R (D) v SSHD

The court held that the claimant's immigration detention from 23 February 2011 to 25 April 2012 was unlawful for multiple public law and human rights reasons. Key legal principles applied included the Defendant's own policy in Chapter 55.10 of the Enforcement Instructions (persons with serious mental illness normally unsuitable for detention), the public sector equality duty under section 149 of the Equality Act 2010, the Hardial Singh principles governing the lawful duration of administrative detention, and the Article 3 and Article 8 obligations under the European Convention on Human Rights.

The judge found that the claimant suffered from serious mental illness (paranoid schizophrenia), that he was not provided with adequate psychiatric assessment or consistently administered anti-psychotic medication while detained (notably no anti-psychotics at Brook House), and that UKBA failed to take proper account of Chapter 55.10 and the section 149 duty. The court concluded that detention breached Chapter 55.10 and section 149 and was therefore unlawful; damages were payable for the period 23 June 2011 to 25 April 2012 (nominal damages only for 23 February–23 June 2011). The court also found an Article 3 breach for 23 February 2011 to 28 November 2011 and an Article 8 breach for the whole detention period.

Background and parties:

• The claimant (a national of Congo-Brazzaville) had a lengthy history in the United Kingdom, prior detentions and a diagnosis of paranoid schizophrenia. The defendant was the Secretary of State for the Home Department (UKBA).
• Procedural posture: permission to apply for judicial review was partially granted by Blair J on 22 February 2012 and expanded on appeal by Sir Richard Buxton on 26 March 2012. The claimant sought declarations that detention between 23 February 2011 and 25 April 2012 was unlawful, damages, and findings of breaches of Article 3 and Article 8 ECHR and of section 149 Equality Act 2010; the claim also relied on Chapter 55.10 of the Enforcement Instructions and the Hardial Singh principles.

Issues before the court:

• Whether UKBA breached its own policy (Chapter 55.10) by detaining the claimant given his serious mental illness and the psychiatric resources at particular IRCs;
• Whether the Secretary of State breached the public sector equality duty in section 149 by failing to have due regard to the needs of a disabled person (mental illness) in decisions to detain and in provision of care;
• Whether the state’s acts and omissions breached Article 3 (inhuman or degrading treatment) and Article 8 (right to respect for private life); and
• Whether the detention was unlawful under the Hardial Singh principles because removal was not imminent or could not be effected within a reasonable time and because the Secretary of State failed to act with reasonable diligence and expedition.

Court’s reasoning (concise account):

• The judge accepted the clinical evidence that the claimant suffered serious mental illness and relied principally on contemporaneous medical notes and reports prepared by the claimant's experts (Dr Tracy, serial reports; and Dr Larkin). The court found systematic failings in medical care: the claimant was not given anti-psychotic medication while at Brook House, did not see a psychiatrist at Brook House or Harmondsworth, and medical record-keeping was inadequate.
• On Chapter 55.10 the court held that decision-makers failed to consider whether the claimant's illness could be satisfactorily managed at the IRCs where he was held. Detention at Brook House breached that policy; even had detention commenced at Harmondsworth or Colnbrook it would have become clear within a few months that satisfactory management was not occurring. The result was that the detention breached Chapter 55.10 and was unlawful.
• On the equality duty (section 149) the court found that UKBA had not had due regard to the needs of a disabled person: no substantive consideration was given to removing or minimising the disadvantages caused by the claimant's mental illness, reinforcing the unlawfulness of detention.
• On Convention rights, the court found treatment at Brook House and Harmondsworth amounted to inhuman treatment in breach of Article 3 (23 Feb–28 Nov 2011). The medical regime at Colnbrook was superior and did not cross the Article 3 threshold, but the Article 8 right to respect for private life was breached for the whole period due to adverse effects on the claimant's mental stability and inadequate and delayed psychiatric management.
• Applying the Hardial Singh principles and Lumba guidance, the court concluded that, even absent the policy and equality findings, the detention became unreasonable by 23 June 2011 and that reasonable diligence to secure removal (complicated by delayed nationality verification with the Congolese authorities) was not shown; accordingly damages were awarded for unlawful detention from 23 June 2011 to 25 April 2012 (nominal damages for 23 Feb–23 Jun 2011).

Relief and next steps:

• The claim succeeded on the public law and human rights grounds set out above. The judge declined to make separate declarations as unnecessary, and directed a separate hearing or agreement process to determine quantum of compensation.

The claim succeeded. The court found the claimant's detention from 23 February 2011 to 25 April 2012 unlawful because UKBA failed to apply Chapter 55.10 of the Enforcement Instructions and failed to have due regard to the Equality Act 2010 s.149; the detention breached Article 8 for the whole period and Article 3 for 23 February 2011 to 28 November 2011; and, applying Hardial Singh / Lumba principles, the detention became unreasonable such that the claimant is entitled to damages from 23 June 2011 to 25 April 2012 (nominal damages for 23 February–23 June 2011). The judge gave reasons based on inadequate psychiatric assessment, failures to ensure medication and delays in pursuing nationality verification required for removal.

Permission for judicial review was initially partially granted by Blair J on 22 February 2012; that grant was expanded on appeal by Sir Richard Buxton on 26 March 2012. Earlier interlocutory steps included a refusal of permission on paper by Blake J (27 September 2011) and other permission activity recorded in the contemporary file; the court directed the parties to secure an up-to-date psychiatric assessment (Sir Richard Buxton, 26 March 2012).