R (on the application of EH) v Secretary of State for the Home Department  EWHC 2569 (Admin)
1 Crown Office Row's Robert Kellar was instructed for the Defendant in this case. He is not the writer of this post.
The High Court has ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part.
The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events. The Home Secretary refused the application and the Claimant appealed. At the appeal he was unrepresented and he adduced no medical evidence. The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted (that is, he was unable to appeal any further through the courts), the Secretary of State detained him on 19 October 2010 for the purpose of removal.
At the time of detention he suffered from depression and post-traumatic stress disorder (PTSD). His mental health deteriorated during five months of detention, evidenced by acute episodes of PTSD and attempted suicide, and he was eventually released on 1 March 2011. Subsequently, the Defendant cancelled removal directions and granted the Claimant discretionary leave to remain.
There were a number of issues in this case. Most important was the issue of whether detention between 26 October 2010 and 28 December 2010 was lawful, the Defendant having conceded that detention was unlawful from 29 December 2010 to 1 March 2011, and the Claimant having conceded that the first week of detention was lawful.
Lawfulness of detention from 26 October 2010 to 28 December 2010
The key question was whether the Claimant should have continued to be detained given his mental health and his claim that he had been tortured.
Mrs Justice Lang held that the Defendant was aware from the early days of detention that the Claimant was reported to be suffering from mental illness, namely depression and PTSD. However, on the basis of the initial assessments, the Defendant was entitled to conclude that the Claimant was not suffering from a "serious" mental illness, under paragraph 55.10 of the EIG policy. It was held that only by 4 November 2010 was there sufficient evidence to indicate that this was the case.
The Judge held that prior to the Defendant's response to a Rule 35 report (Rule 35 requires healthcare staff to report particular cases of concern) on 24 December 2010, there was nothing in the formal Detention Reviews or the immigration case notes to suggest that the Claimant's mental illness was taken into account when his detention was being reviewed. The absence of any such references led the Judge to infer that the Defendant did not have any regard to her policy on the mentally ill. The Judge firmly rejected the Defendant's argument that, in the absence of a formal Rule 35 report, she was not officially notified of his state of mental health and so could not be expected to consider it.
Lang J held that the Defendant had acted unlawfully in failing to consider whether the Claimant should still be detained, under the terms of her policy, even though he was suffering from a serious mental illness from 4 November 2010 onwards. The Defendant should have been able to evaluate the relevant evidence by 16 November 2010 and so detention became unlawful from this date onwards. In coming to this conclusion the Judge reviewed the cases of Lumba (WL) v Secretary of State for the Home Department  UKSC 12 (see our post) and Kambadzi v Secretary of State for the Home Department  UKSC 23 (see our post) which stated that a material public law error, which has a bearing on the decision to detain, will render administrative detention unlawful.
However, the Judge also concluded had the Defendant properly applied her policy, continued detention would have been justified and lawful, given that the Claimant's mental illness, albeit "serious", could be satisfactorily managed in detention. As you may remember from the case of Lumba, in cases where applicants would have been lawfully detained in any event, damages are likely to be nominal.
Independent evidence of torture
The Judge referred to the case of R (on the application of D & K) v Secretary of State for the Home Department & Ors  EWHC 980 (Admin), which held that in cases of alleged torture, independent evidence is ordinarily called for. Whether or not evidence of torture will constitute "independent evidence" will depend upon factors such as the level of experience of the medical practitioner; whether examination was summary or detailed; the way in which the concerns are raised and the strength of those concerns.
The Judge rejected the Claimant's submission that the entries on the Rule 35 Form amounted to "independent" evidence, stating that the nurse had not conducted any psychological or physical examination, nor was she qualified to do so. The Judge held that the Defendant was entitled to prefer the determination of an independent Immigration Judge who had assessed the Claimant's evidence and rejected it (although the Immigration Judge did not have any medical evidence before her).
A breach of Article 5 ECHR (right to liberty) was found to have occurred, but solely in respect of the periods where the Judge had found that detention was unlawful under traditional public law grounds because of the Article 5(1) requirement that deprivation of liberty be "in accordance with a procedure prescribed by law". In terms of Article 8 (right to family and private life) in light of the Defendant's concession that the Claimant's detention from 29 December 2010 was unlawful, detention from this point was not in accordance with the law as required by Article 8(2). Furthermore, in light of the Defendant's concession that it was not appropriate to detain the Claimant for the legitimate purpose of implementing a firm and effective immigration policy, detention was also disproportionate.
A more detailed analysis was undertaken in respect of Article 3 (inhuman and degrading treatment / torture) .The Judge rejected the Claimant's arguments and held that there had been no breach. The Judge made clear that it did not follow from the Defendant's concession that continued detention from 29 December 2010 was unlawful, that there was a breach under Article 3, since the legal tests are quite different.
The Judge stated that it was the ongoing threat of imminent removal to Rwanda which triggered the Claimant's acute episodes of post-traumatic stress, rather than detention itself. Even where there was expert evidence to show that, despite the care available, detention was exacerbating the Claimant's mental illness, it did not follow that the Claimant was subjected to inhuman or degrading treatment or punishment.
Reference was made to the recognition by the European Court of Human Rights that a degree of suffering is an inevitable consequence of detention; the question the Court has to go on to determine is whether any additional level of suffering by a mentally ill detainee amounts to inhuman or degrading treatment. A decisive factor in the Judge's conclusion that there was no breach of Article 3 was the high standard of care which he received in detention.
This case is the latest in a series of decisions where the Home Secretary has been found to have unlawfully detained an asylum seeker. It highlights the ongoing tension inherent in managing serious mental health conditions in a detention context, and the extent to which medical care, however good, can sufficiently deal with the exacerbation caused by detention itself.
Where the Claimant did fail was in challenging the lawfulness of the detention policy itself on the basis of its wording and its application, Mrs Justice Lang holding that it was not the function of the Court to usurp the Defendant's role by suggesting revisions of policy.
However the question of the lawfulness of the policy, in relation to its reformulation in August 2010, is still yet to be finally decided. The Claimant relied upon the point in HA (Nigeria) v Secretary of State for the Home Department  EWHC 979 (Admin) that the re-formulation was unlawful since the Home Secretary had not complied with relevant statutory equality duties . The Claimant, however, reserved his position on this point pending the outcome of the appeal. It therefore remains to be seen, if the Court of Appeal upholds this finding, how many more unlawful detention claims we will see in the future.
What is clear is that regardless of the outcome of HA (Nigeria), any case concerning the mentally ill or torture survivors will invariably turn on independent medical evidence. This case seems all the more tragic given that the Claimant, a victim of the Rwandan genocide, went through the asylum appeals process disbelieved, and then was detained before his account of the attack was eventually accepted and he was granted discretionary leave. One is left wondering whether this case might have been resolved much earlier had there been expert medical evidence available at the outset.