09 OCT 2014
MD, R (On the Application Of) v Secretary of State for the Home Department  EWHC 2249 (Admin); (2014) PLLR 095
Queen’s Bench Division, Administrative Court, Mr Price Lewis QC
8 July 2014
(1) The claimant, a native of Guinea, challenged the lawfulness of her detention as being in violation of the Hardial Singh principles, in breach of Article 3, 5, and 8 of the ECHR and seeks damages for false imprisonment and compensation for violations of her rights under the ECHR. She further argues that the defendant’s policy on the detention of individuals with mental illness is unlawful.
(2) In 2011, the claimant travelled to the UK to reunite with her husband (who was granted refugee status in the UK in 2009) after being granted a family reunion visa in Sierra Leone. She had been married to her husband since 2004, and was 24 years old when she arrived in the UK. She was not formally educated, and spoke Fula, her native language, some French and almost no English.
(3) She was detained upon her arrival after incorrectly stating her age as 16 or 17 at the airport. Her passport and entry clearance were valid and consistent with her husband’s asylum application of 2008, but officers expressed concerns that she was ‘noticeably younger’ than the age suggested by her passport. The claimant’s visa was suspended, with officers noting concerns that the claimant was being trafficked.
(4) The claimant experienced significant difficulties with language, being interviewed first in English then in French before a Fula translator was obtained, and gave a number of inconsistent statements about her age and the date of her marriage, though maintained that her date of birth was that given on her passport throughout the interviews.
(5) Her entry clearance was cancelled due to her inconsistent statements, leading to concerns that she was being evasive and that her identity had not been established. She was taken into adult detention, despite the stated concerns that she might be a minor. Her detention was initially reviewed at 7-day intervals.
(6) A month later, UKBA officials were satisfied of the claimant’s actual age and that she was not a trafficked minor. However, the defendant continued to detain her on grounds that she had shown no sign of being cooperative or honest and was likely to fail to comply with conditions of release, and that her husband was highly unsuitable due to his ‘dubious immigration history’ and aggressiveness with UKBA officials when his wife was taken into detention. The claimant’s entry clearance was cancelled on the grounds that UKBA was satisfied that false representations were made in obtaining it. The UKBA made further notice of its had doubts that she was in an genuine, subsisting relationship with her husband, and that she stopped an interview in French despite having spoken in it previously.
(7) The FTT denied the claimant’s appeal, finding her and her husband not to be credible witnesses and not being satisfied of their genuine and subsisting relationship. The claimant exhausted her appeal rights on 23 August 2011. Removal directions were set for 28 August 2011, though these and 6 other removal directions were cancelled over the next several months.
(8) During her four months in custody, the claimant began to self-harm, doing so on at least 11 occasions between August and November 2011, including at least one attempt to strangle herself. A physician provided by the charity Medical Justice assessed the claimant in October 2011 and found her to be suffering from an adjustment disorder which was placing her at risk of serious injury.
(9) Judicial review proceedings were lodged, and her most recent removal directions (set for 22 October 2011) were cancelled. The defendant concedes that the doctor’s report was not fully addressed in the claimant’s subsequent reviews, nor was the defendant’s policy on not detaining those suffering from mental illness explicitly considered. The defendant contended that there was no evidence the claimant had a serious mental illness and steps were in place to manage any mental illness she had.
(10) In February 2012, a consultant psychiatrist diagnosed the claimant with major depression with psychotic features and found that the claimant was unfit for detention during subsequent visits. The claimant’s ongoing judicial review was refused on 4 April 2012, but the application for permission was renewed and was outstanding at the time of the claimant’s release. A second psychiatrist saw the claimant in July 2012 and confirmed the views of the first psychiatrist, expressing serious concerns about the lack of treatment given. The claimant was continuing to self-harm during this period.
(11) The claimant was released from detention in September 2012 when the Official Solicitor lodged the present judicial review of her detention, the OS being appointed after the claimant had lost capacity resulting from her mental condition. The claimant was released on condition that she live with her husband, report to an immigration officer fortnightly and provide her medical records. The UKBA agreed that at this time, her removal was no longer imminent.
(12) She was seen by another psychiatrist after her release, who confirmed earlier diagnoses and found she was recovering. He found that her detention did not exacerbate a pre-existing mental illness, but caused the onset of one.
(13) The claimant brought suit on 5 grounds:
(1) decision-making around her initial detention upon her arrival was flawed by public law errors including irrationality;
(2) from the time the first judicial review was lodged and thereafter the detention was unlawful because it breached Hardial Singh principles 2 and/or 3;
(3) detention was incompatible with the defendant's policy on detention in Chapter 55.10 of the Enforcement Instructions and Guidance (EIG) relating to the mentally ill from various points in time;
(4) the policy in Chapter 55.10 was in any event unlawful as incompatible with section 149 of the Equality Act 2010; and
(5) the detention and/or conditions of detention were incompatible with the claimant’s Convention rights under ECHR Articles 3, 5 and 8.
(14) HELD: The Claimant's detention was unlawful by reason of a breach of the third Hardial Singh principle from October 22 2011 onward, and the last 7 months of her detention were unlawful due to the failure of the Defendant to properly understand and apply her policy regarding the detention of those with serious mental illness to the circumstances of the claimant's case.
(15) The claimant's detention was unlawful both at common law and under Article 5 of the ECHR. Her treatment by the defendant by failing to treat her mental illness through months of detention amounted to inhuman and degrading treatment in breach of Article 3 of the ECHR.
(16) As a preliminary issue assessing whether late documents could be considered, the court found that it was necessary for it to be fully appraised of the events in the case and that the parties had not suffered any prejudice as a result of the late disclosure.
(17) On ground (1), the court found that there was no irrationality in the decisions taken by the defendant on the first two days the claimant was in the UK. The claimant’s inconsistent answers made it reasonable to assume that her visa had been obtained by false representations. Additionally, there had not been a breach of policy in finding that she was at risk of absconding.
(18) Ground (2) succeeded from 21 October 2011 until the claimant’s release. The court found that the facts available did not justify the FTT’s finding that the claimant’s husband had a ‘dubious immigration history,’ and his aggressive manner upon learning of his wife’s detention was unreasonably used to support the conclusion that he was an unsuitable sponsor. Because the conclusions of the previous reviewing courts were unreasonable, the court was entitled to form its own view on the matters at hand. The court found that that the claimant had close personal ties with her husband, who was lawfully resident in the UK. Given the incidents of self-harming and the report of the non-psychiatrist doctor in October 2011, there was sufficient material for the defendant to have needed to take a full look at the continuation of the claimant’s detention under the circumstances. The medical evidence also raised questions as to the way the claimant had initially answered questions upon her arrival. The defendant could have imposed strict conditions of bail, as it had become apparent the defendant would not be able to effect administrative removal within a reasonable period.
(19) Ground (3) succeeded, with the court finding that the circumstances in the present cases were not very exceptional as to justify further detention after the claimant’s severe mental illness had become clear by 16 February 2012. The defendant did not properly consider information being given to her by doctors that the claimant’s mental illness was not being adequately managed in detention.
(20) On ground (4), the claimant’s challenge to the lawfulness of the detention policy for mentally ill individuals on the basis of violating section 149 of the Equality Act 2010 failed. The court was bound under LE(Jamaica) and found that s 149 was not engaged.
(21) The court found a violation of the claimant’s Article 3 rights on ground (5). The claimant’s mental disorder was caused by her detention, rather than being a pre-existing condition. The treatment provided was inadequate, leading to the deterioration of the claimant’s condition and her continued suffering. The claimant developed post-traumatic stress disorder as a result of her detention, which included periods of handcuffing and isolation to control her behaviour. Her treatment showed a serious lack of respect for her suffering and human dignity, going well beyond the inevitable elements of detention. The court found breaches of the positive aspect of Article 3 in that the defendant did not have in place measures to ensure that the claimant's mental health was properly examined and considered and such measures as were in place were not used effectively to diagnose and properly treat and manage her condition. These breaches were ongoing from October 2011.
(22) This detention gives rise to damages which will need to be determined either by agreement or further hearing with a master.
 – Failure to comply with procedural requirements
 – Irrationality
 – Breach of policy
 – Suitability of sponsor
 – Unreasonable conclusions
- – Evidence of mental health problems
 - Breach of Hardial Singh principles
 – Breach of Hardial Singh principles
- – Severe mental illness apparent
- – Detention of people with mental illness
 – Challenges under Equality Act s 149
 – Adequacy of treatment
- – Breach of Article 3
 – Timing of Article 3 breaches
 – Damages
 – Conclusion