeeds in setting aside the Secretary of State "certification" decision
When the deportation order was eventually made in November 2010, the Secretary of State exercised her power to certify that O was not entitled to an "in-country" appeal against that order and thus made a "certification decision". That meant that she would have to return to Nigeria before she could appeal. The Secretary of State maintained that decision following the report of Dr Agnew-Davies. On 10 May 2011, Mitting J granted O permission to apply for judicial review of the Secretary of State's decision to maintain the certification decision in UKBA's letter...
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