R 'VC' (by his Litigation Friend The Official Solicitor) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | HHJ Seys Llewellyn |
| Judgment Date | 16 February 2016 |
| Neutral Citation | [2016] EWHC 273 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 16 February 2016 |
| Docket Number | Case No: CO/1968/2015 |
[2016] EWHC 273 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Seys Llewellyn QC
(Sitting as a Deputy Judge of the High Court)
Case No: CO/1968/2015
Martha Spurrier (instructed by Messrs Bhatt Murphy) for the Claimant
Julie Anderson (instructed by Government Legal Department) for the Defendant
Hearing dates: 24 November 2015
HHJ Seys Llewellyn QC:
On 11 June 2014 the Claimant was detained under Schedule 3 of the Immigration Act 1971 pending deportation. This is a challenge to the lawfulness of his detention and/or of his treatment while in detention. He is a national of Nigeria, now aged 37. He had entered the United Kingdom with his wife and daughter, on 5 th March 2004; he was granted residence in April 2005 for a five year period as a dependant of a wife entitled to EEA residence, but his wife left him when, in 2008, he was sectioned under the Mental Health Act 1983 ("MHA 1983").
Prior to the events giving rise to the present claim he had been admitted to hospital on some ten occasions for treatment under the MHA 1983. The Claimant says that at the time of his initial detention in June 2014 the Defendant was on notice of his mental illness, (see below); but in any event on 30 th June 2014, when he had been in detention for 19 days, there was a Rule 35 report by the medical professionals under the Detention Centre Rules 2001 which identified that
"Mr [C] has been diagnosed with bipolar affective disorder with psychotic features. He has had multiple hospital admissions under section and a compulsory treatment order in the community (Trial Bundle 1/2/19).
As of 25 March 2015 there was a further Rule 35 report, which referred to a real but gradual deterioration in his mental state (1/2/49). On 27 March a detention officer noted "[He] is currently waiting to be section (sic) under Mental Health section 48, is waiting to be seen by the forensic psychiatrist and then be transferred to a medical bed" (1/2/53). He was seen by a psychiatrist, and he was transferred to psychiatric hospital on 5 May 2015. On 9 September 2015 the Defendant ceased to exercise her power of detention over the Claimant, although he remained and remains in hospital compulsorily under section 3 MHA 1983. I was told that it is likely that he will stay there for many months.
The challenge in this case. There are two strands to the contentions made by the Claimant in this claim, as argued before me:
i) a challenge to the lawfulness of his detention on the basis that it was in breach of
a) the Defendant's policy on detaining the mentally ill which, had it been applied lawfully, would have precluded the Claimant's detention;
b) Hardial Singh principle 3 because from 31 October 2014 there was no realistic prospect of the Claimant's removal within a reasonable timescale; and
c) Hardial Singh principle 2 because the Claimant was detained for an unreasonable length of time.
ii) a challenge to the treatment of the Claimant in detention on the basis that it was:
a) in violation of Article 3 ECHR;
b) contrary to the Mental Capacity Act 2005 ("MCA 2005");
c) discriminatory, contrary to the Equality Act 2010; and
d) procedurally unfair.
There was, in the original grounds of claim, a challenge to the lawfulness of segregation of the Claimant on occasions during his detention but following disclosure this is no longer pursued.
The Defendant's policy on enforcement of immigration decisions and detention, (Enforcement Instructions and Guidance chapter 55), makes particular provision for the case of foreign national offenders (for brevity, "foreign criminals"). I therefore record briefly here his history.
The Claimant's criminal history. In the period from October 2007 to May 2014 the Claimant had 16 convictions for 27 criminal offences, the majority relating to possession of drugs and theft.
These included convictions on 7 May 2010 for 2 offences of possessing a controlled drug with intent to supply, for which he was sentenced to 9 months imprisonment, and on 8 August 2013 when he was convicted of 2 offences of possession of a controlled drug with intent to supply and was sentenced to 6 months in prison. I identify these in particular because the Defendant's policy distinguishes between more and less serious offences, and these are offences which are there defined as included among the more serious offences.
I refer below in more detail to the Defendant's assessment of the likelihood of re-offending and/or of absconding if released, but it is convenient to note here that in one of the more recent monthly reports, that of 9 June 2015, the officer authorising continued detention described him thus,
"[He] is a low level, but a persistent offender amassing 16 convictions arising from 27 offences mainly related to drug use. Against this backdrop it is likely that he would re-offend and in doing so present a risk of harm to the public" (1/2/141).
In passing only, I note that the grounds of claim, as initially pleaded, argue first breach of Hardial Singh principle 3 and then Hardial Singh principle 2, before arguing breach of policy, but in skeleton argument and oral submissions the policy claim is placed first in sequence.
The Defendant's policy. Her policy, Enforcement Instructions and Guidance, deals with Detention and Temporary Release at Chapter 55. I have read and considered the whole of chapter 55, and the passages to which I was referred in skeleton argument and oral submissions, but I cite the following.
" 55.1 General. The power to detain must be retained in the interests of maintaining effective immigration control. However there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used (see 55. 20 chapter 57). Detention is most usually appropriate: to effect removal; initially to establish a person's identity or claim; or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. – To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy…..
55.1.2 Criminal Case Work Case. Cases concerning foreign national offenders – dealt with by criminal case work – are subject to the general policy set out above in 55.1.1, including the presumption in favour of temporary admission or release and the special consideration in cases involving children. Thus the starting point in these cases remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention. However the nature of these cases means that special attention must be paid to their individual circumstances.
In any case in which the criteria for considering deportation action (the 'deportation criteria') are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending or the risk of absconding.
55.3A. Decision to detain – criminal case work cases. As has been set out above, public protection is a key consideration underpinning our detention policy. Where a foreign national offender meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release may well be outweighed by the risk to the public of harm from re-offending and or the risk of absconding, evidenced by a past history of lack of respect of the law. However detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life could be shown to be disproportionate.
In assessing what is reasonably necessary and proportionate in any individual case, the case worker must look at all relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment what is reasonably necessary, the Home Office distinguishes between more and less serious offences. A list of those offences which the Home Office considers to be more serious is set out in the list accessible underlined here. [This list includes possession of drugs with intent to supply, see above].
More serious offences. A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result the high risk of public harm carries particularly substantial weight when assessing if continuing detention is reasonably necessary and proportionate. So, in practice, it is likely that a conclusion that such a...
To continue reading
Request your trial
-
R VC (by his Litigation Friend, the Official Solicitor) v The Secretary of State for the Home Department
...DIVISION) ON APPEAL FROM THE QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT AND DIVISIONAL COURT) HIS HONOUR JUDGE SEYS LLEWELLYN QC [2016] EWHC 273 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL Ms Stephanie Harrison QC and Ms Amanda Weston (instructed by Bhatt Murphy) for the Appe......