Thompson, R (on the application of) v Secretary of State for the Home Department

The fact that a detained person develops mental illness while in lawful detention does not, without more, establish a presumption that the State caused the illness or breached a duty. A claimant must provide evidence from which unlawful conduct or breach of duty can properly be inferred. The Strasbourg approach to unexplained physical injuries sustained in custody does not automatically extend to mental deterioration. Where that factual nexus is absent, ordinary principles apply and a claim based on removal to a country with less developed medical facilities cannot meet the high threshold for resisting removal.

The claimant, a Jamaican national, had been convicted of supplying a Class A drug and was subject to a deportation order. While detained pending removal, she developed depressive illness. After release and subsequent re-detention, she made further submissions which the Secretary of State refused to treat as a fresh claim under paragraph 353 of the Immigration Rules.

She renewed an application for permission to seek judicial review after permission had been refused on the papers by Stanley Burnton J. The central issue was whether the claimant’s deterioration in mental health during detention, together with the greater availability of psychiatric care in the United Kingdom, made her proposed removal unlawful.

1. Permission refused. The renewed application was unarguable and the claimant’s removal was not stayed.
2. The Strasbourg jurisprudence concerning injuries sustained in custody, illustrated by Yuksel v Turkey, is readily applicable to physical injury. It does not create a comparable presumption where a person lawfully detained develops a mental illness. Detention itself may adversely affect mental health, without any unlawful act or breach of duty.
3. In a mental-health case, the claimant must at least produce evidence from which the court can infer that deterioration resulted from unlawful conduct or breach of duty by the State. The medical evidence here said only that delayed recognition and treatment might have adversely affected the claimant. That was a possible hypothesis, not evidence establishing the necessary causal basis.
4. If such a factual basis were established, it would be arguable that the Secretary of State might have a duty, so far as possible, to improve the claimant’s medical condition before removal. The judge expressly left the ultimate merits of that argument open.
5. On the evidence actually available, the claimant had shown lawful detention, deterioration in mental health, and better-developed facilities in the United Kingdom. Jamaica nevertheless had adequate mental-health facilities. Applying ordinary principles and the high threshold identified in N v Secretary of State [2005] 2 WLR 1124, the claim could not succeed.
6. The claimant was ordered to pay the costs of preparing the acknowledgment of service, assessed at £480. Permission to appeal and a stay were refused; any application for those remedies had to be made to the Court of Appeal.

• High Court (Administrative Court): permission to apply for judicial review had first been refused on the papers by Stanley Burnton J. Mitting J refused the renewed application on 14 January 2008.