IW, R (on the Application of) v The Secretary of State for the Home Department [2014] EWHC 3485 (Admin)

Case No CO/9145/2013[2014] EWHC 3485 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/10/2014
Before
BOBBIE CHEEMA QCSitting as a Deputy High Court Judge
Between
THE QUEENClaimanton the application ofClaimantI.W.ClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Nicola Braganza (instructed by Deighton Pierce Glynn) for ClaimantMathew Gullick (instructed by the Treasury Solicitor) for DefendantHearing Hearing date: 10 July 2014
JudgmentBobbie Cheema QC :
[1]This substantive claim for judicial review has been refused and these are the reasons for that decision.[2]IW (hereafter C) is 38 years of age having been born in Pakistan in 1976. He was a long term over-stayer and illegal worker when he was arrested in March 2013 and detained at Colnbrook Immigration Removal Centre pending his return to Pakistan. He decided to cease to take food hoping to be released from detention. His health deteriorated and he was removed to the health wing but he refused transport to a hospital where he could have had medical assistance. A claim for judicial review was issued on 15th July 2013 claiming that his detention despite medical advice that he was not fit to be detained was unlawful and an application for interim relief by way of an order for immediate release and anonymity was made. An order for his release was made that day and he was released the following day.[3]He claimed by his amended Grounds that his entire detention (or part of it) was unlawful at common law and contrary to the Secretary of State for the Home Department’s (hereafter D’s) published policy as well as being a breach of D’s obligations under Articles 2, 3 and 8 ECHR. He also challenged the legality of D’s policy and practice regarding detaining those refusing food as unlawful.[4]Permission to proceed was granted by Mr Ben Emmerson Q.C. sitting as a Deputy High Court Judge on 27th January 2014 and C was granted permission to amend his Grounds on 9th April 2014.[5]The claim was resisted on the basis that C’s detention was lawful throughout until his release on 16th July 2013 and that recent authority from the Court of Appeal had disposed of all the grounds of claim.

Chronology

[6]In February 2007 C entered the United Kingdom on an allegedly fraudulently obtained family visit visa to 1st June 2007.[7]On 6th March 2013 C was encountered by UKBA working as a mechanic. He was arrested and detained at Colnbrook Immigration Removal Centre as an over-stayer. He was served with a notice of removal. D identified risk factors – “other medical concerns” and the healthcare assessment noted “severe cough.. weakness, fatigue”. The following day C was transferred to the detention centre healthcare unit and placed in isolation for investigation of suspected tuberculosis.[8]On 9th March 2013 a Detention Review concluded his detention should be maintained pending investigation and on 13th March D’s healthcare enquiries led to no removal directions being set as he was considered not fit to fly. By 14th March C was in isolation with a timescale of three months for the approval of an emergency travel document (hereafter ETD) and D made an application for an ETD to the Pakistan High Commission. The next day a doctor at Colnbrook indicated that he was not fit to fly.[9]A query was made by D on 23rd March as to whether C was fit to fly and on 3rd April a Detention Review concluded that health reports were still awaited and his detention was to be reviewed on receipt of a reply to the application for an ETD which was believed to be obtainable quickly. This was repeated in a monthly progress report (MPR) of the same date.[10]On 5th April a Notice to Detainee with reasons for his detention was provided. His suspected TB had not been confirmed by the test, there were no further medical issues and on 6th April he was assessed as fit to fly as no further medical issues were raised and there was no reason why he would not be fit to travel. On 8th April C’s Detainee induction sheet stated only the ETD and setting of a removal date were outstanding and he needed an interview with the Pakistani High Commission. Removal directions were set on 18th April for a charter flight on 7th May.[11]Thereafter, in a not unusual pattern, C claimed asylum on 22nd April. This was more than six weeks after being detained and two weeks after being assessed as fit to fly. As a result the removal directions were cancelled.[12]His asylum claim was dealt with under the ‘detained fast track’ procedure. A review on 1st May noted that the barriers to removal were obtaining an ETD and C’s asylum claim. It was believed these would be resolved quickly and C was transferred to the Detained Fast Track at Colnbrook IRC. Subsequent detention reviews noted the position and removal directions were cancelled on 7th May.[13]C instructed solicitors on 13th May, the day that a provisional ETD agreement was obtained from the Pakistani High Commission.[14]On 18th May C was reviewed by a psychiatrist at Colnbrook, diagnosed with reactive depression and prescribed antidepressant medication. He was referred for counselling but it is important to note that he related no history of mental illness and had not done so on his initial medical screening upon detention in March. He attended counselling twice but decided to end counselling on 23rd May.[15]Meanwhile, on 20th May C’s substantive asylum interview took place and on 22nd May his asylum claim was refused.[16]On 22nd May D received a provisional ETD for C but the outstanding asylum appeal was noted as a barrier to removal. The appeal on asylum, humanitarian protection and human rights grounds was dismissed by the First-tier Tribunal (Immigration and Asylum Chamber) on 11th June. The Tribunal made adverse credibility findings against C. He did not appeal this decision and became appeal rights exhausted on 14th June 2013.[17]Eight days after the Tribunal decision, 19th June, was the first day that C refused food but continued taking fluids (although the records were not entirely clear and it may have been the next day that he began to refuse food after hearing of the setting of removal directions). C was thereafter monitored on a daily basis by healthcare staff until his release from detention on 16th July.[18]On 20th June removal directions were set for 9th July. He was fit for detention on 25th and 29th June. However on 26th June he was noted to be dizzy and weak and on 27th June a Part C form noted C’s food refusal “requires healthcare bed”.[19]On 30th June C was assessed as unfit to detain at Colnbrook and requiring hospital assessment and intervention but C declined assistance and a Serco assessment noted “unsteady on feet” “dehydrated”, “needs hospital admission”. “High risk re-feeding” (a serious syndrome that can adversely affect the recovery of those who have been starved). This was the ninth or tenth day of C’s hunger strike. C also refused to sign an advance directive although he was noted to have capacity. He told D’s doctor that he had no family in the United Kingdom.[20]On 1st July C was transferred to a bed in the healthcare unit after stating that he wished to die rather than be sent to Pakistan. He refused to be taken to hospital.[21]The next day C was assessed as unfit for detention at Colnbrook Immigration Removal Centre by Dr Mehta but was noted as ‘chatting happily.’ He again declined to be treated at hospital. An ACDT form required in cases of suicide and self-harm was opened and the GCID sheet states ‘Not fit for detention’. The next day C refused hospital admission; Dr Goldwyn assessed him as not fit to be detained, with difficulty taking water.[22]On 4th July a nurse in the healthcare unit noted it was not possible to monitor C’s fluid intake as there was no facility to do so. On that day a Detention review found him not fit for detention but “after a tactical meeting with senior management, a decision was made to maintain detention” as removal directions were ‘imminent’ although the barrier to removal at that time was the absence of a fit to fly certificate (removal directions having been set for 9th July). D considered that he would fail to comply with any conditions attached to the grant of temporary admission or release. On that day C took tea with sugar. The same day Dr Goldwyn assessed C on behalf of Medical Justice.[23]On 5th July D’s doctor, Dr Jabbar noted “high risk re-feeding syndrome, deteriorating” and certified C not fit to fly or for detention, noting that C was declining help, assessment or treatment. C deteriorated that evening and an ambulance was called but C refused transfer to hospital despite the advice of the ambulance staff, independent of D. The following day C was seen by D’s healthcare staff who noted that he “just wants to die”, and he was hitting himself in the face and arms. Medical staff were “very concerned” “severely dehydrated and malnourished”, “high risk of re-feeding syndrome” This remained the position on review on 7th July and on 8th July Dr Goldwyn’s report stated C was not fit and diagnosed him as having severe depression and being suicidal.[24]On 8th July D was informed via the Part C from medical staff that C was deteriorating and he was not fit for detention. C clearly understood the risks of his continued refusal of food and fluids but he made clear that he wanted to continue as a protest against UKBA. Removal directions set on 20th June for the next day were cancelled because the charter flight was cancelled. The next day Dr Arsiwala found C unfit for detention, the doctor noted “severe risk re- feeding syndrome, severe risk of organ damage” and “needs urgent hospital assessment”.[25]On 11th July D’s senior case worker noted he was “now actually concerned about the applicant, as we have disregarded the doctor’s advice since 1 July 2013.” However at a “tactical meeting” the decision was made to continue detention.. The following day the medical notes again recorded “very concerned, extreme risk ofre-feeding syndrome” and D’s staff questioned whether C’s case had been appropriately escalated.[26]On 13th July the organisation Detention Action contacted C’s solicitors and wrote to D[27]Thereafter on 15th July, A pre-action letter was prepared on behalf of C. Ms Kina, a social worker; saw C who was unable to walk. An internal email in D’s department asked “Can you advise if he is deemed unfit for detention and unfit to fly why we are still detaining him…..seems in quite a serious condition based on the doctor’s comments.’ Also on this day the D’s Head of Detained Asylum Casework to Director for Compliance and Returns noted C as “an applicant with mental health problems …… He is in a poor state of health and has not been taking his medication for depression.” D decided to “probe the reasons for unfit to fly” and C issued his application for permission to bring judicial review proceedings.[28]At 6pm Mr Justice Leggatt ordered C’s immediate release on bail. However, the Healthcare enquiries indicated C was ‘not fit to travel alone….needs hospital assessment.. signs of dehydration and organ failure….’[29]On 16th July C’s solicitors wrote to D as C had not been immediately released and alleged that D was in breach of the High Court order. That evening C was released having been given temporary admission. The last entry in C’s medical records prior to his release stated that he had declined all medical intervention. He was admitted to West Middlesex hospital for six days.[30]29th July, despite his discharge from hospital on 24th July 2013 Dr Goldwyn reported that he had symptoms of ataxia, confusion, possible opthalmoplegia and symptoms of Wernicke’s encephalopathy. C’s hospital discharge summary stated that was not suffering any psychiatric condition.[31]As a result on 30th July C sent a letter stating he was unable to report as required and Dr Goldwyn also noted that he still had concerns that C was experiencing hallucinations, still not taking food and may have developed ulcers. Reporting was suspended until 13th August.[32]On 3rd August Dr Goldwyn certified C as lacking capacity and very confused. This was repeated in a subsequent report on 20th August after C had been unable to report as required.[33]On 22nd August C was assessed as having regained capacity to litigate. He has complied with reporting restrictions since late August 2013.

Claims

[34]First Claim - Detention of C between 6th March 2013 and 16th July was unlawful under Hardial Singh principles, in breach of D’s published policy and in breach of Articles 8 and 3 ECHR.[35]Second Claim - D’s policy and practice with regards to the detention of those refusing food is unlawful.[36]Third Claim - D breached ECHR Articles 2,3& 8.[37]Fourth Claim – D breached Section 149 Equality Act 2010 by failing to consider whether C’s depression could be satisfactorily managed in detention and failing to provide an adequate system to care for mentally ill detainees.

The Law

[38]The recent decision of the Court of Appeal in R. (on the application of IM (Nigeria) v SSHD [2013] EWCA Civ 1561, [2014] 1 WLR 1870 (hereafter IM) has determined the law in cases where immigration detainees refuse food and/or fluid and I am bound by that judgment.[39]In brief, IM was from Nigeria. He was an over-stayer in the UK from January 2008. He made an unsuccessful application for leave to remain under Article 8 ECHR in 2011 and an asylum claim in 2013 when he was taken into immigration detention pending removal. His asylum claim was rejected and certified as clearly unfounded on 7th August 2013 and on 27th August 2013 he began to refuse food. He continued with his hunger strike (with a few short interruptions). He signed an advance directive while with capacity to do so and was considered unfit to be detained at Harmondsworth Immigration Removal Centre because his medical needs could not be met there. He refused offers of removal to hospital unless he was released from detention. By 15th November an end of life plan was being prepared for IM.[40]The Court dismissed an appeal from the judgment of Mr Justice Ouseley denying a claim for judicial review. The following principles emerge: i) Detention in hospital is allowed within the scheme of immigration detention. To hold that once a detainee became too ill to be cared for in a detention centre he had to be released unless there were exceptional circumstances for continued detention would indicate a substantial gap in the SSHD’s powers of detention. ii) The failure of the SSHD’s published policy to make express reference to those who require removal to hospital for treatment but who should otherwise remain in detention and refuse to accept necessary medical treatment is because it was so obvious as to not need stating. If it had been necessary to decide the issue the Court would have concluded that the detainee’s refusal to accept medical treatment would have amounted to very exceptional circumstances justifying departure from published policies. iii) There is plainly a limit to the length of time during which a person may be detained pending administrative removal by the SSHD. Once there is no reasonable prospect of removal within a reasonable time even if it is because of the self-induced state of the health of the detainee, then the power to detain has to be surrendered. This has to be a matter of fact in individual cases. An end of life plan having been prepared this was an issue properly argued in IM’s case. However, even in IM’s case the application of Hardial Singh principles did not lead to the conclusion that detention had become unlawful. iv) When considering her positive obligations under Articles 2 and 3 ECHR the SSHD is entitled to bear in mind the voluntary nature of the detainee’s condition and to conclude that in light of his immigration history there is a sufficient risk of his absconding to mean he cannot be released as long as the SSHD is otherwise taking steps to avoid breaching her duty under Articles 2 and 3.[41]The SSHD’s powers to detain are contained in paragraph 16(2) of Schedule 2 to the Immigration Act 1971. Hardial Singh principles[42]The power to detain is an exercise of discretion and the court has a supervisory role. There are limitations on the SSHD’s power to detain. These were originally articulated by Woolf J in Re Hardial Singh [1984] 1 WLR 704, but then usefully distilled by Dyson LJ in R (I) v SSHD [2002] EWCA Civ 888, [2003] INLR 196 at [46]. Dyson LJ’s distillation was approved by the SC in R (Lumba and Mighty) v. Home Secretary [2011] UKSC 12, [2011] 2 WLR 671 at [22]) and is as follows: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. ii) The deportee may only be detained for a period that is reasonable in all the circumstances. iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention. iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.[43]The factors relevant to determining what is a ‘reasonable’ period of detention will include (per Dyson LJ at [48]):• the length of the period of detention;• the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation;• the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles;• the conditions in which the detained person is being kept; the effect of detention on him and his family;• the risk that if he is released from detention he will abscond; and• the danger that, if released, he will commit criminal offences.[44]Further useful principles can be gleaned from other leading cases (such as R (Lumba and Mighty) v SSHD [2011] UKSC 12and Richards LJ’s judgment in R (MH) v SSHD [2010] EWCA Civ 1112): i) There can be a ‘realistic’ prospect of removal without it being possible to specify or predict the date by which removal can reasonably be expected to occur and without any certainty that removal will occur at all ((MH) at [65]). ii) The extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise, but there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors ((MH)) at [65]). iii) The risks of absconding and re-offending are relevant considerations, but the risk of absconding should not be overstated, otherwise it would become a trump card (Lumba at [108]-[110] and [121] citing Dyson LJ in R(I) at [53]). iv) The weight to be given to time taken up by an appeal depends on the facts, but much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one (Lumba at [121]). v) A detainee who will not comply with the ETD process or other requirements of detention and is doing everything he can to hinder the deportation process, may reasonably be regarded as likely to abscond (Lumba at [123]; MH at [68(iii)]). vi) Refusal of voluntary return does not necessarily permit an inference of risk of absconding (Lumba at [123]). vii) Where return is not possible (for reasons that are extraneous to the person detained), the fact that he is not willing to return voluntarily cannot be held against him, since his refusal has no causal effect (Lumba at [127]). viii) Where a person has issued proceedings challenging his deportation, then it is reasonable that he should remain in the UK pending determination of those proceedings and his refusal to accept an offer of voluntary return is irrelevant (Lumba at [127]). ix) Even where there are no outstanding challenges, refusal of voluntary return should not be regarded as a trump card for the SSHD’s wish to detain. If it is relevant, its relevance is limited (Lumba at [128]). x) A breach of a principle of public law will render the detention unlawful but it must be a material breach, that is, a breach which bears on and is relevant to the decision to detain (Lumba at [66,68]). xi) There is no maximum period after which detention becomes automatically unlawful.[45]In considering the principles set out above, the Court should reach its own judgment as to whether administrative detention is lawful and should not simply adopt a review approach to the Defendant’s decision: R (A) v. Secretary of State for the Home Department [2007] EWCA Civ 804 per Toulson LJ at [62] and Keene LJ at [74].

Policy

[46]Chapter 55 of the Enforcement Instructions and Guidance (hereafter Chapter 55) and the Detention Services Order 03/2013 are relevant to this claim. The published policy carried a presumption in favour of temporary admission or release unless there are strong grounds for believing that C will not comply with conditions of admission on release. Furthermore all reasonable alternatives to detention must be considered and each case must be considered on its own merits.[47]Chapter 55.10 concerns those with a serious medical condition.

(D) 39 Lord Justice Beatson observed ([15]):

“In Lumba’s case Lord Dyson stated (at [22]) that the Hardial Singh principles reflect the basic public law duties to act consistently with the statutory purpose and reasonably in the Wednesbury sense. But he also stated (at [30]) that they are not exhaustive, and do not therefore preclude the operation of the public law duty of adherence to published policy. Chapter 55.1.1 of the policy is to the same effect. It states that “(t)o be lawful detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy.”
It should be noted that in Lumba’s case Lord Dyson went further than stating that published policy must be adhered to. He stated (at [34]) that “immigration detention powers need to be transparently identified through formulated policy statements” (emphasis added). Such policies are therefore required and operate as restrictions on the broad language of the 1971 Act over and above the Hardial Singh principles. Failure by the Secretary of State to have regard to a material policy concerning detention would, it was held, render the detention unlawful and a false imprisonment, even when it was certain or inevitable that the person detained could or would have been detained had the power been exercised lawfully…But, if detention was certain or inevitable, while the Secretary of State will have committed the tort of false imprisonment, the person detained will only be entitled to nominal damages.”[48]In Das the Court was considering the policy formulation in cases where mental health is in issue, namely the policy in Chapter 55.10 of the Secretary of State’s Enforcement Instructions and Guidance as reformulated in August 2010. It states in so far as is relevant:
“55.10 Persons considered unsuitable for detention The following are normally considered suitable for detention in only very exceptional circumstances… … • Those suffering from serious medical conditions which cannot be satisfactorily managed within detention (and) • Those suffering serious mental illness which cannot be satisfactorily managed within detention…”

The following are normally considered suitable for detention in only very exceptional circumstances…

[49]The Detention Centre Rules 2001 seek to assist in adherence to the policy by providing that all detention centres shall have a health team including a general practitioner (Rule 33), that every detained person is to be given a physical and mental examination by a medical practitioner within 24 hours of admission (Rule 34) and that the medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention. (Rule 35). Chapter 55.8A of the policy states that the purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention.[50]The Detention Service Order 03/2013 was also amended to allow a detainee who was not longer fit to be detained because of voluntary fluid refusal to be transferred to a prison with a suitable medical facility.

Article 2, 3 and 8 ECHR

[51]The principles relating to Article 3 in this context were summarised by Singh J in R (HA)(Nigeria) v Secretary of State for the Home Department[2012] EWHC 979 Admin at [173-178] by reference to the decision of the European Court of Human Rights in Kudla v Poland [2002] 35 EHRR 11, as follows: i) Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour [90]; ii) However, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative: it depends on all the circumstances of the case, such as the nature and extent of the treatment, the manner and method of its execution, its duration, its physical or mental effects and in some instances, the sex, age and state of health of the victim [91]; iii) The Court has considered treatment to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch, and caused either bodily injury or intense physical or mental suffering [92]; iv) It has deemed treatment to be degrading because it was such as to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing them [92]; v) On the other hand the court has consistently stressed that the suffering and humiliation must go beyond the inevitable element connected with a given form of legitimate treatment or punishment [92]. Measures depriving a person of liberty may often involve such an element [93]; vi) It cannot be said that Article 3 lays down a general obligation to release a detainee on health grounds or to place him in a civil hospital to enable him to receive a particular type of medical treatment [93]. Nevertheless, the state must ensure that a person is detained in conditions which are compatible with his dignity and that the manner and method of execution of measures used do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by amongst other things, providing him with the requisite medical assistance [90].[52]Singh J. went on to explain: “175. Although the primary obligation in Article 3 is a negative one, the Court has also recognised that a positive obligation to protect individuals from ill-treatment may also arise under it. In particular, as the Claimant points out, detained persons have frequently been said by the Court to be “in a vulnerable position” and “the authorities are under a duty to protect them”: e.g. Edwards v United Kingdom [2002] 35 EHRR 19, para.56. This includes persons in administrative detention for immigration purposes: Slimani v France [2006] 43 EHRR 49. 176. Furthermore, an obligation may even arise under Article 3 where there is no ill-treatment from the state or from other people. As the court put it in Pretty v United Kingdom [2002] 35 EHRR 1, at paragraph 52: ‘The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3. Where it is or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures for which the authorities can be held responsible. (Emphasis added) 177… 178. As Keenan v United Kingdom [2001] 33 EHRR 38, paras.110-115 illustrates, the distinction between negative and positive obligations is not always clearcut when a person with mental health problems is in custody and there may be a combination of factors, both acts and omissions, which lead to the overall conclusion that there has been a breach of Article 3. In Keenan the following factors led the Court to make a finding of inhuman and degrading treatment in breach of Article 3: inadequate medical records; lack of recourse to specialist psychiatric input; the imposition of seven days of segregation, and punishment in the form of an additional period of 28 days imprisonment for an assault on officers.” ‘The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3. Where it is or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures for which the authorities can be held responsible. (Emphasis added) First Claim - Illegality of Detention ab initio and for the entire period contrary to Hardial Singh principles[53]C described his actions of food and then food and fluid rejection as being a protest against the refusal of his asylum application and his proposed removal to Pakistan. He said he would receive treatment at hospital but only on release from detention and with no prospect of return. Plainly these were reasoned and deliberate decisions from 19th or 20th June to 16th July a period of twenty-seven or twenty-eight days. It has not been suggested that during any period in detention C lost the capacity to make deliberate decisions about whether or not to take food/fluids or receive treatment. In short he tried to hold D to ransom using his own life as the means of pressure.[54]Despite this he contends that the entirety of his detention was unlawful. The Defendant has demonstrated through production of the relevant records, the correct notification of the reasons and purpose of detention, regular and appropriate reviews and expedition by the Defendant to effect C’s removal which was the stated purpose of detention.[55]C does not dispute the D’s lawful statutory power to detain him. C distinguishes his own case from that of IM because he claims to have had a pre-existing mental health condition, namely depression and because he made an asylum claim whilst in detention.[56]I do not find either of these claimed grounds for distinction persuasive. It is not clear at all that C had any pre-existing mental health condition, indeed he made no reference to any such at the time of detention and although he later claimed to have been on medication for depression prescribed by his General Practitioner there is no evidence to support this suggestion at all. Furthermore the fact of a failed asylum claim does not provide any relevant distinction from IM.[57]Next, C asserts that the reasonable period requirement under the Hardial Singh principles was failed by D in his case because of insufficient regard to C’s ill-health and the deterioration in his health. Furthermore alternatives to detention were not considered and C also relies on the fact that post regaining capacity in late August 2013 he has been complying with reporting restrictions as, by virtue of hindsight indicating that detention was never a last resort in his case and he should have been released before his release was ordered by the Court. His removal was not reasonably in prospect by reason of his outstanding asylum claim or because of his ill health.[58]In addition C claims that from at least 3rd June 2013 his continued detention had such a deleterious impact on his health that his detention was unlawful. He submits that the concerns expressed by medical staff should have led to his detention being ended. A medical report from a psychiatrist, Dr Tracy, who saw C after his release, included the opinion that C had undetected PTSD and his mental health was not monitored or treated sufficiently while he was held in detention. In addition it is claimed that C’s refusal of food was not a protest but an expression of suicidal intent and a symptom of deteriorating mental health and should have been treated as such by D. Continued detention in those circumstances was contrary to the medical advice and a reasonable regime of weekly reporting and residence at an approved address which had succeeded post release should have been treated as a first resort.[59]I have no difficulty in rejecting this claim as to illegality of detention per se or failure to observe the Hardial Singh principles. i) There was no evidence before D to indicate that C’s detention was not to be for the short period necessary to effect his removal to Pakistan, at the start of detention D had documentary evidence as to C’s identity and nationality. The only delay was that he had to be isolated because of suspected TB. This was a reasonable and proportionate action to take in all the circumstances and as soon as his condition was found to be suitable (he did not have TB) he was released into ordinary detention and removal directions were set. ii) Thereafter he made an asylum claim but was treated properly and expeditiously within the detained fast track procedure. It was not unreasonable to detain C while his claim and then appeal were dealt with in April, May and early June 2013. The mere making of a claim and pursuing it via appeal does not make the period of detention thereby unreasonable nor does it mean that there was no prospect of removal within a reasonable period during that time. D was entitled to respond to the application, resist the appeal and wait to see if C submitted a further appeal, he did not. iii) C was unfit to be detained and/or removed following his deliberate refusal of food and later, fluid. However IM establishes that even where the consequences of such a ‘hunger strike’ are that a detainee becomes unfit for detention or removal that does not lead to detention becoming unlawful on Hardial Singh grounds. What is a reasonable period plainly depends on the circumstances of the case and cannot be universally defined. At paragraph 53 of IM Lord Justice Lloyd Jones states “……the stage at which there is no longer a reasonable prospect of the appellant’s removal within a reasonable time had not yet been reached, although in the absence of hospital treatment it would not be far off. In particular there was no evidence that the condition of the appellant had become irreversible or that, should the appellant now change his stance and accept treatment. He could not be removed from the United Kingdom within a reasonable time.” iv) There was no evidence in this case that the condition of C had become irreversible or that, should C have changed his mind and accepted treatment, he could not be removed from the United Kingdom within a reasonable period of time. D was entitled to wait and see whether C would persist in his stance. The fact that C had self-inflicted a barrier to removal is relevant both to the risk of absconding and the reasonableness of the overall period of detention. v) Although C was assessed by D as posing a low risk of absconding and a low risk of offending if released that does not require D to release him from detention where his removal to Pakistan was at all times reasonably in prospect as in my view it was and when C’s history of overstaying is considered. vi) Dr Tracy’s ex post facto assessment does not make C’s detention unreasonable or unlawful at the time that it occurred. D is entitled to rely on the assessments of clinicians. None of the doctors who saw C during May, June and July including Dr Goldwyn of Medical Justice diagnosed him as being seriously mentally ill or requiring any further mental health treatment beyond the antidepressants he had already been prescribed. vii) As for the likelihood of absconding C’s compliance with reporting since release does not mean that it was unreasonable not to release him on conditions at a time when he had failed in his asylum claim, demonstrated the depth of his intention to avoid a return to Pakistan and when removal was in clear prospect. viii) For finality it is important to note that there is no evidence that C was suffering from a mental disorder which made him unfit to be removed. Dr Goldwyn’s assessment as to fitness to fly was based solely on C’s physical condition. It is also correct, as D submits, that Dr Tracy was clear in that the initiation of C’s hunger strike was a deliberate strategy to highlight his plight and ‘not driven by a mental illness.’

Second Claim – Illegality of D’s published policy and practice

[60]Although stated as a challenge to the legality of published policy, C’s submissions both in his Amended Grounds and orally, were focussed on assertions that D has failed to fulfil her duties under the published policy in ways which amount to public law errors. Firstly to inquire whether C fell into the category of those who should be detained only in very exceptional circumstances and secondly, detention in purported compliance with the policy was irrational in C’s case. The claim is delineated in the following ways: i) C’s pre-existing physical and mental conditions were not investigated properly or at all ii) C’s deteriorating mental health contributed to his food refusal but was ignored by D iii) D ignored medical assessments which concluded that C was unfit to be detained and required hospital care iv) D took no steps to consider transfer to hospital without his consent under s.48 Mental Health Act 1983 or otherwise v) There were no very exceptional circumstances justifying ongoing detention in C’s case and no alternatives to detention were attempted even though C had no history of criminal offending. vi) D failed to conduct adequate or effective reviews[61]C fails in his attempt to distinguish his case from that of IM. In IM the correct interpretation of Chapter 55.10 was addressed by the Court of Appeal. At [37]

Lord Justice Lloyd Jones stated:

“37. As the judge held, Chapter 55.10 is clearly directed to the normal circumstances in which the policy is required, ie detention in removal centres and prisons. When read in this way the consequence of the applicability of the policy is not that those to whom it applies become unsuitable for detention anywhere simply because their conditions are unsuitable for treatment in a removal centre or prison. Its effect is not that, in the absence of very exceptional circumstances, continued detention is unsuitable but that the detention in the removal centre or prison is unsuitable. As both Ouseley J and Stewart J observed, the result is not that a detainee must be released unless there are very unusual circumstances but that the detainee must be moved to a suitable place of detention. A person may be fit to be detained in a hospital even if not fit to be detained in an IRC. 38 ……The failure of the policy to make express provision for those who require removal to hospital but who otherwise remain in detention is, as the judge observed, because it was so obvious as to be not worth saying that those who needed medical treatment not available in an IRC or prison would pursuant to the proper application of the policy be transferred to hospital in detention. Furthermore, any failure to state in a published policy that those not suitable for detention in an IRC should be removed in detention to hospital where their medical needs could more suitably be met does not limit the exercise of the power conferred on the respondent. She does not need to announce a policy covering a particular situation or to act in accordance with it in order to make the exercise of her powers lawful.”
[62]On this construction of the relevant policy the fact that C refused medical treatment was not a reason for finding that under D’s policy the only option open to her was to release him in the absence of exceptional circumstances but rather for finding that his situation, like that of IM, was outwith the policy statements relied on by C. D must apply her policy but where the case falls outside the policy she must behave reasonably and lawfully. C’s deliberate protest against detention and removal at a time when he had capacity to make the decision to reject food/fluid and necessary treatment did not require D to release him. His medical issues arose from his food/fluid refusal and fell outside Chapter 55.10. D did provide adequate medical care and the chronology shows that regular assessments were made, passed on and considered.[63]C stated he would refuse medical treatment unless transferred to hospital without prospect of being returned to detention and returned to Pakistan. It is hard to see on what basis his forcible removal to hospital where he planned to refuse treatment was required in order for D to comply with her legal obligations towards him. It is necessary to repeat that C’s likely early removal was always anticipated by D and it was not unreasonable for D to detain him. Alternatively, there were exceptional circumstances in C’s case justifying detention because the absence of consent to treatment in hospital while capacity to decide remains amounts to an exceptional circumstance.[64]As to illegality of the policies per se the challenge does not arise on the facts because as discussed above, the authority of IM makes plain that the policies C says are engaged are not in fact engaged in C’s circumstances.

Third Claim – D breached Articles 2, 3&8 ECHR

[65]C claims that his treatment by D amounted to a breach of her positive obligations under Articles 2 and 3 ECHR and failed to respect C’s private life as required by Article 8 ECHR. The claim is explained as based on: i) D’s failure to heed reports by medical staff that C as unfit for detention and was at risk of fatal complications from his hunger strike ii) D’s failure to heed reports that his condition could not be managed in detention and would be likely to continue to deteriorate iii) D’s failure to investigate C’s condition if she did not accept the medical opinion provided to her iv) D’s failure to take steps to safeguard C’s private life by releasing him on conditional bail and by exposing him to inappropriate detention which adversely affected his mental stability and physical health. He lost capacity after being released and was unable to report for more than a month.[66]These claims are misconceived because although D’s duty to act in accordance with Articles 2 and 3 and to preserve C’s life and to prevent detention from becoming inhuman or degrading treatment or amounting to punishment continues even if C engages in a hunger strike, this does not require her to release C to enable him to obtain treatment if the treatment is available in detention (by transfer, in detention to hospital). It is plain that D has positively engaged in preserving C’s life. In light of what D did do it is not easy to see what else D could have done apart from releasing C from detention which was the desired outcome of his hunger-strike. i) D has provided medical assessments and her staff explored with C the purpose of the hunger strike and regular care was provide to C while he was refusing food/fluids. ii) He was not ignored. His plight was the subject of careful and regular review, on a daily basis by those caring for him and regular reports iii) His capacity was assessed and it is not reasonably arguable that he had lost capacity at any point before his release from detention iv) He had been given facilities to make an advance directive v) He had legal advice available to him, solicitors were acting for him and before they were engaged he knew independent legal advice would be provided vi) He was offered food and fluid and medical assessment and treatment on a very regular basis and an ambulance was even called to take him to hospital, all of which he declined.[67]The claim in respect of Articles 2 and 3 fails for the same reasons as in IM. In respect of Article 8 I have given anxious scrutiny to the argument that D failed to have due regard for the integrity of C’s moral and physical being because his detention was neither justified nor proportionate in all the circumstances especially when judged against the facts that he had no criminal history and there was no evidence of risk to the public from him. However, I conclude that this claim must also fail. D did not act disproportionately in detaining C when his detention was otherwise lawful, it was to be for a short period as his imminent return to Pakistan was reasonably anticipated, when he was an over-stayer working illegally in the United Kingdom and had gone on hunger strike deliberately to frustrate D’s legitimate intention to return him.

Fourth Claim – Breach of s.149 Equality Act 2010

[68]C claims to fall under the definition of a disabled person for the purposes of the Act by reason of his mental illness PTSD and depression. He claims D failed to make reasonable adjustments by releasing him on that basis. This is a wholly unmeritorious claim. D was entitled to rely on the assessments of properly qualified and astute clinicians. No one who examined C before his release diagnosed PTSD. Depression was diagnosed in May 2013 but no one suggested to D that it could not be managed in detention and appropriate treatment was provided, both medication and counselling. Release from detention is not the only adjustment available and proper treatment was an appropriate response by D to C’s condition as D knew it to be. It cannot be reasonably said that reactive depression, the only mental health issue diagnosed during detention, had to result in C’s release. That would be a surprising conclusion because many detainees can be expected to suffer some degree of reactive depression and it cannot be that the mere diagnosis of such a condition should lead to a conclusion that the detainee cannot be managed properly within detention. In C’s case there was available psychiatric help as well as pharmaceutical provision and counselling. The latter was stopped by C himself.

Conclusion

[69]This claim for judicial review is dismissed.[70]I intend costs to be awarded to D subject to assessment in light of C being legally aided.

Cited in 1 later judgment