R Pratima Das v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] EWHC 682 (Admin) |
| Date | 26 March 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/12738/2011 |
[2013] EWHC 682 (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 Sales
Case No: CO/12738/2011
Ms Stephanie Harrison & Ms Michelle Brewer (instructed by Sutovic & Hartigan) for the Claimant
Mr Paul Greatorex (instructed by Treasury Solicitor) for the Defendant
Hearing date: 13/3/13
Introduction
The Claimant is a citizen of India. This is an application for judicial review of the decision of the Secretary of State, acting by her officials, to authorise the detention of the Claimant on 7 November 2011 with a view to her removal from the United Kingdom and to maintain that detention until the Claimant was granted bail by an Immigration Judge and released from detention on 12 January 2012. The Claimant seeks a declaration that all or part of that period of detention was unlawful and claims damages for false imprisonment. The parties agreed that at the hearing before me the court should determine the question of the lawfulness of the Claimant's detention in that period and whether she had any right to be paid substantial (as opposed to nominal) damages in respect of that detention, with the question as to the quantum of such damages being adjourned (if appropriate) for determination by a Master at a later hearing.
The Claimant arrived in the United Kingdom in March 2004 with leave to remain as an overseas domestic worker, which was renewed from time to time. She worked for the Rahulan family, who are of Indian and Sri Lankan origin. The Claimant later made accusations against the Rahulans that they had treated her very badly, including assaulting her, to such an extent as to amount to her being a trafficked person, as that concept is used in the Council of Europe Convention on Action Against Trafficking in Human Beings (2005).
The Claimant left her employment with the Rahulan family in about June 2008 and presented herself to the relevant United Kingdom authorities, who issued a letter dated 13 June 2008 in which they identified her as someone who had potentially been trafficked.
The Claimant was no longer working as an overseas domestic worker within the terms of her leave to remain. In July 2008 she claimed asylum. On 15 October 2008 her asylum claim was refused by the Secretary of State and certified as clearly unfounded.
The Claimant was detained on 17 October 2008, and removal directions were set for her removal for 23 October 2008. She challenged those removal directions in judicial review proceedings and obtained a stay of the directions. She was then released from detention on 28 October 2008. I refer to this as "the first period of detention."
Subsequently, in December 2008, the Secretary of State withdrew the removal directions and the "clearly unfounded" certificate. The Claimant was granted temporary admission, subject to a condition of regular reporting. The Claimant brought judicial review proceedings claiming that the first period of detention had been unlawful.
In due course the Asylum and Immigration Tribunal gave a decision in July 2009 upholding the Claimant's claim to asylum. There was a reconsideration, however, by the Upper Tribunal. In a decision of the Upper Tribunal dated 22 February 2010, the Upper Tribunal concluded that the Claimant's asylum claim and appeal against her removal should be dismissed.
Meanwhile, in December 2008/January 2009, the Claimant brought proceedings in the Employment Tribunal against her former employers. For the purposes of those proceedings, an expert report regarding the Claimant's mental state and the psychological harm she said she had suffered as a result of mistreatment by the Rahulans was obtained on the joint instructions of the Claimant and the Rahulans from a consultant psychiatrist, Dr David Oyewole, dated 26 April 2010.
By a judgment dated 8 July 2010, the Employment Tribunal dismissed the Claimant's claims as made out of time and declined to grant an extension of time. The Employment Tribunal heard evidence from the Claimant, who was subjected in cross-examination to what the Tribunal described as "a sustained, effective and telling attack" on her credibility, such that the Tribunal "had grave doubts that it had heard honest evidence from the Claimant".
There was a period of negotiation between the Claimant and the Secretary of State with a view to settlement of the judicial review proceedings she had commenced, but no settlement agreement was reached. In the course of those proceedings, the Claimant sent the Secretary of State a report dated 4 April 2011 by a consultant psychiatrist, Dr Arvind Sharma, prepared on the Claimant's instructions to assess any psychological damage caused to her by the first period of detention. Dr Sharma's report was prepared without sight of Dr Oyewole's report.
In November 2011 the Secretary of State again decided that the Claimant had no good grounds for remaining in the United Kingdom and once more proposed to issue directions for her removal. The Claimant was taken into detention on 7 November 2011 with a view to her imminent removal from the United Kingdom, on grounds that it was feared that otherwise she might abscond. She remained in detention until released on bail on 12 January 2012. I refer to this as "the second period of detention." It is to the second period of detention that this hearing relates.
During this period, the Claimant's solicitors sent a series of letters to the Secretary of State presenting additional material to the Secretary of State in support of her contention that she had good grounds for saying that a fresh claim had been made for the purposes of the Immigration Rules. These included a letter dated 22 November 2011, which enclosed a copy of Dr Sharma's report. In letters dated 13 December 2011 and 22 December 2011, the Secretary of State considered the new material and came to the conclusion that it was not properly to be considered as giving rise to a fresh claim.
The Claimant brought a second set of judicial review proceedings against the Secretary of State, claiming that the second period of detention had been unlawful and challenging the lawfulness of the Secretary of State's decision that there was no fresh claim.
At a hearing on 25 April 2012, on the Claimant's application for permission to apply for judicial review pursuant to both sets of judicial review proceedings, I refused permission in relation to the first period of detention and granted permission in relation to the issue regarding the lawfulness of the second period of detention, but otherwise refused permission in relation to the second set of judicial review proceedings. As a result, the substantive hearing in relation to those judicial review proceedings has proceeded solely in relation to the Claimant's challenge to the lawfulness of the second period of detention.
At the permission hearing I directed that the grant of permission in relation to the Claimant's claim that the second period of detention had been unlawful should not operate as a barrier to her removal from the United Kingdom. In June 2012, the Secretary of State again issued directions for the removal of the Claimant to India. Those directions were put into effect. The Claimant was briefly detained pending her removal (there is no evidence before me regarding the circumstances in which this occurred), and was then sent back to India, which is where she now resides.
The Claimant's submission in these proceedings is that at the time of the second period of detention she suffered from a mental illness, in the form of depression and post traumatic stress disorder ("PTSD"), and that in detaining her the Secretary of State acted contrary to, or without having proper regard to, his own policy regarding detention of persons suffering from mental illness. This means that her detention was unlawful, as being in breach of the Claimant's legitimate expectation that the Secretary of State would take into account and abide by his policy in this regard.
The relevant statement of policy particularly relied on by the Claimant was contained in paragraph 55.10 of the immigration instructions issued by the Secretary of State to officials, in the version applicable at the time of the second period of detention. Paragraph 55.1.3 of the immigration instructions, headed "Use of detention", stated: "Detention must be used sparingly, and for the shortest period necessary". Paragraph 55.10 of the immigration instructions, headed "Persons considered unsuitable for detention", provided as follows:
" 55.10. Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In CCD [Criminal Cases Directorate] cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or...
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