The Queen (on the application of S) v The Secretary of State for the Home Department Geo Group Ltd and Others (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | David Elvin |
| Judgment Date | 05 August 2011 |
| Neutral Citation | [2011] EWHC 2120 (Admin) |
| Date | 05 August 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8140/2010 |
[2011] EWHC 2120 (Admin).
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
David Elvin QC
(sitting as a Deputy High Court Judge)
Case No: CO/8140/2010
and
Ms. Stephanie Harrison and Ms Bryony Poynor (instructed by Bhatt Murphy) for the Claimant
Mr. John-Paul Waite (instructed by the Treasury Solicitor) for the Defendant
Mr David Eccles (instructed by Berrymans Lace Mawer LLP) for the First Interested Party
(The other Interested Parties did not attend and were not represented)
Hearing date: 16, 17, 31 March and 1 April 2011
Further written submissions 20 June, 4 and 6 July 2011
The Deputy Judge ( David Elvin QC):
Introduction
The Claimant, known as S, seeks judicial review against the Secretary of State for the Home Department, acting through the UK Border Agency ("the UKBA"), and damages for false imprisonment and compensation for violation of his rights under Articles 3, 5 and 8 ECHR in respect of detention from April 2010 until his release on bail on 29 September 2010 pursuant to the Order of this Court dated 21 September 2010.
This case raises the difficult issue of the detention of those who suffer from mental illness and raises serious questions about the handling of such issues by the UKBA and Home Office in the present case.
Proceedings were begun on 28 July 2010 and permission was granted by Neil Garnham QC (sitting as a Deputy High Court Judge) on 21 September 2010. He also granted bail on terms which, by common agreement, have been complied with by S and which, also by agreement, I relaxed at the conclusion of the first part of the hearing on 16 March. The Defendant filed an acknowledgment of service and summary grounds opposing the grant of permission on 20 August 2010 and should have filed detailed grounds by late October (see CPR Part 54.14(1)), though she failed to do so. On 20 January 2011, Wyn Williams J. gave directions that the detailed grounds should be filed by 10 February, and also for limited disclosure, though even so no detailed grounds were filed.
The skeleton argument filed on behalf of the Defendant on 3 March 2011 also purported to function as the detailed grounds although no permission was sought to do so. Indeed, it turned out to be an inadequate statement of the Defendant's grounds of opposition, as was made clear at the commencement of the hearing. No objection was taken to the continued defence of the proceedings in principle though I will return to the unsatisfactory conduct of this case by the Defendant later in this judgment.
S's appeal against the refusal of asylum has yet to be heard by the First Tier Tribunal ("FTT") and that issue is not one for me but nonetheless I have to form my own views on the evidence before the Court whether or not they overlap with issues which may in due course arise before the FTT.
The facts
These facts appear in the evidence and, although they have not yet been the subject to any findings by the FTT, are substantially undisputed by the Defendant — although the Defendant reserves her position with regard to the credibility of events which are said to have occurred before S's arrival in the UK. A detailed and helpful cross-referenced chronology was provided to me by Ms Harrison and was not substantially disputed by Mr Waite (subject to the reservation noted). Moreover, from the voluminous evidence before the Court, it appears to me that S's history has been consistently presented from his arrest in 2006 until today to UKBA, the Crown Court, the Prison Service and those providing medical and psychiatric advice and assessment.
In particular, whilst no objective verification of S's history is available, there appears to be no suggestion that S's account of his abuse and mental condition is untrue and a number of independent psychiatric experts have noted the consistency of his account of what happened to him. There is undisputed and substantial medical evidence in the form of a diagnosis of post-traumatic stress disorder ("PTSD") and evidence of physical symptoms consistent with his account of past abuse since he needs treatment for a prolapsed rectum and scarring on his body.
I set out in some detail S's history leading up to the period of detention which is the subject of the current judicial review since it indicates both the consistent history of his mental problems and the extent of information about S which was available to public authorities as a result of the substantial time he spent in custody or detention from August 2008.
Events up to 25 September 2006
S is an Indian national and a Sikh by ethnic origin and was born on 11 November 1976. In 1990, when S was 14 years old his parents were murdered whilst he was present in the house and he was subjected to abuse including anal rape with a bottle by four masked gunmen. It may well be a result of this that four threatening figures feature significantly in S's hallucinations. He left India in June 1994, and travelled to Germany via Moscow, where he remained for about 8 months. While there he was subjected to sexual abuse, raped and forced into prostitution before illegally entering the UK under a false passport in February 1995.
September 2006 – 27 April 2009
S remained undetected and at large in the UK, taking various jobs, until he was arrested for violent criminal offences committed on 25 September 2006. These comprised one count of unlawful wounding and three counts of assault occasioning actual bodily harm, for which he was convicted by Reading Crown Court on 2 February 2009. The offences comprised an unprovoked attack on four people, including two women, which included kicking one of the women in the stomach and biting through one of the men's ears.
Before that conviction he had been remanded in custody since about 11 August 2008 following a failure to answer to bail and committing the theft of two tile cutters, for which he was sentenced to 14 days' imprisonment by the East Berkshire Magistrates on 9 October 2008. S was sentenced at Reading Crown Court to 16 months imprisonment for the above offences, together with the failure to answer to bail, on 9 February 2009. The Judge did not make a recommendation for deportation.
During his time in custody, S was placed on ACCT (Assessment, Care in Custody, and Teamwork) on a number of occasions due to his self-harming (January 2009) and making an attempt at suicide (March 2009), and as a result of being found to be in a very fragile emotional state (April 2009). Whilst in custody a physical examination revealed a rectal prolapse and S was referred to a surgeon.
S's case is that, since coming to the UK, he has formed a relationship with a Polish national (who I will refer to as "K") and her four children who S says he met in 2005. They were engaged to be married in July 2008. As an EU national, K has a right of permanent residence in the UK. It is clear from the evidence that K has regularly visited S whilst in detention and in hospital and has attended meetings to discuss S and his situation.
On 13 February 2009 S claimed asylum and made a human rights claim for leave to remain and submitted evidence of his family life with K and her children. Whilst the UKBA sought reasons from S why he should not be deported on 24 February it did not seek information from K concerning her relationship with S. S has also raised the issue of that relationship in connection with his EEA status but that is not a matter for me to decide although I note that there is significant evidence before the Court regarding the relationship and, for example, the frequency with which she visited S.
April 2009–25 June 2009
At the conclusion of S's sentence, on 27 April 2009 the UKBA determined that S should be detained pursuant to s. 36(1) of the UK Borders Act 2007 (notified by letter dated 28 April 2009) pending deportation and the decision recorded some of S's history and S's claim that he had had a partner in the UK for some years. It was proposed that deportation be pursued. Similar points were made at the first review on 9 May when it was also noted that "he is believed to be in good health" and "there are no compelling or compassionate circumstances". It soon became clear that this description was inaccurate.
During this first period of his immigration detention, S was again placed on ACCT due to his very low mood and his threats of self-harm. The nature of the threats, which were consistent visual and auditory hallucinations suffered by S, took the form of threats from four threatening figures who told S to kill himself. He was placed on anti-psychotic medication. However, this situation continued and S again self-harmed by cutting his wrists twice in late May 2009 and on 1 June made a ligature out of his shoelaces — which led to S being placed on constant watch. H & M, solicitors then acting for S, made representations to the UKBA on 22 May 2009 (reiterated on 3 June) about S's rape (enclosing medical evidence), asked the UKBA to arrange for a medical assessment at HMP Bullingdon and sought temporary admission to K's address indicating K was willing to accommodate him. S again sought asylum on 31 May 2009 and further representations were made by him and his solicitors with regard to his mental condition (he wrote on 7 June 2009 "I have severe mental problems due to all the torture and family problems which I have gone through") and the physical result of his being sexually abused.
Despite the ACCT and these events, the UKBA detention...
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