The Queen (on the Application of Mustafa Moussaoui) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LINDBLOM |
| Judgment Date | 03 February 2012 |
| Neutral Citation | [2012] EWHC 126 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/8262/2010 |
| Date | 03 February 2012 |
[2012] EWHC 126 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lindblom
Case No: CO/8262/2010
Ranjiv Khubber and Gilda Kiai (instructed by Turpin & Miller) for the Claimant
Jonathan Auburn (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 19 and 20 September, and 3 November 2011
Further written submissions: 12 and 13 January 2012
Introduction
This is a claim for judicial review of the detention of the claimant by the defendant, the Secretary of State for the Home Department ("the Secretary of State"), under powers provided by the Immigration Act 1971 ("the 1971 Act"). The claimant's detention lasted from 17 May to 29 November 2010, when he was released. The challenge in its amended form was made on four grounds: first, that the Secretary of State failed properly to apply her own policy for the detention of those suffering from mental illness; secondly, that the claimant's detention offended the principles acknowledged in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 and in many subsequent cases; thirdly, that the Secretary of State misused the relevant statutory provisions, in paragraph 16 of Schedule 2 and paragraph 2 of Schedule 3 of the 1971 Act; and fourthly, that the Secretary of State failed to keep the claimant's detention under review. Permission to apply for judicial review was granted by Nicol J on the first of those four grounds. The Secretary of State later accepted, in the light of the Supreme Court's decisions in R (on the application of Lumba) v The Secretary of State for the Home Department [2011] UKSC 12 and R (on the application of Kambadzi) v The Secretary of State for the Home Department [2011] UKSC 23, that her failure to carry out formal reviews of the claimant's detention was unlawful, and thus conceded – though only in this respect – that the claimant's detention had constituted the tort of false imprisonment. However, the Secretary of State contended that the claimant would and could lawfully have been detained in any event, and that no more than nominal damages should be awarded to him. This became the main contest between the parties. The case was subsequently adjourned for a hearing of those parts of the claim that remained in dispute.
Background
The claimant's nationality was for a long time in doubt, but it is now acknowledged by him, and accepted by the Secretary of State, that he is a national of Algeria, born on 11 October 1989. He arrived in the United Kingdom on the back of a lorry on 4 July 2006. Initially he adopted the alias of "Karim Snousi" and said he was Palestinian, but claimed asylum, on 20 July 2006, as a Moroccan national, under the name "Mustafa Moussaoui". His age was disputed. Kent County Council ("Kent") conducted an age assessment, which found his date of birth to be 11 October 1987. At first the claimant said that he came from the Polisario region of Morocco. The Secretary of State treated him as Moroccan. Later in July 2006 the claimant said he was Algerian. His first screening interview was to have taken place on 20 July. The interview was suspended as the claimant wanted an Algerian interpreter and said he was not feeling well. He said he had mental and psychological problems. On 25 July his age was assessed again, this time by the London Borough of Croydon Council ("Croydon"), and his date of birth was found to be 11 October 1989. On 27 July he was sent to NASS accommodation, but failed to arrive there and was recorded as an absconder. On 5 August 2006 his interview by the Secretary of State's officials was suspended because they were "unhappy with the mental state of the subject". Concerns about his mental health were again raised on 10 August during another screening interview. On 15 August 2006 his asylum claim was refused. On 5 September 2006 he was served with notice of his removal from the United Kingdom to Morocco. On 2 October 2006 he was reprimanded for common assault, under section 39 of the Criminal Justice Act 1988.
On 16 January 2007 a further age assessment was undertaken by Croydon. The claimant's date of birth was now found to be 10 November 1989. It was noted that his mental health required "urgent medical assessment", that he was a "vulnerable young person because of his experience of drug taking and mental health problems" and that "his general personality might be perceived as an adult person". On 5 March 2007 Croydon indicated that it was now relying on the age assessment conducted by Kent. On 26 April 2007, in a further age assessment, the claimant's date of birth was estimated as being 10 November 1987. The Secretary of State now regarded him as an adult. On 9 May the claimant harmed himself at the offices of Croydon Social Services and was taken to hospital. On 4 June 2007 a further claim for asylum was refused. The claimant was again served with notice of removal, and also with notice of his liability to be detained. On 20 June 2007 he appealed against the refusal of his claim for asylum. He did not attend, nor was he represented at, the hearing of that appeal, which took place on 18 July 2007. On 25 July 2007 the AIT dismissed the claimant's appeal. On 2 August 2007 his appeal rights were exhausted. On 10 September 2007 he was convicted by the Balham Juvenile Court of theft and attempted theft, and received a referral order of six months. On 28 November 2007, at West London Magistrates' Court, he was convicted of attempted theft and sentenced to three months' detention in a Young Offender Institution. On 24 December 2007, at Balham Juvenile Court, he was again convicted of theft, and was sentenced to 12 weeks' detention.
On 9 March 2008 the Secretary of State's officials recorded that the claimant was suicidal, having attempted to cause himself serious harm, and that he required constant watch. On 26 September 2008, at the Thames Magistrates' Court, he was convicted of three offences – attempted handling, attempted theft and theft – for which he received a total of 10 weeks' detention. On 7 November 2008, at the same court, he was again convicted of theft, and was sentenced to 10 weeks' detention.
On 18 February 2009, at Thames Magistrates' Court, the claimant was convicted of two counts of theft and sentenced to a total of six months' detention. On 22 April 2009 he was again served with notice of deportation. On 14 May 2009 he was sectioned under the Mental Health Act 1983. On 29 June 2009 he was transferred from hospital to the Islington Drug Intervention Programme. He was discharged from this programme in July 2009. His discharge summary, prepared for the Camden and Islington NHS Trust by Dr Nigel Lester, a consultant psychiatrist, and Dr Sara Alsaraf, a core trainee in psychiatry, recorded that he had "a 4 year history of 'depression' and suicidal thoughts", and went on to say this about his symptoms and the circumstances of his admission:
" Mood – worsened recently – feeling angry, low mood, fatigued, cutting self more, anhedonia, fighting people. Only thing he enjoys is drugs. Has cut himself frequently in the past – last cut 2/12 ago.
The day prior to admission, he went to Tower Bridge to jump off it, wanting to kill himself. This was triggered by frustration at his probation officer.
On initial assessment he still wanted to end his life – thoughts of jumping off building, off bridge, in front of train, OD of valium, walk in front of car, eating batteries. No current active plan, but concerned he may attempt one of these.
He also reported some pseudohallucinations.
In the past 4 years – multiple attempts (8–9) at suicide – tried to hang himself in prison, ate batteries and ate metal. Never succeeded – unable to say what stops him/protective factors.
It was felt that he was suffering from moderate depression with poly substance misuse and psychotic experiences likely secondary to drug misuse rather than psychotic depression. Problems maintained by ongoing social situation (unable to claim benefits/housing due to problems with ID). He was admitted informally".
Under the heading "Summary of progress/significant events while in hospital", the discharge summary stated:
"[The claimant] admitted to £200 of crack use per day and was stealing in order to obtain drugs. He has been in and out of prison. He already has a substance misuse worker from St [Giles'] Trust for resettlement for offenders. He did not appear psychotic and was no longer suicidal and was therefore discharged. However, a day later he took an overdose and was readmitted informally. He was not noted to be psychotic. He went out and returned to the ward intoxicated and appeared elated on his return. He became abusive towards staff and attempted to hit a member of staff. He was therefore discharged from hospital."
As to the "Ongoing issues at discharge" the discharge summary states:
"Substance Misuse
No fixed abode
Isolated
Impulsive attempts to end life".
At the Oxford Magistrates' Court, on 4 September 2009, the claimant was convicted of theft. For this offence he was later – on 18 September 2009 – conditionally discharged for nine months.
On 17 May 2010 the claimant was arrested by the police. His custody record stated his nationality to be French. On 18 May 2010 he was convicted by the Oxford Magistrates' Court of failing to surrender to custody at the appointed time, on 2 October 2009. No separate penalty was imposed for that offence.
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