The Queen (on the application of S) by his litigation friend The Official Solicitor and The Secretary of State for the Home Department and Nestor Primecare Services Limited [2014] EWHC 50 (Admin)

The claimant “S” claimed damages for his alleged unlawful immigration detention and for the alleged series of significant breaches of the Secretary of State for the Home Department of the policies relating to immigration detention, the detaining of those suffering from mental illness and the treatment and conditions of detention of such immigration detainees.

S, a Ghanaian, had been unlawfully resident in the UK since 2005.  He entered on a six month visitor visa and remained as an unlawful overstayer.  He was arrested by the police in 2011, having been brought to their attention by behaving strangely in the street.  No passport, valid or invalid, was found in S’s possession.  From the outset, he was considered to be subject to and fit for administrative removal and his arrest and his detention were maintained on that basis.

S was detained for a period of 110 days, counting the day of arrest and the day of his release from detention.  He was released from detention on the orders of an Immigration Judge who had been listed to hear his asylum appeal.  On considering S’s appearance, behaviour and demeanour, and from reading two psychologists’ reports, the Immigration Judge found that he was unfit to participate at the hearing.  He was lacking in capacity and incapable of representing himself.

S’s behaviour immediately prior to his arrest, and his behaviour whilst in detention, were now known to have been symptoms of florid and largely untreated psychosis, which had now been diagnosed as paranoid schizophrenia.  This illness had started to develop some months earlier, but was, prior to his arrest, wholly untreated.  The illness was only brought under control after S had been released from detention and had been treated by a community based psychiatric team.

S’s claim was based on a series of allegations to the effect that his detention from the outset and throughout was unlawful because it infringed the Secretary of State for the Home Department’s policies of detention and policies of detention of those suffering from mental illness.  S argued that he was never properly assessed, save on two occasions by an independently instructed psychologist, whose reports were completely ignored by those responsible for his detention.  He was considered from the outset to be fit for detention, fit for participation in his lengthy immigration and asylum claim and proceedings, fit for removal and fit for flying and, although unfit for all of those activities, was left virtually untreated throughout the period of detention.

The judgment examined S’s claims in four stages:

(1) a consideration with specific findings of fact of each of the four stages of detention;

(2) an analysis of the S’s claim and of the various legal issues that arose in the consideration of the claim;

(3) a consideration of the general features of the claim and

(4) a detailed discussion and series of findings.

The conclusion reached by His Honour Judge Anthony Thornton QC was that S’s detention was throughout unlawful and that each of the decisions taken to detain and to confirm his detention were also unlawful as being Wednesbury unreasonable, and unlawful as having failed to take into account highly significant facts related to S’s mental health.

 

It was stated that particular failings arose from the failure by

  • Immigration Officers to visit or interview S whilst he was in Corby Police Station:
  • by Colnbrook Healthcare Centre to report, and to ensure that its locum psychiatrist, who correctly assessed S but whose assessment was never reported to anyone or acted upon, issued or caused to be issued a revised IS91 and a Rule 35 report (these were never issued);
  • by Harmondsworth Healthcare Centre who failed to treat or manage the mental illness of S throughout his time in Harmondsworth;
  • and by the various Immigration Officers who failed to pick up and give effect to the evidence of S’s serious mental illness and to obtain further details from all three detention locations which would have highlighted it.

 

It was also found that, in addition to establishing that his detention was unlawful, S established that those responsible for his detention and for his assessment, treatment and illness management in detention were in breach of his rights that were protected by Articles 3 and 8 of the ECHR.

The court held that S would be entitled to substantial damages for the unlawful detention, since he would not have been held in detention for any part of the claimed period had the Secretary of State for the Home Department operated its policies lawfully, and if necessary, additional damages for the sustained breaches of Articles 3 and 8 of the ECHR.

It was stated that these damages for unlawful detention would need to reflect not only the period of unlawful detention but also the conditions under which S was detained and an additional award to provide just satisfaction would be needed for the breaches of Articles 3 and 8 if and to the extent that S’s damages for unlawful detention did not fully and fairly reflect satisfaction for the matters giving rise to those breaches.

In his final concluding remarks His Honour Judge Anthony Thornton QC stated that S had only been able to bring this case, and indeed was only able to secure his release from detention, because he had the good fortune to be advised by a duty immigration solicitor who was far-sighted enough to seek Medical Justice’s assistance to arrange for an independent psychiatric assessment of him in Harmondsworth who then arranged that assessment and S’s representation by experienced detention solicitors. He was also fortunate that those representing the Secretary of State for the Home Department did so with similarly high standards of professionalism. It is to be hoped that the Secretary of State for the Home Department will ensure that the difficulties that this case had been beset would be eradicated so that unlawful detention claims involving healthcare issues could be processed and conducted fairly, expeditiously and with appropriately qualified and resourced representation.

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