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Public law and Regulation

Case reports and guidance on public law and professional regulation issues

03 MAY 2013

R (on the application of Das) v Secretary of State for the Home Department [2013] EWHC 682 (Admin); (2013) PLLR 054

Immigration - Detention - Policy - Damages

The Secretary of State had failed to consider the relevant policy as to detention of those suffering from mental illnesses. As such, the Claimant's detention was unlawful.

26 March 2013

Administrative Court

Sales J

(1)        In March 2004, the Claimant arrived in the UK. She was granted leave to remain as an overseas domestic worker. The Claimant worked for the Rahulan family, against whom she later made accusations that they treated her in such a way that it amounted to her being a trafficked person.

(2)        In July 2008 the Claimant sought asylum. Her application was refused by the Defendant on 15 October 2008, and was certified as clearly unfounded. The Defendant was then detained pursuant to deportation. The first period of detention complained about was between 17 October 2008 and 23 October 2008.

(3)        In December 2008, the Defendant withdrew removal directions that had been given and the ‘clearly unfounded certificate'. The Claimant was then granted a temporary admission.

(4)        In November 2011, the Defendant again decided that there were no grounds upon which the Claimant could remain in the UK, and the Claimant was taken into detention again. This second period of detention ran from 7 November 2011 to 12 January 2012.

(5)        The Claimant sent letters to the Defendant during this period of detention, claiming that a fresh claim had been made. The Defendant considered this material and concluded that it did not amount to a fresh claim. Judicial review proceedings were then brought, alleging that this second period of detention had been unlawful and the decision that there was no fresh claim had not been lawfully made. 

(6)        In a hearing on 25 April 2012, the Court granted permission only in relation to the challenge to the second period of lawfulness. The Court also stated that the claim in relation to this period of detention did not prevent the Claimant's removal to India. Removal then took place and the Claimant now resides in India once more.

(7)        The Claimant's challenge in relation to the second period of detention was that during the relevant period she suffered from a mental illness and in detaining her, the Defendant acted contrary to, or without due regard to, his own policy regarding the detention of those suffering from mental illnesses.

(8)        The Claimant relied upon the Immigration Instructions, particularly Paragraph 55.1.3, which stated that ‘detention must be used sparingly, and for the shortest period necessary'.

(9)        The Court determined that the following issues arose:

(a)        Did the Defendant breach a public law duty of inquiry by failing to review a report by a psychiatrist, Dr Sharma, before detaining the Claimant?

(b)        Did the Defendant breach paragraph 55.10 of the immigration instructions and therefore breach the Claimant's legitimate expectations as to her treatment?

(c)        If the detention was unlawful, were substantial damages payable?

(10)     HELD: The Defendant was found to have breached his obligations of inquiry by failing to obtain and take into consideration a psychiatric report by Dr Sharma, which was known to be in existence and to have a bearing on the determination of whether the Claimant was suffering from serious mental ill-health. This failure was found to have extended throughout the second period of detention. The entire second period of detention was thus found to be unlawful.

(11)     Despite clear warnings about the Claimant's mental health, no official acting for the Defendant reviewed the Claimant's position whilst also having regard to the relevant policy. The Defendant thus failed to consider the correct questions under his policy. As a result, the Defendant breached both his policy and the Defendant's legitimate expectation.

(12)     The Court held that the Claimant did not suffer from a ‘serious mental illness' when she was taken into detention and during her detention, and even had Dr Sharma's report been considered, this would not have changed that assessment. As such, the Defendant could and would have concluded that the Claimant should be detained pending removal. Pursuant to the Hardial Singh principles, the Defendant was entitled to detain the Claimant. The Court thus concluded that the Claimant was entitled to a declaration that the second period of detention had been unlawful. However, the Claimant was only entitled to nominal damages in relation to that detention.

Claim succeeded in part

Key paragraphs

[43] - Breach obligation inquiry.

[44] - Failure second period.

[45] - Unlawful.

[46] - Not consider position and policy.

[47] - Breach legitimate expectations.

[63] - Not serious mental illness.

[67] - Would have detained.

[68] - Conclusion.

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