Aboro, R (on the application of) v Secretary of State for the Home Department

Introduction

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.

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.

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.

The issues are these:

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

Procedural History

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.

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.

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.

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.

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

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.

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.

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).

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.

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.

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.

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.

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.

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

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.

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.”

Permission to appeal to the Court of Appeal was refused.

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.

Disclosure

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.

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.

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.

Facts

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.

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.

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)).

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.

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.

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.)

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)”.

In accordance with s.36(2) of that Act (as it stood at the time (Footnote: ¹)), 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.

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.

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.

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.

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”.

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.

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

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.

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.

Dr Sultan noted:

“Impression /

Adjustment Reaction causing Depression $\stackrel{-}{c}$ 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 (Footnote: ²) 2/52” (emphasis added)

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 (Footnote: ³) 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.”

This advice from Dr Sultan (Footnote: ⁴) on 23 September 2012 is the foundation for the Claimant’s primary contention that his detention was unlawful from that date.

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.

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 $\stackrel{-}{c}$ 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”

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.”

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 (Footnote: ⁵)✓ con (Footnote: ⁶)✓

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”

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 (Footnote: ⁷) today, his mood was objectively flat was able to talk rationally and clearly $\stackrel{-}{c}$ good TVP (Footnote: ⁸). 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)

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.

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)

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.

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.

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)

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.

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.)

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)

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.”

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.

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.”

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.

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)

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.

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.

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.

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.

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.

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.

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.

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  (Footnote: ⁹) today for plan going forward”.

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.

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.

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.

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: (Footnote: ¹⁰) 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 $\stackrel{-}{c}$ 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 $\stackrel{-}{c}$ 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)

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.

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.

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.

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.

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.

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”.

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.

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.”

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.

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.

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.

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.

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.

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).

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).

22.

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.

23.

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

24.

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)

As regards treatment, Dr Bell advised:

26.

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.

27.

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)

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)

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.

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.

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.

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.

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.

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)

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.

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)

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

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.

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.

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.

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.

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.

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.

During the period following his transfer back to Harmondsworth IRC on about 24 May 2013 until his release on bail on 23 September 2013 the Claimant was subject to monitoring for almost continual refusal of food and sometimes of fluids, too.

He was reviewed by healthcare staff on 25, 26, 27, 28 and 29 May 2013. On each occasion he was found to be drinking fluids and his condition was satisfactory. He was not witnessed eating, but he had, for example, bought peanut butter and juice from the shop on 28 May, he had fruit and yogurt by his bedside that day and on 29 May he had asked for and been given slices of bread. On each review he was found to be fit to be detained by healthcare staff.

On 30 May 2013, the Claimant was seen by Dr Burrun who noted that his responses to most of the questions asked were “I don’t know”. He advised that healthcare staff should continue to encourage food and fluid intake, monitor quantities and encourage engagement.

The Claimant’s food intake improved for a few days in early June and then dropped off again, but he was reported to be buying biscuits and drinks from the shop. The same pattern occurred in mid-June with him eating meals on some days and then missing them again. Then, for a period of 96 days, from 20 June 2013 until his release on bail the Claimant refused all meals.

Although the Claimant was rarely witnessed eating during this period (and on some days was not witnessed drinking any fluids), his condition was observed throughout to be satisfactory. He was seen to be walking around, engaging and interacting with other detainees, watching and sometimes playing football. The Claimant was reviewed regularly by healthcare staff at Harmondsworth IRC and continuously assessed to be in a normal condition and fit to be detained. It is plain that, although he was on “food and fluid refusal” for a lengthy period, the Claimant must have been eating and drinking.

On 3 June 2013 the Claimant was reviewed by a mental health practitioner who advised that there was no clinical need for him to be on the healthcare wing. On or around this date the Claimant appears to have transferred to an ordinary location within Harmondsworth IRC, although he continued to be reviewed daily.

On 7 June 2013 the eleventh review of the Claimant’s detention took place. The only barrier to removal at that point was the judicial review claim by which the challenged the certification of his asylum and human rights claims, which was then pre-permission: see paragraph 20 above. UKBA considered that removal was imminent and so the risk of absconding was assessed to be very high.

On 21 June 2013 the Claimant applied for temporary admission. On 28 June 2013 UKBA advised his representatives that they would have to provide a release address that was suitable for electronic monitoring equipment to be installed.

On 2 July 2013 the twelfth review of the Claimant’s detention took place. By then permission had been refused on the papers in the Claimant’s certification challenge (see paragraph 20 above) and Arden LJ had refused permission on the papers in this claim (see paragraph 12 above). However, the certification challenge remained the only barrier to removal because the Claimant had renewed his application for permission to an oral hearing. Detention was maintained.

On 18 July 2013 that barrier to removal fell away when permission was refused in the certification challenge at the oral renewal hearing by Leggatt J.

On 25 July 2013 UKBA sought advice from the healthcare team at Harmondsworth IRC as to whether the Claimant was fit to fly to Nigeria, with a view to removing him on a charter flight on 14 August 2013. On 31 July 2013 Dr Raj confirmed that he was fit to fly.

However, on 26 July 2013 Laws LJ granted permission in this claim (see paragraph 12 above). The GCID notes record that this represented a barrier and “the Claimant is currently not removable”. The Secretary of State proposed to seek expedition. This was noted in the thirteenth review of the Claimant’s detention on 5 August 2013. In particular, it was noted that the Court of Appeal hearing “could take up to 12 months to be heard” but the Secretary of State had requested expedition. A decision was made to maintain the Claimant’s detention.

On 28 August 2013 the Court of Appeal hearing was listed to be heard on 27 or 28 January 2014.

The fourteenth (and final) review of the Claimant’s detention took place on 3 September 2013. It was noted that he was being monitored daily by healthcare as a result of being on food and fluid refusal and he was assessed as fit to be detained. He was not eating food provided by the detention centre but he had been buying food and drink from the shop.

A nurse’s assessment on 20 September 2013 indicated that the Claimant’s food and fluid refusal was causing concern but he could safely remain on normal location and he remained fit for detention. Three days later, the Claimant was released on bail.

Post-Detention Medical Reports and Evidence

In addition to the contemporaneous medical notes and reports, to which I have referred above, there are also a number of medical reports post-dating the Claimant’s detention.

On 10 October 2017, Nicholas Vineall QC, sitting as a Deputy High Court Judge, granted applications to admit the reports of:

In addition, there is a report from a GP, Dr Jagadesham, and there are two reports from Dr Maqbool Ahmad, a Consultant Psychiatrist to whom the Claimant was referred by his GP following his release.

These post-detention reports are not relied on as relevant to the lawfulness of the Secretary of State’s decision to detain, and to maintain the detention of, the Claimant. Clearly, the Secretary of State could only act on the basis of the information before her at the time. However, reliance is placed on them as relevant to the question whether, if I were to find the Claimant’s detention or any part of it was unlawful, he is entitled to substantial or only nominal damages.

On 30 October 2013 a GP, Dr Jagadesham, referred the Claimant for psychiatric assessment. Dr Jagadesham noted that the Claimant had good eye contact and rapport. He dressed cleanly with good hygiene. He had good insight, but could not manage to complete a form “because of his ? lack of attention”. Dr Jagadesham observed: “I have seen him a couple of times outside my surgery about lunch time, crossing the road looking happy and very articulate over the mobile speaking to a friend”. He also noted that the Claimant “can smile and tries to smile but I feel that he is trying to suppress it. (This is my observation, but I may be wrong.)” The Claimant went to the GP surgery on 29 October 2013 “accompanied by his care worker and the care worker is now concerned that the patient has started to experience hearing voices when nobody is around. He describes them to be unpleasant but he could not elaborate the content because he says he can’t remember or think straight … The care worker has read the report from his previous Psychiatrist [i.e. Dr Bell’s second report] and they are all now worried that he is a high risk of suicide”.

Dr Ahmad, Consultant Psychiatrist, provided reports to Dr Jagadesham on 31 December 2013 and 15 April 2014. In his first report Dr Ahmad noted that it was “a bit difficult to get a proper history” and so much of it was taken from Dr Bell’s report. The Claimant was observed to be casually but properly dressed. He spoke in normal tone and volume but gave brief answers. He complained of psychotic symptoms in the form of hallucinations and paranoid ideation but Dr Ahmad noted he was not distractible during the assessment. He also complained of poor memory, attention and concentration, but was observed to be fully oriented. On the basis of the information provided to him, and his presentation, Dr Ahmad advised that the Claimant’s presentation was consistent with the diagnosis previously given by Dr Bell, namely severe depressive disorder with psychotic symptoms in the context of PTSD. On 15 April 2014 Dr Ahmad noted that although the Claimant claimed to be compliant with taking medication, his care coordinator said this was questionable.

Professor Maden interviewed the Claimant for about 1½ hours on 17 July 2014 and reviewed the documents specified at §12 of his report. Professor Maden observed that at interview “his affect was euthymic, i.e. he appeared neither elated nor depressed” (§72). His speech was normal and his concentration was good; he did not appear excessively anxious (§§65, 66 and 72). Professor Maden observed:

“73.

He is genuinely uncertain about his future. He is not genuinely suicidal and his comments in that regard are limited to his saying that he is better off dead if Boko Haram are going to kill him. His statements about hearing voices and fearing he would be killed were not accompanied by any particular expression of emotion and in that sense his affect was inappropriate to what he was saying.

74.

I found him evasive throughout. …

75.

He is clearly aware of his circumstances. He was fully oriented in time, place and person. He appeared to be of average intelligence.”

Professor Maden assessed that a diagnosis of an adjustment disorder could not be ruled out, but on balance “I would not make any psychiatric diagnosis. He is in difficult and uncertain circumstances and he is appropriately anxious and upset” (§154). Professor Maden considered that the Claimant’s “behaviour represented in large part deceit, manipulation and malingering” (§150).

In giving a detailed (albeit not exhaustive) review of the medical records Professor Maden did not refer to the incidents in the early hours of 7 and 28 December when healthcare staff removed a plastic bag and cord from the Claimant’s head and neck. However, he noted the Claimant said that “when he was in prison he once put a rope around his neck. He also put a plastic bag on his head on several occasions” (§53). Professor Maden commented at §148:

“He appears to have reported his history inaccurately when telling the experts that he tried to kill himself in prison. I have not seen a record of anything other than the sort of gestures that one encounters in patients who are attempting to manipulate those around them. The request for poison from a doctor was probably such a gesture and it would be a very odd way for a truly suicidal man to behave.”

Professor Maden continued:

“155.

… It appears that some of his complaints emerged when he was faced with deportation. If they were due to his experiences in Nigeria one would have expected them to be acute when he first arrived in the country.

156.

He probably had symptoms of an adjustment disorder when first seen by Dr Sultan. It is difficult to know because the clinical picture was clouded by manipulative behaviour and exaggeration. I have great sympathy for the clinicians who looked after him because they were faced with malingering of a life-threatening illness, particularly in May 2013.

157.

He has probably never suffered from a depressive episode. He definitely did not suffer from a severe depressive disorder with psychotic features during the time covered by the records I have seen. The observations taken as a whole are incompatible with such a diagnosis.

158.

His statements that he will kill himself if returned to Nigeria, or that he would prefer to kill himself rather than be shot by terrorists, are not in any way typical [of] the way that severely depressed people talk when contemplating suicide. They are either expressions of frustration or attempts at manipulation.

159.

He has in my opinion never been truly unfit to fly to Nigeria but the opinion given by Dr Sultan in that respect was a humane, sensible and cautious decision about a man with whom he had only brief acquaintance.”

Professor Maden also observed that he considered “the implied criticisms in Dr Bell’s first report of Dr Sultan and other clinical staff” were “unfounded, unreasonable and unfair” (§166).

Dr Sarkar had a telephone interview for about 30 minutes followed by a face to face interview for over two hours with the Claimant. The interview took place in Lincoln IRC, the Claimant having been re-detained on 25 July 2016. This further period of detention is not relevant to the claim before me. At §32 Dr Sarkar noted that the Claimant “has a history of suicide attempts (both times in detention) by attempting to strangle himself by electric cable and by suffocation (putting a plastic bag on his head), both while detained in IRC Colnbrook. He also self-harmed multiple times in detention, unable to cope with his thoughts and voices”. The assertion that the Claimant also self-harmed while in detention is not supported by the contemporaneous medical records.

Dr Sarkar commented extensively on Professor Maden’s report. Dr Sarkar points out at §43, in surprisingly and unnecessarily disparaging terms, that Professor Maden impliedly suggested at §165 that Dr Bell had not mentioned the possibility that there may have been an element of manipulation or exaggeration, whereas Dr Bell had considered and rejected the possibility that the Claimant was fabricating a psychiatric disorder. There is some substance to this criticism. However, it is apparent that what Professor Maden meant was that, in rejecting the possibility of fabrication, Dr Bell did not consider the evidence of inconsistency and exaggeration or the view expressed by the responsible clinician, Dr Sultan, that in claiming he was going to end his life the Claimant was engaging in manipulation.

Other criticisms of Professor Maden’s report made by Dr Sarkar are misplaced. For example, at §49 Dr Sarkar suggested that, contrary to Professor Maden’s report, the “doctor who made the diagnosis of ‘having an agenda’, is not referred to as a Psychiatrist, let alone Forensic psychiatrist”. This is wrong: the records clearly describe Dr Veronica Garcia - who saw and assessed the Claimant in East Sussex Hospital on 24 May 2013, and who found that he was not psychotic or depressed and “may have an agenda” - as a “forensic psychiatrist”.

Dr Sarkar expressed the opinion that the Claimant “suffers from a Major Depressive illness” and has suffered since the death of his wife in 2011 from severe and complex post-traumatic stress disorder (PTSD) (§§82-83). He considered that the possibility of malingering was “remote” (§83). Addressing the question whether his mental health could be satisfactorily managed within detention, Dr Sarkar wrote:

“Most detention centers these days have decent and regular medical input from GPs and sometimes psychiatrists. Even at its highest, the treatment options for a patient so severely affected as Mr Aboro are much restricted. The section above discusses why. So although Mr Aboro’s mental health can be theoretically managed within detention, it is questionable that it can be ‘satisfactorily’ managed within detention. Dr Bell, way back in 2013, but faced with similar presentation from Mr Aboro. His opinion I have quoted above. (Footnote: ¹²) 3 years on, faced with similar presentation, I would repeat his opinion.”

Professor Katona was instructed to comment on the procedure and conclusions of the reports of Dr Bell and Professor Maden. He did not see the Claimant or review his detention healthcare or other medical notes, or see the instructions provided to Dr Bell or Professor Maden (§1(d)).

In relation to Dr Bell’s first report, dated 7 November 2012, Professor Katona commented (§2h):

“This report is clearly a preliminary one, and Dr Bell is at pains to make clear that the evidence available to him was limited. In my opinion, Dr Bell’s conclusions do not go beyond what it was possible to infer from the information he had. I would however add that (on the basis of Prof Maden’s more extensive summary of the same records in paragraphs 80-106 of his report) Dr Bell appears to have been quite selective in the quotations he makes from the medical records. It might for example be argued on the basis of paragraph 100 of Dr Maden’s report that Dr Sultan did in fact carry out a full psychiatric assessment on 23^rd September 2012. Dr Bell also makes no comment on the suggestion made by Dr Sultan on 7^th October 2012 (quoted in Paragraph 105 of Prof Maden’s report) that Mr Aboro’s “claims of ending his life are part of manipulation due to possible underlying diagnosis of borderline personality disorder”.

Professor Katona expressed the view that Dr Bell’s second report adhered broadly to good practice on preparation of such reports (§3d).

Professor Katona noted that Professor Maden had provided a more detailed summary of the documentary evidence available to him. He also provided “a less structured but more detailed description of Mr Aboro’s mental state than Dr Bell” and Professor Maden incorporated an element of judgment, finding the Claimant was evasive throughout (§4e-f). Professor Katona agreed with Professor Maden that “Dr Sultan did carry out a reasonably full psychiatric assessment”, but regarded Professor Maden’s criticism of Dr Bell as “substantially overstated” (§4i). Professor Katona suggested that Professor Maden’s conclusion that it was “unlikely in the extreme that RA was suffering from a severe depressive episode when Dr Sultan first saw him” was “stated more strongly than is warranted by the available evidence” (§4j). Professor Katona suggested that in questioning Dr Bell’s expertise and expressing sympathy for Dr Sultan and his team, Professor Maden “strays into advocacy” and, in his view, “strays considerably from current guidance” on the preparation of such reports (§4k-m).

Dr Bell’s third report commented on Professor Maden’s report. Dr Bell noted that Professor Maden assessed the Claimant quite a long time after he had done so, but expressed the view that it was “unlikely in the extreme that there had been such a major change in Mr Aboro’s mental state that could account for Professor Maden’s conclusions”. Dr Bell interviewed the Claimant by telephone on 25 September 2017 and maintained his previous diagnosis. He disagreed with Professor Maden’s view that the Claimant was fabricating. Dr Bell suggested that the Claimant’s “inappropriate affect or flat affect” when referring to hearing voices was not indicative of fabrication as flat affect is often indicative of psychiatric disorder, often indicating dissociation. Dr Bell also observed that while it is relatively easy to feign single symptoms, diagnosis looks at the whole picture and “feigning successfully at this level is much more difficult”.

Professor Maden’s report of 3 November 2017 responded to the reports of Dr Sarkar, Professor Katona and Dr Bell’s third report. Professor Maden observed that in his experience malingering may be maintained for several years, but it is not consistently maintained, and in this case the presentation was not consistently maintained, as illustrated by the difference between the assessments of Drs Labinjo and Garcia. However, he also raised “a third possibility”:

“It is that some of RA’s symptoms may be functional i.e. whether consciously or unconsciously, they serve a psychological function or purpose. In fact, with the benefit of hindsight and having seen the updated assessments, I regret that I did not mention this third possibility when I reported on RA in 2014.” (§31)

“… having had further experience of immigration cases since I saw RA in 2014, I would now give greater emphasis to the possibility mentioned above. Some of the inconsistencies in presentation, and the sometimes histrionic or exaggerated manner of presentation, may be explicable in terms of functional, stress-related symptoms.

I have no doubt that RA has faced great stresses over the past few years. It would not be surprising for him to have developed some functional, stress-related symptoms. That is consistent with the view I expressed that this was never a straightforward case of depression or post-traumatic stress disorder. In reporting on immigration cases, I am struck by the fact that there tends to be far greater polarisation of views than there is in most civil litigation. The diagnosis of stress-related functional symptoms is in my view a possible explanation for symptoms that are inconsistent and exaggerated but may not be the result of conscious fabrication.”

Professor Maden rejected the suggestion that he was seeking to “dismiss the record of suicidality”, but stood by his opinion that “the self-harm behaviour was on the balance of probabilities not a serious suicide attempt, which was also the conclusion reached by at least some of the treating clinicians” (§32). In relation to the events of May 2013 Professor Maden stated:

“33.

…On 23 May 2013 Dr Labinjo finds RA to be displaying psychotic features and to be almost catatonic. This is very severe mental illness and Dr Labinjo correctly arranges transfer to hospital. I make no criticism of his practice. I hope I would have done the same in the circumstances.

34.

However, in hospital the following day, the psychiatrist Dr Garcia finds that RA does not appear psychotic or depressed. She believes he ‘may have an agenda’. I make no criticism of her practice.

35.

When writing my report, I carefully considered these records and I reached the conclusions set out at paragraph 150. Something very odd happened. Psychotic depression verging on catatonia does not improve overnight. Yet, when dealing with patients in custodial or forensic settings, it is relatively common for apparent severe illness to remit with a change of circumstances. The common explanation is not that the illness gets better but that the presentation in custody is consciously or unconsciously exaggerated. This is in no way a criticism of Dr Labinjo. Any psychiatrist who treats patients in secure settings will have been in the same position.

36.

This episode is a key event. Any psychiatrist who formulates the case in terms of severe depression has to deal with the fact that when transferred to hospital in May 2013, RA was found within 24 hours not to have what had appeared to be depression of the most severe kind.”

In relation to the ease or difficulty of fabricating a psychological disorder, Professor Maden noted that the publication cited by Dr Bell was written in the pre-internet age, whereas now anyone can look up the symptoms of any mental illness. He also referred to the extensive literature on the problem of fabrication of PTSD.

Professor Maden agreed with much of Professor Katona’s report. They were in agreement that Dr Sultan carried out a reasonably full psychiatric assessment. Professor Maden acknowledged, fairly, that he may have been overly defensive of Dr Sultan and other clinical staff in suggesting that Dr Bell had impliedly made unfounded, unreasonable and unfair criticisms of them (§53). However, Professor Maden stood by his view that it is extremely unlikely that the Claimant had severe depression, noting that in this context “psychotic and severe are effectively synonymous” (§54); and he disagreed respectfully with Professor Katona’s criticism of him for straying into unwarranted advocacy or straying from the guidance.

The Claimant made an application on 17 January 2018 to rely on a witness statement of the Claimant dated 11 January 2018. The purpose of the witness statement is to respond to “some of the thing said by Professor Maden in his report dated 3 November 2017”.

The Secretary of State opposed the application on the grounds that it was produced long after the time for filing such evidence had expired and no application for permission to adduce it was made on 10 October 2017, when various applications were heard and determined by the court.

There is some force in the Secretary of State’s objection. Nevertheless, I am prepared to admit the statement. It is only eight paragraphs long. The Secretary of State received a copy three weeks before the hearing and has not been prejudiced in responding to it. In my judgment the Claimant’s statement does not add anything of any real substance to his case, but I consider it more appropriate to treat that as a matter going to weight rather than admissibility.

The Legal Framework

Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the United Kingdom if “the Secretary of State deems his deportation to be conducive to the public good”.

Section 32 of the UK Borders Act 2007 provides:

“(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”

The Claimant is a “foreign criminal” as defined in s.32(1) of the Borders Act 2007 and s.117D(2) of the Nationality, Immigration and Asylum Act 2002 because he is not a British citizen and he has been sentenced to a period of imprisonment of more than 12 months.

Section 33 of the UK Borders Act 2007 provides an exception to the requirement that the Secretary of State must make a deportation order against a foreign criminal, in circumstances where deportation would breach a person’s rights under the European Convention on Human Rights. However, no exception applied here, the Claimant’s asylum and human rights claim having been certified as clearly unfounded.

The Secretary of State’s power to detain the Claimant, as a person who is subject to a deportation order, is provided by para 2(3) of Schedule 3 to the Immigration Act 1971.

In addition, as mentioned in paragraph 34 above, because the Claimant was subject to a deportation order made pursuant to s.32(5), the Secretary of State was obliged to exercise this power of detention “unless in the circumstances”she thought it “inappropriate” (s.36(2) UK Borders Act 2007, as then in force).

The power to detain is subject to the common law limits, first described by Woolf J in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704 (‘the Hardial Singh principles’), as endorsed and encapsulated by Lord Dyson JSC in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at [22]:

In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, at [47], Dyson LJ explained:

“Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.”

Chapter 55 of UKBA’s Enforcement Instructions and Guidance addresses “Detention and Temporary Release”. (Footnote: ¹³) The general policy provides for a presumption in favour of temporary admission or release. Paragraph 55.1.2 states that the “starting point” in cases concerning foreign national offenders

“remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the ‘deportation criteria’) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful.”

Paragraph 55.1.3 states, under the heading “CCD cases” (i.e. those dealt with by the Criminal Casework Directorate):

“… In CCD cases concerning foreign national offenders, if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale.”

Paragraph 55.3.A sates, under the heading “Decision to detain – CCD cases”:

“As has been set out above, public protection is a key consideration underpinning our detention policy. Where a foreign national offender meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release may well be outweighed by the risk to the public of harm from re-offending or the risk of absconding, evidenced by a past history of lack of respect for the law. However, detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life can be shown to be disproportionate. In assessing what is reasonably necessary and proportionate in any individual case, the caseworker must look at all the relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences. A list of those offences which UKBA considers to be more serious is set out at page 63.”

The Claimant’s offence is not listed and so, for the purposes of the policy, is a “less serious offence”. Under the heading “Less serious offences”, paragraph 55.3.A provides:

“As explained above, where the person has been convicted of a serious offence, the risk of harm to the public through re-offending and risk of absconding are given substantial emphasis and weight. While these factors remain important in assessing whether detention is reasonably necessary where a person has been convicted of a less serious offence, they are given less emphasis than where the offence is more serious, when balanced against other relevant factors. Again, the types of other relevant factors include those normally considered in non-FNO detention cases, for example, whether the detainee is mentally ill or whether their release is vital to the welfare of child dependants.”

Paragraph 55.3.2.4 provides under the heading “Imminence”:

“In all cases, caseworkers should consider on an individual basis whether removal is imminent. If removal is imminent, then detention or continued detention will usually be appropriate. As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks.” (original bold emphasis; underlining added)

Paragraph 55.3.2.5 provides under the heading “Risk of absconding”:

“If removal is not imminent, the caseworker should consider the risk of absconding. Where the person has been convicted of a more serious offence … then this may indicate a high risk of absconding. An assessment of the risk of absconding will also include consideration of previous failures to comply with temporary release or bail. Individuals with a long history of failing to comply with immigration control or who have made a determined attempt to breach the UK’s immigration laws would normally be assessed as being unlikely to comply with the terms of release on restrictions. … The person’s family ties in the UK and their expectations about the outcome of the case should also be considered … The greater the risk of absconding, the more likely it is that detention or continued detention will be appropriate.” (original bold emphasis; underlining added)

The key paragraph the Claimant contends has been breached is paragraph 55.10 (Persons considered unsuitable for detention) which provides:

“Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. …

In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.

The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:

…

those suffering serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act”.

A number of cases have addressed the meaning of this policy. In R (Das) v Secretary of State for the Home Department [2014] 1 WLR 3538 the claimant sought to dissect the bullet point above and analyse, as separate components, the terms “suffering from”, “a serious mental illness” and “satisfactorily managed”. The Claimant in this case has sought to do the same. However, the Court of Appeal rejected this approach at [47] and observed at [57]:

“These cases take the words of the phrase “suffering from a serious mental illness which cannot be satisfactorily managed within detention” as a whole. It is clear from them that the diagnosis is not in itself the key to the applicability of the policy, even if the individual has been referred for treatment by specialist secondary services. It is also necessary for the individual concerned to be “suffering” and for the illness to be one which “cannot be satisfactorily managed within detention”. Accordingly, although (see Sullivan LJ in R (MC (Algeria)) v Secretary of State for the Home Department [2010] EWCA Civ 347 at [41]) the policy is in principle capable of applying to anyone with a “mental disorder” within the definition in the Mental Health Act 1983 as amended by the Mental Health Act 2007, the mere fact that they are does not suffice. The effects of the illness on the particular individual, the effect of detention on him or her, and on the way that person’s illness would be managed if detained must also be considered.”

The Court of Appeal in Das further observed:

“67.

The authorities also show that the threshold for the applicability of the policy is that the mental illness must be serious enough to mean it cannot be satisfactorily managed in detention. As to satisfactory management, at the time detention is being considered, the Secretary of State, through her officials, should consider matters such as the medication the person is taking, and whether his or her demonstrated needs at that time are such that they can or cannot be provided in detention. Account should be taken of the facilities available at the centre at which the individual is to be detained, and the expected period of detention before he or she is lawfully removed. R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 at [33] shows that some of those suffering significant adverse effects from mental illness may be managed appropriately in detention. OM had attempted suicide by hanging herself. She was diagnosed as having recurrent depressive disorder and emotionally unstable personality disorder which was not suitable for treatment under the Mental Health Act 1983. The views of the experts were divided but Richards LJ stated that the balance of expert advice was that her illness could be managed appropriately in detention.”

The Supreme Court addressed the policy further in R (O) v Secretary of State for the Home Department [2016] 1 WLR 1717:

“29 NHS England is responsible for commissioning the provision of all health services in IRCs as well as in prisons in England pursuant to regulations made under section 3B(1)(c) of the National Health Service Act 2006. What level of health services should NHS England arrange to be provided there? The answer is to be found in the following two principles identified in the Partnership Agreement, first published in 2013 and republished in April 2015, between Home Office Immigration Enforcement, NHS England and Public Health England, at p 12:

‘• Detainees should receive health care equivalent to that available to the general population in the community with access to services based on clinical need and in line with the Detention Centre Rules; and

• Health and wellbeing services in IRCs should seek to improve health and wellbeing (including parity of esteem between services which address mental and physical health)…’

In relation to the detention of those suffering from mental health problems, the Home Secretary's Policy Equality Statement dated 26 November 2014 recorded her agreement with NHS England that the provision of healthcare at a standard equal to that provided in the community was a ‘core principle’. She noted, however, that respondents to her consultation had suggested that in IRCs there was an insufficiency of specialist mental health interventions, with the result that adherence to the principle was not achieved. Although both the Partnership Agreement and the Equality Statement post-date 2011, the Home Secretary does not suggest that they are irrelevant to the interpretation of the policy then applicable to O.

30 In formulating policy that, save very exceptionally, management of serious mental illness in an IRC, if not ‘satisfactory’, should precipitate release, the Home Secretary has adopted a word of extreme and appropriate elasticity. It catches a host of different factors to which the circumstances of the individual case may require her to have regard. In R (Das) v Secretary of State for the Home Department (Mind and another intervening) [2014] EWCA Civ 45, [2014] 1 WLR 3538, in a judgment with which Moses and Underhill LJJ agreed, Beatson LJ, at paras 45 to 47 and 65 to 70, offered a valuable discussion of the phrase ‘satisfactory management’. I respectfully disagree with him only in relation to an aside in para 71 of his judgment. Beatson LJ there expressed an inclination to accept the Home Secretary's contention that, if the management of the illness in an IRC was likely to prevent its deterioration, it would be satisfactory even if treatment was available in the community which was likely to secure its improvement. I would not exclude the relevance of treatment, available to the detainee only if released, which would be likely to effect a positive improvement in her (or his) condition. If it was likely that such treatment would actually be made available to the detainee (rather than be no more than on offer in principle to all members of the community in NHS publications), its availability should go into the melting-pot; and the burden would be upon the Home Secretary to inquire into its availability. If, contrary to the Partnership Agreement quoted in para 29 above, the standard of care (expressly aimed at improving health as well, of course, as preventing it from deteriorating) provided to a detainee in an IRC were for some reason not equal to that which would be made available to her if released, it would in my view be questionable, subject to the strength of other relevant factors, whether the management of her illness in the IRC was satisfactory. While satisfactory management does not mean optimal management, a narrow construction of the word “management” as meaning no more than “control” of the illness would lack principled foundation, particularly when in very exceptional circumstances the detainee may continue to be detained in the IRC pursuant to the policy notwithstanding the unsatisfactory management of her illness there.

31 Above all the policy in para 55.10 of the manual mandates a practical inquiry. As Beatson LJ stressed in the Das case, the phrase “satisfactory management” should be interpreted with regard to its context and purpose (para 45); should not be subjected to the fine analysis appropriate to a statute (para 47); nor invested with a spurious degree of precision (para 65). An important part of its context is that the management of the illness takes place in detention pending likely deportation. Treatment of a patient who finds herself in the doubly stressful circumstances both of detention and of likely deportation has its own considerable, extra challenges; treatment in those circumstances might be satisfactory even if it would not otherwise be satisfactory.”

Lawfulness of the Claimant’s Detention

In the amended grounds of claim, the Claimant put this ground as a rationality challenge. The Claimant submitted that “no lawful and/or rational and/or reasonable decision maker could treat a mental illness as satisfactorily managed if it is progressively deteriorating because of detention and/or detention is maintaining the condition and/or impeding recovery”.

On this basis, a preliminary question arose as to the appropriate standard or intensity of review to be adopted by the Court when reviewing the Secretary of State’s decision that the Claimant was not suffering from a serious mental illness which could not be satisfactorily managed within detention. This was the issue on which Laws LJ granted permission in this case: see paragraph 13 above.

The answer is clear, at least below the Supreme Court. In R (O) v Secretary of State for the Home Department [2016] 1 WLR 1717, Lord Wilson JSC (with whom the other four members of the Court agreed) said:

“36.

I have referred at para 28 above to the dispute as to the nature of the court’s review of the legality of the Home Secretary’s application of policy. It is now settled at the level of the Court of Appeal – at first sight unsurprisingly – that the nature of the review is the traditional public law inquiry into whether the application of it was rational: R (ZS) (Afghanistan)) v Secretary of State for the Home Department [2015] EWCA Civ 1137. In para 30 above I have explained the open texture of the concept of ‘satisfactory management’, which reflects the wide range of factors relevant to it and explains the broad nature of the Home Secretary’s decision-making process. If indeed the inquiry is into the decision’s rationality, a process of that breadth may very well yield more than one rational, and thus more than one lawful, decision. But, supported by the interveners, O vigorously commends a more muscular approach. She insists that the subject is liberty; that indeed it is liberty denied by executive diktat; and that nothing less than an intense judicial inquiry into whether the application of policy was correct can be warranted in circumstances so controversial and of such fundamental importance.

37.

I do not descend more fully into the rival contentions noted above because I consider that this appeal does not afford to the court the opportunity to choose between them. For the Home Secretary failed to address the satisfactory management or otherwise of O’s illness … and so there is no decision for a court to be able on either basis to appraise. Instead the overall refusal to release O betrays a different type of public law error: it was procedurally flawed.” (original emphasis)

On behalf of the Claimant, Ms Naik accepted that the standard of review I am bound to apply is Wednesbury (whilst reserving the Claimant’s position in the event of an appeal). Nevertheless, she submitted – and I accept – that even applying the Wednesbury standard the intensity of review varies with the context. Ms Naik submitted that the context is one in which a more intense level of scrutiny of the rationality of the Secretary of State’s decision is required.

For the Secretary of State, Ms Anderson’s submission was three-fold. First, the approach the courts take, applying Wednesbury, is not hands-off. Detention decisions such as that being challenged in this case are subjected to intense scrutiny by the court, albeit in applying the rationality standard the court has to recognise that these are operational decisions made in real time. Secondly, if the effect of the Claimant’s submission is to alter the standard of review in such a way as to change the outcome, then a proper constitutional basis for that change would have to be established. And such a change cannot be made by this Court. Thirdly, in the circumstances of this case, a more intense judicial inquiry would not change the outcome.

I agree with Ms Anderson’s first two points and I will address the third below.

Although, as I have said, this ground was put as a rationality challenge in the amended grounds of claim (which were not drafted by Ms Naik or Ms Sabic), in her skeleton argument and oral submissions Ms Naik submitted that the Secretary of State’s decisions to maintain the Claimant’s detention – in particular having regard to the monthly detention reviews – did not demonstrate that she ever properly addressed her mind to the question whether paragraph 55.10 of the policy applied.

This procedural duty was considered in Das, wherethe Court of Appeal observed:

“66.

… The authorities show that it is necessary for the Secretary of State to consider whether the policy in §55.10 applies to the case of the individual whose detention is being considered. In this case the judge found that she did not consider it adequately because she did not take reasonable steps (either before or during Ms Das's detention) to inform herself sufficiently about Ms Das's mental health so as to be able to make an informed judgment about whether the policy applied to her. The stark example of this is that, notwithstanding the awareness in general terms of a psychiatric report about Ms Das at the time she was detained and its receipt by those responsible for her detention towards the end of November (see [33] above), her frequent attendance at the health centre, and that the medication she was prescribed included Risperidone, an anti-psychotic drug, the reviews of her detention did not (see [35] above) consider or review her psychiatric condition.

…

70.

The Secretary of State is not entitled to abdicate her statutory and public law responsibilities to the relevant health authorities or clinicians in the way deprecated by Singh J in R (HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) at [155] and [181]. However, where (unlike the present case) the Secretary of State through the UKBA officials has conscientiously made reasonable inquiries as to the physical and mental health of the person who is being considered for detention, has obtained such reports of clinicians who had previously treated the person as have been made available, and considered the implications of the policy in §55.10 for the detention of that person, leaving aside cases in which there has been negligence by the clinicians at the detention centre, she should generally be entitled to rely on the responsible clinician: see, albeit in the context of the European Convention of Human Rights, R (P) v Secretary of State for Justice [2009] EWCA Civ 701 at [49]-[50]. (emphasis added)

Similarly, in O the Supreme Court held:

“25 One has some sympathy for the caseworker because the report of Dr Agnew-Davies had been submitted to the Home Secretary as relevant to an issue different from that of the legality of O’s continued detention in the short term. Nevertheless on any view the report bore some relevance to the Home Secretary’s policy relating to the detention of the mentally ill and should have been properly addressed in the reviews. The reviews: (a) failed to refer to Dr Agnew-Davies’s diagnosis of O as suffering PTSD; (b) indeed wrongly stated that the most recent diagnosis of O’s mental condition was that of Dr Ratnayake; (c) failed to refer to Dr Agnew-Davies’s assessment of O’s need for treatment at a specialist trauma-focussed psychiatric clinic; and (d) failed therefore to consider whether O could be ‘satisfactorily managed’ at Yarl’s Wood and, even if not, whether there were very exceptional circumstances which nevertheless justified her continued detention.” (emphasis added)

The Secretary of State contended that the Claimant’s procedural point was a Tameside ground which had not been pleaded in the amended grounds of claim and the Claimant should not be permitted to pursue it. I agree with Ms Naik that it is not a discrete Tameside challenge alleging failure to make enquiries. O and Das demonstrate that, having regard to the evidence, the Secretary of State may have a duty to consider whether §55.10 of the policy is engaged. The Claimant has alleged a breach of §55.10. Although I accept that the way in which this ground is now put does not emerge clearly from the amended grounds of claim, in my judgment, the allegation that the Secretary of State failed properly to consider whether the policy applied is so closely connected to the allegation of breach of the policy that has been pleaded that it is appropriate to address it.

Addressing the substance of this challenge, the Secretary of State submitted there is a difference between application and engagement of the policy. There may be some cases where the Secretary of State has to focus on the question whether the policy applies because, for example, there is evidence that if a particular state of affairs continues the detention centre will not be able satisfactorily to manage a detainee’s mental health. But in other cases the policy may not be engaged at all, and so the point at which the Secretary of State is required to consider whether the policy applies is not reached. In principle, I agree that there is such a distinction.

The Secretary of State submitted that this was a case where §55.10 of the policy was not engaged.

In R (VC) v Secretary of State for the Home Department (Equality and Human Rights Commission intervening) [2018] EWCA Civ 57 Beatson LJ (with whom Arden and Lewison LJJ agreed) considered the stage at which this part of the policy is engaged:

“51.

… [Counsel for the Secretary of State, Ms Anderson] asked whether, in every case where a detainee presents as suffering from a mental illness, the Secretary of State is required to consider whether that mental illness can be satisfactorily managed in detention, i.e. whether the policy is engaged. She submitted that the Secretary of State should not be required to do this. As to whether the duty to consider whether the policy applies arises, she submitted that in this case the duty only arose at the point when the policy was engaged, which the judge determined was on receipt of the second Rule 35 report.

52.

This question was considered by Elisabeth Laing QC in R (BA) v Secretary of State for the Home Department [2011] EWHC 2748 (Admin) where she stated:

‘183. The other issue of construction is what is meant by the phrase, ‘those suffering from serious mental illnesses which cannot be satisfactorily managed in detention’. The issue concerns the stage at which this part of the policy is engaged. Mr Kellar’s submission is that the policy is only engaged if the detainee is currently, and obviously, suffering from a condition which cannot be managed in detention. This part of the policy was not engaged in the initial stages of BA’s detention, because when he was discharged from hospital he was stable, and, indeed, euthymic. Mr Buley submits that this part of the policy is engaged when the Secretary of State is deciding whether or not to detain a person who is suffering from a mental illness which may mean that his illness cannot be managed satisfactorily in detention, even if he is well at the time his case is considered. Here, on the information available to UKBA, there was a clear risk that BA, though initially stable, could quite quickly deteriorate, and as a result of detention, to a point where his illness would not be manageable in detention.

184.

I prefer Mr Buley’s submission. It seems to me that Mr Kellar’s interpretation of the policy is likely to lead to the very problems which occurred here. The laissez faire approach entailed in this construction would permit the Secretary of State to detain someone who is potentially unsuitable for detention, and to forget about him, leading to risks that the detainee’s condition will not be monitored, and of deterioration to a point where the illness cannot be managed. Mr Buley’s construction, on the other hand, is likely to lead to a more conscious approach to the identification, and care and custody, of those with serious mental illnesses, because it requires the Secretary of State to confront this issue at the outset, to make plans for the detainee’s welfare if the decision is to detain, and to be alert, in detention reviews, for signs of deterioration which may tilt the balance of factors against detention.’

Ms Anderson submitted that this decision was made ‘without an understanding of the systems in place’. I consider that submission to be entirely unfounded.

53.

It is clear from Richards LJ’s judgment in LE’s case and the cases referred to in it (see [2012] EWHCA Civ 597 at [33] and [35]) that there is a ‘seriousness threshold’ before the policy is engaged. I also accept there may be cases where a detailed consideration of whether the policy applies may be unnecessary. The case of a detainee suffering mild depression which is being treated by medication may be such a case. The circumstances of this appellant, however, are fundamentally different. Subject to that, however, I agree with the approach of the Deputy Judge in the paragraph of her judgment in BA’s case set out above. I reject the submission that a duty to consider whether the policy is engaged only arises once the policy is actually engaged.” (emphasis added)

Ms Anderson drew attention to the fact that, in accordance with r.35 of the Detention Centre Rules 2001 (SI 2001/238), the “medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention”. And the responsible clinicians in this case never made any such report. I accept that a r.35 report would engage §55.10, but I agree with the Claimant’s submission – which is consistent with the terms of VC (quoted above) – that such a report cannot be the only trigger for assessment of whether §55.10 of the policy applies.

In my judgment, from 23 September 2012, when Dr Sultan advised that the Claimant was not fit to fly due to “Clinical Depression” and the risk of self-harm as part of a possible “Adjustment Reaction/Bereavement”, there was sufficient evidence to suggest that the Claimant was “suffering from a mental illness that may mean that his illness cannot be managed satisfactorily in detention” to engage the policy. Accordingly, the Secretary of State was required to consider whether §55.10 of the policy applied.

The only references in the contemporaneous evidence to §55.10 of the policy are the appearance in the detention reviews, from 13 May 2013 onwards, of a heading in these terms: “Conditions rendering person suitable for detention only in very exceptional circumstances (see section 55.10 of Enforcement Instructions and Guidance)”. The response under this heading, on each occasion, is “N/A”.

There is nothing to suggest that those making the decisions to maintain the Claimant’s detention addressed their minds to §55.10 of the policy. There is no evidence that they asked themselves whether the Claimant was suffering from a serious mental illness which could not be satisfactorily managed in detention. Consequently, in my judgment, the decisions to maintain the Claimant’s detention were procedurally flawed, rendering the Claimant’s detention from 23 September 2012 until his release unlawful.

As the Secretary of State did not address the question whether the Claimant was suffering from a serious mental illness which could not be satisfactorily managed in detention, as in O (see [37]) there is no decision that falls to be reviewed on rationality grounds.

However, the question whether the Claimant could and would have been detained lawfully, if the Secretary of State had addressed her mind to §55.10 of the policy, falls to be considered when determining whether the Claimant is entitled to substantial or nominal damages. Before I turn to that question, I shall consider whether there is any further basis on which the Claimant’s detention was unlawful, in particular, whether it was in breach of any of the Hardial Singh principles.

The first principle is that the Secretary of State must intend to deport the person and can only use the power to detain for that purpose. The Claimant’s skeleton argument included a bare allegation that this principle was breached. Ms Naik sensibly did not press this point orally.

The facts detailed above demonstrate, beyond argument, that the Secretary of State intended to deport the Claimant and detained him for that purpose. Indeed, the only reason the Claimant was not removed on 8 November 2012, or subsequently on 15 May 2013, was that ex parte interim injunctions were granted, on each occasion, a matter of hours before the Claimant was due to be put on a charter flight to Nigeria.

The focus of the Claimant’s allegation under this head was on the second and third principles. These provide that the deportee may only be detained for a period that is reasonable in all the circumstances; and if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention.

The Claimant submits that when determining what constitutes a reasonable period of detention, the conditions in which the detained person is being kept and the effect of detention on the detainee are relevant factors: see Lumba, per Lord Dyson JSC at [104] and [106]. Specifically, the state of a person’s mental health will affect the determination of what is a reasonable period for which to detain that person: see Lumba, per Lady Hale JSC at [218]. I accept these submissions, but I have found (below) that the Claimant’s responsible clinicians properly assessed and satisfactorily managed the mental health issues he presented.

Further, the Claimant emphasises that in considering what constitutes a reasonable period it should be borne in mind that he had been convicted of a single “low risk” offence and he did not have any history of absconding. Ms Naik submitted that the importance of protecting the public had been hugely overstated and was not a particularly important factor in this case.

In my judgment, it is clear that the Claimant’s detention complied with the second and third Hardial Singh principles throughout.

Although with the passage of six years it may appear complex, this was a relatively straightforward deportation case. The Claimant was a foreign national offender who had been sentenced to a custodial term of 12 months. He had no family in the UK. He had only spent about a week in the UK, other than his time in detention, so he had had no opportunity to establish any ties to the UK. The Claimant made an asylum and human rights claim but it was certified as clearly unfounded and the Secretary of State had good reason to believe the challenge to her certification decision would fail (as it did). This was not a case where there were any difficulties establishing the Claimant’s identity or nationality. Nigeria agreed in principle at an early stage to provide emergency travel documentation and in fact did so on more than one occasion.

As Sales J observed in Das [2013] EWHC 682 at [59]: (Footnote: ¹⁴)

“It is a simple fact of life that many individuals who apply for leave to remain or asylum and whose claims are rejected may be tempted to seek to abscond to avoid removal from the country, or may not co-operate in their removal or leave voluntarily. There can be no doubt that detention of a person who faces the prospect of removal and who presents a significant risk that they will not leave voluntarily and may take steps to avoid removal can usually be justified, and will in practice be required if immigration controls are to be given practical effect in a way which is fair as between aspirant immigrants to the United Kingdom.”

In the event, the Claimant was held in administrative detention for a period of 13½ months. In R (Muqtaar) v SSHD [2013] 1 WLR 649 the Court of Appeal held at [37]: “There must be a sufficient prospect of removal to warrant continued detention when account is taken of all relevant factors.” In this case, at the time of each decision to maintain the Claimant’s detention there appeared to be a good prospect of him being removed either imminently or within a few months. In particular:

It is correct that the Claimant had no history of absconding. However, the lack of such a history is not a weighty factor suggesting a low risk of absconding given that he had had no opportunity to abscond because he had been in detention since he was arrested about a week after arriving in the UK. The fact that he was willing to commit a serious offence in breach of UK law, and that his offence involved the possession with intent of a false British passport, was a significant factor in considering the risk of him absconding. The perceived imminence of his removal and his lack of family or other ties to any particular location in the UK were also factors indicating a heightened risk of absconding.

For the purposes of the guidance, the Claimant’s offence was regarded as “less serious” and the detention reviews acknowledged that Harlow Probation Office had assessed the risk of harm to the public from the Claimant re-offending as 2 on a scale of 1 to 4 (i.e. broadly, medium risk). At the same time, it must be borne in mind that the Claimant’s offence warranted a 12 month custodial sentence; and Parliament has determined that it is conducive to the public good for a foreign criminal who has committed such an offence to be removed from the UK. In my judgment, in considering whether to maintain the Claimant’s detention, the Secretary of State did not overstate the importance of protecting the public.

The fourth Hardial Singh principle is that the Secretary of State should act with reasonable diligence and expedition to effect removal. The Claimant did not contend that there was any failure to act with reasonable diligence and expedition in this case. On the facts, it is clear the Secretary of State complied with this principle.

In my judgment, the Claimant’s detention fully complied with the Hardial Singh principles and I dismiss this ground.

Substantial or nominal damages for false imprisonment

In Lumba the Supreme Court held that if the power to detain “could and would have been lawfully exercised, that is a powerful reason for concluding that the detainee has suffered no loss and is entitled to no more than nominal damages”.

In R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909, Richards LJ (with whom Hughes and Ward LJJ agreed) held:

“The question whether the appellant could lawfully have been detained is a matter of legal assessment in relation to which the burden and standard of proof are of no materiality. The assessment has two strands to it. The first, concerning the policy itself, depends on normal Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case? The second requires the lawfulness of continued detention to be assessed by reference to the Hardial Singh principles.” (original emphasis)

The question whether the Claimant would have been detained lawfully, if the Secretary of State had applied her mind to §55.10 of the policy involves a factual assessment having regard to all the circumstances, including the particular facts of the case and the broader statutory and policy context governing such detention decisions. The ordinary civil standard of proof applies. The burden of proof is on the Secretary of State in relation to this aspect, but it rarely has a role to play in matters of assessment of this nature.

I have no doubt that, if the Secretary of State had addressed the question whether the Claimant was suffering from a serious mental illness which could not be satisfactorily managed in detention, it would have been open to her, acting reasonably, to give the answer: “no”.

Dr Sultan was the principal responsible clinician when the Claimant was in Colnbrook IRC and he had extensive contact with the Claimant. Dr Sultan consistently advised the Secretary of State that the Claimant was fit to be detained. I agree with Professor Maden that in initially advising that the Claimant was not fit to fly, following his first assessment, Dr Sultan made a “humane, sensible and cautious decision about a man with whom he had only brief acquaintance”.

Dr Sultan found no evidence of psychosis on any occasion when he assessed the Claimant. The Claimant had symptoms of depression and possibly mild anxiety but there was no evidence that he was suffering from a major depressive disorder or from any severe and enduring mental illness. The lack of any major depressive disorder was evidenced, for example, by the objective assessments of the Claimant’s mood, appearance and speech.

The Claimant disavows any contention that Dr Sultan, or any of the responsible clinicians who assessed and treated the Claimant while he was in detention, was negligent. In any event, any such contention would have been hopeless. Dr Bell implicitly criticised Dr Sultan in his first report but the Secretary of State was entitled to prefer the views of the responsible clinician, having provided Dr Bell’s report to him on the day it was received. Dr Sultan had extensive contact with the Claimant while he was in Colnbrook whereas Dr Bell’s first report was based solely on a review of the medical records (and selective quotation from them). I agree with Professor Katona and Professor Maden that Dr Sultan carried out a reasonably full psychiatric assessment of the Claimant.

The Claimant frequently made threats of suicide and self-harm. However, although it was right to take these seriously, by making the Claimant subject to constant or frequent observation, the Secretary of State was entitled to accept the view of the responsible clinician that these threats were manipulative rather than genuine (albeit the manipulation may have stemmed from a personality disorder and may have been unconscious rather than deliberate). It is striking that it was only when the Claimant had served his custodial sentence and a deportation order had been made that the Claimant made a threat to commit suicide, and did so in a way that did not suggest a serious risk, by asking a doctor to give him poison.

The Claimant contends the evidence demonstrates that his mental health was progressively deteriorating and was not, therefore, being satisfactorily managed. I reject this contention. On two occasions in December 2012 he placed a plastic bag over his head and a cord around his neck. The evidence does not suggest that these were serious attempts at suicide. The Claimant was aware that he was subject to observation. The bag and cord were loose, leaving no marks around the Claimant’s neck, and the Claimant did not lose consciousness. Aside from these two incidents, the Claimant did not self-harm at any time during his 13½ months’ administrative detention. For an extensive period the Claimant refused the food and drink provided by the detention centre, but his observed physical condition and interactions with other detainees remained such that was readily apparent he was in fact eating and drinking.

Following his transfer to Harmondsworth IRC in January 2013, Dr Burrun was the principal clinician responsible for the Claimant’s care. Like Dr Sultan, Dr Burrun found no evidence of psychosis. He considered that the Claimant had some personality difficulties and was suffering from situational stress. He too advised the Secretary of State consistently that the Claimant was fit for detention. Dr Burrun maintained this view having been provided, by the Secretary of State, with Dr Bell’s assessment following an interview in January 2013 that the Claimant was suffering from a Severe Depressive Disorder with psychotic features and remaining in detention was harmful. The Secretary of State was entitled to prefer the view of Dr Burrun who, as the responsible clinician, had more frequent contact with the Claimant than Dr Bell.

The only occasion during his detention on which a responsible clinician found the Claimant was displaying psychotic features was in May 2013 when he was seen on a single occasion by Dr Labinjo. However, he was admitted to East Sussex Hospital where Dr Garcia advised, the following day, that he did not appear psychotic or depressed. Dr Garcia’s assessment supports and is consistent with the view that the Claimant exaggerated and to some extent fabricated his difficulties, albeit possibly due to his personal difficulties.

While he was in Harmondsworth IRC, the Claimant was transferred out of healthcare to a normal location. This reflected an improvement rather than a deterioration in his mental health. The Claimant did not attempt suicide or self-harm at any time following his transfer to Harmondsworth IRC in January 2013.

In O Lord Wilson noted:

29 NHS England is responsible for commissioning the provision of all health services in IRCs as well as in prisons in England pursuant to regulations made under section 3B(1)(c) of the National Health Service Act 2006. What level of health services should NHS England arrange to be provided there? The answer is to be found in the following two principles identified in the Partnership Agreement, first published in 2013 and republished in April 2015, between Home Office Immigration Enforcement, NHS England and Public Health England, at p 12:

‘• Detainees should receive health care equivalent to that available to the general population in the community with access to services based on clinical need and in line with the Detention Centre Rules; and

• Health and wellbeing services in IRCs should seek to improve health and wellbeing (including parity of esteem between services which address mental and physical health)

…’

30.

In relation to the detention of those suffering from mental health problems, the Home Secretary's Policy Equality Statement dated 26 November 2014 recorded her agreement with NHS England that the provision of healthcare at a standard equal to that provided in the community was a “core principle”. She noted, however, that respondents to her consultation had suggested that in IRCs there was an insufficiency of specialist mental health interventions, with the result that adherence to the principle was not achieved. Although both the Partnership Agreement and the Equality Statement post-date 2011, the Home Secretary does not suggest that they are irrelevant to the interpretation of the policy then applicable to O.”

In this case, the Claimant was offered counselling regularly and to some extent he took up the offer. He also had regular access to mental health nurses to whom he could speak on a 1:1 basis. The Claimant was offered medication to relieve the symptoms of depression and mild anxiety he was exhibiting, but he chose not to accept it. In my judgment, it is clear that the Secretary of State could reasonably have determined that the Claimant’s mental health could be (and was being) satisfactorily managed in detention pending his removal. This is so even applying the most intense level of scrutiny.

That only leaves the question whether the Secretary of State would have detained the Claimant. Ms Naik points out that the Secretary of State has not submitted evidence from any witness to this effect. However, such evidence is not necessary where, as is the case here, the answer is plain from the circumstances. Although the Secretary of State did not properly and lawfully address the question whether §55.10 of the policy applied, it is clear that she preferred the advice of the responsible clinicians to that of Dr Bell. Having regard to the statutory context, the public interest in deporting a foreign national offender, and the limited barriers preventing the Claimant’s removal at any stage, I have no doubt that the Claimant would have been detained lawfully. In these circumstances the Claimant’s entitlement is to nominal damages only.

Alleged breach of article 3 of the ECHR

The Claimant also contended that his detention was in breach of article 3. It was not suggested that the negative duty had been breached i.e. the duty not to take active steps which subject a person to torture or inhuman or degrading treatment. Rather, the Claimant relied on the positive obligation to protect the well-being of persons detained by the state and to provide them with the requisite medical assistance.

The existence of this positive protective duty is well-established: see, for example, R (VC) v Secretary of State for the Home Department at [114]. It is also well-established that “for treatment to breach article 3 there must be a ‘minimum level of severity’”; “it is not any failure to provide the requisite medical assistance, or any exacerbation of a naturally occurring illness by treatment in detention, that will result in a breach of article 3” (VC at [134]).

For the purposes of this ground, the focus is on the treatment the Claimant was given by the responsible clinicians and the effect of such treatment on him. The onus is on the Claimant to demonstrate failures in his treatment and that such failures caused him the relevant intensity of suffering.

In my judgment, this aspect of the claim is not arguable. The Claimant has not established any failures on the part of the healthcare staff. And in any event, the evidence – including the Claimant’s statement –is a long way short of establishing that any suffering he endured met the requisite minimum level of severity.

I refuse permission on this ground and, in any event, dismiss the allegation of breach of article 3.

Conclusion

For the reasons given above, (a) I grant permission to challenge the lawfulness of the Claimant’s detention; (b) I find the Claimant’s detention fully complied with the Hardial Singh principles; (c) there was, however, a procedural flaw rendering the Claimant’s detention from 23 September 2012 to 23 September 2013 unlawful; (d) nevertheless, in the circumstances, the Claimant is only entitled to nominal damages. As regards the article 3 claim, I refuse permission on the grounds the claim is unarguable and, in any event, I dismiss the claim.