Thompson, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 107 (Admin)

[2008] EWHC 107 (Admin)Case No CO/10467/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 14th January 2008
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE MITTING
Between
THE QUEEN ON THE APPLICATION OF THOMPSONClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr P Nathan (instructed by Duncan Lewis & Co) appeared for ClaimantMr R Dunlop (instructed by the Treasury Solicitor) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE MITTING: This is a renewed application for permission to apply for judicial review, permission having been refused on the papers by Stanley Burnton J.[2]The matter has a long history. The claimant is a citizen of Jamaica. She entered the United Kingdom lawfully on 24th January 2001 with leave to remain for six months. Her leave was extended until 20th April 2003. In March 2003 she married a British citizen and was granted leave to remain as a spouse until 22nd March 2005. She had no further permission to remain thereafter.[3]On 2nd December 2004 she was convicted at Lewes Crown Court of supplying a controlled Class A drug and sentenced on 18th July 2005 to 18 months' imprisonment. The court recommended that she be deported. She was detained under immigration powers on, or very soon after, the expiry of her criminal term on 3rd September 2005. She was then in good health. She was served with notice of intention to deport on 18th October 2005. She appealed against that decision. Her appeal was dismissed by the Asylum and Immigration Tribunal on 30th November 2005 and the deportation order was signed on 11th January 2006 and served on her five days later.[4]There were difficulties in obtaining an emergency travel document from the Jamaican High Commission. Meanwhile she developed a depressive mental illness. She was seen by a consultant psychiatrist, Dr Duggan, in June 2007 and, as a result of her detailed report of 13th June 2007, a decision was taken to release the claimant from detention on 19th June 2007. The decision was taken, I think I am right in saying, following judicial intervention because judicial review proceedings were brought in respect of her continued detention.[5]She was re-detained on 2nd November 2007 and removal directions were set on 6th November for her removal on 26th November. She made further submissions on 15th November 2007 which she invited the Secretary of State to treat as a fresh claim under paragraph 353 of the Immigration Rules. The Secretary of State refused to do so by a decision letter of 21st November 2007. That was challenged on the basis that the reasoning did not follow that of the Court of Appeal in WM and the decision was taken again by a further letter, also dated the same date but compliant with the approach required by the Court of Appeal in WM.[6]In a nutshell, the claimant's case can be put now in this way. Notwithstanding that the Secretary of State would otherwise be entitled to remove her pursuant to the deportation order, nevertheless it would have such an adverse impact upon her mental health that she cannot now lawfully do so. The argument is a refined version of that which is sometimes advanced in these cases. It is not simply asserted that because she suffers from a depressive illness so she should receive the relatively high standard of care available to those resident in this country and not be required to submit herself to the lower standard available in her country of origin, Jamaica. The point is put in this way. Because the deterioration in her mental health occurred while she was in detention two consequences follow. First, it is for the Secretary of State to prove that that deterioration did not occur as a result of any unlawful act or breach of duty on her part, or on the part of her officials, and, in the absence of such proof, she is under an enhanced obligation to care for the mental health of the claimant because she cannot demonstrate that the deterioration in her condition has occurred without fault on the part of her or her officials.[7]The first part of that proposition is derived from familiar Strasbourg jurisprudence which informs the approach of the court when injuries occur to individuals during detention by the State. One amongst many authorities to that effect is Yuksel v Turkey, a decision of 20th October 2004. The allegations are commonplace in such cases. The claimant was detained by Turkish security officers and claimed to have been tortured. She was medically examined. On examination, she was found to have an abrasion on the left side of her nose and a fracture of the front of the eighth of her lower teeth. The Turkish state was unable to explain how those injuries had occurred, she having been uninjured on arrival in detention. The court reminded itself in paragraph 25 of its jurisprudence in these terms:
"The court reiterates that where an individual is taken into custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a full explanation of how those injuries were caused and to produce evidence casting doubt on the veracity of the victim's allegations, particularly if those allegation are backed up by medical reports."
In paragraph 30 of this decision the court held that the State had not discharged their duty.[8]That jurisprudence is readily understandable and easy to apply in the case of physical injuries. In a case such as here of mental illness, it is far less easy to apply. It is not unknown for those who are lawfully detained to be adversely affected in their mental health by the circumstances of their detention. The fact of detention and of the development of a mental condition in detention does not, unlike a case of physical injury, raise the presumption upon which the Strasbourg law relies. It is necessary, therefore, at a bare minimum, for a claimant in such circumstances to put before the court evidence from which the court can infer that the deterioration in her mental state has occurred as a result of some unlawful act on the part of the State or some breach of duty on the part of the State.[9]There is a detailed medical report of 13th June 2007 by Dr Duggan. Nowhere in that report is there any suggestion that any unlawful act or breach of duty on the part of the State has caused her to suffer mentally. What Dr Duggan states in the penultimate paragraph of her report is that her continuing detention is adversely affecting her mental health and that she requires ongoing specialist psychiatric care. She was asked to answer several specific questions in a further letter dated 14th November 2007 prepared for the purpose of these proceedings. In answer to question 2 she noted that following her release the claimant did not continue the antidepressant medication that had been provided for her at the detention centre. In paragraph 4 in response to the question:
"By reference to the previous records would you be in a position, even on a preliminary basis, to comment on the level of care provided to her previously at the centre?"
She stated the following:
"In my opinion the extent of the claimant's mental health difficulties were not promptly recognised by Yarlswood personnel. Generally the longer a person has untreated depression the worse the prognosis. Therefore one can postulate that delay in diagnosis and treatment adversely affected the claimant."
That, as far as I can tell, is the highest at which any claim of unlawful action on the part of the Secretary of State or a breach of duty by her or her officials is put. It amounts, on any ordinary reading, to no more than a possible hypothesis, that delay in diagnosis and treatment may have affected her condition. It falls very far short of a claim that an unlawful act or breach of duty by the Secretary of State or her officials has caused this claimant to suffer mental illness.[10]Accordingly, the factual premise for the claim that she may not be returned to Jamaica because the Secretary of State has caused her to be ill is not present. I accept that if the factual basis was established for that proposition then it would be arguable that the state remained under a duty to procure, to the extent possible, an improvement in her medical condition before exercising the undoubted right to deport. I emphasise "arguable". I do not say that such an argument could or should succeed, but merely that it would not be utterly hopeless. However, for the reasons which I have indicated, the factual basis for it is simply not present here. All that the claimant can demonstrate is that she has been lawfully detained, that her mental health has deteriorated during detention, and that the facilities for treating it in the United Kingdom are, in Dr Duggan's words, "more developed" than those available in Jamaica. As the Secretary of State pointed out in her decision letter, there are adequate mental health facilities in Jamaica, whether they are more or less developed than those that exist here. If ordinary principles apply, as in my view they do, then this claim is bound to fail to reach the high threshold identified in N v Secretary of State [2005] 2 WLR 1124.[11]For those reasons, albeit explained at some length, this claim ultimately is unarguable. I agree with Stanley Burnton J's decision and I refuse permission.[12]MR NATHAN: I have a number of applications.[13]MR DUNLOP: There is one application for me. I would ask for our costs of the acknowledgment of service. They are set out in the acknowledgment of service at £640.[14]MR JUSTICE MITTING: Is there any point in that? She has been in detention, apart from a few months, since some time in 2004.[15]MR DUNLOP: Potentially there is, my Lord. Your Lordship will remember that she is pursuing an unlawful detention claim for damages.

MR JUSTICE MITTING: Contingent upon her succeeding on that, you want to have something to offset.

[17]MR DUNLOP: Yes, my Lord.[18]MR NATHAN: My Lord, with respect to costs I would make two observations. First, in relation to your Lordship's observation with respect to the usual figure sought in such applications in the earlier case, and whether £640 is rather excessive, particularly in light of the fact that there was not a great deal to deal with in this case. Most of it had been dealt with previously by way of the application before Judge Mackie in which permission was granted, so the four hours claimed, in my submission, seems somewhat excessive. Moreover, my Lord, it must be noted that the paper stage of this case all revolved initially around a decision letter that the Secretary of State herself appears to have acknowledged to have been flawed. That was the basis upon which this claim was put. The original letter was clearly deficient from the point of view of WM and AR, and actually that flaw was only rendered good after the application had been made.[19]MR JUSTICE MITTING: Having had one run at it, the Secretary of State was in a position to do a better job this time more economically than four hours?[20]MR NATHAN: Yes.

MR JUSTICE MITTING: Would you concede the usual three?

[22]MR NATHAN: My Lord, I do not know if one should. We lodged the claim on the basis that he had made a flawed decision. He is seeking an order for costs against us when the claimant was manifestly correct at the time. We come to a permission hearing and clearly our case, in your Lordship's view, is flawed but, of course, the Secretary of State need not have attended this. If the approach in this court were to allow the costs on a permission application for the hearing, I would have difficulty. At the time we lodged our paper application it was manifestly correct because the decision letter was manifestly flawed. For the Secretary of State then to be able to take costs from us when we actually lodged the claim quite correctly, in my submission, would be a little harsh.[23]MR DUNLOP: My Lord, the second decision letter was served on 22nd November. The acknowledgment of service was served on 3rd December, some two weeks after.

MR JUSTICE MITTING: It is the second one you rely on.

[25]MR DUNLOP: Indeed. The claimant had the opportunity, having received the second decision letter, to withdraw. Because the claimant did not withdraw, we then had to produce the acknowledgment of service on the basis of which we won.[26]MR NATHAN: In my submission, if that is the position the Secretary of State takes, there is a pre-action protocol for the claimant to make sure that notice is given. Matters are not ordinarily reviewed all the time, there are pressures of work. It was incumbent on the Secretary of State, if that was the position she was going to take, in my submission, to have put in, as it were, a letter before acknowledgment of service to highlight the fact to those instructing me, and indeed to the claimant, and say "Well, actually, this is the position now. We take on board what you said in your claim but the sands have shifted because we have changed our decision letter. We are going to claim costs from you if you do not withdraw your claim now". They did not do that. In light of that, in my submission, they ought not to be able to claim costs.[27]MR JUSTICE MITTING: Applying ordinary principles, the claimant must pay the costs of preparing the acknowledgment of service which I assess in the sum of £480.[28]MR NATHAN: My Lord, I think it is apparent from your Lordship's judgment that this is to some extent novel and to some extent a different case from the ordinary course of cases, both with respect to mental health and removal but also with respect to detention.

MR JUSTICE MITTING: What is this an application for?

[30]MR NATHAN: It is a dual application. First, an application for permission to appeal, and secondly an application for a stay which I will explain in due course.[31]MR JUSTICE MITTING: I refuse your application for permission to appeal. I have not given judgment on a substantive appeal. I refused permission to argue the claim substantively. You will have to apply to the Court of Appeal for permission.[32]MR NATHAN: My Lord, I have discussed this case. I have spoken at length, both on Friday and this morning, to leading counsel about this case who has expressed the preliminary view that the matter is arguable. I appreciate that differs from your Lordship's perspective. The difficulty is of course one of time. The Secretary of State is proposing to removal the claimant tomorrow week. Leading counsel has some time available but my concern is whether we will be able to lodge an application challenging your Lordship's decision. All the necessary factors taken with a view to first of all lodging, ordinarily the grounds need to be lodged within seven days and the skeleton argument within 21 days thereafter. Those are tight time frames at the best of times. In this instance we would need to file grounds of appeal, skeleton argument and urgent application seeking a stay to the Court of Appeal, probably with a deadline of this Friday for it to go before a judge on the papers on Monday. Those are very tight deadlines given that everyone has court commitments. I know my leader has court commitments this week and I do myself as well. I would be very grateful, in light of what your Lordship said -- your Lordship accepted the general presumption, the burden on the Secretary of State in the course of physical cases. I appreciate your Lordship's suggestion that that presumption should not apply in mental health cases. With respect I am not sure there is a great deal of explanation why it ought not to apply. It may well be I am wrong and that is correct. The time frames are incredibly difficult. Your Lordship has identified that it is not just a run of the mill case. We are all, of course, human beings and there is room for error. All I can say is that I have leading counsel who is rather more persuaded by my arguments than your Lordship and ask at least for a stay to be ordered for a short period to allow us to bring this, with proper and adequate time, before the Court of Appeal for their consideration.

MR JUSTICE MITTING: Mr Dunlop?

[34]MR DUNLOP: My Lord, you will recall that on the papers Stanley Burnton J said that the claimant could be removed without the need for a further oral hearing. The claimant has managed to have an oral hearing. It has been considered on the papers, it has been considered orally and permission has been refused, permission to appeal has been refused. In those circumstances it would not be right, in my submission, to delay removal further, to cancel another set of removal directions. The removal directions should stand. There should be no stay. It should be up to the claimant, if she so wishes, to seek an urgent order from the Court of Appeal. Given that they will be relying on effectively the same grounds that they brought today, in my submission it should not take quite the amount of time that my learned friend is suggesting and that can be done. It is not appropriate for this court, in my submission, to give interim relief, given your Lordship's judgment on the arguability of the case.[35]MR JUSTICE MITTING: Thank you. I refuse the application for a stay. If you seek a stay you must attempt to obtain one from the Court of Appeal. If you are going to seek permission from the Court of Appeal to appeal and/or a stay you will need a transcript of my judgment. I order that one is prepared expeditiously by Friday so that you and the Court of Appeal may have something from me.[36]MR NATHAN: I am very grateful, my Lord. There is just one further matter if I can bring it to your Lordship's attention. I know my learned friend has suggested that we are making a similar claim to that which has already been made to the Court of Appeal. There is a difference because suddenly causation has become the focus of this case. I note what your Lordship said. My understanding of your Lordship's judgment was that I accept that if the factual basis was established then it would remain arguable -- and I will be referring to my instructing solicitor, but I think my understanding was that your Lordship indicated that if the factual nexus between incarceration under the Secretary of State causing the breakdown in mental health was established then the claimant's case might well be arguable. I note your Lordship's reference to the Juno 7 report of Dr Duggan. At that stage there was no reason to ask Dr Duggan what had caused the breakdown. We were relying on the Secretary of State's policy to secure release.[37]MR JUSTICE MITTING: Now is really not the time for rearguing an application I have already determined.[38]MR NATHAN: I apologise if it comes across as seeking to reargue. We have not gone back to Dr Duggan for the reasons I have already explained in the hearing. We can go back to Dr Duggan, and I wonder if your Lordship might be willing to indicate that if Dr Duggan, by way of further report, provides the nexus that your Lordship indicated would have rendered the case arguable, given that these questions have not properly been asked of her. Would your Lordship, first, be willing to indicate what sort of questions should be asked of her, but, if not willing to do that, would your Lordship be minded to indicate that it would not be an abuse of process, if we had that evidence, to come back to the Administrative Court for an out of hours injunction if necessary or by way of fresh application for whether such application should go by way of fresh evidence for the Court of Appeal proceedings.[39]MR JUSTICE MITTING: I am not prepared, I am afraid, to give any further indication of what I might do in eventualities that have not occurred. I have been asked to determine an application. I have determined it. My task is now at an end.[40]MR NATHAN: My Lord, I apologise if I extended to a point of stretching the patience of the court. I am grateful.

MR JUSTICE MITTING: Thank you both.