R VC (by his Litigation Friend, the Official Solicitor) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson,Lord Justice Lewison,Lady Justice Arden |
| Judgment Date | 02 February 2018 |
| Neutral Citation | [2018] EWCA Civ 57 |
| Docket Number | Case No: C4/2016/1954 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 February 2018 |
Neutral Citation Number: [2018] EWCA Civ 57
Lady Justice Arden
Lord Justice Lewison
and
Lord Justice Beatson
Case No: C4/2016/1954
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT AND DIVISIONAL COURT)
HIS HONOUR JUDGE SEYS LLEWELLYN QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Stephanie Harrison QC and Ms Amanda Weston (instructed by Bhatt Murphy) for the Appellant
Ms Julie Anderson and Ms Belinda McRae (instructed by the Government Legal Department) for the Respondent
Ms Helen Mountfield QC (instructed by the Equality and Human Rights Commission) filed written submissions on behalf of the Intervener
Hearing dates: 28, 29 November 2017
Further submissions: 1, 3 December 2017, 22 January 2018
APPROVED JUDGMENT
| Para no | |
| I. Overview | 1 |
| II. The legal and policy framework | 9 |
| (a) Legislation | 9 |
| (b) The Secretary of State's policy | 14 |
| (c) The Hardial Singh principles | 20 |
| III. The facts | 22 |
| IV. Evidential matters | 28 |
| V. The public law duties and errors and their consequences | 38 |
| (a) Introduction | 38 |
| (b) Misinterpretation of the policy | 40 |
| (c) Breach of the public duty of inquiry | 43 |
| (d) Consequences of the public law errors | 46 |
| (e) Was the appellant's detention lawful notwithstanding the public law errors? | 49 |
| (f) Nominal or compensatory damages? | 57 |
| (i) Satisfactory management | 69 |
| (ii) “Very exceptional circumstances” | 86 |
| (iii) Would the Secretary of State have detained the Appellant in any event? | 98 |
| (g) Quantum | 101 |
| (h) The Hardial Singh principles | 106 |
| VI. Article 3 ECHR | 108 |
| (a) The claim | 108 |
| (b) The decision below | 109 |
| (c) What does article 3 require? | 111 |
| (d) The appellant's submissions that the judge made errors of law | 120 |
| (i) Failure to consider the positive element of article 3 | 121 |
| (ii) The standard of proof | 124 |
| (iii) Did the judge treat HA as setting a minimum threshold? | 127 |
| (e) The balancing exercise | 128 |
| VII. The Equality Act 2010 and procedural fairness under the common law | 137 |
| (a) The claims | 137 |
| (b) The decision below | 138 |
| (b) Preliminary points concerning the appeal | 143 |
| (d) The claim under the Equality Act | 147 |
| (i) Identifying the PCPs | 148 |
| (1) Detention | 149 |
| (2) Removal from association | 150 |
| (ii) Substantial disadvantage | 152 |
| (iii) Reasonable adjustments | 155 |
| (1) Absence of power | 164 |
| (2) Conflicts and confidentiality | 165 |
| (3) Cost | 169 |
| (4) A Substantial Trigger | 170 |
| (iv) Detriment | 172 |
| (e) Procedural fairness | 178 |
| (i) Removal from association | 181 |
| (ii) Detention | 188 |
| (iii) Conclusion | 190 |
| VIII. Outcome | 191 |
I. Overview
There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 (“the 1971 Act”) of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 (“the Equality Act”) of the procedures under which mentally ill detainees can make representations on matters relating to their detention.
The appellant, VC, a Nigerian national, suffers from bipolar affective disorder with psychotic features and had been admitted to hospital on some ten occasions for treatment under the Mental Health Act 1983 (“the 1983 Act”) between 2007 and June 2014. Between 11 June 2014 and 5 May 2015, he was detained under the 1971 Act by the respondent, the Secretary of State, in four Immigration Removal Centres (“IRCs”). He was then transferred to a psychiatric hospital, and compulsorily detained (“sectioned”) under the 1983 Act. 1 His detention under the 1971 Act formally ended on 9 September 2015, although he remained detained under section 3 of the 1983 Act until April 2016. In these proceedings, lodged on 30 April 2015, he challenges the legality of his detention under the 1971 Act and the delay in securing his transfer to hospital for treatment. He appeals against the order of HHJ Seys Llewellyn QC dated 8 April 2016 dismissing all but one of his claims.
At the material times, the policy governing such detention, commonly known as “immigration detention”, was chapter 55 of the Secretary of State's Enforcement Instructions and Guidance, “Detention and Temporary Release” (“the policy”). §55.10 of that policy 2 provided that “those suffering from serious mental illness which cannot be satisfactorily managed within detention” are considered “suitable for detention in only very exceptional circumstances”. The policy has been the subject of a number of decisions. The submissions before this court focussed on two of those decisions, that of the Supreme Court in R (O) v Secretary of State for the Home Department [2016] UKSC 19, [2016] 1 WLR 1717, handed down some two months after the judge's decision in this case, and that of this court in R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ. 45, [2014] 1 WLR 3538, which was carefully considered by the judge. In O's case, the Supreme Court considered and, with one qualification (see [75] below), approved the decision in Das's case. The policy that is relevant to this appeal was replaced by a new policy, Adults at risk in immigration detention, on 12 September 2016. 3
The appellant's case can be summarised as follows.
a. His detention was unlawful because of public law errors made by the Secretary of State. The first limb of this public law ground is that the Secretary of State (i) misinterpreted chapter 55 of her policy on the detention of those with mental illness, and, (ii) failed to make enquiries into the appellant's
mental health. The second limb is that the detention breached the established common law principles applying to immigration detention under the 1971 Act derived from the decision of Woolf J in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 and known as the Hardial Singh principles. 4 The appellant claimed damages in respect of the unlawful detention.b. His treatment in detention was inhuman and degrading amounting to a breach of article 3 of the European Convention on Human Rights (“the ECHR”).
c. The Secretary of State's decision-making processes did not meet common law requirements of procedural fairness, and failed to make reasonable adjustments to avoid discrimination against detainees suffering from mental illness as required under the Equality Act.
In his judgment, handed down on 16 February 2016, the judge accepted that the Secretary of State had misinterpreted her policy 5 but held that, save for the period between 3 and 27 April 2015, the detention was not unlawful. This, he stated, was because, before 27 March 2015, the Secretary of State could have rationally concluded that the appellant's mental condition could be satisfactorily managed within detention, and between 27 March and 3 April, and between 27 April (when a direction was made for his removal to a psychiatric hospital) and 5 May 2015 when he was transferred to hospital she could rationally have decided not to release him pending his transfer. 6 He held that the respondent was liable in damages only in respect of the period between 3 and 27 April 2015. Cross-references to his judgment are identified as “J, [xx]”. An appellant's notice was filed on 16 May 2016, and permission to appeal was given by Moore-Bick LJ on 2 December 2016. The way the bundles were prepared for the appeal was unsatisfactory. They did not comply with CPR PD 52C and shortly before the hearing the parties sought to file a supplementary bundle of 967 pages for the court to pre-read, including the full medical records.
The Equality and Human Rights Commission (“the Commission”) did not intervene below but was granted permission to do so by written submissions in this appeal. The Commission filed a detailed skeleton argument focussing on points of legal principle concerning the third limb of the appellant's case, that the Secretary of State had discriminated against the appellant by failing to make reasonable adjustments to her decision-making procedures for detainees suffering from mental illness as required by the Equality Act, and that the decision-making processes were procedurally unfair under the common law. It also filed a reply to the Secretary of State's revised skeleton argument, which inter alia submitted that the Commission's submissions went far beyond the appellant's pleaded grounds of claim.
The remainder of this judgment is organised as follows. Part II contains the legal and policy framework relating to immigration detention under the 1971 Act. Part III summarises the relevant facts. The summary is principally taken from the detailed judgment below, but also from documentation relied on by the parties in support of their submissions. Part IV comments on the evidential position and records the reasons given by the court for rejecting the submission that the judge erred in refusing to admit the evidence of the appellant's treating clinician, Dr Meganty, on the
To continue reading
Request your trial
-
The Queen (on the application of Stuart Hall) v Secretary of State for Justice
...of the duty to make reasonable adjustments, the court should follow the three stage approach taken in R (on the application of VC) v The Secretary Of State for the Home Department [2018] EWCA Civ 57 at [147]: i) to identify the PCP (or in this case, the PCP and/or physical feature) which is......
-
AYZ v The Home Office
...the power to detain in June 2014 when having decided to revoke AYZ's refugee status she made an order to deport him (see R (VC) v SSHC [2018] EWCA Civ 57 at [60]–[62]. Indeed, pursuant to section 36(2) of the 2007 Act, she was under an obligation to detain unless she thought it inappropriat......
-
The Queen (on the application of Christina Efthimiou v The Mayor and Commonalty and Citizens of the City of London
...unlawful discrimination (s.21 (1) and (2) EA 2010). 69 There are three stages to the Court's inquiry in this case (see R (VC) v SSHD [2018] EWCA Civ 57 [2018] 1 WLR 4781 at paragraph 147): i) Firstly to identify the provision, criterion or practice (“PCP”) which is said to put the disable......
-
R Medical Justice v Secretary of State for the Home Department
...the relevant time. The citation of authorities concerning very different circumstances from the instant ones such as R(VC) v SSHD [2018] EWCA Civ 57 at [171] and AM Afghanistan v SSHD [2017] EWCA Civ 1123 does not advance the analysis. It is not ruled out that if there was substantial evi......