Aboro, R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Administrative Court, June 11, 2018, [2018] EWHC 1436 (Admin)

Resolution Date:June 11, 2018
Issuing Organization:Administrative Court
Actores:Aboro, R (on the application of) v Secretary of State for the Home Department
 
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Case No: CO/11972/2012

Neutral Citation Number: [2018] EWHC 1436 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11 June 2018

Before :

KAREN STEYN QC

(sitting as a Deputy High Court Judge)

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Between :

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Sonali Naik QC and Irena Sabic (instructed by Duncan Lewis Solicitors) for the Claimant

Julie Anderson (instructed by the Government Legal Department) for the Defendant

Hearing dates: 7 and 8 February 2018

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JudgmentKaren Steyn QC :

A. Introduction

  1. This is a claim for damages for unlawful administrative detention. It began in 2012 as a challenge to removal directions, but that aspect fell away when the claim was issued.

  2. The Claimant, a Nigerian national, is subject to a deportation order as a ``foreign criminal'' within the meaning of s.32 of the UK Borders Act 2007. He was detained pending his removal by the immigration authorities from 6 August 2012, when his custodial sentence expired, until 23 September 2013, when he was released on bail.

  3. The Claimant accepts that his initial detention was lawful. However, he contends that, having regard to his mental health, his detention was unlawful (a) from 23 September 2012, (b) from 8 November 2012 or (c) from 26 March 2013, in each case until his release on 23 September 2013. By these proceedings, the Claimant contends he is entitled to substantial damages for the tort of false imprisonment.

  4. The issues are these:

    i) First, the Claimant contends that he was suffering from a serious mental illness which could not be satisfactorily managed within detention. His primary case is that his detention was unlawful on the basis that it was contrary to the stated policy in Chapter 55 (Detention and Temporary Release) of the UKBA Enforcement Instructions and Guidance (EIG) only to detain ``those suffering serious mental illness which cannot be satisfactorily managed within detention'' in ``very exceptional circumstances''.

    ii) In the context of his primary case, the Claimant raises an issue as to the intensity of review required when the Court is dealing with a conflict of medical evidence.

    iii) Secondly, the Claimant contends that his detention was unlawful on the grounds it was in breach of one or more of the Hardial Singh principles.

    iv) Thirdly, the Claimant contends that his detention was in breach of article 3 of the European Convention on Human Rights. (The Claimant's amended grounds had also included claims by reference to articles 5 and 8, but these claims were not pursued.)

  5. The procedural history is lengthy and complex but it was common ground that the claim was listed before me for a ``rolled up'' hearing.

    B. Procedural History

    This claim: the detention challenge

  6. This claim was filed, together with an application for interim relief, on 8 November 2012. At that stage, it did not include a challenge to the lawfulness of the Claimant's detention. The Claimant challenged the Secretary of State's decision dated 25 October 2012 to set removal directions. In accordance with that decision, the Claimant was due to be removed from the United Kingdom to Nigeria on 8 November 2012.

  7. The application for interim relief was considered by Lang J, who made an order on the papers, on the date the claim was filed, staying the Claimant's removal for four weeks to enable the Defendant to carry out a psychiatric assessment to determine whether he was fit to fly and fit to be removed from the UK.

  8. The Defendant filed an acknowledgment of service on 28 January 2013. Wyn Williams J refused permission to apply for judicial review on the papers, on 23 March 2013. However, there was no challenge to the lawfulness of the Claimant's detention before him.

  9. On 27 March 2013, the Claimant applied to amend the grounds of claim and for interim relief. Elisabeth Laing QC (sitting as a Deputy High Court Judge) observed that the application to amend was, in effect, an application for leave to bring a new claim that the Claimant's detention was unlawful. By an order dated 12 April 2013 she granted permission to amend the grounds of claim in the form attached to the application notice dated 27 March 2013, as well as making directions for the determination of the application for interim relief and the application for permission.

  10. The Secretary of State filed amended summary grounds of defence on 26 April 2013.

  11. On 2 May 2013 the claim was considered by Mr CMG Ockelton, sitting as a Deputy High Court Judge, at a renewed oral permission hearing. He refused permission and rejected the application for interim relief. His perfected order is dated 13 May 2013.

  12. The Claimant renewed the application to the Court of Appeal. Arden LJ refused permission on the papers on 1 July 2013. However, on 26 July 2013, Laws LJ granted permission to appeal in line with the supplementary note submitted by Ms Naik on 23 July 2013.

  13. In essence, the issue on which Laws LJ granted permission was whether, in the context of a challenge to a decision of the Secretary of State, concerning the application of Chapter 55 of the Enforcement Instructions and Guidance, to detain or continue to detain a ``mentally ill'' offender under immigration statutory powers, it is for the court to determine as a primary decision-maker whether detention was justified in light of the policy (per AM (Angola) v Secretary of State for the Home Department [2012] EWCA Civ 521) or whether the review should be conducted in accordance with classical administrative principles (including the Wednesbury test).

  14. Laws LJ ordered that the case be retained in the Court of Appeal and it was listed to be heard on 27 or 28 January 2014. However, on 24 January 2014, Beatson LJ made an order, by consent, vacating the hearing with a view to it being re-listed as soon as possible after 21 days from the promulgation of the Court of Appeal's judgment in R (Das) v Secretary of State for the Home Department.

  15. Das had been heard by the Court of Appeal on 12 and 13 November 2013 and judgment was given on 28 January 2014: [2014] 1 WLR 3538. The appeal hearing was re-listed to be heard by the Court of Appeal on 4/5 February 2015.

  16. In the meantime, on 17 July 2014, the Court of Appeal gave judgment in R (O) v Secretary of State for the Home [2015] 1 WLR 641. Consequently, on 25 November 2014, Underhill LJ made an order by consent vacating the appeal hearing and remitting the case to the Administrative Court to consider the grounds for judicial review.

  17. By a further consent order dated 29 October 2015, the Administrative Court stayed the claim pending the Supreme Court's judgment in R (O) v Secretary of State for the Home Department, which appeal was listed to be heard by the Supreme Court on 19 and 20 January 2016. The Supreme Court gave judgment on 27 April 2016: [2016] 1 WLR 1717.

  18. The matter was re-listed for a substantive hearing on 10 October 2017, but adjourned at the parties' request. Nicholas Vineall QC, sitting as a Deputy High Court Judge, made an order on 10 October 2017 listing the claim, by reference to the amended grounds of claim dated 27 March 2013, for a rolled-up hearing on 7 and 8 February 2018. He also addressed various applications to admit expert evidence: see paragraph 124 below.

  19. With the permission of the Court, the Secretary of State filed Detailed Grounds of Defence dated 25 September 2017.

    The certification challenge

  20. In parallel, the Claimant brought a separate judicial review claim (CO/5903/2013) on 16 May 2013, seeking to challenge the decision to certify his asylum and human rights claim as clearly unfounded (and to maintain the certificate). Permission was refused on the papers on 10 June 2013 by Michael Kent QC, sitting as a Deputy High Court Judge, and at a renewed oral permission hearing on 18 July 2013 by Leggatt J. Permission was granted by Kitchin LJ on 28 March 2014 and the claim was remitted for substantive hearing by the Administrative Court.

  21. The substantive challenge to the certification was dismissed by Andrew Thomas QC, sitting as a Deputy High Court Judge, on 8 December 2014: R (RA - Nigeria) v Secretary of State for the Home Department [2014] EWHC 4073 (Admin) (``RA II''). In the context of consideration of any article 3 risk arising on the Claimant's return to Nigeria, having regard to the availability of mental health treatment, the judge held at [63]-[65]:

    ``It is clear that the Defendant gave very careful consideration to Dr Bell's report. There is nothing to suggest that the Defendant failed to have regard to his undoubted expertise. The decision letter contains a careful analysis of the contents of the report. However, in my judgment the Defendant was entitled to take into account all of the other material which was available to her. On any view, Dr Sultan and Dr Burrun had far more information available to them than Dr Bell and had been better placed to assess the Claimant.

    ... The Defendant could not ignore Dr Bell's opinion, but she was entitled to take the limitations of his review into account in deciding what weight to attach to it when viewing the case in the round.

    In my judgment, the Defendant was entirely justified in reaching the conclusion that there was no prospect of the Claimant successfully demonstrating to a Tribunal that the `high threshold of Article 3' had been met in the present case.''

  22. Permission to appeal to the Court of Appeal was refused.

  23. The Claimant subsequently brought two other judicial review claims against the Secretary of State, however I understand they are not relevant to the claim of unlawful detention and, in any event, I do not have any information about them.

    C. Disclosure

  24. The Claimant criticises the Secretary of State for not disclosing the Assessment Care in Detention Teamwork (ACDT) records or contact logs (or other records) held by Detention Services at Morton Hall IRC. In response to the Claimant's solicitor's request the Government Legal Department (``GLD'') made two points. First, the documents requested were the Claimant's own medical records which he could have called for in the early stages of the proceedings when he was commissioning his own expert report. Secondly, GLD confirmed that all reasonable searches for the ACDT records had been carried out and the documents could not be found.

  25. It is unfortunate that some records which may have shed further light on the matter are missing. But the Secretary of State has disclosed all relevant monthly detention reviews and progress reports, all relevant GCID records and medical records covering the entire period of the Claimant's detention, including records from each of the detention centres where he was held. It seems likely that the inability to find the ACDT records is a consequence of the lengthy delay in this claim being heard, as a result of it being stayed behind other cases.

  26. In the circumstances, in my judgment, there is no proper basis for any suggestion that the Secretary of State has not complied with her duty of candour in this case.

    D. Facts

  27. The Claimant is a citizen of Nigeria. He is 41 years old. He first came to the United Kingdom on about 29 January 2012. On 9 January 2012 he had been granted a six month visitor's visa by the British High Commission in Abuja and he claims he used his own Nigerian passport to enter the UK.

    HMP Chelmsford (on remand and then serving custodial sentence)

  28. About a week after his arrival, the Claimant was arrested at Stansted Airport while trying to take an onward flight from the UK to France, using a false British passport. On 2 April 2012 the Claimant was convicted at Chelmsford Crown Court of an offence of possession, with improper intention, of a false identity document. He was sentenced to 12 months' imprisonment. He was due to be released on licence, having served half his custodial sentence, on 6 August 2012.

  29. It is common ground that the Claimant is a ``foreign criminal'' within the meaning of s.32(1) of the UK Borders Act 2007 because (a) is not a British citizen, (b) he has been convicted in the UK of an offence; and (c) he has been sentenced to a period of imprisonment of 12 months. Consequently, the Claimant's deportation is deemed, by Parliament, to be ``conducive to the public good'' (s.32(4)) and the Secretary of State was required to make a deportation order to remove the Claimant, unless any of the exceptions in s.33 of the UK Borders Act 2007 were made out (s.32(5)).

    HMP Bullwood Hall (serving custodial sentence; from 6.8.12 to 12.9.12 in administrative detention)

  30. On 30 April 2012, while serving his custodial sentence in HMP Bullwood Hall (to where he had transferred on 27 April 2012 from HMP Chelmsford), the Claimant was served with a notice inviting him to show reasons why a deportation order should not be made. On 8 May 2012 he made a claim for asylum. On 28 May 2012 his solicitors made further representations on his behalf, adding a claim pursuant to the European Convention on Human Rights. The Claimant stated that he was suffering from memory loss but raised no other medical concerns in these representations.

  31. The only s.33 exception relied upon by the Claimant was ``Exception 1'' which applies where removal of a foreign criminal pursuant to a deportation order would breach a person's Convention rights or the UK's obligations under the Refugee Convention.

  32. On 30 July 2012, the Secretary of State rejected the Claimant's asylum claim, his Convention claim and any claim for humanitarian protection, and certified the claims as clearly unfounded pursuant to s.94(2) of the Nationality, Immigration and Asylum Act 2002. (As I have said, the Claimant's subsequent attempt to challenge this certification failed.)

  33. Alongside this decision, on 30 July 2012, the Secretary of State served a deportation order on the Claimant. The deportation order was made pursuant to s.32(5) of the UK Borders Act 2007 which provides that the ``Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)''.

  34. In accordance with s.36(2) of that Act (as it stood at the time The proviso in s.36(2) of the UK Borders Act 2007 has since been replaced with the words ``unless the person is granted immigration bail under Schedule 10 to the Immigration Act 2016''.), having made a deportation order pursuant to s.32(5), the Secretary of State was required to detain the Claimant pending removal ``unless in the circumstances the Secretary of State thinks it inappropriate''. This presumptive statutory discretion was, of course, subject to the implied constraints imposed by the common law, specifically the principles derived from R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704, as refined and endorsed by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245.

  35. The Secretary of State made a decision on 1 August 2012 to detain the Claimant to effect his removal from the UK. The letter to him explained the decision to detain him was made having regard to the likelihood he would abscond if released and the risk of further offending. Accordingly, on 6 August 2012, having served his custodial sentence, the Claimant was made subject to administrative detention, pursuant to immigration powers. He was held in immigration detention from 6 August 2012 until 23 September 2013, when he was released on bail.

  36. The only barrier to removal of the Claimant, on 6 August 2012, was that he held (or claimed he held) no travel documentation that would enable him to return to Nigeria. UKBA sent the emergency travel documentation (ETD) pack to the Nigerian High Commission on 21 August 2012. The Claimant was interviewed by the Nigerian High Commission on 13 September 2012 and Nigeria agreed in principle to provide emergency travel documentation.

  37. On 17 August 2012 the Claimant went to the healthcare section in HMP Bullwood Hall. He said that he was ``tired of life'', he was being deported and he wanted to kill himself. He asked a GP ``to give him medication to take his life - wants poison. Says he has nothing to live for - apparently lost appeals against immigration - not clear about this. He has come to conclusion that life is not worth living. He would be happier if he could stay in UK.'' As a result of this threat of suicide, the Claimant was put on constant watch. It was recorded that he did not want to engage with the mental healthcare team or take medication.

  38. The Claimant was seen by Dr Deo, a psychiatrist, and Tara Merrell, a mental health in-reach co-ordinator on 21 August 2012. The notes record that they ``did not feel that Mr Aboro was at genuine risk of self harm here in prison or in the UK, and that there was no evidence of any mental health problems at present. However, he did state that on returning to Nigeria, he would consider ending his own life''.

  39. The first review of the Claimant's detention was undertaken on 31 August 2012. UKBA assessed the risk of the Claimant absconding as high. He had no family or other ties to the UK and the only barrier to his removal was obtaining an ETD, which was in progress. It was noted that he was on constant watch following his request for poison to kill himself. UKBA decided to maintain his detention. The Claimant does not challenge the lawfulness of his detention at this point.

    Colnbrook IRC (administrative detention - 12.9.12 to 11.1.13)

  40. On 12 September 2012 the Claimant was transferred from HMP Bullwood Hall to Colnbrook IRC where he remained for the next four months.

  41. On 21 September 2012 UKBA were planning to remove the Claimant to Nigeria on a charter flight on 2 October 2012. They sent a fax to healthcare at Colnbrook IRC asking for confirmation that the Claimant was fit to fly and fit to be detained.

  42. Dr Javaid Sultan, the responsible Consultant Psychiatrist at Colnbrook IRC, saw and assessed the Claimant on 23 September 2012. This appears to have been the first occasion on which he was assessed by Dr Sultan. The Serco Mental Health Records note that the Claimant ``says he has no hope and feels devastated and shattered due to his ongoing situation. Losses in the family causing persistent low mood, sleep problem and recurrent intrusive thoughts of DSH [i.e. deliberate self-harm]/suicide''. Dr Sultan observed that the Claimant was calm and cooperative. His speech was coherent and relevant. His mood was subjectively low/tearful and objectively flat. Dr Sultan noted ``fleeting thoughts of harming/killing himself but did not elaborate on any plans''. There was no evidence of psychosis.

  43. Dr Sultan noted:

    ``Impression /

    Adjustment Reaction causing Depression Risk of Self Harm

    PLAN /

    1) Offered to start on Mirtazapine 15 mg very reluctant

    2) Referred to Counselling for Supportive Counselling

    3) ACDT to continue 1:1 observation due to potential risk

    4) Fit for detention to monitor further progress/improvement

    5) Next F/U Follow up. 2/52'' (emphasis added)

  44. On the same day, Dr Sultan responded to UKBA's request for advice, informing them that the Claimant ``is fit for detention and should stay in ACDT Assessment Care in Detention Teamwork. for close observation and monitoring due to risk of self harm''. However, Dr Sultan also advised:

    ``Not fit to fly due to Clinical Depression and risk of self harm as part of ? Adjustment Reaction/Bereavement.''

  45. This advice from Dr Sultan I note the Claimant's contention that Dr Sultan's and Dr Burran's reports fail to conform to the requirements of the CPR in respect of expert reports. This is misconceived. They were the responsible clinicians and their contemporaneous medical notes and reports have been put before the court on that basis. Neither of them has been instructed to act as an expert witness. on 23 September 2012 is the foundation for the Claimant's primary contention that his detention was unlawful from that date.

  46. The second detention review is dated 28 September 2012. UKBA noted the psychiatrist's advice that the Claimant was not fit to fly. This represented a barrier to removal but UKBA also noted the IRC GP had stated on 24 September 2012 that ``he may be fit to fly in 2 to 4 weeks''. UKBA decided to maintain the Claimant's detention.

  47. Dr Sultan assessed the Claimant again on 30 September 2012. His notes record:

    ``Reviewed again

    Continues to claim that he has decided to end his life and is not bothered if he is deported.

    Mood remains flat. Didn't explain how he would kill himself but keeps referring to the stated fact that there is no hope or to look forward in his life.

    No evidence of psychosis

    Very reluctant to engage treatment plan

    Plan /

    1) To offer anti-depressant (Mirtazapine) as prescribed.

    2) To offer Counselling Support.

    3) ACTD to continue till next review in 2/52''

  48. On 4 October 2012 UKBA sent a fax to Dr Sultan in these terms, seeking his further advice:

    ``Thank you for your fax of 23 September 2012 in which you stated that Mr Aboro was not fit to fly.

    We would be most grateful [if] you would urgently advise us as to [whether] Mr Aboro will be fit to fly on our charter flight to Nigeria on Wednesday 10 October 2012. Please kindly note that this special flight will have qualified medics on board and in constant attendance with any specified medicines in accordance with Healthcare advice. In addition if Mr Aboro is able to travel on this flight he will be on constant watch and will be given an advance supply of any required medicines to cover several weeks after his arrival home in Nigeria. Furthermore UKBA Immigration Officers and escorts will be on board with him for the entire journey. We can also confirm that should you advise that Mr Aboro will be fit to fly under the aforementioned circumstances, UKBA will be happy to comply with any other recommendations you may have for the flight.''

  49. Dr Sultan's notes record that he assessed the Claimant again on 7 October 2012:

    ``Reviewed again today.

    Says he is absolutely fine and is capable to take his own decisions. Wouldn't like to take any medication as he believes his problems cannot be helped by medicine. He wants to go back to Nigeria as he is not happy here in IRC/Prison in UK and can do whatever he wants to do in Nigeria. On asking about his thoughts of harming himself he said he would not like to discuss it any further.

    Mood was Subjectively OK sleep ? app Appetite ? con Conversation ?

    Objectively Flat

    Denies any thoughts of self harm now but says as he has no hope in life eventually he would like to kill himself when he gets chance in Nigeria.

    No evidence of psychosis.

    Not willing to accept any Medication.

    Plan /

    Counselling Support to be continued.

    Letter to UKBA - completed for Fit to Fly under special arrangements''

  50. Dr Sultan responded to UKBA's request for advice with a report, dated 7 October 2012, in these terms:

    ``Richard was reviewed on 7/10/12. I have assessed him at least 3 times in past 4/52. I believe although Richard has some symptoms of depression and insomnia (on & off), his claims about ending up his life are part of manipulation due to possible underlying diagnosis of Borderline Personality Disorder. He continues to refuse medications but accepts Counselling Support now. He has not self-harmed in last 4/52 as reported. On MSE Mental State Examination today, his mood was objectively flat was able to talk rationally and clearly good TVP Tone, volume and pressure of speech.. He has denied any thoughts of self-harm in near future but says he would eventually like to kill himself but didn't elaborate on it.

    Additional Comments:

    I have received letter from UKBA dated 4/10/12 and I believe that Richard is fit to fly back to Nigeria. I understand he will be deported via charter flight with medics, UKBA officer who will be constantly monitoring and observing him. I will also recommend to handover the care of Richard to Nigerian Mental Health Team for further assessments of his mental health needs once he is there.'' (emphasis added)

  51. The Claimant was not removed on 10 October 2012. The records indicate that, having been advised that he was fit to fly, UKBA sought to arrange for the Claimant to be removed on the next charter flight to Nigeria, on 8 November 2012. His detention was reviewed for a third time on 26 October 2012 and a decision made to maintain it.

  52. Dr Sultan saw the Claimant for further assessment on 3 November 2012. His notes record:

    ``Mood remains euthymic, sleep ? app ? con ?

    Denies any thoughts of self harm at present but says he has nothing to live for. Wouldn't mind to go back to Nigeria on 8/11/12 (charter flight).

    No evidence of psychosis.

    Plan /

    1) Counselling support to be offered

    2) Refusing to take or accept any medication. Hence not prescribed.

    3) F/u in 2/52 if not deported.

    4) Fit to fly.'' (emphasis added)

  53. The Claimant was set to be removed on 8 November 2012. The Claimant's solicitors instructed Dr David Bell, a Consultant Psychiatrist, to comment on the Claimant's medical records, covering a period from February to October 2012 ``and if possible to comment upon the risk posed by deportation of Mr Oboro, specifically the risk of suicide/self harm''. Dr Bell did not meet or speak to the Claimant, but he reviewed the records and spoke to someone who he described as an advocacy coordinator from Detention Action. He was not asked to address the question whether the Claimant's mental health could be satisfactorily managed in detention, and he did not do so.

  54. Dr Bell provided a report dated 7 November 2012. The report sets out a few very brief extracts from the medical records, including from Dr Sultan's notes of his assessments on 23 September, 30 September and 7 October 2012. However, no reference was made to Dr Sultan's report to UKBA of 7 October 2012, suggesting perhaps that Dr Bell did not see this report. As he had the records up to October 2012, Dr Bell also would not have seen Dr Sultan's notes of his assessment on 3 November 2012.

  55. Dr Bell advised:

    ``In my view the medical records do not report any full psychiatric assessment. Much of the record reports what Mr Oboro has said gives very little further information. It needs to be stressed that a proper psychiatric examination involves a good deal more than reporting what is said but by necessity should include a full report of the psychiatrist's assessment of the significance of what is said and also should include a detailed account of the objective features noted in the interview.

    Further it also needs to be borne in mind that a psychiatric opinion as to the presence of psychiatric disorder and of risk should rely upon a thorough examination of the mental state and take into consideration previous records and any other knowledge of the patient. Mental states can fluctuate but in many cases this will not alter an opinion as to the presence and nature of the psychiatric disorder which has to be an opinion `in the round'.

    From the records it seems clear that Mr Oboro has been considered to be depressed and at serious risk of self-harm/suicide. The fact that he fluctuates in what he says on any particular day may be of little relevance once one considers the picture in the round. I note that he is currently under constant observation, given the high risk.

    Given that there is ample evidence of the existence of psychiatric disorder and that the risk of suicide/self-harm has been and is regarded as high enough to require constant observation, it seems entirely reasonable to me to assume that deportation will bring a very high risk of suicide or self-harm.

    ...

    At present, Mr Oboro's mental disorder is not stable or controlled, and for this reason, he is no[t] fit to fly.'' (emphasis added)

  56. As I have said, this claim (albeit not then including any challenge to the lawfulness of the Claimant's detention) was issued on 8 November 2012 i.e. the day the Claimant was due to be removed. Following urgent consideration of the papers, including the report of Dr Bell, Lang J granted an interim injunction preventing the Claimant's removal for four weeks ``to enable the Defendant to carry out a psychiatric assessment to determine whether he is fit to fly and fit to be removed from the UK''. It appears that Dr Sultan's report of 7 October 2012 was not before the court when interim relief was granted.

  57. Dr Bell's report of 7 November 2012 provides the foundation for the Claimant's secondary case that his detention was unlawful from 8 November 2012, when the Secretary of State received it. (There is an inconsistency in the Claimant's case here. He suggests, in respect of Dr Bell's first report, that the unlawfulness of the Claimant's detention stems from the date of receipt, whereas in respect of Dr Bell's second report the unlawfulness is said to begin once the Secretary of State had had 14 days to consider it. No reason for this inconsistency has been put forward.)

  58. Dr Sultan saw and assessed the Claimant again on 17 November 2012. His notes record:

    ``Seen today.

    Still wishes to kill himself.

    No reports of attempts to self-harm whilst in ACDT.

    Mood - but not severely depressed

    Energy, appetite Cognition

    No evidence of psychosis.

    Has full capacity.

    ? mild anxiety & depression but no evidence of severe & enduring mental illness

    ? Personality disorder

    Plan /

    1) Detailed letter written for UKBA. ...

    2) Refusing meds but accepting counselling.

    3) Fit for detention + Fit for Fly.'' (emphasis added)

  59. Dr Sultan's response to UKBA on 17 November 2012 stated:

    ``I assessed Mr Aboro in Psychiatric Clinic today along with my RMN colleague Jean Tebek. Mr Aboro continues to claim that there is nothing left in his life due to the various losses in his life and would like to commit suicide. He today asked me to prescribe poison for him which was a new development in his wishes. However on objective assessment he was very articulate and co-operative. His speech was normal in tone, volume and pressure. His mood remains [a] little depressed but there is no evidence of any psychotic symptoms. There [have] not been any reports of attempts of self harm whilst on ACDT. He is refusing to accept any medications (anti-depressants) and only attends counselling sessions at present. He has full capacity at present.

    Additional Comments:

    I believe Mr Aboro does not suffer from any severe and enduring mental illness and his wishes or thoughts of eventually killing himself are not consistent [with] severe depression or any mental illness. Those wishes are more suggest[ive] of frustration and anxiety and despair due to [being] in custody and his immigration matter. I believe he is Fit for detention and also is Fit to Fly back to Nigeria.''

  60. The fourth review of the Claimant's detention took place on 23 November 2012. It was noted that the Claimant's removal had been deferred on 8 November 2012, as a result of the court order, and so UKBA had sought a psychiatric assessment from Healthcare at Colnbrook IRC. It was noted that Dr Sultan had provided an assessment on 17 November 2012 and UKBA were seeking to progress to the court case. The decision was made to maintain the Claimant's detention.

  61. On 1 December 2012 Dr Sultan wrote to UKBA:

    ``I assessed Mr Aboro today in my psychiatric clinic...

    I believe Mr Aboro suffers from anxiety and depressive symptoms as part of Adjustment Reaction but he doesn't have severe and enduring mental illness like Recurrent Depressive Disorder. He keeps on claiming that he would like to finish his life but there is no record of any incidents of attempts to [commit] deliberate self-harm. Today, he was offered anti-depressant but again he refused to accept it. His mood remains [a] little agitated today [with] good energy level, good appetite and no active plans to harm himself at present. He has full capacity and I believe he does not require any transfer to Psychiatric Hospital.

    Additional Comments:

    He is fit for detention & Fit to Fly and I believe UKBA should be able to take further action after seeing my current & previous responses to queries.''

  62. The GCID records indicate that in late November and early December 2012 UKBA were asking to expedite the judicial review claim with a view to removing the Claimant on the Nigerian charter flight scheduled for 11 December 2012.

  63. On about 2 or 3 December 2012 the Claimant began refusing to eat or drink. Following a case review on 5 December 2012 a nurse noted:

    ``Richard maintains he is not on hunger strike but has no appetite and is therefore not eating. He states it is `too busy' in his head + its quieter when he is left alone. No ideation to die from food refusal. Did not raise any issues concerning immigration case. States he will take it day by day re eating + drinking. Unit staff informed us that food wrappers were found in his bin when room was cleaned (a cereal bar wrapper + apple core) so think he is sneaking food. To remain on 30 mins obs for ACDT at present, he does not wish to be on constant so consequences of food refusal explained + acknowledged.

    Refused observations + weight check. No further concerns at present.'' (original emphasis)

  64. The Claimant was seen by Dr Arsiwala on 6 December 2012. Throughout the consultation ``he seemed teary & found it difficult to maintain eye contact. He sat up at one point & seems to have energy in himself''. Dr Arsiwala noted that he was not exhibiting any signs of dehydration, apart from dry lips. The Claimant was to remain subject to observation at 30 minute intervals.

  65. At 3.30am on 7 December 2012 healthcare staff reported that the Claimant had placed a plastic bag over his head and tied it with a phone charger cord around his neck. The member of the healthcare staff who freed him from the danger ``stated that both bag and noose were loosely over his head as it came off quite easily''. The Claimant did not lose consciousness or suffer any injury. The Claimant was made subject to constant watch.

  66. The Claimant was seen by the mental health nurse and, separately, by Dr Arsiwala on the afternoon of 7 December 2012. The GP advised that, although it was unclear to what extent he may have been eating, for the purposes of the Food and Drink Refusal Protocol the Claimant should be treated as on day 4. Later that day the Claimant eat one meal, but remained non-communicative.

  67. The Claimant was seen again the next day by the mental health nurse and, again separately, by Dr Arsiwala. The GP reported that he was now eating and drinking and seemed improved in himself. He was reported to be communicating with staff.

  68. Over the next few days, the Claimant remained on constant watch. The records indicate that there were no concerns and he continued to eat and drink. Dr Arsiwala saw the Claimant on 10, 11 and 12 December 2012. The GP observed that there was no medical cause of concern. The psychiatrist had assessed that the Claimant was fit for detention and fit to fly and ``I support this''. On 12 December 2012 the constant watch was discontinued and the Claimant was made subject to observations every 30 minutes.

  69. An ETD had been issued for the Claimant on 7 December 2012, with an expiry date of 6 January 2013. However, on 10 December 2012 UKBA decided that he should not be removed on the charter flight to Nigeria the following day, in view of the ongoing judicial review claim.

  70. On 17 December 2012 the Claimant saw another GP at Colnbrook IRC. The GP noted the Claimant said he was hearing voices in his head asking him to kill himself. He said he wanted to put a polythene bag on his head and die of suffocation. The Claimant said he had no control over his actions and he might follow the voice and kill himself. The GP observed that the Claimant was maintaining good eye contact with normal speech and affect. But as he was expressing suicidal ideation, it was necessary to put him back on constant watch.

  71. Dr Arsiwala saw the Claimant on 18 December 2012. His notes record:

    `` Pt is very alert & animated today

    Continues to express same views

    He has ``things going on in his head that he cannot explain'' ``Constant ? voices''

    That ``Medication will not help''. The only thing that will help is ``being out of the centre as then he can get support''

    ``Constant watch is making him worse''

    PLAN 1) Persisted to explain the role of Healthcare & the reasons for the constant [watch]

    Difficult to reason with him.

    2) I will d/w i.e. discuss with the psychiatrist. today for plan going forward''.

  72. A psychiatrist also saw the Claimant on 18 December 2012 and noted that he was low in mood and weak in presentation, but refused to have any observations done. He was referred for counselling and also for regular talking therapy with the mental health nurses.

  73. The fifth detention review took place on 18 December 2012. It was noted that the only barrier to removal of the Claimant was the judicial review claim challenging the removal directions on the grounds of his mental health (in respect of which no permission decision had yet been made). UKBA decided to maintain his detention.

  74. From 19 December 2012 it was reported that the Claimant was refusing meals again, but he was eating and drinking food that he bought from the shop. He remained on constant watch and, on 20 December 2012, asked to see the psychiatrist when he came in the following Saturday.

  75. Dr Sultan reviewed the Claimant on Saturday 22 December 2012. His notes state:

    ``Reviewed today along with RMN. At present he remains on constant watch in healthcare due to refusing to eat & drink properly, claiming to hear voices & having thoughts of self-harm.

    O/E: On examination Appears dehydrated & have lost some weight but stated he is fed up being locked up & wants to [be] released and doesn't want to go back to Nigeria.

    Mood was ? agitated & frustrated due to ongoing detention and appears to be low in self-esteem & affect.

    Denies any current plans to harm himself but says he would do it at some point.

    appetite. ? Protesting hunger

    Claims to hear voices inside head but cannot elaborate on it & is not distractible or distressed due to them.

    No visual hallucinations.

    ? Depressive symptoms as part of Personality disorder. No evidence of Major Depressive Disorder.

    Frustrated, angry and [?] due to ongoing situation

    Plan /

    1) Anti-depressant anti-anxiety with hypnotic effect was offered but Richard refused. He wants to have ?traditional Nigerian medication which is not able to explain.

    2) Advised to continue having Counselling Support

    3) To remain on constant watch due to unpredictable behaviour secondary to ? personality disorder and not wanting to fly back to Nigeria

    4) Fit for detention + Fit to Fly.

    5) Next f/u in 4/52 but RMN & GP should assess the physical needs & provide support.'' (emphasis added)

  76. On 24 December 2012 the Claimant was moved out of the healthcare wing ``because healthcare states that he no longer needs a healthcare bed'', but he remained on constant watch.

  77. In the early hours of 28 December 2012 the Claimant again tied his phone charger cord around his neck and it was removed by healthcare staff. It did not result in any marks around his neck and he did not complain of any injury. He remained on constant watch.

  78. The Claimant was seen by a psychiatrist on 30 December 2012. It was noted that he refused to try any form of intervention, whether psychological, pharmacological or counselling. The Claimant said that he wanted to be released so that he could seek traditional treatment outside. He used the expression ``herbal'' to describe the treatment he wanted. The psychiatrist explained to him that herbal treatment is not an option in psychiatry and is not practised in the UK healthcare system. The psychiatrist advised that he should remain on ACDT given the risk of self-harm and the mental health nurses should continue to provide him with 1:1 support.

  79. Dr Sultan saw the Claimant on 3 January 2013. The Claimant reported that he was ``very frustrated and fed up due to the ongoing situation regarding detention & things not moving for him''. He claimed to hear voices inside his head ``but couldn't elaborate whether they are female, male or noises''. His mood remained ``flat''. The Claimant again insisted he wanted ``Nigeria traditional medications (?Herbal)''. Dr Sultan explained that ``we cannot offer any non-evidence based medication which is against NICE guidelines''. Dr Sultan observed there was no evidence of a formal thought disorder (FTD) or any psychotic symptoms, except possibly pseudohallucinations. However, the Claimant remained unpredictable due to his claims that he wished to be dead. The Claimant was to continue subject to observation with counselling support and assessment by the mental health nurses.

    Harmondsworth IRC (administrative detention - 11.1.13 to 15.5.13)

  80. On 11 January 2013 the Claimant was transferred from Colnbrook IRC to Harmondsworth IRC. The Detainee Healthcare Record indicates that his medical records moved with him to Harmondsworth IRC. On arrival he was assessed by a nurse who noted that in accordance with the transfer plan he would be under constant watch by an officer overnight. The nurse noted that the Claimant said he had been hearing voices for two years, telling him to kill himself. The assessment also noted that the Claimant had tried to suffocate himself using a plastic bag and telephone cord on Boxing Day 2012.

  81. The Claimant was seen and assessed by a mental health nurse on 14 January 2013. He described his mood as low and having ``suicidal ideas with vague & loose plans''. The nurse reported good eye contact and that rapport was established. His speech was normal in terms of volume, rate and flow. He was quite coherent and spontaneous. He reported hearing voices telling him to kill himself but there was no evidence of him being distracted. He was well oriented in time, person and place, but it was unclear how much insight he had. The nurse observed that ``Richard's affect was not congruent to the content of his speech even when describing events that he said were close to his heart & tearing him apart''.

  82. On 17 January 2013 UKBA requested a report for the court from the Consultant Psychiatrist at Harmondsworth IRC, commenting on (amongst other matters) fitness for detention, fitness to fly and the report of Dr Bell dated 7 November 2012. As the Claimant had moved from Colnbrook IRC to Harmondsworth IRC, Dr Sultan ceased to be the Consultant Psychiatrist with responsibility for his care and that role was taken up by Dr Burrun.

  83. Dr Burrun saw the Claimant on 18 January 2013. His notes record:

    ``...He admitted feeling stressed when is detained in IRC and is very anxious about his immigration issues. He is threatening to kill himself if he is deported back due to backlash from the opposition group in Nigeria. Feels that he would feel better if is allowed to stay in UK.''

  84. Dr Burrun observed that the Claimant showed good eye contact and was well-kempt. He had no current plan or intent to harm himself but he made threats that if he was deported he would end his life back in Nigeria. Dr Burrun's assessment was that there was no evidence of any psychosis. The Claimant's cognition was intact and his insight was good. His diagnosis was ``personality difficulties + situational stress''. Dr Burrun noted that the Claimant again refused to take any medication except for traditional Nigerian medicine and so the planned treatment was counselling and 1:1 support from the mental health nurses.

  85. The sixth detention review took place on 22 January 2013. It was noted that it remained the position that there was no barrier to removal of the Claimant, save for this judicial review claim (which at that stage was a challenge to the determination he was fit to fly to Nigeria). A report from the psychiatrist had been requested to assist in progressing the judicial review claim, which was still at the pre-permission stage. UKBA noted that the Claimant was on constant watch but determined, having regard to the high risk of absconding, that detention should be maintained.

  86. The mental health records indicate that the Claimant was seen by mental health practitioners in Harmondsworth IRC on 24 January 2013 and for counselling on 5 February 2013. He had counselling appointments on 12, 19 and 26 February 2013, but he did not attend.

  87. The seventh detention review took place on 18 February 2013. It was noted that the Secretary of State had filed an acknowledgment of service and summary grounds of defence in the judicial review claim on 28 January 2013. The only barrier to removal was the claim, in respect of which a permission decision on the papers was awaited. The Claimant's detention was maintained.

  88. The Claimant's solicitors instructed Dr Bell to provide a second report. Dr Bell interviewed the Claimant for about an hour on 23 January 2013 at Harmondsworth IRC. Following this interview, Dr Bell wrote a report dated 18 February 2013.

  89. Dr Bell reported that the Claimant ``looked objectively depressed. He had the typical facial expression of one who is depressed. There was little spontaneous facial expression and he did not smile once during the interview, which lasted about an hour. However he does not suffer from Psychomotor Retardation (a severe slowing of thinking, speech and behaviour often found in severe depression)'' (§6, emphasis added). The Claimant told Dr Bell that he had had it in mind for some time to kill himself and had attempted to do so twice in December (§7). He said his sleep was ``very poor'' (§10) and his appetite was also ``very poor'' (§11). He described sensitivity to loud noises (§12), hallucinations and voices in his head (§8 and §13). The Claimant described suffering from panic attacks, but said these ``were much worse in Colnbrook and he has not suffered so much, or perhaps not at all, since he has been in Harmondsworth'' (§14).

  90. Dr Bell's opinion and conclusions were in these terms:

    ``21. It is clear to me that Mr Aboro suffers from psychiatric disorder. His condition would satisfy the diagnostic criteria for Severe Depressive Disorder with psychotic features... That is, he shows the typical features of profound despair and nihilistic thoughts; no hope for the future; suicidal ideation with a history of suicide attempts (I noted in my previous report that he has been on suicide watch); profound feelings of self-blame and guilt; poor appetite and sleep, inner voices telling him to kill himself (pseudo-hallucination).

  91. The aetiology of his condition would appear to be complex. Although it is possible that his view of his life is coloured, retrospectively, by his current Severe Depressive Disorder, I think it is more likely that there has been in reality psychological disturbance for much of his life. That is, it seems that since he was a child he was traumatised by being separated from his parents. He was unhappy at school where he was bullied and socially isolated. Another significant factor is that there is a family history of Severe Psychiatric Disorder. I refer here to the suicide of his brother. These features suggest the presence of a disorder of personality development of a type that is depressive that is also reflected in his difficulties with interpersonal relationships. People suffering from this kind of personality disorder are predisposed to becoming severely depressed and are vulnerable to environmental stressors.

  92. Other events of etiological importance are the multiple bereavements and also the extremely traumatic event of his wife being murdered.

  93. In my view, the psychiatric disorder as I have described it is real. I have considered the possibility that it is fabricated and I am clear that this is not the case. I do not think it would be possible to fabricate this kind of psychiatric disorder, or to maintain it over this long period of time.'' (emphasis added)

  94. As regards treatment, Dr Bell advised:

  95. As I have already stated above, it is clear to me that Mr Aboro suffers from Severe Psychiatric Disorder. There is a serious degree of suicide risk. It is my view that there are not the conditions in detention for Mr Aboro to receive appropriate psychiatric help and he should be removed to a psychiatric hospital. It is clear to me that continuing detention is very harmful to his mental state.

  96. It is clear to me, as stated in my previous report, that Mr Aboro is not receiving psychiatric help in detention. It needs to be borne in mind that appropriate psychiatric help consists of the establishment of secure, enduring, trusting relationships with psychiatric personnel. I doubt this could be achieved in his current context of detention. It is clear to me that there has been no attempt to achieve this. Medication is only a small part of proper psychiatric care. ... I have already expressed the view that there is no record of a proper psychiatric examination in the records and no record of any attempt to engage him in the appropriate relationships with mental health personnel.'' (emphasis added)

  97. Dr Bell advised that the Claimant ``should be removed to an in-patient psychiatric unit who can then carry out a more thorough ongoing assessment. It may well be that, following this in-patient assessment he could be safely managed in the community, providing that every attempt is made to properly engage him in psychiatric help'' (§28). He continued at §29:

    ``Currently there is a moderate to high risk of self-harm and suicide. This should be kept under regular review by competent psychiatric authorities. It is my view that this can only be carried out outside the context of detention as the context of detention acts as a potent stressor and because there is not available in this context the appropriate kind of help. ... He will require specialist psychological help, particularly given that this is a complex case that is, a mixture of psychiatric disorder and a background of personality disorder. Psychological treatment would be of a specialist type and would be necessary for a number of years. He will also need various forms of support to help him manage day to day living in the community.'' (emphasis added)

  98. In commenting critically on the psychiatric support that the Claimant had been receiving in detention, Dr Bell only had access to the medical records that he had previously reviewed for his 7 November 2012 report. He did not have access to any medical records created after 7 November 2012, and as I have said the records before him when he wrote his first report do not appear to have included Dr Sultan's report to UKBA of 7 October 2012 or Dr Sultan's notes of his assessment on 3 November 2012.

  99. Although Dr Bell took the view that continued detention was ``very harmful'' to the Claimant's mental state, four weeks passed before he provided a report; and his report of 18 February 2013 was only provided to the Secretary of State on 11 March 2013, nearly seven weeks after Dr Bell had seen the Claimant. It was provided under cover of a letter from the Claimant's solicitors requesting his release from detention within 14 days and threatening judicial review of the lawfulness of his detention.

  100. Dr Bell's report of 18 February 2013 provides the foundation for the Claimant's tertiary case that his detention was unlawful from 26 March 2013 i.e. 14 days after the Secretary of State received it.

  101. On receipt of Dr Bell's second report, on 14 March 2013 UKBA passed a copy to Harmondsworth IRC and sought a full up-to-date health assessment including prognosis and advice as to whether he was fit for detention and fit to fly. UKBA undertook the eighth detention review on 15 March 2013. As previously, the only barrier to removal was the judicial review claim which was due to be considered on the papers shortly. The Claimant's detention was maintained. UKBA's intention, at this stage, was to seek to remove the Claimant on the charter flight in April or May, if the judicial review claim was resolved by then.

  102. As I have said, permission was refused on the papers by Wyn Williams J on 23 March 2013. On 26 March 2013, the Claimant applied to amend the grounds of claim to challenge the lawfulness of his detention from 23 September 2012 (or 8 November 2012 or 26 March 2013) and sought an interim order that the Claimant should be released to a psychiatric hospital.

  103. Dr Burrun saw and assessed the Claimant, together with a mental health nurse, on 29 March 2013. The notes record:

    ``O/E: He presented well with good eye contact and reasonable personal hygiene. Speech was coherent & relevant, good rate & volume.

    Mood subj says that he is low anxious

    Obj: Euthymic

    Says that he would consider ending his life if he is deported back to Nigeria but denies any intent or plans to end his life at the moment. No evidence of any psychotic symptoms. He talked at length about the tragic loss of his wife and family and the difficulty he is now having to come to terms with this major loss. He was reluctant to engage in counselling.

    Cognition was intact.

    He has good insight into the nature of his problems.

    PLAN

    1) Mr Aboro has a diagnosis of Personality Difficulty with Adjustment reaction. He will benefit from counselling and 1:1 support by RMN.

    2) He is currently fit to be detained.

    3) He is also fit to fly.'' (emphasis added)

  104. The ninth detention review took place on 15 April 2013. This judicial review claim was regarded as the only barrier to removal, the Claimant having renewed his application for permission. It was noted that a second psychiatrist (i.e. Dr Burrun) had advised that the Claimant was fit for detention and fit to fly, and a decision was again made by UKBA to maintain the Claimant's detention.

  105. On 24 April 2013 Dr J Burrun, the Consultant Psychiatrist responsible for the Claimant's treatment in Harmondsworth IRC reported to the Home Office:

    ``Mr Aboro was admitted to the healthcare wing at Harmondsworth IRC on the 14/01/2013.

    During this admission he was observed to be eating and sleeping well. His mood has been reported to be stable and there was no evidence of any psychotic symptoms. He was therefore relocated to normal location.

    During subsequent clinic appointments at Harmondsworth IRC on 18/01/2013 and 29/03/2013, Mr Aboro maintained good eye contact. He has been attending to his self care and personal hygiene has been reasonable. His speech was coherent and relevant [and] of normal tone and volume.

    Mr Aboro reported feeling low and anxious, objectively his mood appears euthymic.

    Mr Aboro has been since making threats of ending his life in case that he is deported back to Nigeria. He says that he would be fine if he is allowed to stay in the UK.

    On a positive note, he has been socialising and interacting appropriately with other detainees and members of staff.

    He gives no past history of any mental disorder or admission to a psychiatric hospital. There has been no reported incident of self harm act since his transfer to Harmondsworth IRC. His cognition is intact and he has good insight into the nature of his problems. He denies any intent or plans of ending his life at the moment.

    PLAN: In my opinion Mr Aboro presentation is consistent with situational stress compounded with possible anxiety symptoms triggered by his immigration issues.

    He has been referred for support and counselling which he attended only once. He has not engaged with the counsellor and he did not attend his subsequent three appointments following which he has now been discharged.

    Mr Aboro does not wish to take any Western Medications for his anxiety symptoms. He says that he will only accept to take Nigerian medication.

    This gentleman is currently fit for detention and he is fit to fly.'' (Original emphasis)

  106. On 2 May 2013, permission to apply for judicial review was refused at an oral hearing: see paragraph 11 above.

  107. The GCID notes for 3 May 2013 refer to the fact that the judicial review claim was no longer a barrier to removal and would not be, even if the Claimant renewed his application to the Court of Appeal, unless an injunction was obtained or permission was granted. Consequently, the only outstanding barrier to removal was the need to provide a decision in response to the Claimant's application dated 11 March 2013 for the deportation order to be revoked.

  108. The decision refusing to revoke the deportation order was sent to the Claimant's solicitors on 10 May 2013 and removal directions were set for 15 May 2013. The tenth review of the Claimant's detention took place on 13 May 2013. It was noted that he was due to be removed to Nigeria on the charter flight on 15 May 2013. As his removal was imminent, the risk of him absconding was assessed as ``very high indeed'' and his detention was maintained.

  109. The charter flight to Nigeria on 15 May 2013 was due to leave at 11.25pm. That evening the Claimant's solicitors obtained a telephone injunction preventing his removal. It is not clear which court granted this injunction, the grounds on which it was sought or granted, or even the claim in which it was sought.

    Brook House/hospital (administrative detention - 15.5.13 to 24.5.13)

  110. The Claimant appears to have moved to Brook House IRC on or about 15 May 2013, with a view to being removed on the charter flight to Nigeria that day.

  111. On 21 May 2013 UKBA were informed by the detention centre that the Claimant had been refusing food and fluid for a few days. On 22 May 2013 he was showing signs of dehydration and being unwell. On 23 May 2013 the Claimant was seen by Dr Labinjo, a Consultant Psychiatrist, who found the Claimant was displaying psychotic features, including mutism, and he was almost catatonic. The Claimant was transferred to hospital for an urgent psychiatric assessment.

  112. The psychiatric assessment was undertaken in East Sussex Hospital on 24 May 2013 Dr Veronica Garcia, a Consultant Forensic Psychiatrist. She advised that the Claimant ``does not appear psychotic or depressed, may have an agenda''. She suggested that he should be transferred to a centre that could continually monitor him. The Claimant was initially discharged from the hospital to Brook House but then he was transferred back to Harmondsworth IRC as there were no healthcare beds at Brook House.

    Harmondsworth IRC (administrative detention - 24.5.13...

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