Detention of mentally ill foreign national violated Convention rights

29 September 2011 by Daniel Sokol

R (on the application of S) v Secretary of State for the Home Department [2011] EWHC 2120 (Admin) – read judgment

The High Court has found that the Secretary of State unlawfully detained a mentally ill foreign national who was awaiting deportation.  By failing to notify the claimant of the deportation order in good time or to follow the Home Office’s own published policies on the detention of mentally ill persons, and by detaining the claimant in degrading conditions, the Secretary of State had breached Article 3 (prohibition of inhuman and degrading treatment) and Article 5 (right to liberty and security of person) of the Convention.

The facts

The claimant, S, is an Indian national of Sikh origin. The events leading up to his illegal entry into the UK in February 1995 are tragic and disturbing. In 1990, when S was 14 and living in India, four masked gunmen murdered his parents and anally raped him with a bottle. In June 1994, he travelled to Germany, where he was sexually abused and forced into prostitution.

In February 2009, S was convicted in Reading Crown Court for violent offences committed during an unprovoked attack on four people in September 2006. In custody, he self-harmed and attempted suicide. At the conclusion of his sentence, on 28 April 2009, the UKBA wrote to S stating that he would be detained pending deportation, pursuant to s36(1) UK Borders Act 2007. During this detention period, S suffered from hallucinations involving four threatening men and was prescribed anti-psychotic drugs, but continued to self-harm. He was placed on constant watch.

The UKBA conducted detention reviews in June and July 2009 but despite reports from clinicians referring to S’s troubled mind no mention was made of any mental health issues. The reviews authorised continued detention. In December 2009, S was transferred to a low-secure mental health unit, under s38 of the Mental Health Act 1983.

The defendant made a deportation order in late January 2010, and set out its reasons for the decision in a letter dated 1 February 2010. The letter, described by Deputy Judge David Elvin QC at [33] as displaying ‘faulty understanding […] of S’s circumstances’, was not served on S until 30 April 2010, by which time he had been transferred from the psychiatric hospital to immigration detention. Upon receiving the deportation notice, S was closely monitored as a result of his high risk of self-harm and suicide.

On 6 May 2010, S filed a notice of appeal against the deportation decision. During his detention, S continued to hear voices telling him to cut his wrists and drink blood, and on several occasions did so. A psychiatrist examined S and deemed him no longer fit for detention. The report did not reach UKBA, who continued to authorise detention. After further self-harm, S was eventually transferred to a hospital on 4 August 2010 under s48 Mental Health Act 1983. A final detention review occurred on 8 September, following which continued detention was again authorised. S was permitted to bring judicial review proceedings on 21 September 2010, and released on conditional bail on 29 September 2010.

The judgment

In determining the lawfulness of the delayed notification of the deportation order, the Court quoted Lord Steyn’s majority judgment in R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 A.C. 604:

Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice.[26]

The Court rejected the defendant’s contention that the order was ‘in force’ from the moment it had been made, and held that notification was necessary for it to be so. Hence, the deportation order was not in force for the purposes of 2(3) of Schedule 3 of the Immigration Act 1971 at the time of S’s detention at the immigration removal centre on 24 April 2010, and the detention was unlawful and in breach of Article 5 ECHR.

The Court then examined the Secretary of State’s policy on the use of immigration detention. The essence of the guidance, contained in section 55.10 of the Enforcement Instructions and Guidance, is that persons suffering from serious mental illness should only be detained in very exceptional circumstances. The Court concluded at [181] that the review decisions ‘failed to grapple with the need to understand and apply the policy requirement of exceptional circumstances, to recognise properly S’s mental condition and to consider properly objective evidence as to the effect of detention on it’. As the policy in 55.10 was highly relevant to the decision to detain S, the failure to follow it was a breach of policy rendering the detention unlawful.

The Court affirmed that, ‘in a sufficiently extreme case’, the adverse effects of detention on an existing mental illness could fall under Article 3, citing in support Pretty v UK (2002) 35 E.H.R.R. 1 at [52]. The Court found that the circumstances of S’s detention at the immigration removal centre crossed the high threshold of an Article 3 violation. The fact of his detention, despite clear psychiatric advice that such detention was not appropriate, and his continued detention leading to various episodes of self-harm and a general worsening of his condition, amounted to inhuman and degrading treatment. S’s treatment showed ‘a serious lack of respect for his human dignity’ [212]. His suffering and humiliation surpassed that inherent in lawful detention (following Kudla v Poland (2002) 35 E.H.R.R. 11 at [92]) and, in any event, his detention was unlawful from the outset.

In addition to breaches of the negative obligations of Article 3 listed above (i.e., obligations to refrain from causing serious harm), the Court found breaches of the positive duties (i.e., obligations to take measures to prevent inhuman and degrading treatment). The defendant failed to put in place suitable measures to prevent the Article 3 violations and existing procedures were not used effectively or with sufficient urgency.

Looking more broadly at the issue, the judge noted at [218] that ‘[…] what I find with respect to the treatment of S may indeed have implications for the future treatment of the mentally ill who are proposed to be deported or removed’, but ultimately confined his judgment on the issue to the instant case.

Daniel Sokol, currently a pupil at 1 Crown Office Row, is Senior Lecturer of Medical Ethics at Imperial College

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