The Court of Appeal in a test case on Tuesday overturned a decision of the Administrative Court in relation to Home Office policy of detaining those subject to immigration control with a serious mental illness.
The Court ruled that the threshold set by Sales J of being so ill as to require in-patient hospital care (or thereabouts) was wrong and set a threshold that was contrary to the humane objects and purpose of the policy which was not to be confused with the criteria for detention under the mental health legislation. In remitting the case, the Court accepted that the judge had erred in his approach to the medical evidence and that the imminence of removal and the risk of absconding did not meet the "high hurdle" for detaining those with a serious mental illness under the policy.
R on the application of Pratima Das v Secretary of State for the Home Department and (1) (Mind) (2) Medical Justice (Interveners) [2014] EWCA Civ 45
Ms Das was an Indian national who came to the UK as an overseas domestic worker, who later claimed she was a victim of trafficking and sought asylum in 2008. In 2009 she was diagnosed as having moderate depression, Post Traumatic Stress Disorder (PTSD) and a mild learning disorder for which she received treatment and medication. Her asylum claim and appeal against removal were dismissed in 2010, and, in 2011, a decision was made to detain Ms Das pending removal. This was without considering a consultant psychiatrist's report about her condition.
When detained Ms Das provided evidence of her medication and psychiatric appointments, and a risk assessment identified a risk of self-harm and suicide. She received medication, was assessed as "fit to fly" and was eventually removed.
The Administrative Court had found that the detention prior to removal had been unlawful because of a failure to make adequate enquires about her mental health, but only nominal damages were awarded as the Court ruled that Ms Das would have been detained anyway adopting a new and radical interpretation of the policy relating to the detention of the mentally ill. Permission to appeal was granted in relation to this interpretation of Home Office policy in Chapter 55.10 Enforcement Instructions and Guidance (EIG).
Chapter 55.10 EIG states that those suffering from "serious medical conditions which cannot be satisfactorily managed within detention" can only be detained in "very exceptional circumstances". The Administrative Court had previously decided that the appellant's condition was not serious enough for detention to be unsuitable, and that her symptoms could be managed within the context of immigration detention. This was successfully challenged on two fronts.
Firstly, the judge had set the threshold too high in deciding that in order for a mental illness to be "serious", it must require detention under the Mental Health Act 1983. This was successfully challenged on the basis that management of serious mental health problems is not necessarily best achieved in a hospital setting, and that such an interpretation makes it more difficult for people to fall within the protection of the policy.
Secondly, the judge had interpreted "satisfactorily managed" to mean treatment that would prevent a detainee from becoming so unwell they would be unable to cope with ordinary life. This was also challenged successfully on the basis that such an interpretation would allow someone's health to deteriorate while in detention to the point where they need to be hospitalised. The Court of Appeal decided that this was inappropriate.
Stephanie Harrison QC and Michelle Brewer represented the appellant. They were instructed by Tori Sicher of Sutovic and Hartigan Solicitors. Dinah Rose QC, Tim Buley and Martha Spurrier were instructed by Bhatt Murphy Solicitors and Deighton Pierce Glynn Solicitors on behalf of Mind and Medical Justice, who intervened because of the important public interest principles at stake.
The judgment is available here: R on the application of Pratima Das v Secretary of State for the Home Department and (1) (Mind) (2) Medical Justice (Interveners) [2014] EWCA Civ 45
Sue Willman of Deighton Pierce Glynn Solicitors has also written a detailed summary of the decision.
This is an important judgment that places positive duties of enquiry on the Home Office when they detain those with a mental illness, and reaffirms the humane purpose of the policy which recognises that detention is likely to have adverse impact on the mentally ill and that the policy sets a high threshold for justifying the detention of those with a serious mental illness.
This judgment follows a series of cases in which the Administrative Court has ruled that the detention of the seriously mentally ill and the failure to properly apply this policy had resulted in inhuman or degrading treatment in breach of Article 3 ECHR:
S v Secretary of State for the Home Department [2011] EWHC 2120 (Admin)
BA v Secretary of State for the Home Department [2011] EWHC 2748 (Admin)
HA (Nigeria) v Secretary of State for the Home Department [2012] EWHC 2748 (Admin)
Stephanie Harrison QC and Michelle Brewer are both members of Garden Court Chambers specialising in public law, human rights and immigration.
