Bah, R (On the Application Of) v Secretary of State for the Home Department [2018] EWHC 2942 (Admin)

[2018] EWHC 2942 (Admin)Case No CO/247/2018
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02/11/2018
Before
ANDREW THOMAS QC(Sitting as a Deputy High Court Judge)
Between
THE QUEENClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Hugh Southey QC and Ali Bandegani (instructed by Duncan Lewis) for ClaimantTom Brown (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 2 nd March 2018

Judgment Approved by the court for handing down

[1]This is a claim for Judicial Review relating to the Claimant’s detention under the Immigration Act 1971. He was detained with a view to deportation following his completion of a sentence of imprisonment in March 2016. He was detained continuously until his release on the 1st of March 2018.[2]The Claimant is 23 years old and a national of Sierra Leone. He came to live in the UK in 2010, aged 16. In 2012 he was convicted of robbing a lone female with a knife and also of an offence of attempted robbery. He was sentenced to a detention and training order for 18 months. In 2015, the Claimant was convicted of arson being reckless as to whether life would be endangered. He was sentenced to 18 months detention in a Young Offenders Institution. In 2015, while awaiting sentence for that offence, the was Claimant was diagnosed with Post-Traumatic Stress Disorder (‘PTSD’) for which he has received counselling and medical treatment.[3]The Claimant issued the present claim for judicial review in January 2018. He sought a declaration that his detention was unlawful. An application for interim relief was refused but an order was made for an expedited final hearing. The Claimant was released shortly before the final hearing of his claim. The Defendant made it clear that the decision was taken because it had become clear that the Claimant is unlikely to be deported within a reasonable timeframe. The total period of his detention under the Immigration Act 1971 was therefore 23 months. The issues in this case[4]The Claimant’s case is that his detention was unlawful (or became unlawful) on three grounds.(i) On Ground 1, the Claimant alleges that there were breaches of Rules 34 and 35 of the Detention Centre Rules 2001, relating to failures to perform medical examinations and report on his mental health. He submits that if those assessments had been properly carried out there is a realistic prospect that he would have been released from detention at an earlier stage.(ii) On Ground 2, the Claimant alleges that the Defendant failed to apply her own policy on Adults at Risk in Immigration Detention, which came into effect in September 2016. His case is that on a correct application of the policy he should have been released at a much earlier date. He also alleges that the Defendant failed to take reasonable steps to obtain information concerning his mental health (a breach of the ‘Tameside’ duty).(iii) On Ground 3, the Claimant submits that it was or became unreasonable to continue his detention applying the ‘Hardial Singh principles’ as restated in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 at para 22.[5]The Defendant admits that there was a failure to provide a Rule 34 medical assessment in June 2016 when the Claimant was transferred to Gatwick IRC. As a result, the Defendant accepts that detention was unlawful for a four week period but states that no more than nominal damages are appropriate.[6]Otherwise, the Defendant’s case is that the Claimant’s detention was at all times lawful. The Defendant accepts that he has suffered from mental health difficulties. She submits that considerations of risk to the public and risk of absconding at all times outweighed the apparent risks to the Claimant’s health.[7]A fourth issue arises from evidence of a change in circumstances from November 2017 onwards, when there was a change in the Claimant’s diagnosis and also evidence that he was now suffering from an acute episode of mental illness. New information has come to light which bears not only on the severity of the Claimant’s pre-existing illness but also suggests the emergence of another condition or conditions.[8]The Claimant’s case has therefore been advanced on two different bases. It is submitted that either his detention was unlawful throughout; alternatively, it became unlawful as a result of a failure to act upon the change in circumstances. Evidence of the Claimant’s Background[9]The Claimant was born in 1994 in Sierra Leone. He has given a number of inconsistent accounts about his upbringing. In my judgment, it is right, as the Defendant did, to treat the evidence which his mother and step-father gave at the hearing before the First Tier Tribunal in November 2017 as the most reliable account of his background. Much of his mother’s evidence is corroborated in any event by the original account which the Claimant himself gave at the time of his sentencing in 2015. For reasons which are set out below, it is difficult to attach any weight to his subsequent contradictory accounts.[10]The Claimant lived with his mother until he was about six years old. In 2000, she obtained funding to come the UK as a student. Her present husband (the Claimant’s step-father) was already living in this country. The Claimant’s mother studied at a university in the UK. She obtained a degree, and now works as a healthcare professional. She lives in the south of England with her husband and three younger children.[11]The Claimant remained living with his maternal grandmother at her home in Freetown, Sierra Leone. According to his mother, he stayed with his grandmother for most of the period between 2000 and 2010 although he also stayed with an aunt for short periods. His mother remained in contact with the family in Sierra Leone. She telephoned them regularly and visited them on one occasion. Her husband, the Claimant’s step-father, returned to Sierra Leone on three occasions and met with the family.[12]The Claimant attended school in Sierra Leone, although there is an issue as to whether he completed his education there. It is clear from his letters which I have read that he is literate and fluent in English, which is clear evidence of his educational attainment.[13]In about 2008, the Claimant’s mother heard that the Claimant was becoming involved with gangs in Freetown. She decided to bring him to the UK to join her. With his mother’s help, the Claimant came to the UK on a settlement visa in 2010 and was granted indefinite leave to remain. He was enrolled at a high school in his mother’s home area, and later continued his studies at college. He obtained two BTEC qualifications.[14]The Claimant’s case is that he was traumatised during his childhood in Sierra Leone by witnessing numerous incidents of violence. He has reported seeing fatal stabbings and torchings. It is not clear whether this arose out of his involvement with criminal gangs, or witnessing political violence, or both. The conflict in Sierra Leone largely ended in the late 1990s, but the period which the Claimant is describing is 2000 to 2010. Assessments of this history have been made difficult by the inconsistent accounts which the Claimant has given. Whatever the context of the violence which he saw, or the accuracy of everything he has described, there is no dispute that the Claimant has a diagnosis of PTSD. The Claimant’s offending[15]The Claimant lived with his mother and family from 2010 until some time in 2011 or 2012. However, he was asked to move out of the family home because of his disruptive behaviour. At first he went to live with a relative in south London, but again he moved out. He then had periods of homelessness. His account is that he became involved with a gang in South London which was selling drugs.[16]In 2012, the Claimant pleaded guilty to an offence of robbery. The facts were that he approached a lone female and threatened her with a knife, stealing £100. There was also an offence of attempted robbery (committed the following day) but the facts are not detailed. He was sentenced to a detention and training order for 18 months.[17]Following his release from custody, the Claimant and his then girlfriend were helped to find accommodation in north London by the Southwark Anti-Violence Unit. The Claimant said that he had stolen from the gang in south London and had received threats of violence.[18]At some point in early 2015, the Claimant was admitted to hospital following an assault. Whilst in hospital he disclosed that he was worried about his mental health. He refused the offer of a voluntary admission to hospital for treatment. The arson offence[19]On 9th June 2015 the Claimant committed an offence of arson being reckless as to whether life would be endangered. The conviction arose out of a fire at the flat which he shared with his girlfriend.[20]Support workers had been called to the flat because of reports that the Claimant had been violent towards his girlfriend. The Claimant became agitated during this meeting and threatened to burn the house down. The police were called and he was arrested. After a brief period of detention in police custody, the Claimant was released without charge. He then returned home and immediately started a fire. He did so by setting light to his girlfriend’s belongings on top of the cooker. He left the flat with the fire still burning and did not call the emergency services.[21]The Claimant was subsequently re-arrested and charged with arson being reckless as to whether life would be endangered. He pleaded guilty to the offence and was remanded in custody. Pre-sentence reports and risk assessments[22]Two reports were obtained for the purposes of the sentencing hearing. The first was a report by Dr Anwar, Consultant Forensic Psychiatrist dated 7th September 2015. The Claimant told her that he had witnessed violence during childhood and now suffered flashbacks and nightmares. He said that he had a tendency to get “extremely angry” but he denied that he was violent towards others. He said that he self harmed as a result. He said that he had found it difficult to cope in a 3-man cell and had been moved to a single occupancy cell as a result.[23]Dr Anwar diagnosed the Claimant as suffering from PTSD. She found that he was fit to plead and fit to stand trial. She said that she did not consider it appropriate for him to receive treatment in hospital. Dr Anwar said:
“With regards to the issue of the effect of criminal proceedings on his mental health and the effect that being in custody may have on this, Mr Bah has been on remand since February 2015. He initially had a difficult time settling into custody, and he reported that the frequency of his flashbacks increased, his sleep deteriorated, his nightmares increased and he became acutely suicidal. However, Mr Bah reports that after he was moved into a single cell and has settled into his period in custody, he has not required special assistance, does not feel he requires input from mental health services within the prison, and has been maintained on ordinary location on the wing. He denies any ongoing suicidality. However, he continues to complain of difficulty controlling his anger and described maladaptive coping strategies to deal with this. Therefore if he were to remain in custody I would recommend that he embark on psychological courses related to this, such as Controlling Anger and Learning to Manage It (CALMs) and Enhanced Thinking Skills programmes.”
[24]The second report was the pre-sentence report dated 7th October 2015. This referred to the contents of Dr Anwar’s report. It discussed the Claimant’s background and also an analysis of the offence. The author stated:
“Patently the circumstances of the offence highlights the prescient nature of Dr Anwar’s report and lends credence to Mr Bah’s own description of being unable to manage his emotions in a rational and measured manner. To his credit, towards the culmination of the interview Mr Bah was keen to stress his regret and remorse for his offending behaviour and readily acknowledged that his actions were fraught with risk in terms of the well being and safety of others.”
[25]The report sets out an OASys analysis of risk factors and states:
“Mr Bah is assessed as posing a high risk of harm to [his girlfriend] and future intimate partners as the index offence raising concerns around his inability to manage conflict within his relationships. “Mr Bah is also assessed as posing a high risk of serious harm to the public, namely any residents he resides with in a communal building or neighbouring properties. The risk Mr Bah poses is in my assessment centered around members of the public being inadvertently put at risk if he is unable to manage stress and emotions. Patently Mr Bah’s offending behaviour could have led to serious injuries / fatalities… . “The previous offence of robbery also highlights the risks around weapon carrying and use of instrumental violence to gain compliance from victims for his own financial gain.”
[26]The author noted that the Claimant had previously declined to undertake treatment as a voluntary patient. The final paragraph of the report states:
“It is my assessment that Mr Bah’s unwillingness to engage with mental health services, coupled with his homelessness, may impact on his ability to comply with the requirements of a community based order. This would subsequently mean that any risk he poses would be unmanageable in the community and I am therefore unable to propose a community disposal at this time.”
Sentencing for the arson offence[27]The Claimant was sentenced on 8th October 2015. There is a full transcript of the Judge’s sentencing remarks, which are brief.

The Judge said:

“You need to think about the consequences for other people of what you do and not be carried away by your sense of anger, and I’m quite sure you do have a sense of anger. I don’t know what you experienced in Sierra Leone but I daresay you have a sense of anger because you were abandoned, in effect probably felt abandoned. You obviously need to address your sense of anger and you need to take the first step in doing something about it before you do something really serious, so it’s up to you really to get the proper help.”
[28]The sentence passed was 18 months detention in a Young Offenders Institution. A restraining order was also made. At the time of his sentencing, the Claimant was remanded to HMP Pentonville. Following sentence, he was transferred to HMP/YOI Isis.[29]Mr Southey QC submits that the absence of a finding of dangerousness indicates that the Judge did not think that there was a significant risk of serious harm arising from the commission of further offences. However, I am not persuaded by that argument. A finding of dangerousness would not have been required unless the Judge was minded to pass a sentence of at least 4 years imprisonment (see Section 226A of the Criminal Justice Act 2003). The MAPPA assessment[30]Towards the end of the Claimant’s prison sentence, a formal risk assessment was made pursuant to the MAPPA (‘Multi-Agency Public Protection Arrangements’) procedure. He was assessed as Category 2, Level 2, which indicates that he was regarded as a “higher risk” offender. It is clear that this was taken by the Defendant to indicate that the Claimant had been assessed as posing a high risk of serious harm.[31]The reason why the MAPPA panel made this assessment is not expressly stated in the case papers. In the course of the hearing before me, both parties made submissions on the inferences to be drawn from the MAPPA assessment, taking into account the MAPPA guidance (2012). The Claimant fell automatically within Category 2 because he had been convicted of a ‘specified’ violent offence under Sch 15 CJA 2003 and sentenced to imprisonment for 12 months or more. The Level 2 designation generally indicates an assessment that the offender “is assessed as posing a high or very high risk of serious harm”.[32]It was submitted on the Claimant’s behalf that it is possible that the Level 2 designation arose on an alternative basis, namely that “the risk level is lower but the case requires the active involvement and co-ordination of interventions from other agencies to manage the presenting risks of serious harm.” It follows, Mr Southey submitted, that the Secretary of State should have attached only limited weight to the MAPPA assessment when determining the level of risk for the purposes of the AAR policy.[33]With respect to Counsel’s submissions,I reject that argument. The Defendant was entitled to consider the MAPPA assessment in conjunction the OASys risk assessment in the pre-sentence report. The Defendant was entitled to come to the obvious conclusion that this was a case of “high risk of serious harm”. I am not sure that the submission assists the Claimant in any event, because even the alternative basis involves a finding that there were “risks of serious harm”. Notice of intention to deport and the decision to detain[34]In January 2016, the Claimant was issued with notice of intention to deport. On 10th March 2016, the Defendant exercised her power to detain the Claimant pending deportation pursuant to Sch 3, Para 2(2) of the Immigration Act 1971. Details of the grounds are set out in the record of this decision and in a letter of the same date to the Claimant.[35]The record of decision shows that the Defendant had received copies of the pre-sentence report, the report from Dr Ahmed and the report of the Think Action therapist. It follows that at all relevant times the Defendant was aware of the diagnosis of PTSD. The reviewing officer noted that there had not been any Rule 35 report nor had any other medical condition been disclosed. It was concluded that the Claimant presented “a high risk of public harm [and] a risk of further offending”. It was noted that family influence had not prevented offending. On risk of absconding, the record of decision observed “He has ILR but when he is served with deportation and his ILR is revoked as a result he may not comply with the authorities and abscond.”[36]The reviewing officer concluded:
“I have considered the presumption of liberty as outlined in Chapter 55 of the Enforcement and Instructions Guidance but in this case the presumption is on balance outweighed by the risk of harm to the public and the risk of reoffending. Mr Bah arrived in the UK when he was 16 years of age to join his parents who are settled here, he started offending within less than 2 years after his arrival, he is now MAPPA managed case and rated as Category 2 Level 2 due to his serious level of harm. I would recommend that Mr Bah is detained.”
The authorising officer observed:
“I consider that deportation within a reasonable time period is realistic. I have considered the presumption of liberty but feel that it is outweighed by the risk that the FNO would abscond to avoid deportation if released. There is also a risk that he would offend and cause harm to the public if released.”
March 2016 to June 2016 – Detention at HMP Isis and HMP Belmarsh[37]At the conclusion of his sentence, the Claimant was detained under immigration powers but he remained within the prison estate. Initially he was held at HMP Isis and later at HMP Belmarsh. His detention was subject to reviews by the Defendant at 28 day intervals. Detention was maintained on the basis that the likelihood of absconding and the high risk of public harm outweighed the presumption of liberty. In the meantime, a deportation order was issued on 3rd May 2016.[38]At the first 28 day review, the diagnosis of PTSD was noted but the reviewing officer recorded that no Rule 35 report had been received. The significance of Rule 35 is discussed below. However, it should be noted that a Rule 35 report would only be issued in relation to a detainee in immigration detention. The absence of a Rule 35 report only became significant later on when the Claimant was transferred to immigration detention.[39]The Claimant was regularly seeing medical staff whilst at HMP Belmarsh. At the time, the treatment was subject to the rules of medical confidentiality, therefore the Defendant was not aware of what was said during those assessments and treatment sessions. The full notes have been disclosed for the purpose of these proceedings but it should be remembered that this is information which was not in the possession of the Defendant at the time.[40]The notes show that the Claimant saw a Nurse Practitioner at HMP Belmarsh on 26th May 2016. The Claimant stated that he had a diagnosis of PTSD. He requested a single cell on the grounds that he could not cope with other people being in the cell with him. He did not have any current suicidal ideation. The nurse noted:
“No immediate risk but situation will need to be reviewed regularly”
. The notes show that there was a multi-disciplinary team overseeing his situation, which included a doctor. A report of an MDT meeting on 20th June noted the diagnosis of PTSD but said “present focus in his treatment was more around managing situational stress”. His distress at impending deportation was noted. June / July 2016 – Gatwick IRC[41]On the 27th of June 2016, the Claimant was transferred to Gatwick Immigration Removal Centre. An Emergency Travel Document (‘ETD’) was agreed with the Sierra Leone High Commission and removal directions were set.[42]It is common ground that the Claimant did not receive a compliant Rule 34 assessment on his admission to Gatwick IRC. He was seen instead by a Mental Health Nurse (RMN) who took a history from him. The nurse noted the diagnosis of PTSD and a history of self harm. He was seen again by an RMN the following day. He told the RMN that he was going to claim asylum on the grounds that he is gay and was worried that he would be beaten up or killed on grounds of his sexuality. In fact, he has never relied upon any such claim in any part of his immigration proceedings. The Defendant submits that it is evidence of a pattern of false reports made by the Claimant to medical services in order to manipulate decisions concerning his detention.[43]There is a record of the Claimant self-harming on 7th July 2016. When seen by the RMN he said that he had hurt himself because he had been told that he was going to be returned to prison and he did not want to go. This incident was reported to the Defendant and appears on the GCID record sheets. Again, the Defendant submits that it is evidence of manipulative conduct. It is also of note that the Claimant instructed Solicitors to prepare a bail application on his behalf, which they duly did. There was no suggestion at that stage that he was being unlawfully detained.[44]The medical notes on 13th July 2016 shows that the Claimant discussed with the RMN whether he could rely on mental health concerns as part of his legal proceedings to prevent his removal. He was advised that if he wanted a mental health report the team would be happy to provide one.[45]Between 15th and 25th July 2016, there are several references to suicide and self harm. When asked, he said that he had done it because of the intended removal. He said that he “would rather die here than return to a place where he would be killed.”; he said that he was angry with immigration services; he said that he did not want to return to prison; on one occasion, he claimed that he was hearing voices. He was seen by both nursing staff and a doctor following this incident. He claimed that he was not eating, but this was contradicted by objective findings. The notes show that on several occasions during this period he claimed that he had seen his brother shoot himself in the head. He has not repeated that allegation since, and there was no reference to the suicide of a second son in the evidence of his mother to which I have already referred. The Claim for Asylum[46]On 19th July 2016, the Claimant made a claim for asylum. He provided a factual account which was wholly inconsistent with his earlier version as detailed in the two reports at the time of sentencing.[47]In the asylum interview, the Claimant said that had been kidnapped from his mother when he was about 3 or 4 years old. He said that he had been held by a gang called the ‘Green Flag Gang’ who are associated with a political movement. The Claimant said that he was trained to fight and provided with a gun. He said that he had witnessed a lot of serious violence including murder.[48]The Claimant the Green Flag Gang had sent him with a number of other boys with a woman who they called ‘Aunty’ although he was not related to her. His mother had tried to get him back but the gang had threatened to kill her. He claimed that he had suffered violence from a rival political gang. The Claimant said that he had eventually escaped when he was about 10 years old. For the next five years, he was brought up by another woman who had befriended him and taken him into her home. He said that he was unable to attend school because of threats from rival political groups. Eventually he made contact with his real mother who helped him to leave the country.[49]This account was inconsistent with his account to Dr Anwar and to the probation officer in 2015. It is also contradicted by the evidence of his mother and step-father to the First Tier Tribunal. July 2016 to March 2017 – HMP Belmarsh[50]On 27th July 2016, the Claimant was returned to HMP Belmarsh. Rule 34 did not apply but he was assessed by a psychiatrist on arrival in any event. The doctor recorded that there were ‘mixed messages’ as to suicidal intent. He was placed under constant watch for three weeks but there was no self harming and this was discontinued.[51]The 28 day detention reviews continued as before. On 12th September 2016, the revised policy on Adults at Risk in immigration detention came into effect. Under the policy, the Claimant qualified as an Adult at Risk at Level 2 (at least). Express references to that assessment did not begin to appear in the detention review documents until May 2017.[52]The Claimant remained under the supervision of the MDT at HMP Belmarsh but there is no reference to active treatment at that stage. Again the notes show him going to healthcare in November 2016 to gain support for a single-occupancy cell. A note on 8th November 2016 states:
“Not deemed as having an illness. Main issues are in relation to immigration.”
He was reviewed by a psychiatrist on 16th November 2016. The visit was about his request for a single cell. The doctor recorded:
“Imp: no evidence of acute mental illness. Stress appears to increase his risk of suicidal behaviour / self harm. All seemingly related to sharing a cell.”
The doctor recorded no current thoughts of self harm or suicide.[53]On 6th December 2016, the Claimant underwent a detailed assessment by a mental health practitioner. His complaints again focussed on return to Sierra Leone and sharing a cell. He detailed flashbacks, nightmares and low mood. He was referred for CBT for treatment of his nightmares and flashbacks. Three sessions took place at the end of December 2016 and beginning of January 2017. In the notes for each session the therapist recorded any issues of risk. On two out of three, the record was “no risk”. In the third session he said that he was angry about his immigration status and threatened to kill staff. It was recorded as risk to others.[54]On 22nd January 2017 there was a ligature incident recorded. However, on being transferred to the healthcare unit he told staff that it was because he had been bullied by other prisoners and he did it deliberately so that he would be moved. He was assessed by a psychiatrist who was satisfied that his condition was stable and discharged him within 24 hours. That is the only record of self harm or suicide in this period.[55]Throughout this period, the 28 day detention reviews were carried out on a regular basis. Harmondsworth IRC – 3rd to 18th March 2017[56]On 3rd March 2017, the Claimant was transferred to Harmondsworth Immigration Removal Centre. He was assessed by a Practice Nurse on arrival and disclosed his diagnosis of PTSD. He was offered examination by a Medical Practitioner within 24 hours, as required by Rule 34, but did not attend. An entry within the record shows that an appointment was made for the purposes of “Rule 35” on 8th March 2017, but again he did not attend. The trigger for that entry is not recorded within the medical notes, but the GCID notes for 7th March 2017 state:
“Part C received. B arrived at Heathrow IRC 03.03.2017 from HMP Belmarsh. Has been placed in single occupancy due to history of repeated violence / arson / deemed high risk in previous establishments.”
[57]There was a further Part C received on 17th March stating “B made superficial scratches to his left forearm after being informed he was to be transferred to Morton Hall. This was done out of frustration at being moved away from his family.” This was repeated in a message the next day which stated that the Claimant had admitted that he had only done it in an attempt to prevent transfer. Morton Hall / Harmondsworth IRC – 19th March 2017 onwards[58]The Claimant was transferred again on 19th March 2017, this time to Morton Hall IRC. Again, he was assessed by a Practice Nurse on arrival and then seen by a Medical Practitioner the next day. There is no dispute that this was compliant with Rule 34. The doctor noted the history of PTSD and referred the Claimant to the mental health team. He did not make a Rule 35 report. On 27th March 2017, the asylum claim was refused and certified as totally without merit.[59]The notes thereafter show that the Claimant was seen by the mental health team. There was a treatment plan of medication combined with cognitive dialetical therapy. The Claimant attended some initial sessions but then disengaged. A note dated 27th April 2017 shows that the MHN followed this up and spoke to the Claimant in his room. The Claimant thanked the nurse for his help but said that he did not want to continue with treatment. The nurse recorded that the Claimant was polite and that his impression was that his views were genuine.[60]Continued detention was authorised. It was believed that deportation was imminent, with a removal date set for the end of May. The GCID notes refer to an incident on 3rd May 2017 when the Claimant had fought with another detainee, using a mop as a weapon. A claim for judicial review of the refusal and certification of the asylum claim was dismissed by the Upper Tribunal on 23rd May 2017. Removal directions were set for 14th June 2017 but delayed. The Claimant was transferred to Harmondsworth on 24th May 2017.[61]A review on 25th June 2017 records that deportation was delayed so as to allow an in-country right of appeal. Further detention was authorised. It was noted that the Claimant met the Adults at Risk policy level 2 but “there is no suggestion that detention is injurious to his health.” It was noted that he was Mappa Level 2, with high risks of harm, re-offending and absconding. It was recorded that the presumption of liberty was outweighed by the risks associated with release.[62]On 30th June 2017 the Claimant was reported to have tied a noose around his neck. He was seen by the mental health team. There were assessments in the following days by several practitioners including a doctor and psychiatrist. He attributed his actions to having nightmares and flashbacks of his father being killed. The treatment plan was to continue his medication, observe and refer to psyschology.[63]The next relevant entry is a month later when the Claimant threatened to self-harm to prevent his transfer back to Morton Hall. The incident was recorded by the Defendant on the GCID notes and there was a Part C notification by a nurse. Similar threats were reported to the Defendant in another Part C notice on 29th July 2017. There was a clear pattern of the Claimant using threats of self harm as a means of manipulating decisions over his placement and cell accommodation.[64]The continued detention was reviewed at a case progression panel meeting on 1st August 2017. The fact that the Claimant was assessed at Level 2 in the Adult at Risk policy was noted. The only bar to removal was that an in-country right of appeal was to be offered. The record of the meeting shows that the case was to be carefully monitored. A bail application was made by the Claimant’s solicitors on 19th August 2017 which was refused. The appeal hearing was set for 6th November 2017.[65]Psychological treatment resumed on 3rd August 2017. The plan was for six sessions of psychotherapy. On 30th August 2017 the psychologist recommended that there should be a further assessment by a psychiatrist. There was a report of hallucinatory symptoms on 15th September 2017 but this was attributed to the smoking of “unknown substances”. A Part C notice on 19th September 2017 recorded that the risk of self-harm was “low”.[66]In late September and October 2017, there were reports of disruptive behaviour. There were concerns about the Claimant’s level of anger. There was also an incident of superficial self harming on 7th October 2017. The Claimant then disengaged from psychotherapy. Events following the FTT Hearing on 6th November 2017[67]On 6th November 2017, there was a hearing before the First Tier Tribunal, sitting at Harmondsworth. The Claimant gave evidence but became visibly upset at the start of cross-examination. He reacted angrily and was unable to control his behaviour. The Tribunal Judge recorded that he was concerned for the safety of the Presenting Officer. The hearing had to be adjourned to take the Claimant away. The Tribunal Judge was told that there was a diagnosis of PTSD but expressed the view that the Claimant’s behaviour gave rise to “real cause for concern that [he] may be suffering from an undiagnosed mental health condition beyond simply the PTSD diagnosis from 2015”.[68]On 8th November 2017, there was a prolonged incident in which the Claimant said he was planning to harm himself because of what the Home Office were doing to him. There were more reports of disturbed behaviour on 10th and 13th November 2017.[69]Dr Rizwan Saleem (a psychiatrist) issued a Rule 35 report relating to the Claimant. The premise of the report was that there had been a marked deterioration in the Claimant’s condition. It stated:
“He is objectively suffering from Psychotic Disorder and complex PTSD. His mental illness has deteriorated while in detention according to objective reports from mental health staff. The conditions of detention are causing his serious mental illness to become worse.”
The report recommended treatment in the community. The report is dated 15th November 2017 but it was not in fact received by the Defendant until 20th December 2017.[70]Meanwhile, the Claimant’s then solicitors instructed Dr Saima Latif, a Chartered Psychologist, to prepare an independent report. The precise date it was first received is unclear, but a response was provided after it was sent under cover of a pre-action letter dated 3rd January 2018.[71]On 21st December 2017 the Defendant sought an update on the Claimant’s medical condition from the Head of Mental Health at Harmondsworth IRC. The information provided was that the Claimant was receiving treatment but that his condition had deteriorated “because of non-compliance of his medication”. It was reported that the Claimant was now compliant with medication. Review 22nd December 2017[72]A further review of the Claimant’s detention was carried out on 22nd December 2017. This was carried out in the light of the Rule 35 Report. The Claimant was assessed as engaging the Adult at Risk policy at Level 2.[73]The decision letter shows that the risk to the Claimant’s health was balanced against the assessment that the Claimant presented a “serious level of harm” to others, that he would not comply with restrictions if released and that there is a risk of absconding. The letter noted that removal directions had been set for 29th December 2017. Taking account of the fact that removal was imminent, it was concluded that the negative factors outweighed the risks. Events leading to the Claimant’s release from detention[74]On 28th December 2017 a stay of removal was granted. The claim for Judicial Review was issued on 17th January 2018, including a claim for an order for the Claimant’s release from detention. A further assessment on 18th January 2018 recorded that the Claimant was resident in the healthcare wing and was stable on his medication. There was a concern that if discharged he would refuse medication and his condition would rapidly deteriorate.[75]An application for Interim Relief was refused by Jonathan Swift QC on 25th January 2018 but directions were given for an expedited hearing. The transcript of the judgment at paragraphs 34 to 41 show that the Deputy Judge was satisfied that there were risks of serious harm, non-compliance and absconding, leading to the conclusion that the balance was against immediate release.[76]On 9th February 2018, the Claimant’s detention was reviewed again by the Defendant. In the light of updated medical evidence, the Defendant concluded that the Claimant should be re-assessed at Level 3 in the Adults at Risk policy. On 15th February 2018, it was determined that he should be released from detention but that a release plan was required to mitigate the risks which the Claimant poses upon release. The release was eventually effected on 1st March 2018.[77]For the sake of completeness, the Claimant also submitted a medical report from Dr D L Bell dated 21st February 2018. This report post-dated the decision of 15th February 2018 the Claimant and therefore does not of itself impact on any decision to detain. Insofar as Dr Bell comments retrospectively on the Claimant’s detention, I do not consider the evidence takes the case any further. The reasons for this conclusion are: Dr Bell has relied upon an account provided by the Claimant which is contradicted by objective factual evidence; the report does not contain any analysis whatsoever of the well-documented history in the medical records, the progression of the Claimant’s condition nor the evidence of manipulative conduct; and there is a danger in attaching weight to a report which is viewing events with such emphasis on hindsight. Legal Framework[78]The essential legal framework is not in dispute. The power to detain arose under Section 4(2) and Schedule 3, Paragraph 2 of the Immigration Act 1971. The burden of proving that detention was justified falls on the Secretary of State.[79]The power to detain is subject to the ‘Hardial Singh’ principles (R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 All ER 983 and R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12). In the present case, the Claimant relies in particular on the second and third principles namely: the detainee may only be detained for a period that is reasonable in all the circumstances; and detention should not be maintained if it becomes apparent the Secretary of State will not be able to effect removal or deportation within a reasonable period. It is for the Court to decide whether the power of detention has been lawfully used. See: R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804 at para 62.[80]What amounts to a reasonable period depends on all the circumstances of the case. Relevant factors may include: the length of the period of detention; the nature of the obstacles to removal; 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 the detainee; the risk of absconding; and any risk of offending.[81]The significance of mental illness when considering whether detention is justified and for a reasonable time has been considered in a number of cases, in particular R (O) v SSHD [2016] UKSC 19, R (Das) v SSHD [2014] 1 WLR 3538 and R (VC) v SSHD [2018] EWCA Civ 57. The state of a person’s mental health is a factor which affects the determination of what is a reasonable period to detain (see Das at para 16). Policy has long recognised that people with mental illness are likely not to be suitable for detention. This is because of the risk that it will exacerbate or prolong their illness.[82]Where an issue of mental illness arises the Secretary of State should take reasonable steps to inform herself of the detainee’s condition and consider whether it is so serious that it cannot be satisfactorily managed in detention, taking into account the available healthcare facilities. Evidence that the Claimant’s condition is deteriorating may well be evidence that satisfactory management is not possible (see VC at paragraphs 81 to 89). However, subject to the ‘Tameside’ issue (the duty to make reasonable enquiries) the Court should examine the basis on the evidence known to the Secretary of State at the stage of each decision (see Fardous v Secretary of State for the Home Department [2015] EWCA Civ 951 at para 42).[83]I also take into account the judgment of Green J in ASK v SSHD [2017] EWHC 196 (Admin) and in particular the factors which he identified at paragraphs 70 to 79 as relevant to the assessment of evidence in a case of this nature. The Adults at Risk Policy[84]Section 59 of the Immigration Act 2016 introduced a statutory duty to take account of guidance relating to persons who may be particularly vulnerable to harm in detention. The relevant policy is now the Adults at Risk in Immigration Detention Guidance (‘the AAR policy’), approved by virtue of the Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016. There is also operational guidance in the Enforcement and Instructions Guidance (EIG) at Ch55b. The background to the publication of these policies is explained by Ouseley J in Medical Justice and others v Secretary of State for the Home Department [2017] EWHC 2461 (Admin).[85]Paragraphs 1 to 4 of the AAR policy contain a statement of purpose. They state:
“1. … The intention is that the guidance will, in conjunction with other reforms referred to in the Government’s response, lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal. It aims to introduce a more holistic approach to the consideration of individual circumstances, ensuring that genuine cases of vulnerability are consistently identified, in order to ensure that vulnerable people are not detained inappropriately. The guidance aims to strike the right balance between protecting the vulnerable and ensuring the maintenance of legitimate immigration control. 2. This guidance allows for a case-by-case evidence-based assessment of the appropriateness of the detention of an individual considered to be at particular risk of harm in the terms of this guidance. 3. The clear presumption is that detention will not be appropriate if a person is considered to be “at risk”
. However, it will not mean that no one at risk will ever be detained. Instead, detention will only become appropriate at the point at which immigration control considerations outweigh this presumption. … 4. … In these cases, an assessment will be made of whether the individual is “at risk” in the terms of this guidance and, if so, the level of risk (based on the available evidence) into which they fall. If the individual is considered to be at risk, an assessment will be made of whether the immigration considerations outweigh the risk factors. Only when they do will the individual be detained.”[86]Paragraph 6 sets out the main principles which underpin the guidance. In particular, it provides that “detention will not be appropriate if an individual is considered to be at risk in the terms of this guidance unless and until there are overriding immigration consideration.” Under paragraph 7 of the AAR policy, a person is recognised as ‘at risk’ inter alia if they are suffering from a medical condition which would be likely to render them particularly vulnerable to harm if detained.[87]Paragraph 9 of AAG identifies three levels of evidence in support of the suggestion of risk.• Level 1 (limited weight) relates to self-declarations.• Level 2 (greater weight) applies where there is professional evidence, or official documentary evidence, to indicate that the person is at risk.• Level 3 (significant weight) applies where there is professional evidence that a period of detention is likely to cause harm, for example by increasing the severity of any symptoms or condition.[88]At Paragraph 11, a mental health condition is expressly specified as an indicator of risk, although it goes on to say that this depends on the nature and seriousness of the condition. Paragraphs 13 states that there is a presumption that a person who is at risk as defined by the guidance should not be detained. However, this presumption can be outweighed by immigration control factors. Specified factors are: the likely duration of the detention; public protection issues; and compliance factors, such as risk of absconding.[89]Further detail is set out in the operational guidance in Ch.55b of EIG. In particular, guidance is given as to what may be required to outweigh the presumption of release in cases at the three levels. In a case which is assessed at Level 2, detention may be justified if there are public protection concerns which would justify detention, eg. if the detained person is a foreign criminal or there is a relevant national security or other public protection concern. In a case assessed at Level 3, the corresponding thresholds are higher: in those cases the public protection concern has to be ‘significant’, or the offence resulted in a sentence of at least four years custody, or the individual presents a current public protection concern. The guidance, however, emphasises that this is not a prescriptive template and each case must be assessed on its own merits.[90]The guidance states that medical evidence should “normally” be accepted by the caseworker. It states:
“… caseworkers should not usually disagree with medical evidence unless there are very strong reasons for doing so - for example, a finding by an independent tribunal that rejects the same evidence or credibility concerns arising from other sources. Such matters may be taken into account in deciding the weight that should be afforded to evidence and could result in a reconsideration of the weight of the evidence.”
Rules 34 and 35 of the Detention Centre Rules[91]Rule 34 of the Detention Centre Rules provides that every detained person shall be given a physical and mental examination by the medical pracitioner, or another registered medical practitioner, within 24 hours of admission to a detention centre. It is common ground that this is satisfied only by examination by a registered medical practitioner (ie. a doctor) as opposed to a nurse or other qualified healthcare professional. This duty does not apply if the detainee does not consent.[92]Rule 35 provides that the medical practitioner at a detention centre shall report to the manager on the case of any person whose health is likely to be “injuriously affected” by their detention, and also on any person whom he suspects of having suicidal intentions. This is an ongoing duty which is not confined to the intial Rule 34 examination. It is important to note that there is also an ongoing duty under Rule 33 to provide a registered medical practitioner and a healthcare team at every detention centre who are responsible for the physical and mental health of detained persons (described by Green J in ASK as “a duty of constant supervision”).[93]These are undoubtedly important obligations. They are closely related to the decision to detain and the Secretary of State’s obligations to adults at risk (see R (RT) v SSHD [2011] EWHC 1792 (Admin)). As Mr Southey submitted, the Rule 34 examination is important because it provides an opportunity for a medical practitioner to identify persons at risk and, if appropriate, obtain the information necessary to submit a Rule 35 report. The duty of inquiry[94]In addition to the statutory duties under Rules 34 and 35, the Secretary of State is under a duty to make reasonable inquiries when exercising a power to detain. The Claimant relies upon the principle in Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 at 1065B, namely that a decision maker has to take reasonable steps to inform him or herself sufficiently in order to be able to make an informed decision.[95]The ‘Tameside’ duty has been considered and applied in the immigration context in a number of cases including R (Das) v SSHD [2013] EWHC 683 (Admin) (Sales J) and [2014] 1 WLR 3538 at paras 69 to 70 (Beatson LJ); R (DK) v SSHD [2014] EWHC 3257 (Admin) at paras 164 to 183 (Haddon-Cave J); and R (ZA) v SSHD [2018] EWHC 183 (Admin) at para 84 (M Kent QC). It relates also to the need to make practical inquiries, as discussed in R (O) v SSHD [2016] UKSC 19. The duty to make reasonable inquiries is a flexible concept which requires a fact-specific assessment. In ordinary circumstances, the Secretary of State is entitled to rely upon the assessment of the responsible clinician or medical practitioner.[96]Mr Southey submits that in determining what is reasonable the Court should take into account the renewed emphasis on the risks to vulnerable adults in detention, as marked by the 2016 AAR guidance. He also relies upon the decision in VC to emphasise that the Court should be aware that mental illness may itself impair a detainee’s ability to appreciate or raise concerns about their own mental health, which is all the more reason why the Secretary of State should take proactive steps to discharge the duty of investigation. Discussion and Conclusions[97]In considering the three grounds relied upon by the Claimant, and also the issue of the change in circumstances, there is inevitably an overlap. I am not going to duplicate findings within the discussion of each ground, but that is not to indicate that my approach to the issues is compartmentalised. Ground 1 - Rule 34 of the Detention Centre Rules 26th June 2016 - Gatwick IRC[98]The failure to conduct a Rule 34 examination at the outset of the Claimant’s admission to Gatwick IRC on 26th June 2016 is an admitted breach of the Detention Centre Rules. It results in the conclusion that the Claimant’s detention for at least the following four weeks was unlawful. The issue is whether the breach resulted in any material loss or disadvantage.[99]It is common ground that the Claimant’s diagnosis of PTSD was already known to the Defendant and to those responsible for his care. By June 2016 the Claimant had already been in custody for just over a year and the evidence shows that his condition had been adequately managed. He had been supervised at HMP Belmarsh by a multi-disciplinary healthcare team. His case had been discussed at an MDT meeting only seven days before his transfer to Gatwick IRC and no significant concerns were raised. Subsequent to his admission to Gatwick IRC there were episodes of self harm but these were attributed (even on the Claimant’s own report) to deliberate, manipulative conduct. The fact of the diagnosis and the fact of the episodes of self harm were disclosed to the reviewing officer and appear in the GCID notes. Those matters did not in fact result in a decision to release the Claimant from detention. The risk to the public and risk of absconding were always powerful factors against release.[100]In those circumstances, I am satisfied that the failure to conduct a Rule 34 medical examination on 27th June 2016 made no material difference to the decision to detain the Claimant. I am satisfied that there is no realistic prospect that, had such an examination been carried out, anything would have emerged which would have caused the issue of a Rule 35 report or otherwise led to the Claimant’s release. I am satisfied on the evidence that this is a case where nominal damages would be appropriate. 3rd March 2017 -Harmondsworth IRC[101]Criticism is also made of the failure to take positive steps to encourage the Claimant to attend for a rule 34 assessment on arrival at Harmondsworth IRC on 3rd March 2017 and/or to follow up his non-attendance at the scheduled ‘Rule 35 appointment’ on 8th March 2017.[102]I accept that Rule 34(1) creates a mandatory requirement to ‘give’ a physical and medical examination, subject only to Rule 34(2) which states:
“Nothing in paragraph (1) shall allow an examination to be given in any case where the detained person does not consent to it.”
Mr Southey submits that any such withdrawal of consent should be real and informed, thereby placing a positive obligation on the Secretary of State to explain to the detainee that such an examination may assist him or her to secure evidence relevant to the decision to detain. However, there is force in Mr Brown’s submission that it is unrealistic to expect formal evidence of a waiver of the right to an examination. An examination cannot take place without consent, therefore the duty in Rule 34(1) is discharged by giving the detained person the opportunity of a medical examination.[103]In my judgment, the Claimant’s submissions on the extent of the duty are academic. I am satisfied on the facts of this case that the Claimant had capacity to decline a medical examination and that he was well aware of how to access medical support when he required it. I am also satisfied that the Claimant knew that he was entitled to ask for medical evidence for the purposes of any legal challenge, which is something which he had discussed with medical staff months earlier. Independent evidence of the Claimant’s mental health condition had been known to the Secretary of State from the outset. In that regard, a Rule 34 examination would not have altered the Claimant’s position materially unless it resulted in a finding that he was likely to be injuriously affected by his further detention, thereby placing him within Level 3. It is necessary only to look at the assessments made shortly before and after the transfer to Harmsondsworth. The Claimant had just completed a course of psychotherapy at HMP Belmarsh where, on each occasion, the psychologist had determined that the Claimant was not at risk. Subsequently, the Claimant was transferred to Morton Hall just over a fortnight later. A compliant Rule 34 examination took place and no Rule 35 report was issued. Therefore I am satisfied that a Rule 34 examination on 3rd March 2017 would not have led to the issue of a Rule 35 report nor would it otherwise have had any material impact on the decision to detain the Claimant. Ground 2 – The Adults at Risk Policy and the ‘Tameside’ duty[104]The Claimant alleges that there were repeated failures to apply the AAR policy correctly or at all. There was no explicit reference to the AAR policy in detention reviews until May 2017. The Claimant submits that for most of the period he was wrongly assessed on the available information as falling within Level 2 and/or that if proper enquiries had been made information would have come to light which would have led to an assessment within Level 3. He submits that excessive weight was given to the negative factors of risk to the public and risk of absconding.[105]I am satisfied on the evidence that throughout this period the decision to maintain the Claimant’s detention was correctly made on the information which was reasonably available to the Defendant. The fact that the Claimant had a diagnosis of PTSD was at all times known to the Defendant and taken into account. It gave rise to a strong presumption that he should be released from detention. Also, the fact that the Claimant had self-harmed was known. Those facts were known and were taken into account. However, there was no evidence at that stage that the Claimant’s mental health condition was in fact deteriorating, or at a significant risk of deteriorating, as a result of his detention in custody.[106]The Secretary of State was entitled at all times to weigh evidence of the Claimant’s diagnosis against the evidence that he posed a significant public protection concern. The Claimant had committed a robbery with a knife in 2012; arson being reckless as to whether life was endangered in 2015; he had been asssessed by the probation officer as a high risk of serious harm; and he had been assessed as Category 2, Level 2 for MAPPA purposes. These conclusions are reinforced by medical evidence which shows that he was regarded as a risk to others. The conclusion of the Secretary of State that the Claimant’s release “carries a high risk of harm” and “a serious risk of harm to the public” were justified by the evidence. There were also findings that the Claimant was at risk of absconding (again, justified on the evidence) but that is of less significance. The high risk of harm to the public was on its own sufficient to outweigh any presumption of release in this case. Application of the ‘Tameside’ duty[107]I accept that there will be circumstances where the Secretary of State should be proactive in obtaining information regarding a detainee’s fitness for detention, and in particular in determining whether detention is likely to be injurious to health. However, the application of that duty must be fact-specific.[108]In the present case, the Claimant’s mental health concerns were well known from the outset, as was the history of self harming. The reviews consistently noted that the Claimant’s condition was being monitored and that no Rule 35 report had ever been provided. They noted the absence of any positive evidence that detention was injurious to the Claimant’s health.[109]In the circumstances of this case, I am satisfied that there was clear evidence that Claimant’s condition was being monitored by the relevant multidisciplinary team. In my judgment the Secretary of State was entitled to trust the professionalism of the healthcare team, who had collective responsibility for the Claimant’s care under Rule 33(2); and also to rely upon the medical practitioner leading that team, who had a duty under Rule 35(1) to report if the Claimant’s health was likely to be injuriously affected. It is notable in this regard that when (following the FTT hearing in November 2017) the reviewing officer asked for confirmation that the Claimant remained fit for detain, the response received from Harmondsworth IRC was:
“Unless stated by h/care, all detainees are suitable for detention and removal. If the h/care team have any concerns a Rule 35 would be issued.”
The same considerations apply in respect of the prison healthcare team, who did not at any stage raise relevant concerns. Conclusions on Ground 2[110]I am satisfied that at all times up to November 2017 the Defendant was entitled to conclude that the Claimant fell within Level 2 of the AAR policy. I do not accept that the Defendant failed in her common law duty to take reasonable steps to ensure that there was adequate information to make the decision to detain. In any event I am not satisfied that any different conclusions would have been reached had such enquiries been made. The evidence is that the Secretary of State did take into account the evidence of significant mental illness and the history of self-harming. Furthermore, I am satisfied that the Secretary of State would have been justified in maintaining detention even if a risk of deterioration had been identified. The level of risk posed by the Claimant at all times would have justified the conclusion that he presented a significant public protection concern. As both the policy and the guidelines make clear, the framework is neither rigid nor prescriptive. The evidence of the reviews shows that the Secretary of State gave careful consideration to the Claimant’s medical condition and his particular circumstances.[111]For the sake of completeness, I am satisfied for the purposes of this Ground that the Defendant’s conclusions on the likely length of detention were justified. An emergency travel document was in fact obtained relatively shortly after the Claimant’s detention and removal directions were set. However, it was the cumulative effect of the subsequent claim for asylum, the grant of an in-country right of appeal and the challenge to that decision which led to a relatively prolonged period of detention. The Defendant’s conclusions were appropriate at the time and it is only with the benefit of hindsight that we are now aware of the delays. Ground 3 – Application of ‘Hardial Singh’ principles (prior to November 2017)[112]The argument in the present case centres on the second and third principles. There is no dispute that the Claimant was detained with a view to his deportation and that genuine efforts have been made to give effect to it. Also, I am also satisfied that the Defendant acted with reasonable diligence.[113]The Claimant submits that the period of his detention was unreasonable in all the circumstances. I accept that in assessing what amounts to a reasonable time the fact that he had a recognised pre-existing mental disorder should be taken into account. I also recognise the desirability of providing treatment in the community where appropriate. Taking all matters into account, I am satisfied that the period of detention was reasonable in the circumstances of the Claimant’s case (at least to the point of the change in circumstances). As noted already, the ETD was obtained relatively quickly and arrangements were made for deportation as early as August 2016. The fundamental reason for the delay was the asylum claim made by the Claimant, which was rejected on the grounds that he had given a false account. Ultimately, the Defendant was entitled to conclude that the presumption of release was outweighed by the negative factors of risk of harm to the public and risk of absconding. It is also relevant to note that two bail applications were made (one withdrawn, one rejected) which reinforces the view that detention was appropriate.[114]The Claimant also submits that the third ‘Hardial Singh’ principle was breached, in that it should have become apparent at an earlier stage that deportation was not going to take place within a reasonable time. I am satisfied that at each relevant stage it was reasonable to conclude that deportation was going to take place within a reasonable timeframe. Removal directions were set on three occasions (August 2016, June 2017 and December 2017) but cancelled as a result of challenges by the Claimant. The decisions were justified on the basis of the information at the time.[115]For all the reasons set out above, I am satisfied that the decision to detain the Claimant during this period was lawful, save for the limited period following transfer to Harmondsworth. Evidence of a change in circumstances 6th November 2017 to 27th December 2017[116]An important issue in the present case is whether the Claimant’s detention became unlawful in the light of the evidence of the acute change in his condition from November 2017 onwards. For the avoidance of doubt, I discount the evidence that the Claimant’s mental state may have started to decline towards the end of August 2017: even if that is right, the fact that this indicated a material change in the Claimant’s condition was not reasonably within the knowledge of the Defendant at the time.[117]The first clear evidence of a significant deterioration in the Claimant’s condition was his conduct at the FTT hearing on 6th November 2017. This was followed by incidents of disruptive behaviour and self harm which were reported to the Defendant on 9th and 10th November 2017. The GCID notes show that enquiries were made by the reviewing officer on 10th and 18th November 2017. On both occasions, it was reported that the Claimant’s condition had deteriorated due to a failure to take medication.[118]The detention review on 16th November 2017 was prior to the issue of the FTT decision and continued detention was justified for the same reasons as before. Subsequently, the reviewing officer made an appropriate enquiry as to whether a Rule 35 report was appropriate, and as noted already was not that the healthcare team would issue one if they felt it was required.[119]On 20th December 2017, Dr Saleem’s Rule 35 report was received. The report is dated 15th November 2017 but there has been no explanation for the discrepancy in date. Dr Saleem stated that the Claimant’s health was likely to be injuriously affected by continued detention. He advised that the Claimant had a Psychotic Disorder as well as Complex PTSD, and that his condition had already deteriorated. He recommended that the Claimant should be released to pursue community-based treatment.[120]The Defendant responded to the Rule 35 report by way of a letter dated 22nd December 2017. The letter shows that the head of the mental health team at Harmondsworth IRC had been spoken to in the light of Dr Saleem’s report and had said that the Claimant was now compliant with his medication. The letter also refers to the ongoing public risk. Removal directions were set for 29th December 2017, and given that removal was imminent continued detention was appropriate.[121]In the light of the information that deportation was very imminent, in my judgment the decision to maintain the Claimant’s detention at that time was reasonable and justified. 28th December 2017 onwards[122]On 28th December 2017, the Claimant was granted both permission to appeal and a stay of removal. On 3rd January 2018, the Defendant received the report of Dr Saima Latif from the Claimant’s solicitors under cover of a pre-action letter. Dr Latif advised that the Claimant required an immediate release from detention to allow for an improvement in psychological symptoms. The substance of the report dealt with the history of his experiences in Sierra Leone and on the consequential illness. There was no discussion at all of the Claimant’s experiences in custody nor any review of the progress of his condition. At para 11.7 of her report, Dr Latif expressed the view:
“Regarding his continued detention, it is likely that this is only causing Mr Bah’s symptoms to become much worse …”
. She went on to repeat her recommendation.[123]The AAR guidance makes it clear that medical evidence should normally be accepted, and that it should only be disregarded if there is clear reasons. In this case, a further detention review was conducted on 11th January 2018. The assessment was made that the Claimant remained at ‘Level 2’ notwithstanding the reports of Dr Latif and Dr Saleem. The record of decision notes that there was an injunction against removal but states:
“Removal remains a realistic prospect in the event of all barriers being concluded within a reasonable timescale.”
This comment is somewhat circular and at best indicates uncertainty. It was concluded by the Defendant that the negative factors still outweighed the presumption of release[124]The Defendant’s response to the pre-action letter is dated 17th January 2018. Dr Latif’s conclusion was rejected on two grounds:(a) that it was based simply on a 1½ hour assessment session; and(b) that it relied upon factual assertions which had already been rejected by the FTT determination. Again, the Defendant relied upon an up-to-date report from the healthcare team at Harmondsworth who stated that the Claimant was currently resident on the healthcare unit; he was complying with his medication and was stable; they stated that they would report if there was a deterioration.[125]In my judgment, by mid-January 2018 the Claimant’s detention could no longer be justified on a proper application of the AAR policy and/or on Hardial Singh grounds. I recognise that the Defendant may disregard medical evidence of a risk of deterioration if there is good reason to do so. However, by this stage this involved rejecting the evidence of two separate assessments. With respect to the author of the letter of 17th January 2018, by this stage there appears to be a focus on looking for reasons not to release the Claimant rather than a clear application of the AAR policy in the light of the new evidence.[126]In rejecting the conclusions of Dr Saleem and Dr Latif, the Defendant relied upon oral reports to the effect that the Claimant’s condition was being effectively managed on the healthcare unit, and the attribution of his acute presentation to non-compliance with medication. However, the letter fails to acknowledge that this in itself was evidence of a significant change in the Claimant’s condition. The diagnosis of psychotic illness, the need for anti-psychotic medication and the need for treatment or supervision on the healthcare unit were significant changes from the Claimant’s presentation the previous year. The failure to assess the Claimant’s case at Level 3 under the AAR policy was, in my judgment, contrary to the evidence. At the very least, there ought to have been an attempt to obtain written evidence addressing the issue of risk to the Claimant.[127]At this stage, the change in diagnosis and presentation should have been considered alongside the other relevant factors. It was by now clear that deportation was no longer imminent (in marked contrast to the position in mid-December). The level of public protection risk and the risk of absconding had not changed, but the balance had plainly tipped. It is also significant that in previous reviews the Defendant had indicated that careful monitoring of the Claimant’s condition was one of the ways in which risk of harm could be avoided. It follows that the Defendant ought to have reacted when elements of that monitoring indicated a change in circumstances.[128]The decision that the balance had turned in favour of release was finally taken on 15th February 2018 but the Claimant was not released until 1st March 2018. In my judgment, it was appropriate to delay discharge to put necessary arrangements in place. The purpose of the AAR policy is to minimise the risk of harm to vulnerable detainees and also to balance any risk to the public. In my judgment, it is entirely consistent with that policy for the Defendant to seek take account of those factors in devising a proper discharge plan before release.[129]In conclusion, in my judgment the decision in January 2011 to continue to detain the Claimant in the light of the revised medical evidence and also the delay to the Claimant’s removal was unjustified. I take into account the fact that the application for interim relief was refused by the Deputy Judge, but a fuller picture of the evidence is now available to the Court. The decision to release the Claimant ought to have been taken by 11th January 2018 but it would have been necessary to delay release pending the preparation of an appropriate discharge plan, a process which took 14 days when eventually the decision was taken. In my judgment, the Claimant should have been released by 25th January 2018. It follows that, in my judgment, the Claimant’s detention between 25th January 2018 and 1st March 2018 was unlawful. Conclusions[130]For the reasons stated, my conclusions are as follows:(a) The failure to conduct a Rule 34 examination on 28th June 2016 did not cause any material prejudice to the Claimant and damages for consequent unlawful detention should be nominal.(b) The Claimant’s detention from March 2016 until 25th January 2018 was lawful. Neither Ground 2 nor Ground 3 have been made out in respect of this period.(c) The decision to maintain the Claimant’s detention beyond mid-January 2018 was unjustified on the evidence reasonably available to the Defendant at the time. It was both contrary to the AAR policy and in breach of the Hardial Singh principles. Allowing an appropriate period for a release plan to be put in place, in my judgment the Claimant’s detention from 25th January 2018 until his release on 1st March 2018 was unlawful. To that extent, the claim for judicial review succeeds.