R S by his litigation friend The Official Solicitor v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HH Judge Anthony Thornton QC,Hh Judge Anthony Thornton |
| Judgment Date | 28 January 2014 |
| Neutral Citation | [2014] EWHC 50 (Admin) |
| Docket Number | Case No: CO/2809/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 January 2014 |
[2014] EWHC 50 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HH Judge Anthony Thornton QC
(Sitting as a deputy judge of the High Court)
Case No: CO/2809/2012
Mr Graham Denholm instructed by Deighton Pierce Glynn for the Claimant
Ms Claire Van Overdijk instructed by The Treasury Solicitor for the SSHD
The Interested Party did not serve an acknowledgement of service and were not represented at the hearing
HTML VERSION OF JUDGMENT
Summary
This summary does not form part of the judgment and is provided for the convenience of the reader
The claim
The claimant, "S", claims damages for his alleged unlawful immigration detention in Corby Police Station and Colnbrook and Harmondsworth IRCs between 3 December 2011 and 21 March 2012 and for the alleged series of significant breaches by the defendant, ("SSHD") of the policies relating to immigration detention, the detaining of those suffering from serious mental illness and of the treatment and conditions of detention of such immigration detainees.
The background facts
The claimant, a Ghanaian, had been unlawfully resident in the UK since 19 February 2005. He had lawfully entered the UK on a 6-month visitor's visa and a valid passport. He remained as an unlawful overstayer and in the nearly 7 years he had overstayed, he is not recorded as having worked, drawn any benefits or committed any crime. He was arrested by the police in Corby where he was living in accommodation provided for free by his Church on 3 December 2011 having been brought to their attention on 2 December 2011 behaving in a strange fashion in the street. His unlawful status came to light when one of the officers who had observed him in the street checked his details against the UKBA computerised details and ascertained that he was an unlawful overstayer.
No passport, valid or invalid, was found in the claimant's possession and, from the outset, he was considered to be subject to and fit for administrative removal and his arrest and detention were made and maintained on that basis. There were four separate stages in his detention: his arrest and acceptance into police custody in Corby Police Station ("CPS") between 3 and the early hours of 5 December 2011—a total of about 34 hours whilst enquiries were made and the decision was being taken to detain him by officers of the Cambridgeshire & Northamptonshire Local Immigration Team ("CNLIT") and then arrangements were being made to transfer him to an Immigration Removal Centre ("IRC"); between 5 and the early hours of 14 December 2011 in Colnbrook IRC when he was transferred to Harmondsworth IRC; between 14 December 2011 and 10 February 2012 when he was detained in Harmondsworth whilst CNLIT was responsible for his case and between 10 February and 21 March 2012 when he was detained in Harmondsworth in the Detained Fast Track whilst the Harmondsworth DFT team was responsible for his case.
He was released from detention on the orders of an Immigration Judge who had been listed to hear his asylum appeal in the DFT in Harmondsworth at the outset of the hearing on discovering from his appearance, behaviour, demeanour and from reading the two psychiatric reports that had been prepared for the hearing that he was unfit to participate in the hearing, was lacking in capacity and was incapable of representing himself—he was unrepresented at the hearing.
S's mental illness
S's behaviour immediately prior to his arrest and behaviour whilst in detention are now known to have been symptoms of florid and largely untreated psychosis which has been diagnosed as paranoid Schizophrenia with symptoms of cognitive impairment, perplexity, suspiciousness and severe depressive symptoms requiring stabilisation with the use of antipsychotic and mood stabilisation medication and other appropriate treatment following a lengthy period of assessment in a hospital setting. This illness had, it can now been seen, started to develop some months earlier but was, until his arrest, wholly untreated and its florid and fluctuating state had become active just before, or as a result of, his arrest. The illness was only finally brought under control after S had been released from detention and had been treated by a community-based psychiatric team between March and October 2012.
Unlawful detention
S's claim is based on a series of allegations to the effect that his detention from the outset and throughout was unlawful because it infringed the SSHD's related and intertwined policies of detention and detention of those suffering from mental illness. In short, S was suffering from a serious mental illness which could not be managed satisfactorily or at all by either Colnbrook or Harmondsworth IRCs and which clearly precluded his being removed from the UK in the foreseeable future. In order to consider this case, it has been necessary to examine in considerable detail the entire periods of detention—which lasted for 110 days counting the day of arrest and of release from detention. In essence, S's case was that he was never properly assessed save on two occasions by an independently instructed psychiatrist who attended at Harmondsworth IRC on 21 December 2011 and 6 March 2012 but whose reports were completely ignored by those responsible for his detention until the Immigration Judge who considered his second report which had been included in the hearing bundle for his appeal hearing on 21 March 2012. He was considered from the outset to be fit for detention, for participation in his—as it turned out—lengthy immigration and asylum claims and proceedings, for removal and for flying and, although unfit for all of those activities, was left virtually untreated throughout the period of detention.
The findings
The inevitably lengthy and factually complex judgment examines the claimant's claims in four stages: (1) a consideration with specific findings of fact of each of the four stages of detention; (2) an analysis of the claimant's claim and of the various legal issues that arose in the consideration of the claim; (3) a consideration of the general features of the claim and (4) a detailed discussion and series of findings.
The result
The overall conclusion is that the claimant's detention was throughout unlawful and that each of the decisions taken to detain and to confirm his detention were also unlawful as being Wednesbury unreasonable, and unlawful as having failed to take into account highly significant facts related to the claimant's mental health. Particular failings arose from the failure by Immigration Officers to visit or interview the claimant whilst he was in CPS; by Colnbrook Healthcare Centre to report, and to ensure that its locum psychiatrist, who correctly assessed the claimant but whose assessment was never reported to anyone or acted upon, issued or caused to be issued a revised IS91 and a Rule 35 report (these were never issued); by Harmondsworth Healthcare Centre who failed to treat or manage the mental illness of the claimant throughout his time in Harmondsworth; and by the various Immigration Officers who failed to pick up and give effect to the evidence of S's serious mental illness and to obtain further details from all three detention locations which would have highlighted it.
In addition to establishing that his detention was unlawful, the claimant has established that those responsible for his detention and for his assessment, treatment and illness management in detention were in breach of his rights that were protected by articles 3 and 8 of the ECHR.
The claimant is entitled to substantial damages for his unlawful detention, since he would not have been held in detention for any part of the claimed period had the SSHD operated its policies lawfully, and if necessary additional damages for the sustained breaches of articles 3 and 8 of the ECHR. The damages for unlawful detention will need to reflect not only the period of unlawful detention but also the conditions under which the claimant was detained and an additional award to provide just satisfaction will be needed for the breaches of articles 3 and 8 if and to the extent that the claimant's damages for unlawful detention do not fully and fairly reflect satisfaction for the matters giving rise to those breaches.
Damages
The claimant's damages will now have to be assessed if these cannot be agreed. Given the complexity of that assessment process, I will myself undertake that assessment—either by a paper assessment following the receipt of further evidence and submissions or at an oral hearing if that is sought and granted. I will give directions for this assessment at the handing down hearing of this judgment which will have built into them an initial period during which the parties are to attempt to reach agreement on the award figure and thereby avoid a further hearing altogether.
Index
HH Judge Anthony Thornton QCI. Introduction
| I | Introduction | 1 |
| II | The Facts | 2–223 |
| (1) | S's diagnosed mental illness | 2 |
| (2) | Prior to arrest | 3–12 |
| (3) | CPS: 3.12.2011–5.12.2011 – Arrest and transfer to immigration detention | 13–57 |
| (4) | Detained in Colnbrook: 5.12.2011–14.12.2011 | 58–86 |
| (5) | Detained in Harmondsworth 14.12.2011–24.12.2011 – Phase 1 – CNLIT | 87–117 |
| (6) | Detained in Harmondsworth: 24.12.2011–10.2.2012—Phase 2—CNLIT | 118–154 |
| (7) | Detained in Harmondsworth:10.2.2012–21.3.2012—Phase 3 —HDFT | 155–211 |
| (8) | Community mental health care: 21.3.2012–31.10.2012 | 212-223 |
| III | S's Claim in the Judicial Review | 224-229 |
| IV | Applicable Law and Policies | 230-252 |
| (1) | Power to detain | 230- |
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