ASK v The Secretary of State for the Home Department, Court of Appeal - Administrative Court, February 09, 2017, [2017] EWHC 196 (Admin)

Resolution Date:February 09, 2017
Issuing Organization:Administrative Court
Actores:ASK v The Secretary of State for the Home Department

Neutral Citation Number: [2017] EWHC 196 (Admin)

Case No: CO/9816/2013




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 09/02/2017

Before :


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Between :

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Stephanie Harrison QC and Leonie Hirst (instructed by Bhatt Murphy Solicitors) for the Claimant

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

Christopher Knight (instructed by Browne Jacobson) for the Interested Party

Hearing dates: 21st - 23rd June 2016

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Page 2


Paragraph No.


  1. Introduction, Issues and Conclusion

    (i) The issues

    1. The issue in this case concerns an allegation that in 2013 the Claimant - ``ASK'' - was unlawfully detained in an Immigration Removal Centre (``IRC'') pending removal from the United Kingdom and, once he was definitively declared unfit to fly, detained for an unreasonably long period of time before eventual transfer to a psychiatric unit. I was told that there are a growing number of similar cases before the Courts.

    2. The case raises a number of issues.

    3. First, the implications of the recent judgment of the Supreme Court in R (on the application of O) (by her litigation friend the Official Solicitor) v Secretary of State for the Home Department [2016] UKSC 19 (``O v SSHD'') and the change that it has brought to the law relating to detention, in the light of R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45 (``Das''). In O v SSHD the Supreme Court modified the test for when a person awaiting removal could be detained in a detention centre by rejecting the view of the Court of Appeal in Das that the Defendant was not required to take account of the possibility that a detainee would receive better care and treatment in a psychiatric unit relative to that available in the IRC.

    4. Second, the extent of the duty on the Secretary of State to make inquiries as to a person's mental health before she transfers an immigration over-stayer to an IRC and whether it is sufficient to complete the medical assessment only once the person has been detained?

    5. Third, whether there is a duty upon IRC caseworkers when they complete their records to refer expressly to HO policy and the questions they need to address and whether the omission of such information or entries in recorded form has significance in law?

    6. Fourth, how a court is to assess the point in time at which a detainee must be treated as definitively unfit to fly for the purpose of determining when an otherwise legitimate rationale of detention for the purpose of removal ends?

    7. Fifth, once a decision is taken that a detainee must be transferred to a psychiatric unit under the Mental Health Act 1983 (``MHA 1983'') what is meant by ``prompt'' transfer and in particular what happens if there is disagreement between the transferring clinicians who issue certificates under sections 47 and 48 MHA 1983 and the receiving clinician(s) to whom the IRC wishes to transfer and entrust the detainee?

    8. Sixth, how the Court should evaluate different types of evidence including: caseworkers reviews and notes, contemporaneous clinical notes and reports, and subsequent (ex post facto) expert reports which rely upon earlier notes and clinical reports.

      (ii) Conclusion on the evidence

    9. Notwithstanding the range and complexity of the legal issues raised I have ultimately concluded, on the evidence, that howsoever the legal complaint is formulated, the claim fails. I can summarise my conclusions in the following way:

      (i) The medical condition of ASK was complex. It fluctuated significantly depending, in large measure, upon whether he adhered to his medication regime.

      (ii) ASK was subject from first to last to detailed and frequent assessments by a wide variety of different, qualified, clinicians. There was no point in the chronology at which it could be argued that ASK was not subject to medical supervision. There were no treatment gaps.

      (iii) The views of the assessing clinicians varied widely and indeed starkly. This reflected the variable nature of ASK's condition. It is not argued that the opinion of any clinician was negligent.

      (iv) At all times the assessment was related to the question whether ASK was fit to be detained and removed in accordance with applicable immigration policy.

      (v) At the same time the assessment also regarded ASK's mental condition which included whether it could be satisfactorily managed in the IRC and/or whether it could be better managed in hospital.

      (vi) On the facts the Defendant performed all due inquires arising at the point of first detention. ASK's medical position was in a state of constant assessment and supervision at this time.

      (vii) Thereafter, given the widely divergent expert medical opinions, the Defendant was bound to consider all the evidence in the round (and not just that most favourable to the Claimant's case). The chronology establishes that the evidence was considered collectively as a whole.

      (viii) The Defendant obtained and assessed what, in effect, was a tie breaker opinion (from a Dr Dossett, instructed by the Claimant) in mid-July 2013 and when it recommended hospital transfer the Defendant acted upon that recommendation with proper haste. It was only at this point in time that the Defendant concluded and decided that there was no proper basis for removal. Plans to remove ASK were withdrawn forthwith, i.e. without delay.

      (ix) The delays which occurred thereafter in effecting the physical transfer of ASK to hospital were due to (a) potential receiving hospitals wishing to carry out their own assessments of ASK and/or (b) problems in locating a suitable hospital bed. These were delays intrinsic to the system. In all the circumstances they were neither excessive nor unreasonable.

      (x) During the period during which ASK was awaiting transfer his condition did not deteriorate. There is no evidence to support the contention that the treatment available in hospital was materially more beneficial to ASK than that which was provided in the IRC. Although it involves the use of hindsight the chronology post-dating transfer to hospital does not show either improvement or deterioration in ASK's condition.

      (xi) The Defendant's conduct throughout was, by whatever standard is applied, lawful.

      (xii) With specific regard to issues of mental capacity the evidence indicates that this was a continual aspect of the assessment being made of ASK. There are a number of points to be made. First, most of the key decisions being made (e.g. fit for detention, fit to remove, transfer under the MHA 1983) were not decisions requiring ASK's consent, though I accept that this does not mean that input from ASK was irrelevant. Second, in relation to the appointment and the giving of instructions to legal advisers who might have brought proceedings more rapidly to secure his transfer there is no evidence that ASK's interests were in any way prejudiced or compromised. The chronology is in this regard telling: it shows that the Defendant acted on her own initiative to take decisions in ASK's best interests upon the basis that he lacked capacity: See, e.g. the events described at paragraphs [137] - [142] below.

      (xiii) To the extent that the Claimant alleges systemic flaws in the system under the Equality Act these did not loom large in the Claimant's argument before the Court. There is insufficient evidence before the Court upon which to form the conclusion that this claim is established. In any event this case would not be an appropriate case in which to evaluate the argument given my conclusion on the particular facts of the case. I can in any event detect no facet of ASK's treatment which was discriminatory or unequal.

      (iii) The issue of the proper Defendant

    10. In the course of argument a major dispute arose as to the allocation or division of responsibilities as between various Government departments and entities for various aspects of the treatment of detainees in detention centres suffering from mental health problems. Ms Julie Anderson, for the Secretary of State, argued that many of the alleged errors were in law and fact if established, the responsibility of bodies or entities other than the Defendant. To take one illustration the process for effecting a transfer from an IRC to hospital is regulated by the MHA 1983 and is a clinically driven process. The psychiatric opinions of doctors, the hospital units where (and to whom) a patient should be sent, and whether the target hospital (or clinician) was obliged to accept a patient if the resident clinicians disagreed with the clinical assessment of the transferring doctors, were all issues said to be beyond the remit and control of the Secretary of State for the Home Department. Because of the potential ramifications of this issue for this case and generally, at the completion of the main hearing, proceedings were adjourned to enable the various Government Departments said to be affected and the Claimant to address a series of questions on this issue. Because of intervening events which absorbed the attention of the Government (viz the Brexit referendum) the exchange of submissions took considerably longer than was initially anticipated and this, regrettably, significantly delayed the completion of this judgment. When I made directions for the preparation of these submissions I had not formed a clear view of the merits of the Claim. In the course of preparing this judgment however I concluded that on the evidence the Claim fails. On reflection in these circumstances I did not think it was appropriate to express a view on what are really quite complex and important issues. What I have done instead is to set out in Annex I to this judgment a relatively detailed...

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