The Queen (on the Application of OM Acting by Her Litigation Friend, the Official Solicitor) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Hughes,Lord Justice Ward |
| Judgment Date | 28 July 2011 |
| Neutral Citation | [2011] EWCA Civ 909 |
| Date | 28 July 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2010/2148 |
[2011] EWCA Civ 909
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
HHJ McMULLEN QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Richards
and
Lord Justice Hughes
Case No: C4/2010/2148
Ranjiv Khubber and Gilda Kiai (instructed by Lawrence Lupin Solicitors) for the Appellant
Eleanor Grey QC and Julie Anderson (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 11 July 2011
The appellant is a 33 year old woman of Nigerian nationality who suffers from mental illness. She entered the United Kingdom illegally and made an unsuccessful claim to asylum and under the European Convention on Human Rights. Following her conviction of criminal offences, a decision was taken to deport her. On 8 August 2008 she was released from prison into administrative detention pending deportation. In December 2009 she brought judicial review proceedings to challenge the lawfulness of her continuing detention and the refusal by the Secretary of State to treat her further representations as a fresh claim. The judicial review claim was heard on 22–23 July 2010 by His Honour Judge McMullen QC, sitting as a deputy High Court Judge. In a judgment handed down on 13 August 2010 he dismissed both aspects of the claim (see [2010] EWHC 2147 (Admin)). Permission to appeal to this court was granted in the light of the decision of the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671, to which must now be added the decision of the Supreme Court in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299.
In order to explain the issues I need first to outline the facts. The case is one of some complexity but I propose to cut matters back to the essentials. Reference can be made to the judgment below for further detail.
Factual outline
The appellant entered the United Kingdom illegally in November 2003, together with her 3 year old son, S. Her claim for asylum was refused, and an appeal on grounds of asylum and under articles 3 and 8 ECHR was dismissed in July 2004. In August 2004 she either entered or indicated an intention to enter a plea of guilty to an offence of child cruelty, relating to her son S, who had been admitted to hospital with multiple injuries soon after their arrival in this country. She failed to attend a hearing fixed for February 2005 and she absconded for a period of over 2 years thereafter. During that period, in July 2005, she gave birth to a daughter, M. In September 2007 she was arrested and detained in connection with a further offence, namely the possession of a false instrument (a false identity document used in an attempt to open a bank account). She was convicted of that offence and was sentenced in December 2007 to 9 months' imprisonment. Her link with the earlier offence was established only at a later date and resulted in her being brought back before the court in April 2008, when her plea of guilty to child cruelty was either entered or confirmed. On 21 July 2008 she was sentenced to 12 months' imprisonment for that offence and to a concurrent 3 month sentence for breach of bail. The sentencing judge also made a recommendation for deportation.
A decision to deport was made on 5 August 2008. Because of the time spent in custody on remand, the appellant was due for release from her custodial sentence on 8 August 2008. She was released on that day from prison into administrative detention.
An appeal against the decision to deport was dismissed in December 2008, save that the tribunal held that it would not be proportionate to deport the appellant while care proceedings in respect of her child M were unresolved: those proceedings are described below. On 19 June 2009 the appellant's solicitors made representations requesting that the decision to deport be reversed or that the representations be treated as a fresh claim. There was a lengthy delay before the Secretary of State, on 14 December 2009, refused the request. Further representations led to a further decision, on 26 April 2010, that the conditions for a fresh claim were not met. Throughout this period, various applications for bail were either withdrawn or refused.
The charge of child cruelty led to care proceedings in respect of S, the outcome of which was that in March 2005 a residence order was made in favour of S's father and the boy was returned to Nigeria. There were later proceedings in respect of M, which were determined by His Honour Judge Turner QC in the Family Division on 25 June 2009. He made a care order and a placement order with a view to M's adoption. The position at the end of July 2010 was that contact between the appellant and M was limited to two hours every two months and was sought to be reduced, with the prospect of a single goodbye meeting once the appellant was deported or M was given to adoption. Since that time an appeal against the continuance of the placement order has been dismissed and contact has been ended in anticipation of the appellant's deportation.
The present judicial review proceedings were issued on 16 December 2009. Permission to apply was refused on the papers but was granted on 13 May 2010 on a renewed oral application. An expedited hearing was ordered. Judge McMullen's judgment on the substantive claim dealt with the position up to the beginning of the hearing on 22 July 2010. At that time the appellant was still in detention. Thereafter she remained in detention until just before the hearing of the appeal before this court. On 6 July 2011, however, she was released on bail as a result of a further, and this time successful, application to a tribunal judge.
The appellant's mental health
It is not in dispute that the appellant suffers from mental illness, though there has been a disagreement as to the extent of her problems and how best to manage them. Judge McMullen referred to this at some length in his judgment, from which I take the following:
"33. Throughout the whole period of her imprisonment and detention the Claimant has demonstrated the effects of her psychotic illness by self harm, difficult relations with others and attempted suicide.…In short the Claimant has been under supervision in prison and detention and has been transferred from both to hospital as a result of self harm throughout the almost three years of her remand, imprisonment and detention.
34. Dr Olajubu, specialist registrar in forensic psychiatry gave his report on 29 May 2008 for the purposes of sentencing at Snaresbrook. He confirmed his diagnosis of recurrent depressive disorder and emotionally unstable personality disorder but this was not of such a nature as would fulfil the criteria for treatment under the Mental Health Act 1983.…[I]f the Claimant was sentenced to imprisonment 'she could continue to receive ongoing psychiatric follow up from the prison "In Reach" team and individual psychological interventions as deemed appropriate'. This report was extant at the time of the deportation decision. The Defendant's officials plainly knew of it….
35. Professor Katona made the first of a series of reports on 30 April 2009. He agreed with the diagnosis of Dr Olajubu and disagreed with findings of previous immigration Judges…refusing bail on the ground that the Claimant is better off in detention. He gave his opinion that her health was likely to deteriorate in response to continued detention. She was not suitable for treatment under the Mental Health Act 1983. By 21 September 2009 her condition had deteriorated considerably and she would now benefit from hospital treatment. He recommended transfer under section 48 of the Mental Health Act. The deterioration was due to detention. On 10 October 2009 his opinion was that the Claimant had significantly deteriorated to the extent that she was no longer able to conduct her proceedings and she should be transferred to hospital under section 48.
36. Dr Shah acting consultant at Bedfordshire and Luton Mental Health and Social Care Partnership NHS Trust on 21 February 2010 acknowledged the diagnoses previously given of Doctors Mann, Olabuju and Professor Katona. The Claimant was admitted to Dr Shah's care because she attempted to hang herself. Professor Katona again examined her and gave a report dated 1 March 2010. He noted her continued deterioration due to her continued detention and reiterated his opinion that she should be transferred under section 48.
37. Nurse Munday examined the Claimant at hospital, where the Claimant was being held.…She gave her opinion that her health problems could not be met adequately in her current setting i.e. at Yarl's Wood. She assessed a risk of harming children on grade 3 within a risk of 0 to 3. She was at risk of suicide, deliberate self harm and other offending behaviour at 2 giving her a summary risk to herself of 2 and risk to others of 3. That is why on 15 March 2010 Dr Ratnayake consultant psychiatrist at Bedfordshire leading a team of himself, another consultant psychiatrist and Nurse Munday decided that the Claimant's needs were met at Yarl's Wood where she would be under constant observation. Hospital admission would not provide management different to that. She was discharged back to Yarl's Wood.
38. On 23 March 2010 Professor Katona considered this report and other materials and disagreed with it to some extent....
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