Detention of mentally ill asylum seeker violates European Convention

HA (Nigeria), R (on the application of) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) (17 April 2012)

Summary

The High Court of England and Wales considered the detention of a Nigerian asylum seeker who was suffering serious mental health difficulties whilst in detention.

Justice Singh found that the British Secretary of State for the Home Department had detained the claimant knowing that it was likely that this would result in a significant deterioration in his condition. This conduct violated article 3 of the European Convention on Human Rights, which prohibits torture and inhuman or degrading treatment or punishment. Further, the Secretary's authority under UK law to detain the claimant was vitiated by the claimant's mental health condition, and thus the Secretary committed the tort of false imprisonment. Justice Singh also found that a change to the Home Department's policy, relating to detention of persons with serious mental illness, without prior notice or consultation with various bodies breached equality duties owed by the Secretary.

Facts

The claimant entered the UK in 2005 and overstayed his visitor's visa. On 20 March 2009, while on remand in custody for the possession of cannabis, he applied for asylum. He was subsequently sentenced to prison for his offence. On his release on 27 August 2009, he was detained until 5 July 2010 in various Immigration Removal Centres (IRCs) (first period of detention). From 5 July 2010 until 5 November 2010, the claimant was admitted to hospital. He was returned to an IRC from 5 November 2010, where he stayed until he was granted bail on 15 December 2010 (second period of detention).

First period of detention

While in prison, the claimant began experiencing psychiatric problems. Over the next 14 months, various staff, including psychiatrists and doctors, from the IRCs and the hospital recorded his refusal to eat and resulting weight loss, refusal to speak, drinking and cleaning with toilet water, refusal to wash, refusal to change clothing, sleeping on the floor in a toilet area, believing his food was poisoned and suffering insomnia. His condition deteriorated over time.

On 23 October 2009, the Secretary was informed that the claimant had “serious mental health problems” and needed “to be transferred to a more suitable establishment”. From 13 November 2009, various reports questioned whether the claimant was psychotic.

On 21 January 2010, a form was completed under Rule 35 of the Detention Centre Rules 2001, recommending that in light of the claimant's “odd behaviour” he be “sectioned”. Rule 35 required special attention from a medical practitioner in circumstances where a detained person's mental health appeared to require it, including special arrangements necessary for that person's supervision or care. On the same day, a doctor again recommended urgent transfer of the claimant to hospital.

On 1 February 2010, the claimant was informed via letter that detention would be maintained as his behaviour indicated that he would “pose a risk of harm to [himself] and others should [he] be released”. The letter stated that the claimant would receive all required medical attention and support in detention. Medical reports continued to show a deterioration in the claimant's condition.

Transfer to hospital and second period of detention

On 5 July 2010, the claimant was transferred to hospital to obtain treatment. On 26 October 2010, he was diagnosed with paranoid schizophrenia.

The claimant sought confirmation from the Secretary that he would not be transferred back to detention before he could seek judicial review of the legality of his past and continuing detention. A doctor at the hospital wrote to the United Kingdom Border Agency stating that it was likely that the claimant suffered from a severe mental disorder and his mental health would significantly deteriorate if transferred back to detention. On 5 November 2010, he was transferred back to detention without notice, where he remained until granted bail on 15 December 2010.

Reformulation of detention policy

On 26 August 2010, the Secretary reformulated a policy pertaining to Rule 35 so that it stated that those suffering from serious mental illness which could not satisfactorily be managed within detention should only be considered suitable for detention in very exceptional circumstances.

Decision

Prohibition on torture and inhuman or degrading treatment or punishment

Article 3 of the Convention sets out a prohibition on torture and inhuman or degrading treatment or punishment. Justice Singh, referring to R (D) v Secretary of State for the Home Department [2005] 1 MHLR 17, recognised that there may be a breach of article 3 in circumstances where the consequences of a person remaining in detention are sufficiently severe. His Honour accepted that a breach of article 3 occurs where suffering flows from a naturally occurring illness which is exacerbated by conditions of detention for which authorities can be held responsible, as was the case here where:

• the claimant was suffering from a serious mental illness;
• the Secretary was aware of the urgent need to transfer the claimant for medical treatment; and
• the Secretary was responsible for the decision to detain the claimant.

Further, as the Secretary had been warned that the likely consequence of returning the claimant to detention would be a significant deterioration in his condition, the claimant's return to detention after his period in hospital also breached article 3. His Honour observed that to force him to return to and stay in IRC detention was “at least degrading treatment and, if it were necessary to say so, inhuman treatment, contrary to Article 3”.

Tort of false imprisonment

Justice Singh held that the decision of the Secretary to continue the claimant's detention was flawed, and therefore ultra vires, from 1 February 2010. By this time the Rule 35 notice, and a report from a psychiatrist recommending further assessment of the claimant in a Mental Health Unit, were available to the decision-maker who authorised ongoing detention. His Honour observed that the tort of false imprisonment was committed where there was no lawful authority for detention and that this was the case here, where the power to detain was exercised in a way which was vitiated by an error of public law that bore upon and was relevant to the decision to detain.

Relevance to the Victorian Charter

His Honour's comments in relation to the Secretary's breach of article 3 of the Convention may provide interpretive assistance to courts considering section 10 of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic), which sets out a similar protection from torture and cruel, inhuman or degrading treatment. It is also worth noting that the Charter contains a specific right pertaining to the treatment of persons deprived of liberty in section 22(1). As such, it is arguable that the rights of detainees under the Charter may be even broader than those under the Convention.

This decision is available online at: www.bailii.org/ew/cases/EWHC/Admin/2012/979.html

Angela Gibbs is a law graduate at Allens.