VC, R (On the Application Of) v The Secretary of State for the Home Department, Court of Appeal - Civil Division, February 02, 2018, [2018] EWCA Civ 57

Resolution Date:February 02, 2018
Issuing Organization:Civil Division
Actores:VC, R (On the Application Of) v The Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWCA Civ 57

Case No: C4/2016/1954

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT AND DIVISIONAL COURT)

HIS HONOUR JUDGE SEYS LLEWELLYN QC

[2016] EWHC 273 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 02/02/2018

Before :

LADY JUSTICE ARDEN

LORD JUSTICE LEWISON

and

LORD JUSTICE BEATSON

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Between :

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Ms Stephanie Harrison QC and Ms Amanda Weston (instructed by Bhatt Murphy) for the Appellant

Ms Julie Anderson and Ms Belinda McRae (instructed by the Government Legal Department) for the Respondent

Ms Helen Mountfield QC (instructed by the Equality and Human Rights Commission) filed written submissions on behalf of the Intervener

Hearing dates : 28, 29 November 2017

Further submissions : 1, 3 December 2017, 22 January 2018

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APPROVED JUDGMENT

Lord Justice Beatson :

  1. Overview

    1. There are broadly two questions before the court in this appeal. The first concerns the application of the Secretary of State for the Home Department's policy governing the detention under the Immigration Act 1971 (``the 1971 Act'') of persons who have a mental illness, and the consequences if she is found not to have applied that policy correctly. The second concerns the adequacy at common law and under the Equality Act 2010 (``the Equality Act'') of the procedures under which mentally ill detainees can make representations on matters relating to their detention.

    2. The appellant, VC, a Nigerian national, suffers from bipolar affective disorder with psychotic features and had been admitted to hospital on some ten occasions for treatment under the Mental Health Act 1983 (``the 1983 Act'') between 2007 and June 2014. Between 11 June 2014 and 5 May 2015, he was detained under the 1971 Act by the respondent, the Secretary of State, in four Immigration Removal Centres (``IRCs''). He was then transferred to a psychiatric hospital, and compulsorily detained (``sectioned'') under the 1983 Act. See [10] - [11] below. His detention under the 1971 Act formally ended on 9 September 2015, although he remained detained under section 3 of the 1983 Act until April 2016. In these proceedings, lodged on 30 April 2015, he challenges the legality of his detention under the 1971 Act and the delay in securing his transfer to hospital for treatment. He appeals against the order of HHJ Seys Llewellyn QC dated 8 April 2016 dismissing all but one of his claims.

    3. At the material times, the policy governing such detention, commonly known as ``immigration detention'', was chapter 55 of the Secretary of State's Enforcement Instructions and Guidance, ``Detention and Temporary Release'' (``the policy''). §55.10 of that policy It is set out at [18] below. provided that ``those suffering from serious mental illness which cannot be satisfactorily managed within detention'' are considered ``suitable for detention in only very exceptional circumstances''. The policy has been the subject of a number of decisions. The submissions before this court focussed on two of those decisions, that of the Supreme Court in R (O) v Secretary of State for the Home Department [2016] UKSC 19, [2016] 1 WLR 1717, handed down some two months after the judge's decision in this case, and that of this court in R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ. 45, [2014] 1 WLR 3538, which was carefully considered by the judge. In O's case, the Supreme Court considered and, with one qualification (see [75] below), approved the decision in Das's case. The policy that is relevant to this appeal was replaced by a new policy, Adults at risk in immigration detention, on 12 September 2016. See [19] below.

    4. The appellant's case can be summarised as follows.

      a. His detention was unlawful because of public law errors made by the Secretary of State. The first limb of this public law ground is that the Secretary of State (i) misinterpreted chapter 55 of her policy on the detention of those with mental illness, and, (ii) failed to make enquiries into the appellant's mental health. The second limb is that the detention breached the established common law principles applying to immigration detention under the 1971 Act derived from the decision of Woolf J in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704 and known as the Hardial Singh principles. The principles are summarised at [20] below. The appellant claimed damages in respect of the unlawful detention.

      b. His treatment in detention was inhuman and degrading amounting to a breach of article 3 of the European Convention on Human Rights (``the ECHR'').

      c. The Secretary of State's decision-making processes did not meet common law requirements of procedural fairness, and failed to make reasonable adjustments to avoid discrimination against detainees suffering from mental illness as required under the Equality Act.

    5. In his judgment, handed down on 16 February 2016, the judge accepted that the Secretary of State had misinterpreted her policy See J, [73] - [75] and [40] below. but held that, save for the period between 3 and 27 April 2015, the detention was not unlawful. This, he stated, was because, before 27 March 2015, the Secretary of State could have rationally concluded that the appellant's mental condition could be satisfactorily managed within detention, and between 27 March and 3 April, and between 27 April (when a direction was made for his removal to a psychiatric hospital) and 5 May 2015 when he was transferred to hospital she could rationally have decided not to release him pending his transfer. See J, [77] ff and [104] and [41] - [42] and [89] below. He held that the respondent was liable in damages only in respect of the period between 3 and 27 April 2015. Cross-references to his judgment are identified as ``J, [xx]''. An appellant's notice was filed on 16 May 2016, and permission to appeal was given by Moore-Bick LJ on 2 December 2016. The way the bundles were prepared for the appeal was unsatisfactory. They did not comply with CPR PD 52C and shortly before the hearing the parties sought to file a supplementary bundle of 967 pages for the court to pre-read, including the full medical records.

    6. The Equality and Human Rights Commission (``the Commission'') did not intervene below but was granted permission to do so by written submissions in this appeal. The Commission filed a detailed skeleton argument focussing on points of legal principle concerning the third limb of the appellant's case, that the Secretary of State had discriminated against the appellant by failing to make reasonable adjustments to her decision-making procedures for detainees suffering from mental illness as required by the Equality Act, and that the decision-making processes were procedurally unfair under the common law. It also filed a reply to the Secretary of State's revised skeleton argument, which inter alia submitted that the Commission's submissions went far beyond the appellant's pleaded grounds of claim.

    7. The remainder of this judgment is organised as follows. Part II contains the legal and policy framework relating to immigration detention under the 1971 Act. Part III summarises the relevant facts. The summary is principally taken from the detailed judgment below, but also from documentation relied on by the parties in support of their submissions. Part IV comments on the evidential position and records the reasons given by the court for rejecting the submission that the judge erred in refusing to admit the evidence of the appellant's treating clinician, Dr Meganty, on the question of whether his mental illness could be satisfactorily managed in detention, and that we consider that report although it had not been considered by the judge. Parts V - VIII consider the relevant sections of the judgment below and contain my discussion and analysis of the issues.

    8. Part V summarises the public law duties owed by the Secretary of State and the public law errors she made, which are not disputed. It then considers the legal consequences of those errors. I have concluded that the judge erred in concluding that, save for the twenty-four day period in April 2015, the appellant's detention was not unlawful and that his detention was unlawful for virtually the entire period during which he was held in IRCs. I have concluded that the consequence is that the respondent is liable in damages for the period between 30 June 2014 and 27 April 2015. It is therefore not necessary for this court to address the Hardial Singh principles. Parts VI and VII deal with the appellant's claim under article 3 of the ECHR and his claims, supported by the Commission that (a) the Secretary of State had discriminated against him by failing to make reasonable adjustments to her decision-making procedures for detainees suffering from mental illness as required by the Equality Act, and (b) that the decision-making processes were procedurally unfair under the common law. I have concluded that the judge erred in relation to the Equality Act ground and would make the declaration sought, but, despite my concerns about the overall fairness of the procedures for decisions concerning detainees in IRCs with mental illness, for the reasons given at [190] below, I would not grant a declaration in the terms sought by the appellant.

  2. The legal and policy framework

    1. (a) Legislation: The principal statutory provisions authorising the detention of those who the Secretary of State wishes to remove from the United Kingdom are contained in the 1971 Act. Paragraph 2 of schedule 3 to the 1971 Act provides:

      ``(2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained...

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