2010 11 Mental Health

R (on the application of Monday) v Secretary of State for the Home Department [2010] QBD (Admin) (4 November 2010) (CMG Ockelton): The Court on allowing the application for judicial review held that the release from a mental hospital of a person, whom the Secretary of State for the Home Department wished to remove to Nigeria, was ordered where his imminent removal was unlikely and the medical evidence was that he was not fit to fly. The claimant applied for judicial review of his detention by the defendant Secretary of State in an immigration detention centre and then in a mental hospital. The Claimant had entered the United Kingdom unlawfully and had never had leave to stay or remain and his asylum claim failed. He had been sentenced to 8 months' imprisonment for attempting to open a bank account using a false passport with a recommendation for deportation. He was sentenced to again to 15 months' imprisonment for another offence concerning the misuse of a passport and was recommended for deportation. An order for his deportation was made which the Claimant appealed. In August 2008 the Claimant ceased to pursue his rights of appeal. In September 2008 the Claimant was detained under paragraph 2 of Schedule 3 of the Immigration Act 1971 and was continuously detained. In October 2009 the Claimant obtained an injunction against his removal. Some weeks prior to the hearing the Claimant was moved and detained in a psychiatric hospital. During the period of his detention there had been a number of medical reports that described the Claimant as having serious mental illness. The most recent report suggested that he exaggerated his disorder that he was not seriously mentally ill and was fit to fly. The Court held there was a lack of clarity about what "fit to fly" meant, but the court assumed that if the Claimant was unfit to fly it meant that it would be practically impossible for the Secretary of State lawfully to remove him and there would have to be a very good reason to force the Claimant to fly. The Court concluded the Secretary of State was over-optimistic about the Claimant's mental state. The latest report was a snapshot and it would be wrong to rely on it as showing a settled view of the Claimant's mental state and was just one factor in an assessment of the Claimant. The Claimant had been detained for 28 months since his rights of appeal were exhausted and was largely a period in which the Secretary of State could not have held the view that removal would occur soon. At the time the hearing the Claimant’s imminent removal was still not a likely prospect and if he was not released within one week from the hearing his detention would breach the conditions in R v Governor of Durham Prison Ex p Singh [1984] 1 WLR 704. The court did not reach a firm view on the lawfulness of the Claimant's past detention, or whether the injunction against removal should be lifted or on the Claimant’s mental state as opposed to the evidence about his mental state. (transcript not yet available)