Supreme Court on Detention, Deportation and Mental Illness

R (O) v Secretary of State for the Home Department [2016] UKSC 19 (27 April 2016)

Heaven knows: Yarl’s Wood IRC – the infamous British Gulag where pregnant women and children are locked up – may even make the likes of president Putin squirm on an off day. But rarely will the great British state cringe at the ugly truths lurking behind the scenes in detention centres operated by private contractors who profit from “indefinite” detention (and apparently also sexually prey on vulnerable people deprived of their liberty). A Nigerian national aged 38 who entered the UK illegally in late 2003 with her three-year old son, O suffered from mental health problems that instigated attempted suicide, other self-harm, hallucinations, unpredictable mood-swings and impulsive outbursts for which she received high doses of anti-psychotic and anti-depressant medication. She was detained at Yarl’s Wood for almost three years (2008-2011) purportedly justified by the risks of absconding and harm despite a 2009 recommendation, under section 48 of the Mental Health Act 1983, for her transfer to hospital. O’s case turned on official policy on detaining the mentally ill pending deportation. It readily demonstrates the abjectness of the predicament of detainees and even Lord Wilson confessed that he knew nothing about her circumstances after 6 July 2011 but deduced “she has not, or not yet, been deported.”

Yet under the principle in Lumba [2011] UKSC 12 it was held that permitting her judicial review claim to proceed would result in a £1 award for damages because she had already been released from detention when it was issued “and it could bring her no practical benefit.” Since it relates to detention, this case overlaps slightly with the decision in Nouazli [2016] UKSC 16 (see here). Supported by the interveners – Bail for Immigration Detainees and Medical Justice – O successfully argued that the authority of R (Francis)(Bail for Immigration Detainees intervening) [2014] EWCA Civ 718 had been wrongly decided. Even though Lady Hale (Deputy President), Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson unanimously dismissed O’s appeal, in times when public funding for legal cases is in short supply these proceedings are proof of the legal profession’s commitment to representing the vulnerable on a pro bono basis. In comparison to some of the other recent appeals decided by the Supreme Court, O’s case is less case law focused but involved extraordinary facts.

Empathising with her predicament, Lord Wilson described O’s mental health problems as a “misfortune”. But private enforcement agents in Yarl’s Wood insist: “They’re all animals. They’re caged animals. Take a stick in with you and beat them up. Right? Let them slash their wrists.” Steps have been taken under the Immigration Act 2016 (see here), which received Royal Assent on 12 May 2016, to prevent arbitrariness in detaining persons pending deportation and paragraph 11 of Schedule 10 contains a safeguard whereby the authorities are under a duty to arrange consideration of bail after four months. Since abuses of power are so extreme nowadays, it shall be interesting to see whether confused immigration officials will live up to their new statutory obligations.

Context

O was refused asylum and discretionary leave and her appeal was dismissed. Some days after arriving in the UK, in violation of section 1 of the Children and Young Persons Act 1933, she committed the offence of cruelty to her son. She pleaded guilty in 2008 and was sentenced to 12 months’ imprisonment and recommended for deportation. Upon completing her sentence she was detained at Yarl’s Wood until being released on bail in early July 2011. She was initially detained pursuant to paragraph 2(1) of Schedule 3 to the Immigration Act 1971 pending the making of a deportation order. Subsequently, after it was made, pending deportation she was detained under paragraph 2(3) of Schedule 3 to the 1971 Act. She was in Yarl’s Wood between August 2008-July 2011.

She made a series of judicial review applications and the present appeal arose out of the fourth, and last, of these. Her criminal offending continued and in 2007 she used a false identity document to try to open a bank account. She was convicted and sentenced to nine months’ imprisonment. As for her offending against her son, she was released on bail after being charged in 2004 and absconded rather than facing charges at trial in February 2005. Her daughter, who to her anguish was placed for adoption by the court, was born in 2005 while O was a fugitive from justice.

While in detention, O attempted to commit suicide in March 2010. She was put in hospital but its consultant psychiatrist opined she could be adequately treated in Yarl’s Wood. This was so despite her own consultant psychiatrist’s recommendation in 2009 that she should be transferred from Yarl’s Wood to hospital. Another senior clinical psychologist – an expert on the impact of trauma on women’s mental health, namely Dr Agnew-Davies – she instructed prepared a new 69-page report on her in February 2011 and found she suffered from a depressive disorder and also an extreme form of post-traumatic stress disorder. It was clear that release from Yarl’s Wood would help her mental health because she required a long-term structured package of professional care. She needed to be referred, in accordance with the National Institute for Health and Care Excellence (NICE) guidelines, to a specialist trauma-focussed clinic for phased treatment.

In the Supreme Court, she challenged the lawfulness of her detention from 22 July 2010 (and in particular from 4 March 2011, the date of the first review of O’s detention following the government’s receipt of the 2011 report) until 6 July 2011 when she was released on bail. Thereafter, Lang J ([2012] EWHC 2899 (Admin)) refused permission for O’s claim to proceed because her detention did not infringe the Hardial Singh [1984] 1 WLR 704 principles and there was a high risk of absconding and a significant risk of reoffending. Despite finding flaws in the monthly reviews of O’s detention between March and July 2011, the Court of Appeal (Arden, Underhill and Floyd LJJ, [2014] EWCA Civ 990) dismissed her appeal; which meant that the matter entered the Supreme Court.

The Supreme Court

The effect of the flaws on the lawfulness of O’s detention between March and July 2011, in light of the authority of Francis, were central to her case. Unanimously dismissing the appeal, Lady Hale (Deputy President), Lord Wilson, Lord Reed, Lord Hughes and Lord Toulson held that if O’s claim for judicial review had been permitted to proceed, the outcome would at best be a declaration that her detention was unlawful and an award of only nominal damages. The courts below had thus been entitled to refuse permission.

Unpicking the official policy on detaining the mentally ill, Lord Wilson recalled Lord Dyson’s concerns in Lumba that “immigration detention powers need to be transparently identified through formulated policy statements”. Under the Enforcement Instructions and Guidance (EIG, or “manual”) chapter 55 deals with “detention and temporary release” and requires officials to conduct monthly reviews of detention. In particular, para 55.10 concerns “persons considered unsuitable for detention”. It stipulates that persons with “serious mental illness which cannot be satisfactorily managed within detention” can be detained in “only in very exceptional circumstances”; for example where a risk of further offending or harm to the public exists.

In O’s case, six reviews of her detention which were written between 4 March 2011 and 4 July 2011 made only a fleeting reference to the new report produced in 2011 and her most recent diagnosis was wrongly identified as being in March 2010. Senior officers indorsed the caseworker’s view that “yet another psychiatric report” changed nothing because the risk of reoffending and absconding outweighed the presumption in favour of release.

Lord Wilson said at paras 22, 23 and 25 that despite the fact that the new report was provided to the authorities especially to support O’s application to challenge her deportation, it produced the inescapable result of being relevant to the detention policy and should have been given proper consideration in the reviews. As held by the Court of Appeal, it was therefore right (and was officially conceded) that the home office unlawfully failed to apply its policy when deciding to continue to detain O between March and July 2011. Lord Wilson preferred not to delve into the rival contentions of the parties and at para 37 he found the refusal to release O during this period was procedurally flawed. He held that O’s case did not provide the opportunity to consider the nature of the court’s review of the legality of the home secretary’s application of her policy.

Despite “lively” debate about the application of the policy, the way in which the home office would react to the report had it correctly applied its policy was a key question. Following Raissi [2008] EWCA Civ 72, it was held at para 28 that determining the meaning of the policy remained the province of the court. The parties agreed it is ultimately for the court to determine the meaning of the policy for itself. Accordingly, there was no need to ask the question whether the meaning attributed to the policy by the executive is reasonable.

The National Health Service Act 2006, by virtue of regulations made pursuant to section 3B(1)(c), places on NHS England the responsibility for commissioning the provision of all health services in IRCs and prisons in England. As for the level of care, Lord Wilson pinpointed two principles in the Partnership Agreement between the home department, NHS England and Public Health England which exact that (i) based on clinical need, detainees must receive health care equivalent to the standard available to the general population and (ii) health and wellbeing services in removal centres should seek to improve health and wellbeing with equal focus on patients with physical and mental illness. The home secretary’s equality statement (2014) says providing healthcare to mentally ill detainees at a level equal to the one prevalent in the community is a “core principle”. In reality, lack of specialist mental health interventions means divergence from the principle is not in doubt.

Policy is geared towards release when management of a serious mental illness in detention in not “satisfactory”. The Supreme Court found it to be “a word of extreme and appropriate elasticity” because it catches the assortment of factors to which the executive may be required to have regard in individual cases. Lord Wilson found useful Beatson, Moses and Underhill LJJ’s decision in Pratima Das (Mind and Medical Justice intervening) [2014] EWCA Civ 45 and approved the Court of Appeal’s discussion of “satisfactory management”. However, interested in “positive improvement”, his Lordship was slightly aghast at para 71 of Beatson LJ’s judgment where he recklessly swerved to the official position that if the management of the illness in detention is likely to prevent its deterioration, it is satisfactory even if better treatment is available in the community which is likely to lead to improvement.

The actual availability of the treatment for the detained warranted its entry “into the melting-pot” – with the burden on the home office to “inquire into its availability”. If the standard of care given to an immigration detainee was less than the one available outside detention then it was, in Lord Wilson’s view, “questionable” whether the management the detainee’s illness in the removal centre was satisfactory. In order to keep things clear, he said:

30. … While satisfactory management does not mean optimal management, a narrow construction of the word “management” as meaning no more than “control” of the illness would lack principled foundation, particularly when in very exceptional circumstances the detainee may continue to be detained in the IRC pursuant to the policy notwithstanding the unsatisfactory management of her illness there.

Moreover, the policy in para 55.10 of the manual requires a practical inquiry in the light of the context of immigration detention but it was important, as emphasisied by Beatson LJ in Pratima Das, for the phrase “satisfactory management” to (i) be interpreted with regard to its context and purpose (ii) not be subjected to the fine analysis appropriate to a statute and (iii) not have a spurious degree of precision thrust on it. It was clear to the Supreme Court that inquiries needed to be made to obtain answers to a number of questions as to whether, in the light of the new report, O’s illness could satisfactorily be managed at Yarl’s Wood. Predicting the outcome of those inquiries, most of which seem never to have been made, was not up to the court and:

35. … although the home secretary unlawfully failed to apply her policy under para 55.10 of the manual to O’s continued detention between March and July 2011, a lawful application of her policy would not have secured O’s release from detention any earlier than the date of her actual release on bail.

As highlighted above, granting O permission to proceed with her judicial review claim would be counterproductive because it would merely result in a declaration that her detention was unlawful and amount to an award of only nominal damages.

Relying on Francis, the home secretary argued that Lumba was distinguishable from the instant case because O was detained within the meaning of paragraph 2(1) of Schedule 3 to the 1971 Act and not under paragraph 2(2). She therefore stressed two points. First, she said an unlawful application of policy does not make the detention itself unlawful. She moreover submitted that the unlawful behaviour under scrutiny does not generate a right even to nominal damages for false imprisonment.

However, the Supreme Court also found the authority of Francis – involving a Jamaican national who used a counterfeit British passport, bearing the name “David Francis”, and was detained for 3 years and 9 months – was wrongly decided. Lord Wilson held the deportation power conferred by paragraph 2(1) of Schedule 3 to the 1971 Act (pending the making of a deportation order) and by the words in brackets in paragraph 2(3) (pending deportation) is a mandate subject to two conditions, namely (i) there must be a prospect of deportation within a reasonable time and (ii) the decision-maker must consider in accordance with the policy whether to exercise the power to detain. If either condition is not satisfied, detention becomes unlawful because the mandate to detain ceases.

Comment

This pair of cases – i.e. Nouazli and O – is a grim reminder of the vexing problems posed by immigration detention in the “concrete jungle” of immigration removal centres staining the UK’s reputation as a free society founded on the principles of liberal democracy. Many innocent people lose their whole lives because of immigration detention and the problems exposed by these cases are merely the tip of the iceberg.

Suicide rates in immigration detention centres are at an all time high these days. From that angle, it is hard to see how detaining a mentally ill person like O was justifiable, after her attempt to take her own life? Things are so bad that contrite IRC staff members have even taken to writing anonymously in order to express their regrets about playing a part in the manifest brutality ongoing in such facilities.

It is hard not to think that the degree of oppression is serious enough to be classified as corruption by other means, or a serious form of misconduct; especially in light of the fact that private companies profit from detaining immigrants (some of whom should have never been put in detention at all). Exacerbating the problem further, immigration officials, who are paid quite a lot for their negligence and stupidity, are generally unable to write a decent decision to save their lives and send more people into detention than is necessary. In a Rock ‘n’ Roll sense, it is all a bit like Hotel California – you can check out any time you like (by ending your own life) but you can never leave.

But somewhat surprisingly, the operators of Yarl’s Wood – the most notorious of the UK’s immigration removal centres – dispel “a hidden problem of inappropriate behaviour by staff at the centre” and deny “an endemic culture of abuse”. In fact, the operators of oppression counterclaim that “there is a disparity between perceptions and the reality of how the centre is managed and run.” Anyone who has ever been inside the great British Gulag for a moment will know the real truth – detainees look extremely depressed, they smell and complain about mistreatment; things are so terrible that they want to kill themselves! Is there no better way to deal with all this?

The June 2016 report of the House of Commons Select Committee on Home Affairs – discussed in the last post – is also extremely critical of immigration detention because of high costs which (in distinction to the present case) can swell even further even further in cases where detention is held unlawful. More than 30,000 people entered immigration detention in 2015. But the percentage of those removed has decreased from 63 percent in the first quarter of 2010 to 44 percent in the last quarter of 2015; the majority of those entering immigration detention are not removed. Explaining that in the last quarter of 2015 it cost £91 per day to hold one person in immigration detention and quite disturbed by the fact that a total of £18 million has been paid in compensation over the last four years, the committee had little choice but to conclude:

The home office should reduce the length of time that detainees are held and investigate alternatives to detention. This is particularly true for children, where the government must meet its commitment to end detention of children for immigration purposes.

Some good news can nevertheless be found in section 60 (limitation on detention of pregnant women) of the government’s new workhorse, the Immigration Act 2016. Under the new provision pregnant women will only be detained for up to 72 hours; or seven days in cases where lengthier detention is authorised personally by a minister. However, as we know only too well, the key to improving the present environment shall ultimately turn on whether decision makers abide by their new statutory obligations.

Only time will tell if they actually will …

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 5, Asylum, Deportation, Detention, ECHR, European Union, Immigration Act 2016, Judicial Review, Legal Aid, Nigeria, UKSC, Yarl's Wood IRC and tagged , , , , , , . Bookmark the permalink.

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