Hall, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 600 (Admin)

Case No CO/2493/2010

[2011] EWHC 600 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 18 March 2011

Before

MR JUSTICE KEITH

Between

R (on the application of Hubert Hall)Claimant

The Secretary of State for the Home DepartmentDefendant

Mr Gordon Lee (instructed by Wilsons LLP) for Claimant

Miss Susan Chan (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing date: 11 March 2011

Judgment

Introduction

[1]The claimant, Hubert Hall, comes from Jamaica. Following an order for his deportation from the UK, he was held in immigration detention pending his removal to Jamaica. In this claim for judicial review, he seeks a declaration that his detention for part of that time was unlawful. A “rolled-up” hearing of his claim was ordered, and this is the court’s judgment following that hearing. It is necessary, of course, to focus on the period of his detention which is said to be unlawful. That period was relatively short – it was from 3 February 2010 to 23 April 2010 – but to put that into its proper context, Mr Hall’s immigration history and the state of his mental and physical health is important.

The facts

[2]Mr Hall’s early history. Mr Hall was born in November 1958 and is now 52 years old. He came to this country in May 1991 when he was 32, and was granted leave to remain in the UK as a visitor for six months. He did not seek to regularise his immigration status when his leave to remain here expired. Over the years he committed a number of criminal offences, for some of which he received sentences of imprisonment, including a sentence in March 2000 of four years’ imprisonment for an offence of attempted robbery. One of the last offences he committed before coming to the attention of the immigration authorities was another offence of attempted robbery for which he was sentenced to 30 months’ imprisonment in June 2003.

[3]The order for Mr Hall’s deportation. Mr Hall came to the attention of the immigration authorities in June 2005 when he was arrested on suspicion of having entered this country illegally and on outstanding charges of assault and failing to attend court in breach of the conditions of his bail. That prompted him to apply for indefinite leave to remain in this country on the basis of his long-term residence here. That application was refused in February 2006 when he was served with a notice of intention to make an order for his deportation. He appealed against the proposal to deport him, but his appeal was dismissed in April 2006, and the High Court subsequently refused to order that his appeal be reconsidered. He then claimed judicial review of the proposal to deport him, but that claim was dismissed in August 2007.

[4]Early thoughts on Mr Hall’s removal. It was then that consideration was given to Mr Hall’s removal to Jamaica. The difficulty was that he had multiple medical problems, and he was thought not to be fit to fly. That was what a medical report on him dated 27 November 2007 while he was in detention pending his removal had said. However, by 21 January 2008, medical staff at Colnbrook Immigration Reception Centre (“Colnbrook”) where Mr Hall was thought that Mr Hall’s condition had stabilised, and that he was fit to fly. Accordingly, directions were set for his removal to Jamaica, but they were cancelled after Dr Sundip Vara, one of the doctors at Colnbrook, had concluded on 13 February 2008 that Mr Hall was not fit to fly. Thereafter, the following views were expressed:(i) On 8 March 2008, Dr Vara said that Mr Hall was fit to travel by sea, though he would require access to a hospital which provided emergency medical care if his condition were to deteriorate suddenly.

(ii) On 1 April 2008, Dr Vara confirmed that Mr Hall was not fit to fly.

(iii) On 16 April 2008, Dr Charmian Goldwyn, a volunteer doctor with a medical charity, thought that Mr Hall was “a heart attack waiting to happen”, and that he was neither fit to fly nor fit to be detained.

(iv) On 22 May 2008, he was considered to be fit to fly, but would require medical escorts. In the light of that last assessment, Mr Hall was to be included on a forthcoming flight to Jamaica, but on 31 May 2008 he was taken to hospital with a suspected heart attack, and on 14 June 2008 he was released from detention on the ground that he was not fit to be detained.

[5]Mr Hall’s return to detention. On 18 June 2008, the consultant cardiologist who had treated Mr Hall at hospital for his heart attack said that Mr Hall was medically stable and fit to fly, but by then Mr Hall was no longer in detention. However, it was not long before he was back in detention. On 8 September 2008, he was arrested on suspicion of wounding with intent and assaulting a police officer. Although he was released on bail two days later, he collapsed the same day and was taken to hospital suffering from chest pains and breathlessness. He was discharged from hospital on 19 September 2008, and returned to administrative detention pending his removal from the UK. While in detention, he was examined again by Dr Goldwyn, who reported on 9 December 2008 that Mr Hall was “certainly unfit to fly. He may never be fit to fly. He is not fit for detention either”. Mr Hall was released from administrative detention, albeit on immigration bail, on 3 February 2009 with a reporting requirement.

[6]Mr Hall’s final return to detention. On 2 November 2009, Mr Hall failed to report as required. Nor did he do so for the two weeks prior to 3 December 2009. Nor did he do so on 4, 11 or 18 January 2010. He was therefore treated as having absconded, and he only came to the attention of the immigration authorities following his arrest on 2 February 2010 for common assault. He was detained under immigration powers on 3 February 2010, which was the date when what is claimed to be his unlawful detention began. He was held at the police station to which he had been taken on his arrest until 5 February 2010, on which date he was taken to Colnbrook. In the meantime, the UK Border Agency (“the UKBA”) was alive to the problems over Mr Hall’s ability to fly, and inquiries were put in hand to see whether a charter aircraft could carry the quantity of oxygen required by Mr Hall if his return to Jamaica by air was to be feasible.

[7]On 6 February 2010, the day after his arrival at Colnbrook, Mr Hall was seen by Dr Jabbar, one of the doctors who worked at Colnbrook. He saw Mr Hall as part of the reception screening which all new arrivals get. Mr Hall told Dr Jabbar that he was experiencing hallucinations and paranoid ideation. Dr Jabbar thought that Mr Hall was medically stable, and he did not at that time have a diagnosis of heart failure, but Dr Jabbar wanted Mr Hall’s mental health to be assessed as a matter of urgency. He took the view that Mr Hall was fit to be detained, but not fit to travel. It is not apparent why he thought that, though since deportees are almost always removed by air, his opinion that Mr Hall was not fit to travel must, I think, have meant that he was not fit to travel by air. It looks as if this opinion was not brought to the attention of the UKBA, because on 13 February 2010 directions for Mr Hall’s removal to Jamaica by air were set for 23 February 2010.

[8]Rule 35. It is here necessary to digress, and say something about a feature of the case which was a major plank in the argument of Mr Gordon Lee for Mr Hall. Rule 35 of the Detention Centre Rules 2001 requires a medical practitioner to report if a detainee’s health is likely to be adversely affected by his detention. The medical practitioner does so on a dedicated form which seeks to get over the problem of confidentiality by including a section in which the detainee gives his consent for the information to be passed to the UKBA. The form has to be sent to the UKBA without delay. Dr Jabbar did not complete that form. That was understandable: Dr Jabbar did not think that Mr Hall’s health was likely to be adversely affected by his detention. His concern was whether Mr Hall could be removed from the UK by air. However, Colnbrook was managed on behalf of the Secretary of State by a private contractor, SERCO, and SERCO’s instructions to healthcare staff included an instruction that the dedicated form to be used when a report had to be made pursuant to rule 35 should be completed when the detainee’s condition made them unsuitable to fly. Mr Lee made the point that if the form had been completed on 6 February 2010, and it had said that Mr Hall was not fit to fly, the directions set on 13 February 2010 for his removal by air on 23 February 2010 would not have been given, and earlier consideration would have been given to whether Mr Hall could be removed to Jamaica in some other way.

[9]The remainder of Mr Hall’s detention at Colnbrook. The history of Mr Hall’s detention at Colnbrook thereafter was as follows:(i) On 15 February 2010, Mr Hall complained of chest pains. An ECG was performed. The results of the ECG were considered by Dr Elizabeth Wilkinson, another of the doctors who worked at Colnbrook. The results were consistent with his known medical history, and she advised that he should be reviewed if his symptoms recurred.

(ii) On 16 February 2010, Mr Hall was seen again by Dr Goldwyn. She was concerned about his condition. She noted that since she had last seen him he had had a pulmonary embolism and a heart attack. He was showing signs of heart failure with breathlessness on exertion and his blood pressure was very high. She said that Mr Hall would be “extremely stressed if put on a flight”, and would be at risk of a heart attack, stroke or pulmonary embolism. She did not say in terms that he was not fit to be detained, but she did say that his condition was worse than on the two occasions she had seen him in 2008, and she left a note for the other doctors at Colnbrook asking them to complete a rule 35 form, so it can be inferred, I think, that she thought that Mr Hall was not fit to be detained.

(iii) On 18 February 2010 Mr Hall was seen by Dr Vara. He complained of chest pains and shortness of breath, although his heart sounded normal. That day, Dr Vara wrote to Hillingdon Hospital asking for Mr Hall to be reviewed at the Cardiology Department as a matter of urgency. He did not think that Mr Hall was fit to fly. He must have thought that Mr Hall was fit to be detained because otherwise he would have had to complete a rule 35 form, though he said that Mr Hall’s fitness for detention would have to be reviewed once the cardiological assessment had been made.

(iv) On 22 February 2010, Mr Hall’s medical notes were reviewed by Dr Christopher Morris, another of the doctors working at Colnbrook. It looks as if he did so because Mr Hall was due to be removed to Jamaica by air the following day, and it was necessary to ascertain whether he was or was not fit to travel by air. That inquiry had been prompted by the claim for judicial review which had been or was about to be filed that day, and which relied on Dr Goldwyn’s view that Mr Hall was not fit to fly. Despite the fact that arrangements had been made for Mr Hall to be escorted by a paramedic, and for oxygen to be available for him, Dr Morris thought that Mr Hall could not fly until the assessment from the cardiologist had been received. His fear was that the pressure in most aircraft is equivalent to the pressure at an altitude of 8,000 feet, and he was unsure whether Mr Hall could cope with that or whether the oxygen which would be available for him would be sufficient. Dr Morris thought that Mr Hall was fit enough to travel by sea, but he was concerned about a trip by sea as far as Jamaica in case Mr Hall became unwell on the trip, and required medical attention of the kind which was not available on the ship. In the light of Dr Morris’ opinion (which confirmed that of Dr Goldwyn) about Mr Hall’s inability to fly, the directions set for Mr Hall’s removal to Jamaica by air on 23 February 2010 were cancelled, and the UKBA began to consider whether his removal by sea with medical escorts and adequate medical supplies was feasible.

(v) On 25 February 2010, Mr Hall was seen by Dr Vara again. He asked for the review by the Cardiology Department at Hillingdon Hospital to be chased up. He must have thought that for the time being Mr Hall could continue to be detained because otherwise he would have completed a rule 35 form. He did not himself consider whether removing Mr Hall by sea was feasible.

(vi) On 5 March 2010, Mr Hall was seen by Dr Nithya Nanda, another of the doctors at Colnbrook. He must have thought that Mr Hall was fit to be detained because otherwise he would have completed a rule 35 form. However, since it had become necessary for the Secretary to State to respond to the claim for judicial review, Dr Nanda was expressly asked for his view on Mr Hall’s fitness for detention and fitness for travel by sea. On 16 March 2010, Dr Nanda reported that Mr Hall had been fit for detention on the day he had been detained. He thought that he was not fit to fly – essentially for the reasons Dr Morris had given – but he thought that Mr Hall was fit to be removed by sea.

(vii) On 21 March 2010, Mr Hall was seen by Dr Jabbar again. He was complaining of constipation. Dr Jabbar thought that Mr Hall was still fit to be detained, but he remained unfit to travel (by which I am sure Dr Jabbar meant unfit to fly for the reasons given in [7] above), because (a) Mr Hall was still experiencing shortness of breath on exertion, and (b) he had not yet been seen at Hillingdon’s Cardiology Department.

(viii) On 6 April 2010, Mr Hall was seen by Dr Wilkinson. He was still complaining of shortness of breath. She prescribed the use of an inhaler and noted that Mr Hall was awaiting his cardiac review. She must have thought that Mr Hall was fit to be detained because otherwise she would have completed a rule 35 form.

(ix) On 8 April 2010, Mr Hall was seen again by Dr Goldwyn. He had a new symptom: he was coughing and there was blood in his sputum. She was concerned that he might have tuberculosis. She understood that Mr Hall had been diagnosed as schizophrenic, as having post-traumatic stress disorder and as having been suicidal in the past. He was depressed and fearful of his possible removal from the UK. She thought that he had aged prematurely. She described him as being in hospital, but that must have meant that he was on Colnbrook’s hospital wing. She did not say that he was unfit to be detained, but she did say that he was not fit to travel any distance by any means. As for the possibility of his removal by sea, she said:

“He would find a sea journey very difficult, adjusting to the movement of the boat and the possible storms in the Atlantic. If he has medical escorts they would need to be expert in emergency care. He may have a heart attack, stroke or pulmonary embolus. They would need to be able to set up an intravenous line and care for him until he could be removed to hospital. His transfer to hospital should be as rapid as possible.” (x) On 11 April 2010, Mr Hall was seen by Dr Jabbar again. This was when Dr Jabbar took the view for the first time that Mr Hall was not fit to be detained. Mr Hall presented with a number of symptoms which suggested heart failure, pulmonary embolism, tuberculosis and other possibilities. A treatment plan was put in place, and a battery of tests was ordered, including a review of Mr Hall’s psychiatric condition. Dr Jabbar asked nursing staff to chase up the appointment for Mr Hall at Hillingdon’s Cardiology Department. Because Mr Hall was no longer fit for detention, he asked for a rule 35 form to be completed. (xi) On 12 April 2010, Mr Hall was transferred to Hillingdon Hospital. He was discharged from hospital ten days later on 22 April 2010. The discharge summary showed that he had “serious decompensated cardiac failure” with “a cardiac ejection fracture of less than 20%”

. Dr Wilkinson saw that the same day. It suggested to her a poor prognosis and a significantly shortened life expectancy. That was the first time she thought that Mr Hall was unfit for detention, since there had not been a confirmed diagnosis of his condition before then. The UKBA was informed of that that day, and Mr Hall was released from detention on the following day, 23 April 2010.

[10]The effect of all this is that although Dr Goldwyn should be treated as having been of the view ever since 16 February 2010 that Mr Hall was unfit to be detained, that was not the view of Dr Jabbar until 11 April 2010, nor was it the view of Dr Wilkinson until 22 April 2010, nor was it the view of Dr Vara, Dr Morris or Dr Nanda when they had either examined Mr Hall or reviewed his notes. In the circumstances, I conclude that Mr Hall became unfit for detention on 11 April 2010. As early as 6 February 2010, it had been acknowledged that he was unfit to fly, though that had not been brought to the attention of the UKBA until they were informed of Dr Goldwyn’s view on the topic, and accordingly the possibility of Mr Hall’s removal by sea began to be actively considered at about the time the claim form was issued on 22 February 2010. Dr Morris did not rule out removal by sea. It depended on whether the medical attention he might need would be available on the ship. Dr Nanda took the view that Mr Hall could travel by sea. Since Mr Hall’s release from detention, Dr Jabbar, Dr Vara and Dr Wilkinson have all considered in the light of this litigation whether travel by sea would have been feasible for Mr Hall. Dr Jabbar’s view is that he was at no time fit to travel by sea. Dr Vara’s view is the same as that of Dr Morris. Dr Wilkinson’s view is that he was fit to travel by sea. For my part, I find that he was fit to travel by sea, provided that there were medical facilities on board which could have given him the equivalent of proper hospital care. Whether a conclusion about the feasibility of that could have been reached some time before he went into Hillingdon Hospital is, in my opinion, the real issue in this case.

[11]Subsequent events. Within two months of Mr Hall’s release from detention, he was arrested on serious criminal charges. He is currently awaiting trial. He was refused bail. In the meantime, his solicitors asked for the deportation order to be revoked on the ground that his removal by sea was only a remote prospect as well as on human rights grounds. The Secretary of State refused to revoke the deportation order, and Mr Hall is currently appealing against that decision to the First-tier Tribunal. That appeal has not yet been heard.

Mr Hall’s case

[12]It is important to identify what Mr Hall’s case is not. Chapter 55.10 of the UKBA’s Enforcement Instructions and Guidance deals with people who are considered unsuitable for detention. One of the categories of people who are normally considered suitable for detention only in very exceptional circumstances are those who are suffering from serious medical conditions or the mentally ill. It is not being said by Mr Lee that the state of Mr Hall’s physical or mental health made him unsuitable for detention. Although that was unquestionably Dr Goldwyn’s view, the evidence is that the doctors who were treating Mr Hall or were reviewing his notes did not take that view until 11 April 2010, and although Mr Hall remained in detention until 23 April 2010, for all but two of those days he was at Hillingdon Hospital.

[13]Nor is it being suggested any longer that the standard of healthcare Mr Hall received while he was at Colnbrook was such as to provide a free-standing ground for judicial review. Mr Lee did not abandon any criticism of healthcare staff for failing to assess Mr Hall’s mental health (as Dr Jabbar had wanted on 6 February 2010) or to chase up Dr Vara’s referral of 18 February 2010 to Hillingdon’s Cardiology Department. Instead, Mr Lee relied on those features of his treatment in connection with the core point which he took, which was that Mr Hall was being detained pending his removal to Jamaica, and that his detention became unlawful when it was apparent that his removal to Jamaica could not be effected within a reasonable time. The same is true of the healthcare staff’s failure to comply with SERCO’s guidance that rule 35 forms should be completed, not merely when a detainee was unfit to be detained, but also when a detainee was unfit to fly. That, too, was not a free-standing ground for judicial review, though it was a factor to be taken into account in determining whether Mr Hall could have been removed to Jamaica within a reasonable time.

The authorities

[14]Mr Hall was being detained pursuant to para. 2(3) of Schedule 3 to the Immigration Act 1971 which permitted the Secretary of State to authorise his detention “pending his removal or departure from the United Kingdom”. How that power to detain should be exercised has been considered in a number of authorities since Woolf J (as he then was) addressed the issue in Re Hardial Singh

[1984] 1 WLR 704

. The detainee can only be detained for such time as is reasonable to effect his removal, and if it becomes apparent that his removal cannot be effected within that time, the detainee has to be released. But four things should be added to that:(i) Although what is reasonable will depend on the circumstances of the case, the risk of the detainee absconding or committing offences if he is not in detention is a factor to be taken into account in determining what is a reasonable time to effect a particular detainee’s removal, but one should guard against giving too much weight to factors of that kind.

(ii) The mere fact that there are difficulties in effecting someone’s removal will not necessarily justify their release from detention. So long as there remains some prospect of their removal, their detention may continue to be authorised.

(iii) Whatever steps the Secretary of State is taking to effect the detainee’s removal, the Secretary of State must act with reasonable diligence and expedition in his efforts to effect the detainee’s removal.

(iv) The court’s role is to decide for itself whether the detention was lawful. The court is not reviewing the detention on conventional public law grounds. No deference will be given to the view of the Secretary of State, save where there is a factor on which the Secretary of State is better placed to make the appropriate judgment than the court. This is, in effect, a summary of what Miss Susan Chan for the Secretary of State said were the relevant principles, and Mr Lee agreed.

The lawfulness of Mr Hall’s detention

[15]As often happens, Mr Hall’s case was refined in the course of argument, but what it boiled down to was this. It was apparent within a day or so of his arrival at Colnbrook that he was not going to be able to be removed by air. If the guidance given by SERCO had been followed, a rule 35 form informing the Secretary of State of that would have been sent to the UKBA then. It would have been immediately apparent that the logistics of removing Mr Hall by sea were such that there was no real prospect of him ever being removed by sea. In the event, he was released from detention when he was regarded as no longer fit to be in detention, but he should have been released within a few days of his arrival at Colnbrook on the basis that there was no real chance of his removal to Jamaica being effected, whether within a reasonable time or at all.

[16]It is important not to overlook Mr Hall’s history as an offender and an absconder. That is why I set out his history at some length at the beginning of this judgment. Plainly the Secretary of State had to have some time to explore the logistics of removing Mr Hall to Jamaica by sea, and the possible consequences of Mr Hall being released in terms of him disappearing off the radar and committing further offences meant that the Secretary of State had to explore all the possible ways in which his removal by sea could be effected. It is obvious that access to the equivalent of hospital facilities would be required in case his condition deteriorated while he was at sea, but the question was how those facilities could be provided. If he went back on, say, a passenger liner or a naval vessel – assuming, of course, that one could be found which was prepared to take a man with his health problems – would the facilities on board for passengers or naval personnel who became ill be sufficient for someone with Mr Hall’s health problems? If not, what plans could be put in place for Mr Hall to be airlifted from the liner or vessel by helicopter? And where could he be taken to? If a passenger liner or naval vessel was not appropriate, what were the possibilities of chartering a vessel which had on-board medical facilities of the kind Mr Hall needed? All of that had to be investigated, and in view of the enormous cost potentially involved in chartering a vessel, it was plainly necessary to ascertain that no other alternative was feasible before expenditure of that magnitude was contemplated.

[17]There is no evidence of what was being done to explore these possibilities between(a) the issue of the claim on 22 February 2010 when his removal by sea began to be actively considered because that was when the UKBA first knew that Mr Hall’s removal by air was not an option and

(b) 11 April 2010 when it was acknowledged that he could not remain in detention any longer. But I have little doubt that it would have taken at least that time to investigate how feasible his removal by sea really was. The question which then arises is whether those investigations would have been completed some time before 11 April 2010 if they had started, not on 22 February 2010, but a day or two after 6 February 2010 when the UKBA would first have learned that Mr Hall’s removal by air was not an option if SERCO’s guidance that a rule 35 form had to be completed when a detainee was regarded as unfit to fly had been followed. With the best will in the world, I simply do not see how another twelve days or so would have resulted in the investigations as to the feasibility of Mr Hall being removed to Jamaica by sea being completed some time before 11 April 2010. That means that any delay in chasing up the referral to Hillingdon’s Cardiology Department or the assessment of Mr Hall’s mental health becomes irrelevant. Although that could have affected the time when the conclusion was reached that Mr Hall was no longer fit to be detained, it does not affect at all the question of when investigations about the feasibility of his removal to Jamaica by sea might have been completed.

Conclusion

[18]For these reasons, I have concluded that Mr Hall’s detention between 3 February 2010 and 23 April 2010 was not unlawful. I understand entirely why Mr Hall’s solicitors thought that a claim for judicial review on the basis that he was not fit to fly was arguable, since at that stage it was being proposed that he be removed to Jamaica by air. But once the possibility of him being removed by sea was being addressed, Mr Hall’s detention while the feasibility of that possibility was being considered would not have been unlawful. In the light of that, I do not think that Mr Hall’s claim crosses the threshold of arguability, and I refuse him permission to proceed with his claim.

[19]I wish to spare the parties the trouble and expense of attending court when this judgment is handed down, and at present I see no reason why Mr Hall should not pay the Secretary of State’s costs of the claim from when it would have been apparent to his solicitors that his removal by air was no longer being actively considered, to be subject to a detailed assessment if not agreed, but not to be enforced until Mr Hall’s ability to pay those costs has been assessed. However, I cannot tell from the papers when Mr Hall’s solicitors would have been aware of that, and I therefore leave it to the parties to see whether they can agree an appropriate order for costs. If they cannot, my clerk should be informed of that within 14 days of the handing down of this judgment, and I will make such an order for costs as I think is appropriate without a hearing on the basis of such representations as are made. If Mr Hall wishes to apply for permission to appeal, his solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I shall consider that application without a hearing. However, Mr Hall’s time for filing an appellant’s notice will still be 21 days from the handing down of this judgment.