ARF v Secretary of State for the Home Department

In this case the Claimant claims damages for unlawful detention between 31 August 2011 and 22 January 2014 (save for a period when she was in prison on remand between 25 October 2011 and 15 December 2011). She was detained by the Defendant under section 2 (2) and (3) of Schedule 3 to the Immigration Act 1971 throughout this period pending the making and enforcement of a deportation order. She was detained in two psychiatric facilities following her transfer pursuant to section 48 of the Mental Health Act 1983 between 11 October 2012 and 22 January 2014. Although initially disputed, the Defendant now accepts that when she was detained under the mental health legislation the Claimant was simultaneously detained under her immigration powers.

The Claimant argues that her total period of detention was unlawful and puts forward four bases for this contention. Firstly, at common law pursuant to the Hardial Singh principles it is argued that: she was detained when there was no reasonable prospect of her deportation; she was detained for longer than necessary; and no steps were taken to expedite her deportation. Secondly, it is argued that there was a public law error in the failure to apply policy properly or at all under Chapter 55.10 (Enforcement Instructions and Guidance) primarily because the Claimant was suffering from a serious mental illness, but also because there was evidence that she had been both trafficked and tortured and so should have been considered suitable for detention only in very exceptional circumstances. Thirdly, it is argued that the circumstances of her detention whilst suffering severe mental illness gave rise to breaches of the Claimant’s human rights under Articles 3 and 8. Finally, it is argued that the report of trafficking was not investigated timeously or at all such as to give rise to a breach of Article 4.

In addition, the Claimant made allegations of sexual assaults whilst in the detention centre which formed a head of claim in her pleaded case. She abandoned that head of claim at the beginning of the trial (and the pleading and her statement were redacted accordingly) although she does not formally withdraw the factual allegations.

In summary, the Defendant contends that: there was a sufficiently reasonable prospect of removal throughout the Claimant’s detention; she was not suffering from serious mental illness which could not be satisfactorily managed in detention; there was no independent evidence that the Claimant had been tortured; there were issues with the Claimant’s credibility; there was a very significant risk that if the Claimant was not detained she would abscond so as to frustrate deportation and that she would re-offend; the risk of absconding and re-offending made her sufficiently exceptional to justify ongoing detention; and that in the circumstances there was no breach of Articles 3, 8 or 4. Alternatively if there was any error in the application of policy, the Claimant would have been detained anyway and so any damages would be nominal only.

I heard no submissions as to quantum. Counsel agreed that without knowing what my findings were on the liability arguments they would need to put forward a whole host of possible quantum submissions. They suggested therefore that quantum should be put off until after I make those findings. There may even be some measure of agreement between the parties at that stage. This seemed to me to be a sensible course and so I have adopted it.

I should say at the outset that there are 10 lever arch files of documents in this case and two bundles containing more than 20 authorities. A further 6 or so authorities were handed in in the course of closing submissions. I have lengthy written skeletons from both parties and a written closing from the Claimant. In the course of the case I was referred to a tiny fraction perhaps only 10% of the documents and although I have taken the opportunity to look through the remainder it seems to me that they are not particularly relevant. In a case of this kind it would have been useful to have had a single bundle of the key documents. Similarly, where single lines or short parts of paragraphs have been cited from about half of the previously reported cases (some of which are very long indeed in their entirety), it would have been helpful to have had a written summary of the authorities from each side.

Although I only heard from five witnesses over two days I had a whole day of oral submissions in addition to the written ones. In order to avoid an inevitably long judgement becoming unmanageably long, I intend to focus on the issues at the heart of this claim rather than repeat at any length the contents of the documents or the detailed context of those authorities which are already well known in this area.

The Claimant’s background and life history so far has been fraught with traumatic experiences, difficulty and distress. Although as indicated the Defendant has doubted the Claimant’s credibility there is now in fact very little challenge to the factual circumstances of her life as she recounts them. Annexed to her statement in these proceedings is her account of her own history. She was born in Sierra Leone on 18 November 1982. She clearly had an unhappy early childhood and very limited education. Her father was violent to her, her brother and her mother. She was subject to violence and abandoned from time to time by her mother. She was left with various relatives. Her parents separated. She moved around and stayed with her mother, her father her brother and other relatives. She met a man she called “uncle” who sexually abused her.

When she was aged 10/11 rebels attacked the town she was living in and her brother and father were shot and her house was burnt down. She was abducted by the rebels who threatened to kill her slowly and painfully. She was taken into the jungle with other young girls and boys where she was repeatedly raped and kept as a sex slave performing domestic tasks as well as being raped by many men. She was required to take part in looting and on one occasion whilst being raped she was stabbed in the foot. During this period of time she was also forcibly subjected to female genital mutilation without anaesthetic and whilst blindfolded. She saw civilians being shot and tortured. She saw child soldiers killing and maiming people and she saw a pregnant woman being murdered by a burning tyre around her neck.

Together with others when the opportunity arose she ran away into the jungle and went back to her town, but there was nothing there for her and so she went to Freetown ending up in a refugee camp. She got by doing domestic chores until she was arrested on one occasion and falsely accused of being a spy. Thereafter, she began working as a prostitute until she was approached by a woman who told her that she could earn more money in the Gambia. She was taken to the Gambia where she continued to work as a sex worker for the woman “Mariam”. The money she earned was taken from her and she was required to work very long hours every night having to have sex with at least 10 men a day and sometimes as many as 20. She would be beaten if she did not bring enough money back.

Arranged by Mariam, she was introduced to a man from the UK, “DC”. He was controlling and sexually demanding. Mariam threatened her to make her travel to the UK to marry him. Mariam organised the interview and payment for a visa. The Claimant is aware that DC paid Mariam money, but she does not know how much. She was threatened by Mariam, but also promised that DC wanted to marry her and she would have the opportunity to go to Europe and get an education. Thus she agreed and came to the UK on a “fiancée visa” and then married DC here in 2002.

The relationship became increasingly abusive. DC was sexually, physically and verbally abusive. He forced the Claimant to have sex including with other men. He raped her. He threatened her so she was too afraid to tell anyone about his treatment of her. He threatened to kill her. When the Claimant became pregnant with her daughter he was angry and pressured her to have an abortion. The Claimant resisted and her daughter was born in March 2004. Two weeks later DC abandoned the Claimant and her daughter and later divorced her.

The Claimant’s lifestyle became chaotic. She drank to excess. She was unable to care for her daughter who was taken into the care of social services and ultimately adopted. She became increasingly alcohol dependent and committed many criminal offences. She was in prison on a number of occasions from 2008. Her recollection is that her drinking and chaotic living covered the period from July 2006. Her son was born on 12 January 2009 and he was taken into care when she was in prison and he, too, was adopted.

Although post-dating the matters with which I am concerned, medical examination has established that the Claimant was indeed the victim of female genital mutilation, there has been a decision concluding that she was trafficked and she has now been granted asylum and it has been decided that she could not safely be returned to Sierra Leone. It seems that she is no longer alcohol dependent. She has responded well to the inpatient treatment for her mental health issues, although will always have some difficulties in this respect.

Against that factual background it is necessary briefly to summarise the chronology of the Claimant’s immigration history. Again, it would have been helpful to me to have had a proper chronology in this case. As mentioned above she entered the UK on a visa as a partner of DC. On 12 March 2004 she was granted indefinite leave to remain as DC’s spouse. By reason of her offending she received custodial sentences totalling more than 12 months in a five-year period and on 6 July 2011 the Defendant notified of her of her liability to deportation. On 22 July 2011, in response, solicitors acting on behalf of the Claimant asserted that she was the mother of two children both British citizens and that she would be in grave danger of serious abuse in Sierra Leone. On 18 August 2011 the Claimant was interviewed and signed a disclaimer stating that she did not want to claim asylum. On 26 August 2011 the Defendant served the Claimant with a notice of a decision to make a deportation order pursuant to section 3(5) of the Immigration Act 1971 and a decision to detain her pending the enforcement of the deportation order. On 31^st August at the completion of her sentence of imprisonment the Claimant was detained by the Defendant at HMP Peterborough. The Claimant appealed the deportation order which appeal was dismissed by the First-Tier Tribunal on 3 November 2011. On 4 November 2011 when asked to sign an application for an emergency travel document (“ETD”) she asked that it be sent to her representatives and said that she could not read or write.

On 2 March 2012 the Claimant was transferred to Yarl’s Wood IRC. A member of the Healthcare team there completed a Rule 35 report. On 8 March 2012 the Defendant responded to the Rule 35 report concluding that whilst the matters potentially raised the basis of a claim for asylum the Claimant had had the opportunity to raise those issues at her appeal, but had not done so. The Claimant’s appeal against the First-Tier Tribunal decision was dismissed by the Upper Tribunal on 16 April 2012. On 9th May 2012 the Claimant asserted that she would like to go home voluntarily. On 17 July 2012 the Defendant made an ETD application consisting of an application form, biodata and a copy of the Claimant’s expired passport. On 20 July 2012 the Claimant applied for the facilitated voluntary return scheme and signed a disclaimer.

The Claimant’s solicitors served a psychiatric report (from Dr Jane Mounty) concerning the Claimant on the Defendant on 5 September 2012 asking them to adjourn the Claimant’s asylum interview and either release the Claimant or arrange for her transfer to hospital. On 7 September 2012 the Defendant refused to release the Claimant or to adjourn the Claimant’s asylum interview which went ahead on 7 September 2012. On 18 September 2012 following pre-action correspondence from the Claimant’s solicitors challenging her detention the Defendant rejected the assertion that the Claimant should not be detained concluding that even if she was suffering from a serious mental illness the risk of absconding and reoffending made her sufficiently exceptional to justify ongoing detention.

On 21 September 2012 the Claimant was the subject of a report by Dr Samuels proposing transfer to hospital under section 48 of the Mental Health Act 1983. On the same date the Defendant wrote to the Claimant’s solicitors stating that the risk of the Claimant absconding and reoffending was such that it justified the Claimant’s continued detention at Yarl’s Wood pending transfer under section 48. On 11 October 2012 the Claimant was transferred to the Alpha Hospital under section 48 of the 1983 Act. She was transferred to the Wells Road Centre on 1 August 2013. She was reported as being fit for discharge on 3 January 2014. Her asylum claim was refused by the Defendant on 17 January 2014. The Claimant was discharged from the Wells Road Centre and released by the Defendant from detention on 22 January 2014.

On 30^th May 2014 following a referral of her case by Nottingham police to the Competent Authority a reasonable grounds decision was made finding that there were reasonable grounds to believe that the Claimant was a victim of trafficking. On 28 November 2014 a conclusive grounds decision was made that the Claimant was trafficked. Following her successful appeal on 8 December 2014 she was granted asylum on 21 January 2015.

I heard from the Claimant herself. Her statement is at p.175 (TB 1). She confirms the contents of the statement submitted in support of her asylum claim which is summarised above. She confirms her immigration history. She describes how following her daughter being adopted she drank even more and became more volatile with outbursts of anger and sudden mood changes. She became confrontational. Her concentration and memory worsened. She describes sometimes drinking at home on her own and on an occasion, passing out and cutting herself with a bottle. She heard voices telling her she was nothing and she was worthless (paragraph 22).

She found the prison experience particularly distressing. She began to self-harm. Clearly she could not turn to alcohol in prison. At paragraph 27 she sets out that she spoke to a nurse on 15 August 2010 about her life and her problems and about some of the things that had happened to her. She told her about her anger outbursts and the difficulties she had remembering events. She told her many of her mental health symptoms. The nurse (Roz Walton) concluded that the Claimant was suffering from post-traumatic stress disorder. (“PTSD”). A Dr Boin diagnosed her with a depressive disorder on 15 December 2011.

On 16 April 2012 at Yarl’s Wood she was seen by a nurse because she said she wanted “to jump and end it all” and that there were voices in her head telling her “to jump”. She describes suffering mentally and physically at Yarl’s Wood. It is the Claimant’s case that she told the Healthcare team at the detention centre about her female genital mutilation and torture and that she self-harmed due to stress and loneliness. She asked for counselling. The records show that she was feeling low and anxious and missing her children and thinking about self-harm on 13 April 2012. She was given antidepressants. On 27 April 2012 she said she was anxious because of the detention and stressed and had thoughts that life was not worth living. Her antidepressants were increased. On 3 May 2012 she self-harmed with a broken plastic knife and wrapped her mobile phone charger cord around her neck. She was placed on constant watch. She saw a mental health nurse on 13 May 2012. She self-harmed again. She says that she told the mental health nurse about what had happened to her. She says she self-harmed again on 15 May 2012 using a broken perfume bottle. She reported hearing voices to the staff. There is a note to this effect on 24 May 2012. She told staff that she did not feel safe. She was referred to a counsellor on 27 May 2012 with symptoms of weakness, depression, panic attacks and missing her children. On 29^th May 2012 it is recorded that the Claimant reported hearing voices, mostly of her grandmother.

The Claimant asked to see a psychiatrist on 16 June 2012 and a mental health assessment was requested. On 20 June 2012 she went to the Healthcare Centre telling them she felt anxious, agitated, scared, sick and angry and she was given sleeping pills and a rubber band with which to “self-sting”. In the record of assessment on 30 June 2012 it is noted that the Claimant was talking to her children and people who were not there. She was advised to eat and drink and a doctor’s appointment was booked for her. On 1 July 2012 she was escorted to the Kingfisher (isolation/separation) unit. She was very agitated and down and had been talking to herself and breaking things in her room. When she and the escorts got to a staircase she threw herself off the rails at the top of the stairs hitting the rails on the bottom staircase. She jumped she says because she heard voices telling her to do so. She was transferred to hospital for medical treatment. She recalls not feeling safe at the detention centre. It is noted on 2 and 8 July the Claimant told staff that she was hearing voices and asked for psychiatric review. She was assessed on 8 July and said she was experiencing visual and auditory hallucinations which were increasing. She saw dead bodies on the floor and heard the voices of dead family members. Superficial scratches to her left wrist were noted on 10 July 2012 where she had stabbed herself.

She was seen by Dr Leahy on 10 July 2012 and he diagnosed schizophreniform psychosis, PTSD and drug and alcohol misuse. He considered that the Claimant had personality problems which had not been fully evaluated or assessed.

The Claimant contacted Medical Justice and Dr Mounty visited on 9 August 2012. Her mental symptoms deteriorated and she had increased hallucinations. She attempted to put a ligature made from scarves around her neck on 17 August 2012. Deterioration in her mental health is noted on 18 August and 20 August 2012. She was sent to the segregation unit. She reported hearing voices and thought there were people in her room on 28 August 2012. On 29 August 2012 Medical Justice reported to the IRC that the Claimant telephoned them to say that she had seen people with machetes in her room and that she was hearing voices. She recalls an occasion when she took all her clothes off. She says she was dragged through the wing to the segregation unit naked. She was put in isolation and on suicide watch. She was left in the room naked and men could look in and see her. It is the Claimant’s account that the men (officers rather than nurses) were insulting and abusing her verbally. The Claimant defecated on to her hand and smeared faeces all over the window in the door and sat naked on the bed saying that she was a bad mother. The Claimant’s recollection is that she smeared the faeces in order to obscure the window to block the officers’ view of her.

The Claimant’s recollection of her deterioration in mental health whilst in detention is that she had nightmares about dead people. She could not sleep. She was distressed by others at the centre who were often crying. Memories of the past were stirred up. There were other women self-harming. She lost interest in looking after herself and lost her appetite. She had suicidal thoughts and self-harmed. She felt overwhelmed and wanted to die. She did not trust anyone. She was very angry and reacted to others with anger. She considered being put in the segregation unit was punishment rather than help. An allegation was made against her that she had assaulted an officer. She was arrested and taken to a police station on 19 September 2012 where she was seen by a forensic medical examiner. She was assessed at Yarl’s Wood and was further examined on 21^st and 24^th September prior to the transfer to the Alpha Hospital on 11^th October.

The Claimant accepts that when at hospital initially she told the staff that she was not hearing voices and that she had never really heard voices. She says that she said this because she did not want to talk about her past and she wanted to get out of hospital as soon as she could. She did not accept that she was suffering from mental illness like the other patients and did not accept that she had a problem. Over time she learnt to accept it and to accept the treatment. When she was moved to the Wells Road Centre in August 2013 she told them that she had fabricated her symptoms prior to admission to hospital in order to be transferred/get discharged. She agrees that this was not true, but thought if she said it she might be able to be released and treated in the community or go back to the Alpha Hospital. She thought otherwise she might be in Wells Road for years.

Currently the Claimant’s lifestyle is more settled. She still has some ongoing difficulties with flashbacks and with social integration. She does have some professional support however and is confident that she is able to move on and improve.

The Claimant was cross-examined to the effect that she had been suffering from some symptoms of mental illness before 2011. The Claimant disputed the extent of these problems indicating that there had been some improvement. She denied drinking at home despite what is says in her statement and she denied having cut herself with a bottle, but she did agree that she stepped on a bottle. She considered that before 2011 there had been some improvements in her mental health due to support she was receiving. She did not consider that she had been a really bad mother to her children and gave an account of an incident in which she was found guilty of an assault on a police officer which would be inconsistent with that conviction. She felt that she had been unable to comply with probation when it conflicted with planned contact with her son. She says that she now has nightmares about her time in the detention centre. She is no longer drinking to excess.

She remembered giving evidence at the Upper Tribunal hearing in April 2012 (TB 2 p817). She said that she went with her partner and his mother. She said that she had been told at the detention centre that she could only stay in this country if she was in a relationship with a man and that being trafficked “wouldn’t work”. To put that comment in context, the panel did not find that either the appellant or her partner were being truthful with regard to the nature of their relationship. The Defendant relies heavily on that finding as evidence of the Claimant’s poor credibility.

She agreed that she had said that she had never heard voices when she was in hospital which she said was because she was on medication and it was one of those things that every mental patient says to get out. On reflection she considered that she would not have been at the hospital if she had not been mentally ill. She agreed that she had said that she fabricated her symptoms, but pointed out that the doctors had the final say as to whether she was mentally ill or not. She said the man she referred to as a partner loved her, but was unwell at the present time. She considered that she had worked with the doctors and made improvements. She said that in fact she had had symptoms (in particular hearing voices) of mental illness.

The Defendant called Sharon Buckle. Her statement is at page 313 (TB 1). She is a Senior Executive Officer in Criminal Case Work based in Leeds. Her statement is a document review and comment on what was done by the Defendant at the time. Her statement runs to 190 paragraphs and is based on her reading the reviews of the Claimant’s detention and of the General Case Information Database documents (GCID). Between September 2011 and October 2012 there are 13 monthly reviews. The first review whilst the Claimant was at HMP Peterborough contains information that there was an outstanding appeal due to be heard on 11 October 2011. There was no EDT and the record states there were no known mental health issues. As is apparent from the rest of the detention reviews the Detention Review Checklist (TB 2 page 77 for example) was not completed. The detention reviews continue to refer to “no known mental health issues” up until 12^th July 2012. There is a reference to the Rule 35 query received from Yarl’s Wood on 9 March 2012.

The Claimant was appeal rights exhausted on 15 November 2011. A note on 4 November 2011 states that the Claimant refused to complete forms during the immigration surgery on 31^st October to enable the Defendant to make an application for an ETD. In fact, the Claimant asserted that she could not read or write and asked for the forms to be sent to her legal representatives which was done. An out of time application to appeal was made on 29 November 2011 and permission to appeal was granted on 14 December 2011. Miss Buckle sets out that she considers that the Claimant was a significant absconding risk and a significant risk of reoffending in light of: the multiple convictions she had acquired; because she was divorced and without family ties in the UK; and because she had “refused to comply” with the ETD process. Miss Buckle sets out her view that removal from the UK was a realistic prospect within a reasonable timeframe and as at 2 March 2012 it was reasonable for the Defendant to expect the Claimant would be appeals rights exhausted within “a matter of a few months”. This happened on 16 July 2012. Removal was subject to the obtaining of the ETD. There was a temporary bar on removals to Sierra Leone but it was “not expected to last long”.

Miss Buckle sets out at paragraph 59 that following receipt of the Rule 35 query the case worker had considered it and responded and it was just to be treated as “additional information”. The Rule 35 report contained claims by the Claimant that whilst in Sierra Leone she had been abducted and subjected to forced female genital mutilation. It seems that at this point given the Claimant had already made a claim for asylum which she withdrew and refused to proceed with and had failed to raise those grounds as reasons for not being deported following service of the notice in July 2011, the Defendant considered that there was no other independent evidence of any history of torture and detention should therefore be maintained. That is Miss Buckle’s interpretation. Analysis of the documentation shows that the Rule 35 report was made at Healthcare in Yarl’s Wood and countersigned by a doctor. It indicates that the Claimant stated that during the war in her country she was abducted and circumcised without her consent which had affected her emotionally. The document in response (TB 2 p 811) indicates that it was the Defendant or an agent of the Defendant and not Healthcare who completed the words “no clinical information, therefore not being treated as a DC rule 35”. This was the Defendant’s decision. The response to the Claimant (TB 2 p813) only refers to the failure on the part of the Claimant to refer to the female genital mutilation at the appeal hearing in October 2011 or in the application thereafter in December 2011 and that no asylum claim had been made. There is no reference in the letter to the report not constituting independent evidence of torture in view of the lack of medical information.

Miss Buckle refers to the refusal of the Claimant’s appeal by the Upper Tribunal on 18 April 2012 where the panel did not find that either the appellant or her partner were being truthful with regard to the nature of their relationship and found that family life recognised by Article 8 did not exist between them (see paragraph 30 above). It upheld the finding that the Claimant would reoffend if released.

The detention review drafted on 9 May 2012 refers to “no known mental health issues”. This is despite (as referred to at paragraph 75) incident reports and of risk assessment forms from the detention centre indicating that the Claimant was disruptive and that there had been self-harm incidents. The detention review on 12^th July refers to mental health issues and the threats to self-harm, but Miss Buckle points out that on 2 July 2012 Healthcare confirmed that the Claimant “remained fit for detention”. Following further threats of self-harm Healthcare were asked and again confirmed that she was “fit for detention”. An asylum screening interview on 9 August could not be completed because of the Claimant’s behaviour. Healthcare confirmed again on 7 August 2012 the Claimant remained “fit for detention”. The Claimant still had no ETD. It seems that the Defendant relied upon information from Healthcare.

The Claimant’s solicitors were indicating that she was suffering from serious mental illness. Following the refusal of the request to adjourn, the asylum interview took place on 7 September 2012. There is a transcript of the interview at page 94 (TB 2). Reading that interview, it is apparent that the Claimant was very unwell at the time. She said she had a mental health problem. She appeared to be talking to people who were not there and the interview nonetheless continued including beyond a time when she asked whether or not she had wet herself. There is an email from the Claimant’s case worker dated 13 September 2012 in response to the threat of judicial review. It says “if we are to rebut the claims and opinions made in the “letter before action”, defend any likely JR and maintain detention we will need a robust response from Healthcare which deals with/counters the findings made in the psychiatric report by Dr Mounty dated 27 August 2012 in which amongst other things she diagnosis PTSD. This report also states that Dr Leahy and Dr Mahgoub have also diagnosed PTSD. After talking with you I presume these are not Yarl’s Wood Healthcare doctors. If Healthcare are to restate their opinion that she remains fit for detention it will have to be made clear why in the face of a psychiatric report dated 27 August 2012, this is the case, acknowledge any form of mental illness they have diagnosed and explain why they continue to consider that she can be satisfactorily treated in detention. Again whilst CCD Leeds will draft a full response to the letter before claim, we will need a form of words from detention services to address the assertions made in relation to placing [the Claimant] in isolation, i.e., the claim that this is evidence that UKBA are not dealing with her adequately”.

On the same day Mr Vidic wrote to his supervisor in respect of the isolation of the Claimant in the detention centre and said “if okay with you I will argue that removing her from association is not a result of the mismanagement of any mental health condition (which is asserted by her legal reps) but rather to ensure the safety and good order of the centre as a result of her threatening or disruptive behaviour. I don’t know whether I could go on to state that her behaviour was not considered to be a manifestation of any mental health issues rather she is simply a disruptive detainee without anything from Healthcare”.

It seems that the Defendant was not privy to the Claimant’s prison medical records which would have identified that she said that she had been subject to female genital mutilation. They did have the Rule 35 report and a handwritten letter dated 21 May 2012 in which the Claimant said she was depressed and had been the victim of torture and rape in Sierra Leone. The Defendant expressed the view that in light of doubts about the Claimant’s credibility in the absence of independent medical evidence it was not accepted that she was a victim of torture. This was not communicated to the Claimant. She told the asylum screening interview on 9 August 2012 that she was not well and that she had mental health issues. In the interview she stated that she could not return to Sierra Leone as she was a victim of rape and torture. At paragraph 125 Miss Buckle sets out that the Defendant did not consider that the Rule 35 report or the correspondence from the Claimant while she was detained or the statements made while interviewed for her renewed asylum claim constituted independent evidence of torture and they questioned her credibility. In a letter dated 18 September 2012 by reference to the Rule 35 report it is said (page 976 TB2) “it is further noted that the Rule 35 report dated 4 March 2012 shows that [the Claimant] refused to give consent to be clinically examined with regard to her claims of FGM”. There is nothing in the Rule 35 report at pages 809 and 810 that I can see to suggest such refusal. I do not know where the information is said to have come from. The Claimant was examined after her transfer and there is a report from Dr Millington dated 16 November 2012 confirming that physical examination of the Claimant is diagnostic according to the Istanbul protocol of female genital mutilation typical of that done in Sierra Leone.

The first recorded incident of self-harm is on 3 May 2012. There was a further incident on 15^th May before the Claimant wrote to the Defendant asserting that she had been tortured in Sierra Leone, was suffering from flashbacks and was depressed and had used alcohol and drugs to suppress her symptoms. As late as 18 September 2012 the Defendant was writing to the Claimant’s solicitors rejecting any assertion that the Claimant should not be detained relying on emails from Nurse Kelly dated 17^th September and an assertion that even if the Claimant was suffering from a serious mental illness the risk of absconding and reoffending made her sufficiently exceptional to justify ongoing detention. The email from Nurse Kelly said that “in regard to the allegation that the Claimant is not fit for detention Dr Leahy comments that [the Claimant] clearly had issues while she was in the community but did not seek mental health assessment at the time suggests that detention is not the cause of the perceived deterioration”. Even when transfer was recommended the Defendant considered that the risk of the Claimant absconding and reoffending was such that it justified her continued detention at Yarl’s Wood.

Miss Buckle sets out that she considers that it was reasonable for the Defendant to rely on the advice of Healthcare when deciding whether or not the Claimant was fit to be detained and when maintaining detention.

In cross examination Miss Buckle was taken to some of the documents. At page 425 (TB 1) there is a case record sheet showing that the Defendant intended to detain the Claimant at the end of her custodial sentence although there is no account given of any decision-making process. Although Miss Buckle confirmed that there were no unpublished policies applicable in the Claimant’s case she considered that so long as the prospects of removal are good “we would look to detain”. She acknowledged that a detainee cannot be removed unless they are appeals rights exhausted. There was an appeal due in October 2011 which was refused in November then an appeal out of time was allowed with a hearing in April 2012. There was then an appeal pending which expired in August 2012 but a fresh claim for asylum was made on 23^rd of July 2012 which had a right of appeal. Similarly, the Claimant could not be removed without an ETD. There was a bar on removal to Sierra Leone between January and May 2012 because travel documents were not being accepted. Miss Buckle acknowledged that the phrase “no consistent realistic timescales” is used when the Defendant does not know how long it is going to take to obtain an ETD. This is the phrase used in the case record sheet for 19^th September (TB 2 page 527).

Miss Buckle confirmed that the Rule 35 report is how the Defendant becomes aware of any concerns. She said that the Defendant is reliant on Healthcare to advise them if there are concerns. She acknowledged that the Claimant was not informed about the lack of independent evidence relied upon by the Defendant when they wrote in response to the Rule 35 letter. Miss Buckle was unable to say whether that was right or wrong as a matter of the Defendant’s policy. She said that in response to the Rule 35 letter they would not actively seek more information. She acknowledged that Kingfisher is the segregation unit and that detainees are placed there when they are “removed from association” (RFA).

Importantly in my view Miss Buckle acknowledged that her department was not aware of the three Part C Form Risk Assessments relating to incidents in May. The Defendant would have been aware of them but they had not made their way through to the relevant office. She acknowledged that “communication clearly wasn’t very good”. She said that the process in place was clearly not working. By 20 July 2012 she acknowledged that there had been five self-harm attempts by the Claimant but there was no Chapter 55 consideration because “Healthcare assured us she could be managed”. She said that Healthcare would be very reluctant to provide any detailed clinical information and her office very rarely got the details. She acknowledged that the letter or memorandum at page 867 (TB 2) dated 11 July 2012 was to advise of a suicide attempt by the Claimant. The recommendation is that the contents of the submission be noted. The note indicates that having contacted Healthcare they confirmed that the Claimant’s medical needs were being adequately met and she remained fit for continued detention. Miss Buckle agreed that the reports beginning at page 872 (TB 2) in July 2012 gave serious cause for concern about the Claimant as a detainee. She acknowledged the frequency of the reports was increasing. She said that during that period of time the department were trying to get information from Healthcare as to whether or not the Claimant remained fit for detention. She doubted if consent for release of medical reports had been sought as a means to obtain the records from Healthcare. She acknowledged that the documents at pages 905 and 906 (TB 2) amounted to a clear and credible account of trafficking (set out in the report of Dr Mounty dated 27 August 2012). In response to a question as to why the Defendant did not comply with a duty to refer that account to the NRM Miss Buckle said that she thought that the report came at the same time as the Claimant finally made an asylum claim and “it was thought that it would be picked up from there”. There is no evidence I have seen in the documents to support any assertion that this was the Defendant’s reasoning. She also said that she thought that matters had not been referred to the NRM (the National Referral Mechanism for victims of trafficking) because there was “a credibility issue”. She did not identify where Chapter 55 had been considered at all and acknowledged that if it had been it would probably have been explicitly stated in the documentation. She agreed that the asylum interview on 7 September should not have been continued. She did not consider that the documentation I have already referred to from the emails of the case worker Mr Vidic amounted to a denial that the Claimant had mental health issues on the part of the Defendant.

The Defendant called Dr Leahy. His statement is at page 213 (TB 1). He is an independent psychiatrist and was the visiting psychiatrist at Yarl’s Wood. His contract requires him to provide assistance as and when necessary and his attendance is of variable frequency. He responds to requests for him to attend. At the time he attended on Thursdays and sometimes on other occasions or in an emergency. He refers to his initial assessment note dated 10 July 2012 in respect of the Claimant in which he noted that she had a history of complex problems including post-traumatic stress disorder, alcohol and drug misuse social and relationship problems and parenting failure. He noted that she had recently presented with symptoms suggestive of schizophreniform psychosis which had started whilst in custody and which she had not suffered from previously. Thus his diagnosis was of schizophreniform psychosis, PTSD, drug and alcohol misuse in the past and personality problems which were not fully evaluated or assessed at that point. He recommended management in line with the recommendations set out by the liaison nurse (Mid and North Beds Crisis Resolution and Home Treatment Team) that the Claimant be nursed on the medical unit for further risk management and her antipsychotic medication should be reviewed. Dr Leahy did this and increased the dose of medication. By 30 August 2012 he noted that the medication had helped to reduce the frequency and duration of her experience of hearing voices but she continued to experience voices to considerable intensity, had been very distressed and on two occasions had tied ligatures when she felt there was no hope. She continued to have considerable sleep disturbance. He recommended a change in medication and that the Healthcare team should continue to monitor her mood.

He expressed the view that the reviews indicate that the Claimant suffered from a serious mental disorder or mental illness and was treated with appropriate medication with some benefit. Her progress was monitored and care staff responded appropriately to aspects of her personality problems. He felt that her post-traumatic stress disorder symptoms arose in the context of severe past trauma and to some extent in the context of personality problems. In a telephone conversation on 17^th September 2012 he recommended the appropriate possible placement for the Claimant would be a low secure unit. This telephone conversation followed a review of Dr Mounty’s report made available on 12^th September. He did not feel that a local acute psychiatry unit would be able to accept the Claimant for admission and manage her problems.

In answer to supplementary questions Dr Leahy considered that there was a broader range of services in the community and that specialist therapy services are not available in most detention settings. He thinks that it is beyond dispute that the Claimant deteriorated between April and October 2012. He felt that the threat of deportation would have been an extra stressor for the Claimant even in the community. He considered that whilst there was no psychiatrist full-time at Yarl’s Wood there was a very good nursing and general practice staff including psychiatrically trained nurses. In a hospital setting if a person is self-harming there would be an immediate response and assessment and perhaps somebody would be put under constant watch and put on one-to-one nursing. Calming medication might be given and the level of observation may then be capable of being reduced. In very high risk cases one would have to make the environment safe which basically means removing objects from a room which a patient could use to self-harm. Decisions about a “safe place” in hospital are made by clinicians whereas in Yarl’s Wood there is a “complicated interplay” between nursing staff and officers and it would probably be the officers who were responsible for the decision.

He was referred to the descriptions of the incidents in the Claimant’s file. He said that the information available to him was not always comprehensive, but that when he first saw the Claimant he had the benefit of the assessment by the psychiatric liaison nurse carried out a couple of days before. 10 July was the first time he had seen the Claimant in detention since August 2011 and by the time he saw her there was a significant deterioration. He considered that the priority when the Claimant was acutely unwell was to target her distress and her psychotic symptoms and it would be his expectation that it would be the nurses or general practitioner who would continue to assess and would ask him to review the Claimant if necessary. He recommended a change in medication and although her condition had not improved there had been some improvement in some of the symptoms. He said that he was unaware that she had been refusing medication. He agreed that she suffered from a serious mental disorder. He said he would not have had any real information about her time in prison. He said that the Kingfisher Unit is a separate unit which is not on Healthcare. He said it was almost impossible to refer a detainee to psychological services. Whilst on Kingfisher the Claimant would have been under the supervision of officers with nurses visiting from time to time.

The Claimant called Dr Georgina Smith whose report is at p1004 (TB 3) and is dated 5 September 2014. Dr Smith is a specialist clinical and research psychologist and an expert in the diagnosis and treatment of complex presentations of traumatic stress. She works with victims who have suffered a variety of traumatic experiences including rape, domestic violence, child sexual abuse and with victims of war. She carried out a full psychological assessment of the Claimant on 14 March 2014. She sets out a full history, the Claimant’s account of her life events and her psychological difficulties and she reviewed the records. She utilised the structured clinical interview for DSM –IV dealing with symptoms of a range of disorders including depression, PTSD and part two covering all 10 of the DSM-IV personality disorders. She concludes that the Claimant met the DSM-IV criteria for a diagnosis of chronic post-traumatic stress disorder with results indicating symptoms in the four clusters of avoidance and persistent negative alterations in cognition and mood, arousal and reactivity to aggressive behaviour reckless and self-destructive behaviour. Dr Smith considers that this was of delayed onset triggered when the Claimant was abandoned by her husband then exacerbated in severity during her time in prison and then in detention. Research shows that delayed PTSD occurs in some cases. It is Dr Smith’s opinion that the Claimant’s symptoms of PTSD and more general levels of anxiety became more severe during her time in detention and that this is seen in the notes made at the time.

The Claimant also met the criteria for at least one past episode of major depressive disorder (“MDD”). Dr Smith analyses the Claimant’s visual and auditory hallucinations and their history from the records. It is Dr Smith’s opinion that exacerbation of the Claimant’s distressing symptoms of PTSD during the detention could account for the pseudo-hallucinations she experienced. Whilst hearing voices is most commonly associated with psychosis it has also been identified as a dissociative symptom and dissociation is frequently considered to be in response to trauma and a symptom of PTSD.

In Dr Smith’s opinion the Claimant’s psychological presentation fits most neatly into the category of complex (type II) post-traumatic stress disorder (“CPTSD”). Symptoms of CPTSD include several defining criteria of PTSD as well as disturbance in self-regulatory capacities namely: emotion regulation difficulties; disturbances in relation capacity; alterations in consciousness; adversely affected belief symptoms; and somatic distress or somatisation. At paragraph 9.5.2 of her report (page 1018) she sets these out in more detail. Dr Smith agrees that there is a lot of overlap in the symptoms of CPTSD and borderline personality disorder, but the structured clinical interview she carried out did not show that the Claimant meets the DSM V criteria for BPD. Her diagnosis is consistent with that of Dr Mounty in her report of 27 August 2012. Dr Smith acknowledges that a number of other psychiatrists have diagnosed the Claimant with emotionally unstable (borderline) personality disorder. She states “due to the considerable overlap in symptoms and difficulties in clearly differentiating between the two [research] suggests that a better differentiated empirically grounded view of CPTSD, BPD and PTSD is a high priority for the advancement of clinical practice and research in traumatised adults”.

Dr Smith expresses the view that the Claimant’s MDD began during her time in prison and became significantly more severe during her detention in Yarl’s Wood. There is also evidence of a clear exacerbation in her symptoms of PTSD and symptoms of MDD.

She considers that the childhood trauma (sexual and physical violence in Sierra Leone) was the trigger to the PTSD, but the delayed onset was triggered when she was abandoned by her ex-husband and exacerbated in intensity as a result of high stress levels in prison and then at Yarl’s Wood. It is Dr Smith’s view that the Claimant met the criteria for PTSD and MDD in the detention centre. There is strong evidence of deterioration in her mental state during detention resulting in a diagnosis of PTSD and pseudo-hallucinations schizophreniform psychosis and the considerable exacerbation of self-harm and suicide attempts. She notes that Dr Samuels’ medical report was written for the purpose of transfer to hospital under section 48 indicating that the Claimant was suffering from mental disorder of a degree or nature which made it appropriate for her to be detained in hospital for medical treatment and the need for such treatment was urgent.

Dr Smith does not consider that the Claimant’s mental illness, risk of self-harm and suicidal ideation were effectively managed in detention. She suffered a deterioration in symptoms. The recommendation in the report of 8 July 2012 from the Mid and North Beds Crisis Resolution and Home Treatment Team was not adhered to at Yarl’s Wood. She was not nursed on the medical unit. She was not isolated in Healthcare. She was taken off constant watch very shortly after this report following which she began self-harming again. At the police station on 19 September 2012 a Forensic Medical Examiner stated that she was not fit to be detained, but needed to be referred for formal health assessment. The Claimant was placed in isolation on the Kingfisher unit on at least two occasions which given her history is likely to have resulted in exacerbation in the severity of her PTSD resulting in heightened distress levels and an escalation of self-harm such as occurred on 1 July 2012 following her detention on that date.

Dr Smith is critical of the way in which the Claimant’s mental health was assessed at Yarl’s Wood. She makes reference to the entry made by health nurse Noel Finn on 13 May 2012 where the conclusion is “no evidence of enduring mental illness or acute evidence of illness that is impacting on her daily living”. Dr Smith points out that this opinion is contrary to a large number of other professionals who met with the Claimant and diagnosed her with PTSD, low mood and visual and auditory hallucinations. There was clear evidence in the medical records of self-harming behaviour and suicidal intention in the weeks prior to this assessment in the Claimant’s notes. At the time of Dr Samuels’ assessment, it was said “her symptoms have not been controlled by psychiatric medication in detention and she requires a full assessment in hospital because of her risk”. In her report of 27 August 2012 Dr Mounty, Consultant Psychiatrist, wrote “… Continuing immigration detention is severely affecting [the Claimant’s] mental health. I disagree with the conclusion that she is currently fit for detention. I would respectfully urge that she be transferred to an acute psychiatric ward for assessment or released as soon as possible into suitable community accommodation where she can be further assessed by NHS psychiatrists and considered for inpatient treatment”.

At paragraph 9.10 Dr Smith considers the issue of the Claimant’s credibility/malingering. She spoke to Dr Taylor of the Wells Road Centre about this. Dr Taylor’s view was that the Claimant adopted an oppositional stance to clinicians and did not get on very well with other clients. She was keen to leave hospital and “get on with the immigration process” which might have explained her statement that she fabricated her symptoms. Dr Taylor confirmed the diagnosis of emotionally unstable personality disorder and PTSD. On admission to hospital the Healthcare manager considered that the Claimant “was very disturbed”. Dr Mounty did not consider there was any feigning or exaggeration. Dr Smith concludes that the Claimant’s psychological presentation and diagnoses are highly consistent with her long and complex history of trauma. She concludes that while it is difficult to say definitively that there was no exaggeration of any symptoms of the Claimant’s part during her detention there was clear evidence of mental illness at the time. She found no evidence of exaggeration or fabrication of symptoms during her assessment.

The Defendant called Professor Maden to give his expert evidence. He is a Professor of Forensic Psychiatry and has been a Consultant Forensic Psychiatrist since 1992. He has significant experience and expertise and a particular research interest in the mental health problems of women in prison. His report is at page 1025 (TB 3). He interviewed the Claimant on 3 August 2015. The Claimant described her current therapy and circumstances to Professor Maden. She described the benefit she had from being at Alpha Hospital and the Wells Road Centre. Professor Maden confirms as is apparent from the rest of the evidence that the Claimant has great difficulty in recalling ages or dates. She described her life history to Professor Maden and the chaotic lifestyle and alcohol abuse over the period of time after her daughter was taken into care. She gave an account of the circumstances leading up to her son being taken into care and her being charged with his neglect and the assault on a police officer. Her memory is vague and her account minimises any culpability on her part.

The Claimant explained about her experiences in immigration detention, her self-harm, her distress and her suicidal ideation. She described having nightmares and flashbacks and hearing voices. She explained her view that she was punished rather than treated. She gave an account to Professor Maden of her past relationship and sexual history including the abuse, trafficking and female genital mutilation. She described how her drinking is now under control. Her account of her family and personal history was not fully explored, but the Claimant gave some account of her traumatic past.

Professor Maden sets out at paragraph 92 his assessment of the Claimant’s mental state at interview. He noted her poor memory for dates times and ages and that she “shows no enthusiasm” for revisiting the events of the distant past in any detail. She described herself as happy because her mental health improved so much in hospital. She still has some mood swings and can be bored easily but considers herself to be mentally well. She expressed no particular difficulties and was cheerful. She was hoping to find work and improve her education. She believed that she would be dead if she had continued in her old life of drinking and petty offending. She described that whilst in detention she did not want to live anymore and was hearing voices telling her to self-harm and kill herself Professor Maden believes that she was suffering from pseudo-hallucinations.

Professor Maden reviews the Claimant’s medical records and in particular the Yarl’s Wood records. He sets out that between 2004 and 2011 the Claimant was convicted of 35 offences resulting in 18 convictions including offences against the person, public disorder, theft, offences against property and offences relating to the police courts and prisons. Her final prison sentence was for theft putting her in breach of the suspended sentence imposed in relation to the child cruelty matter. At the time that she was transferred to the Alpha Hospital he reports that her problems included alcohol and cocaine dependence post-traumatic stress disorder, schizophreniform disorder and emotionally unstable personality disorder. Her self-harming escalated and there were concerns regarding the risk of suicide. The Wells Road discharge summary gives the diagnoses as emotionally unstable personality disorder and post-traumatic stress disorder.

Professor Maden states that there are concerns about the Claimant’s credibility. He refers to her telling staff that she had fabricated symptoms in order to be transferred out of detention. He considers that there are references in the records which suggest there was often a manipulative element to the Claimant’s presentation. He notes the differing accounts of her relationship with her former husband. She has said that the marriage was all right at first and then later her husband became unable to cope with her behaviour and then became abusive. She has said to others that the relationship was abusive from the beginning. The record in 2010 describes an abusive relationship, but no mention of her husband forcing her to work as a prostitute. He notes that the Claimant blames service providers for not offering help with her alcohol problem but the records show that on at least one occasion help was offered but she refused. Professor Maden describes this is an example of reporting inaccurately on her history and an example of the Claimant’s tendency to blame others for her problems which he considers to be an aspect of her personality.

Professor Maden does not consider that the Claimant currently suffers from post-traumatic stress disorder, although she does have some residual symptoms mainly of intrusive imagery relating to sexual assaults. The main diagnosis is in his view an emotionally unstable personality disorder with post-traumatic stress disorder as a secondary diagnosis. He considers that the proposed new diagnostic category of complex PTSD has much in common with the diagnosis of emotionally unstable personality disorder and says “in fact most expert opinion regards these two conditions as effectively synonymous”. Nonetheless he considers that based on the model of establishing a diagnosis and then looking for its causes in the form of a list of likely contributory factors a diagnosis of post-traumatic stress disorder risks presuming the causation of the condition. He accepts that a history of trauma is often a contributory factor in the causation of some personality disorders but other contributory factors are relevant.

He agrees that at the time that she was acutely unwell and at the time of Dr Mounty’s report psychotic disorder was a possibility but it is apparent now that that was not the case and there is no indication of psychosis. Professor Maden feels that Dr Mounty underestimated the impact of the Claimant’s son being adopted and importantly omitted the diagnosis of alcohol dependence syndrome. He considers that unstable personality disorder and alcohol dependence were present on admission to detention and that from April 2012 she became unsettled and suffered a deterioration in her personality disorder resulting in pseudo-psychotic symptoms and she displayed aggressive, self-destructive, manipulative, chaotic and irrational behaviour such that she was rightly transferred for further assessment and treatment.

She was at the time of her transfer suffering from a serious mental illness “from a pragmatic viewpoint”. However, Professor Maden expresses the view that she “settled” rapidly in hospital without continuing medication so that with hindsight it is clear that she was not suffering from a serious mental illness.

It is Professor Maden’s view that in detention she required observation and monitoring to protect her from injury and or self-neglect. She required medication to deal with the acute psychotic or pseudo-psychotic symptoms. In the longer term she required assessment and treatment of underlying conditions by pharmacological and psychological intervention. It is his view that referrals to the health service in May and July 2012 established that the Claimant’s problems were manageable in custody and the situation changed in September such that the Claimant was transferred in October. He considered that the management was appropriate.

He feels that the effect of detention was to bring the Claimant’s pre-existing problems to light and to get a place in a specialist treatment service with access to specialist assessment and treatment of personality disorders. But for her detention it is his view that she is unlikely ever to have been admitted to such a service. She is currently well, but suffering from an emotionally unstable personality disorder “that could also be conceptualised as complex PTSD”. Given her history of alcohol dependence although she is currently abstinent, she is at risk of relapse.

Professor Maden considers that her psychiatric conditions were caused entirely by her experiences prior to immigration detention. He considers that the main causes were: hereditary; her experiences at home; her abduction, rape and genital mutilation as a child; the lack of adequate parenting; the lack of formal education; her experience of being trafficked; being the victim of a violent and emotionally abusive husband; and the loss of her daughter and son into care and adoption. They were the main causes of the decompensation or deterioration in her mental health that occurred when she was in detention and the lack of access to alcohol was probably the most important way in which detention impacted on her. He says that the immigration detention did not cause her problems. He does say that: continuing worries over children; her lack of access to alcohol; and concerns over her immigration status contributed to the acute deterioration in her mental state and “detention per se was unimportant”. He feels that the immigration detention has not exacerbated her psychiatric conditions “in the long term”. He considers that the prognosis is cautiously optimistic. He feels that any negative effects of the detention on her mental state were transient and did not impair the prognosis. The prognosis has been improved by her proper treatment and specialist service which would not have happened had she not spent time in immigration detention. He cites the Claimant’s own view that had she not been detained, but carried on the way she was before, she would probably be dead.

When he gave his evidence Professor Maden made some supplementary comments expressing the view that the same range of treatments were potentially available in a detention centre as in the community. That patients can deteriorate as the Claimant did in the community. He said that in the community if somebody presented as acutely unwell with a risk of harm to themselves or others the options would be of seclusion, physical restraint or pharmacological restraint. When cross-examined he acknowledged that the availability of psychological services in detention would depend on local arrangements. When she was acutely unwell the Claimant was not suitable for such treatment.

He agreed that Dr Leahy’s diagnoses were reasonable in July 2012. He says there is no question that the Claimant has experienced trauma and has at times had symptoms of post-traumatic stress disorder and that cognitive behavioural therapy would be appropriate, but he felt that given her presentation in the spring of 2012 she was too ill to access CBT. Patients need to be stable before they can receive treatment. He agreed there were lots of areas where he and Dr Smith agreed. The fundamental distinction was between his view that this was not PTSD, but personality disorder. He felt that he was “just giving a warning” to be a bit cautious about what a patient was saying when he was highlighting the credibility issues. He accepted that she needed to be an inpatient, but felt that her symptoms improved very rapidly but thereafter she needed to be in hospital to be treated.

In his view “adequate management” varies according to the circumstances but consists of keeping the patient and others safe whilst attempting a putative diagnosis and treatment plan. By reference to the Claimant’s alcohol dependence and his views about the impact of lack of access to alcohol he said that this was not simply a case of alcohol withdrawal (of course the Claimant had been without alcohol for some considerable time at the time of her detention), but he felt that having lost two children at the time of her detention she did not have alcohol to turn to. He remained of the view that alcoholism as a mental disorder is a very important diagnosis in this case. He does not disagree with the research into the effects of detention on existing mental health problems referred to by Dr Mounty (TB 1 page 83).

Despite his view that the Claimant’s presentation demonstrated a cycle sadly familiar in women offenders he said that it was not foreseeable that her mental health would deteriorate and he did not think that he would have predicted it. He said that he stood by his view that it is a common pattern, but said that others go through detention without having problems. Alcohol abuse can cause psychosis, but in his view the risk is only about 5%. This is well known to mental health services. He agreed that a person can have both post-traumatic stress disorder and personality disorder and he would not be surprised if the Claimant had post-traumatic stress disorder, but he did not feel that all her problems could be attributed to it.

There is a joint expert report from Dr Smith and Professor Maden at page 1040. They acknowledge that they come from different clinical backgrounds and experience although both have extensive experience of assessing people with psychological/psychiatric difficulties following rape, sexual assault sexual violence and other traumas. Professor Maden considers it is relevant that he has been a Consultant Forensic Psychiatrist for 20 years and has experience working with patients in all levels of security from low to high security and of advising on when prisoners should be transferred to hospital. Dr Smith has assessed patients in secure settings but not had clinical responsibility for their care decisions/transfer to hospital.

Whatever the motivation (whether to attempt to secure discharge or otherwise) Professor Maden identified it as a fact that there is a history of presenting incorrect information to doctors in that the Claimant said she had fabricated symptoms. Dr Smith relies on the matters set out in her own report and the account of Dr Taylor and Dr Mounty to suggest that there is no significant fabrication, malingering or feigning. The experts acknowledge that there are inconsistencies in the accounts of the Claimant’s marriage to her former husband and Professor Maden considers it to be significant that with time the account is changed so as to increase the severity of the Claimant’s traumatic experiences. Dr Smith expresses the opinion that women in abusive relationships frequently provide different accounts of the nature of the relationship and at what point of the relationship the abuse started. The experts agree that it is in the nature of the abusive relationship for the abuser to create doubt, fear, anxiety and so on in the mind of the abused and to be controlling step-by-step over a period of time. Dr Smith considers that it is normal for there to be inaccuracies and inconsistencies when clients are recalling details of post traumatic experiences and both experts rely on the research identified at paragraph 4.11 emphasising that memory is prone to error and can be easily influenced by the recall environment. Professor Maden points out that the only instance of deception of which he is aware is when the Claimant told doctors that she had fabricated symptoms. The experts agree that traumatic memories are often recalled in a jumbled non sequential order. Professor Maden considers that as part of her personality disorder the Claimant has a tendency to blame others for her problems.

The experts agree that the Claimant has long-standing psychological problems characterised either as CPTSD (Dr Smith) or emotionally unstable personality disorder (Professor Maden). The two conditions have many symptoms in common and Professor Maden does not think that the distinction between them is of major importance. Dr Smith does think that distinction is important because complex PTSD incorporates the core PTSD symptoms including flashbacks and nightmares, associated distress, avoidance and physiological symptoms which BPD does not. There are overlapping symptoms, but they are not the same. Dr Smith believes that another fundamental difference in is in treatment with CPTSD having a better prognosis in terms of future mental health Dr Smith considers that this is shown in the Claimant’s improvement following her admission to hospital.

Professor Maden believes that before her reception into prison the Claimant suffered from alcohol dependence syndrome. Problems of drug and alcohol dependency are common in complex PTSD/emotionally unstable personality disorder. Dr Smith does not diagnose the Claimant as having met the criteria of alcohol dependence syndrome and that despite the evidence of a history of alcohol misuse the symptoms still fit better into delayed onset PTSD. The experts agree that the Claimant’s mental health was poor before her detention in March 2012. Professor Maden believes that with the benefit of hindsight it is now clear that alcohol dependence had become the major problem and that when alcohol was removed from the picture the Claimant was able to cope with the underlying problem satisfactorily on a day-to-day basis. Dr Smith considers that individuals with complex trauma history tend to misuse alcohol in an attempt to block out their memories. When a person no longer uses alcohol it is common to see a significant exacerbation in reliving symptoms of PTSD. Professor Maden considers that until about April 2012 the Claimant’s mental health was stable and improved from when she was last in the community and that this was probably because she had no access to alcohol and her basic needs were met. Dr Smith is of the view that the Claimant was suffering from symptoms of post-traumatic stress disorder and self-harm in prison in 2010 and that her difficulties were inadequately assessed and managed when she was first admitted to detention.

The experts agree that from about April 2012 the Claimant’s mental health deteriorated markedly with the appearance of symptoms including psychotic or pseudo-psychotic phenomena as well as the aforementioned aggressive, self-destructive, manipulative, chaotic and irrational behaviour. The diagnosis of psychotic illness such as schizophrenia was not unreasonable but subsequent developments suggest that that was not the case. Dr Smith considers that the Claimant’s mental illness and risk of self-harm was not effectively managed in detention. She refers to her own assessment and that of Dr Samuels. The experts agree that with the benefit of hindsight it would have been better if the Claimant had been transferred to hospital earlier. Professor Maden believes that the delays in this case are not unusual for a patient of this nature in either a prison or other custodial setting. Professor Maden believes that a complex and difficult case was managed appropriately and if there were delays the effect of the delay was transient because the Claimant’s mental state improved rapidly when she was transferred. Dr Smith considers that the Claimant’s mental health problems were poorly managed and recommendations ignored.

The experts agree that the Claimant’s current mental health is good and much better than it was before she entered custody. She benefited from the inpatient treatment. She continues to suffer from complex PTSD or emotionally unstable personality disorder. Professor Maden believes that had she remained in the community she would probably have continued in the cycle of alcohol dependence and offending and would have been in a worse state than when she was first in custody. Dr Smith considers that given the significant deterioration in the Claimant’s mental health during her time in detention there is not enough evidence to conclude that she would have been in a worse state had she not been detained. Dr Smith believes detention per se was a major cause of the deterioration in her mental state. Professor Maden believes it is possible but not probable that detention played a role but if so was a minor one. The experts do agree that there were other contributory factors to the deterioration in mental state including worries over children, concerns over immigration and living without alcohol after a considerable period of dependence. In terms of apportionment however, Dr Smith believes that the immigration detention was a major cause of the deterioration. Professor Maden considers that the other factors would have caused a similar deterioration even if she had not been in detention. Taken overall Professor Maden believes that the decline in her mental state would probably have been worse in the community.

Professor Maden considers that the prognosis for the Claimant is good provided she remains abstinent from alcohol. Dr Smith points out that the Claimant suffered a significant exacerbation in her symptoms of PTSD during detention during which time she was abstinent from alcohol.

The experts agree that even if the Claimant had not been detained by the Defendant she had severe mental health problems for which the prognosis without treatment was poor. Professor Maden does not believe that the Claimant’s immigration detention has affected the prognosis in respect of her mental health.

Dr Smith was cross-examined persistently and at some length about her experience and qualifications and asked on several occasions whether or not she would not think it appropriate to defer to Professor Maden’s view. She answered all of these questions patiently, but firmly and despite her lack of experience working in a prison or experience assessing people as they come into prison or detention centres I considered that she was an entirely appropriate expert of equal standing albeit not of the same discipline and experience as Professor Maden. Her expertise lies in the assessment and treatment of PTSD and CPTSD in trauma victims. Dr Smith fairly said that she accepted Professor Maden’s better understanding of the prison system and his many years of experience as a Consultant Psychiatrist, but did not believe that she needed to defer to his view.

Dr Smith explained that having met the Claimant and assessed her mental health by way of structured interview and having reviewed all of the independent evidence and medical records available she had reached her conclusions. She did not consider the Claimant had been effectively managed in the detention centre. She acknowledged that during the period of extreme distress the Claimant was not in a position to receive appropriate treatment until that acute symptomatology had been dealt with. She clarified that having spoken to Dr Taylor it is apparent that the Claimant was seriously unwell when she was admitted to hospital. She had a very lengthy period of intensive treatment and that led to an improvement. Rapid settlement into an environment is not the same as improvement. Dr Smith did not think that the Claimant would have reached the same level of distress in the community or that she would have received the same assessment in the community. She said to me at one point that no patient would get to that level of distress in the NHS. I accept it as a general principle although she agreed it was a somewhat sweeping statement. Dr Smith felt that the Claimant would have been referred. She considered that had an adequate assessment been carried out the Claimant would have received more intensive treatment.

She remained of the view that the Claimant’s psychological difficulties were not adequately assessed. Her post-traumatic stress disorder symptoms were not assessed although she met the criteria for them and had done so since her admission to prison. She repeated the matters set out in her report where she considered that there had been poor assessment, poor management and failure to heed recommendations. She said that it was not good practice to put someone who is very distressed and at a high risk of self-harm in isolation which would be very traumatising. She said that review of the medical notes showed a significant deterioration with increased self-harm and a failure properly to manage the Claimant.

Dr Smith did not consider that there was enough evidence to say either way if the Claimant would or would not have improved in the community by 2014. She had a comprehensive service at the Alpha Hospital which clearly helped her.

By reference to the documents in TB 4 at page 1748 and 1749 it is apparent that despite the details the Claimant reported: that she was diagnosed previously with post-traumatic stress disorder; her history given of witnessing violence, being attacked, raped, seeing her brother murdered; disclosing that she was circumcised when she was young; and had been abused by her former husband, there was no assessment for post-traumatic stress disorder. The history of substance abuse is noted. The conclusion was of “no evidence of enduring mental illness or acute evidence of illness that is impacting on her daily living”. That is the assessment carried out by Noel Finn on 13 May 2012. Dr Smith feels that had an appropriate assessment been carried out the diagnosis of post-traumatic stress disorder would and should have been made.

In summary Dr Smith said that she and Professor Maden agreed that the Claimant deteriorated in detention but she disagreed with Professor Maden in that she did not think that her mental health was adequately managed and she should have been transferred to hospital sooner. In the community she would have been referred for assessment, a full trauma history would have been taken and she would have been asked about her symptoms most notably intrusive memories, nightmares, lack of concentration and so on. A risk assessment would have been done. That would be standard in any service in the NHS. Detailed questions would have been asked about harm to herself or others and coping mechanisms. In the community an immediate and imminent risk of suicidal self-harm would lead to a referral to a psychiatrist for the purposes of assessment under the Mental Health Act. She would have had access to a social worker possibly and visits from the community psychiatric nurse. She would have had access to psychological therapy.

The Claimant does not dispute that the Defendant had the power to detain her pursuant to paragraph 2(2) of Schedule 3 of the Immigration Act 1971 (Tab 1 of the authorities’ bundle (“AB”)). It is the way in which that power was exercised that is in dispute. The burden is on the Defendant to prove that the detention was lawful and the longer the period of detention the greater the burden of justification on the Defendant. The Claimant argues that the Defendant is required to provide “substantial fact-based justification” for the interference with the fundamental right of liberty.

Firstly, the Claimant contends that her detention was contrary to the common law principles in R v Governor of Durham Prison (ex parte Hardial Singh) [1984] 1 WLR 704. I was referred to the case of I [2003] INLR 196 at AB Tab 5 and paragraph 46 in particular where there is a helpful summary of the Hardial Singh principles. The four principles are identified as: – (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) 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; and (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal. I am reminded that “reasonableness” under Hardial Singh is an objective test; the court acts as a primary decision maker in deciding what is reasonable and does not apply a Wednesbury test or defer to the judgement of the Secretary of State. When considering whether the period of detention is reasonable the court must consider all the facts of the case, weighing the prospect of removal and the impact of detention against matters such as the risk of absconding and reoffending which risk (see paragraph 121 Lumba [2012 1 AC 245) is “of paramount importance since if a person absconds, he will frustrate deportation for which purpose he was detained in the first place”. The Defendant does not have to identify a period during which removal will take place in order to demonstrate a reasonable prospect. Here the Defendant agrees however that the extent of the certainty or uncertainty will affect the balancing exercise. The Defendant argues that there was a reasonable prospect of achieving the Claimant’s removal within a reasonable period of time once the Claimant’s challenge to the deportation process was complete.

The Defendant argues that there is support for the reasonable prospect of achieving the Claimant’s removal within a reasonable period of time in the findings of the First-Tier Tribunal on 3 November 2011 and the Upper Tribunal on 16 April 2012 which support the conclusion that the Claimant was unlikely successfully to challenge the decision to make a deportation order. Secondly that between November 2011 and July 2012 the Claimant was behaving in a manner that suggested she would cooperate with removal. (I note that this is somewhat at odds as an argument with the repeated reference in the documents to non-compliance on the part of the Claimant which led the Defendant to consider that her risk of absconding and reoffending was sufficient to justify detention even if she was suffering from mental illness and/or had been the victim of torture or trafficking). It is argued that appropriate steps were taken to obtain an ETD which had reasonable prospects of success (with an out of date Sierra Leone passport) but were interrupted by the Claimant’s application for asylum which was made late and required investigation.

The Claimant sets out that what is a reasonable period of detention depends on the circumstances and will depend on the factors set out by Dyson LJ as he then was in I namely: the length of period of detention; the nature of the obstacles which stand in the path of the Defendant preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if released from detention he will abscond and the danger that if released he will commit criminal offences.

The existence of the power to detain depends on some prospect of removal since the power to detain is a power “pending removal”, but the existence of the power is separate from the lawful exercise of that power. By reference to the case of Lumba the Claimant puts emphasis on the expressed principle that the risk of absconding and reoffending should not be overstated and is not a “trump card” justifying prolonged detention.

A key principle here is the importance of the impact of detention on the applicant’s mental state. There is a need “to keep illness under control and prevent suffering”. Although detention has been held to be permissible where there is an adverse impact on the mental and physical health of the individual it has been for very short periods of detention. In this case the Claimant contends that there was a significant deterioration in her mental health and there was very little prospect of removal. The Claimant argues that under the Hardial Singh principles no question of whether or not her mental illness could be “satisfactorily managed” arises; the question for me is simply “what was the effect on the Claimant?”

In opening on behalf of the Claimant it was contended that she was not detained for the purpose of deportation, but, on the Defendant’s case, for her own protection and to prevent her from further offending.

The Claimant sets out in closing submissions the evidence upon which she relies as showing there was insufficient prospect of her removal to justify continued detention having regard to the circumstances of her case. Firstly, she could not have been deported whilst there was either a pending appeal against a deportation order or an unresolved fresh claim. The Claimant argues that this was the case throughout the period of detention. I have summarised the immigration history above, following dismissal of her appeal on 3 November 2011 there was a period when she was appeal rights exhausted until she sought permission to appeal on 14 December 2011. She further sought permission to appeal to the Court of Appeal on 27 April 2012. Following a hearing on 11^th April, permission was refused on 16 July and time for seeking permission from the Court of Appeal expired on 12 August 2012. The Claimant was appeal rights exhausted then. However, she had made a fresh claim for asylum on 23 July 2012 which remained outstanding until 17 January 2014.

The Defendant argues that the Claimant’s pending appeals were clearly unmeritorious and so I should attach little weight to them in considering the likely length of time to removal. The Claimant had been considered to have been dishonest with regard to her relationship with her partner. Her appeal had been run on the argument that she had a family life in the UK based on that relationship and on the fact that she had two children here, but of course they were both at that time permanently removed from her. Similarly, with regard to the asylum claim the Claimant had previously signed a waiver saying that she did not want to pursue an asylum claim. Further the Defendant argues that there had been no reference to the issues which later formed the asylum claim and so the Defendant looked at the claims made with scepticism and was entitled to do so. Reference is made again to Lumba paragraphs 120 and 121 considering the position with regard to meritorious and unmeritorious appeals.

The Claimant contends that the lack of an ETD was a further bar to removal. No ETD interview took place until 31 October 2011 which is when the Claimant said that she could not read or write and asked that the forms be sent to her solicitors. There was a bar on removals to Sierra Leone from January 2012 until as it turned out, the end of May 2012 although the length of the bar was unknown presumably until it came to an end. HMP Peterborough informed the Defendant that the Claimant should not be interviewed for ETD until she was appeal rights exhausted and the Defendant agreed to that. A further interview took place on 8 June 2012 when the Claimant again stated she could not read or write and did not know her parents. There is the record on 17 July 2012 referred to above stating that there was no realistic timescale for an ETD. Although an application form was prepared by August 2012 it was apparent that an ETD could not be obtained without interviewing the Claimant.

The Claimant argues that once there was the marked deterioration in her mental health her removal was not reasonably in prospect. The Claimant argues that that was the case from April 2012 onwards. When she was transferred to hospital the Defendant was informed that the Claimant’s treatment was likely to take several months. Nonetheless detention reviews throughout the period October 2012 to January 2014 continued to state that the Claimant was detained as an immigration detainee and her removal was reasonably in prospect. At this time, she had no travel document. She was an inpatient in a psychiatric unit. The Defendant was told that she was likely to be there for at least several months. She had an ongoing claim for asylum. It is the Claimant’s case that it was in any event unreasonable to detain her or to continue her detention because of the effect of detention on her mental health. The experts agree that her mental health deteriorated significantly from April 2012. They agree that she had long-standing mental health problems and vulnerabilities which predated her detention. No reference was made in the detention reviews to her self-harm and disturbed behaviour until July 2012 and the only enquiry to Healthcare was limited to the question of whether the Claimant was “fit to be detained”. It was not until 11 September 2012 following Dr Mounty’s report for Medical Justice that the Defendant asked whether or not the Claimant was suffering from mental illness.

It is the Defendant’s case that the Claimant is required to prove the extent to which she experienced genuine symptoms as a result of mental health problems. They argue that there is no reason to believe that the Claimant suffered from a serious mental illness that could not be managed in detention before March 2012. Whilst her behaviour deteriorated she was monitored and managed appropriately, it is suggested. The Healthcare staff at Yarl’s Wood sought advice and assistance and followed it.

At paragraph 16 of the judgment in Das it is set out “it is clear from the decisions on the Hardial Singh principles that the state of a person’s mental health will affect the determination of what is a reasonable period for which to detain a person:” see Baroness Hale in Lumba at 218 and Dyson LJ in M v Secretary of State for the Home Department [2008] EWCA Civ 307 at 30. M’s case was one in which it was not contended that detention was in breach of the Secretary of State’s policy… Dyson LJ stated that where detention has caused or contributed to a person suffering mental illness that is a factor which “in principle” is to be taken into account in assessing the reasonableness of the length of the detention. But, he also stated that in such cases “the critical question… is whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering”.

The Defendant contends that throughout the period of her detention and even if she were suffering from serious mental illness and had been tortured or trafficked the risk of the Claimant absconding and reoffending was so great that her continued detention was reasonable. As set out above the risk of reoffending or absconding is of prime significance given the purpose of detention is to achieve removal of the detainee and if they abscond (or even if they reoffend) that purpose may be thwarted. It is not, however, “a trump card”. The Defendant contends for a very significant risk that if the Claimant was not detained she would abscond and would reoffend because of her history of offending including dishonesty offences, failure to surrender to bail and adhere to a conditional discharge. She had limited contact with her children. She had a lack of support and structure at liberty. Previous decisions had been made to refuse bail. Her “conduct” persisted both when at liberty and when in detention.

The public law error contended for by the Claimant relates to the application of the policy in Chapter 55 of the Enforcement Instructions and Guidance. The court’s review of the application of the policy is subject to the Wednesbury principles. The interpretation/construction of the policy is, however, a matter for the court. The Claimant says that Chapter 55 (the version I have is at page 722 of TB2) imposes a duty of enquiry on the Defendant that is, a duty to take reasonable steps to inform herself sufficiently about the relevant circumstances so as to be able to make an informed judgement whether the policy would have application or not to an individual’s case. Reliance is again placed on the case of Das. Chapter 55.10 says that those suffering from serious mental illness which cannot be satisfactorily managed within detention are suitable for detention only in very exceptional circumstances. In exceptional cases it may be necessary for detention in a removal centre to continue while individuals are being or waiting to be assessed or awaiting transfer under the Mental Health Act. As set out at paragraph 57 of Das “the diagnosis of a mental illness is not in itself the key to the applicability of the policy.” 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”. Consideration must be given to the effects of the illness on the particular individual, the effect of detention on him or her and the way that person’s illness would be managed if detained must also be considered. The question whether or not mental illness is serious is a fact sensitive question. The court needs to look at the facilities available at the place of detention and the likely duration of detention contemplated. The mental illness does not have to be such as to require inpatient treatment or a liability to be sectioned under the Mental Health Act to be “serious”. Many people with serious mental illnesses are treated in the community.

The Defendant must consider whether the policy in Chapter 55.10 applies to the case of an individual whose detention is being considered. She must take reasonable steps either before or during a person’s detention to inform herself sufficiently about the detainee’s mental health so as to be able to make an informed judgement about whether the policy applies. In the case of Das it was found that notwithstanding the awareness in general terms of a psychiatric report about Ms Das at the time that she was detained and its receipt by those responsible for her detention and the medication she was prescribed including an antipsychotic drug the detention reviews did not consider or review her psychiatric condition. When considering “satisfactory management” the Defendant 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 cannot be provided in detention. Account is to be taken of the facilities available at the centre at which the individual is to be detained and the expected period of detention.

As set out at paragraph 67 (Das) and as referred to by the Defendant in this case there are some illnesses giving rise to significant adverse effects but which may be managed appropriately in detention. Where, however, the policy does apply it is a high hurdle to overcome to justify detention. The mere refusal to leave voluntarily cannot constitute “the very exceptional circumstances” required. Detention of a person cannot be justified by reference to that person’s own well-being. Nonetheless there is a balancing process to be carried out so that for example a person who poses a high risk of killing someone else or where there are cogent grounds of believing the removal will take place in a very short time may mean the detention is justified. In the former case the circumstances are such that they can be regarded as “very exceptional” so the detention pursuant to the policy of ensuring the firm and fair application immigration controls is justified. In the latter case a short period of detention is not likely to give rise to the question of “satisfactory management”. It is clear that the Defendant must keep herself informed of the condition of mentally ill detainees on a regular basis when detention is reviewed.

“Satisfactory management” means not only preventing a deterioration in mental health but also considering whether the detainee has been deprived of treatment available in the community which would improve his or her health (see D v SSHD [2016] WLR (D) 222).

In this case the Claimant contends that the policy was not referred to or considered at all for the period from 31 August 2011 to January 2014 with the exception of a passing mention in the detention review of 22 August 2012. There is no substantive consideration of the policy or its application to the Claimant’s circumstances. Thus the Claimant argues that her detention was as a result of a public law error material to the decision to detain which rendered it unlawful. The Claimant says that the Defendant was or should have been aware that she had long-standing mental health problems caused at least in part by a range of severe traumatic experiences and that she had a history of PTSD symptoms and self-harm in prison.

The detention review dated 22 August 2012 begins at page 781 (TB 2). It repeats the summary of the case identifying that whilst appeal rights exhausted she applied for asylum on 23 July 2012. An ETD was required. It was noted that a pack had been prepared to make an application to the Sierra Leone High Commission and a telephone interview was required, but despite a request having been made on 17 July 2012 no interview had been facilitated by Yarl’s Wood. The barriers to removal were therefore the outstanding application for asylum and agreement on an ETD. It was considered that the asylum claim barrier could be lifted within the coming weeks because “it may be possible to certify an asylum refusal, limiting any further appeal rights”. Similarly, it was felt that an agreement on an ETD could be agreed within the same timeframe if the Claimant complied with the process namely agreeing to the telephone interview and a subsequent face-to-face interview.

The risk of absconding is identified as being that the Claimant failed to surrender to custody at an appointed time in 2008 and breached her conditional discharge. She was identified as a repeat offender while at liberty and had adjudications for disruptive behaviour including assault and spitting at staff. It is noted that on 9 March 2012 a Rule 35 report (torture) was received from Yarl’s Wood which raised claims made by the Claimant of abduction and ill-treatment in Sierra Leone. The review says “however given that [the Claimant] had already withdrawn her claim to asylum and failed to raise such grounds against deportation it is considered that there was no evidence of any history of torture and her detention was maintained”.

Five incidents of attempts or threats of self-harm were identified. It was noted that Healthcare confirmed the Claimant remained “fit for detention” which was repeated on 11 July following a further threat by the Claimant to throw herself down the stairs. Healthcare confirmed again on 7 August 2012 that the Claimant “remained fit for detention”. Detention was recommended. The authority to maintain detention that was given repeats the previous contents and says “I consider that [the Claimant] presents a risk of harm and a high risk of reoffending if released at this stage and that she would fail to comply with any conditions attached to the grant of release”. The deputy director reviewed the position (page 786) and states “I have considered this application for continued detention against the criteria set out in Chapter 55 of the enforcement guidance and instructions. Without more, the barriers to removal are identified as the outstanding asylum claim and the ETD”. These are described as being “actively pursued”. It was considered that a conversation with the Claimant setting out the Defendant’s intentions and establishing what hers are would be useful. It is noted that her compliance in returning may not be necessary. The assessments of the risk of reoffending and absconding are noted and the comments made “this combined with her non-compliant behaviour and delaying tactics leads me to conclude that she would not comply even with the most stringent conditions of the grant of temporary admission”. This is the only mention of consideration of Chapter 55 and in that document there is no reference to the Claimant’s mental health issues.

The Defendant relied on the information from Healthcare that the Claimant was “fit for detention”. What is set out on behalf of the Defendant in the skeleton argument is that for the period of March to October 2012 whilst the Claimant’s behaviour (my emphasis) deteriorated she was at all times appropriately monitored and managed by the Healthcare staff at Yarl’s Wood who informed the Defendant that the Claimant’s condition could be managed by them. She says the Healthcare staff sought advice and assistance and followed it. The Defendant considered the impact of the Claimant’s mental illness and concluded that the risk of absconding and reoffending made her sufficiently exceptional to justify ongoing detention. There was no safe alternative to detention. There was no delay in transferring her when she was accepted for transfer. The experts in this case agree that from about April 2012 the Claimant’s mental health deteriorated markedly. They agree that it would have been better with the benefit of hindsight if she had been transferred to hospital earlier. There is no mention in the documents I have seen of any analysis of the deterioration in the Claimant’s mental health by the Defendant nor of any assessment as to the effect detention was having upon her mental health. It was only following intervention via the report obtained from Dr Mounty that the Defendant began to address her mind to the Claimant’s position and even then as I set out above what was being sought by the Defendant was a “robust” response from Healthcare to indicate that the Claimant was fit for detention.

By reference to Das at paragraphs 68 and 69, a person cannot be detained for their own well-being and care must be exercised when deciding to detain a person. The decision is not one which the Defendant can simply pass on to the clinicians. As per Singh J in HA (Nigeria) [2012] EWHC 979 the Defendant is not entitled to abdicate her public law responsibilities to the relevant health authorities or clinicians unless through her officials she has conscientiously made reasonable enquires as to the physical and mental health of the person being considered for detention, has obtained available reports and considered the implications of the Chapter 55 policy for the detention of that person.

It is accepted that the Rule 35 report raised on 2 March 2012 clearly disclosed an account of torture and the evidence of Miss Buckle on behalf of the Defendant was that the Defendant relies on Rule 35 reports to alert caseworkers to detainees who might be unsuitable for detention under Chapter 55. The report was rejected by the Defendant. Miss Buckle gave her opinion that it was Healthcare at Yarl’s Wood who indicated that there was no clinical information and therefore the report was not being treated as a Rule 35 report. By reference to page 811 (TB 2) however, that information “no clinical information, therefore not being treated as a DC rule 35” is very clearly in the section headed “to be completed by UKBA and returned to Healthcare”. There is a fax on page 812 from the contact management team at Yarl’s Wood which says “please see to follow a fax received from Healthcare which we are not considering the DC rule 35 but additional information regarding the above named”. If that was the decision made on behalf of the Defendant by the detention centre, there is no reason given for it. If it was a decision made by the detention centre it was not properly considered by the Defendant and there seems to be no basis upon which the “no clinical information” has been inserted by the Defendant. The form itself shows that the report was made to Doris Mdziniwa and is stamped and signed by Dr Mohgoub. The report is that whilst in Sierra Leone the Claimant was abducted and circumcised without her consent. The Defendant’s response at page 813 refers to the fact that the Claimant did not pursue her asylum claim on 18 August 2011 and these matters were not raised at the most recent appeal hearing on 11 October 2011.

With regard to Articles 3 and 8 ECHR the Claimant contends that there is an absolute duty on the Defendant under Article 3 to ensure that detainees are held in conditions which minimise the suffering inherent in detention and which secure their health and well-being. I am referred to Kudla v Poland [2002] 35 EHRR 1. The minimum threshold necessary for a breach of Article 3 depends on all the circumstances. The Claimant refers to four domestic cases and accepting that every Article 3 case turns on its own facts nonetheless relies on some common features. In particular: a failure by the Defendant to ensure adequate psychiatric care and management of mental illness in detention; her failure to ensure proper communication between clinicians and caseworkers reviewing detention; and a failure to apply Chapter 55 properly or at all. Specifically the Claimant relies upon: the deterioration in her mental health which caused her considerable distress; her self-harm and suicide attempts; the fact that she removed her clothes because of her mental illness; was removed to segregation without her clothes on; was observed by male officers while naked; that she smeared faeces around her cell; that she wet herself shortly before/during her asylum interview, but was nonetheless interviewed; that she was subject to segregation; that she was subject to assaults by other residents; and that at the time of the transfer to hospital she lacked capacity to give instructions on her immigration case.

As to the Article 3 claim the Defendant simply denies the breaches in the skeleton argument. In closing submissions, the Defendant submitted that the particulars in the Claimant’s closing submissions were not pleaded in the Particulars of Claim and they should have been if they are to be relied upon. Where the infliction of any suffering is not intentional there is a high hurdle to cross and I was referred to the case of R (Limbuela) v SSHD (2005) UKHL 66. The Defendant relies on the fact that according to Professor Maden detention was not the primary cause of the deterioration in the Claimant’s mental health and the other matters are either not referred to in her witness statement or not supported by the evidence and in any event the Claimant has given unreliable evidence.

In relation to the Article 4 claim, the Defendant has positive duties to investigate trafficking and the threshold is “credible suspicion”. The NRM is the mechanism by which the UK discharges its responsibilities under the Convention and Anti-Trafficking Directive. The Home Office caseworker is the first responder in this context. The Home Office should take a reasonable grounds decision within five days and then has 45 days to reflect before making a conclusive grounds decision. It is the Claimant’s case that the Defendant failed to refer her case to the NRM which was a positive obligation and should have been done no later than 7 September 2012, the date of her asylum interview.

The Claimant cannot read or write and her statement had been read to her before she signed it. Any documents to which she was referred in cross examination were read to her. It is apparent that whilst her command of English is very good she was only able to understand some things if they were repeated or read more slowly. She clearly coped less well with complex, technical or legal language.

Although she has made significant progress in terms of recovery from her acute mental illness and addressing her chaotic lifestyle and alcohol abuse it is apparent that the Claimant continues to manifest some of the features of her enduring and ongoing mental health difficulties. There were aspects of her evidence upon which the Defendant relies as indicative of a lack of credibility. It is right to say that some aspects of her evidence are inconsistent with some of the accepted details and that she made attempts to show herself in a better light than the recorded facts would indicate and to distance herself from some of her previous behaviour. Clearly I have taken these features into account in my assessment of her evidence. However, I accept that, for example, it is not uncommon in the context of a psychiatric institution for patients to contend they are recovered, to contend they fabricated their symptoms, or to contend that their symptoms are improved in the hope that they will be released. Similarly, particularly given her emotionally unstable personality disorder and her previous alcoholism which affected her memory I do not set a great deal of store by the fact that having lost two children to adoption and been found guilty of child neglect, she remains unable to accept that she was less than a good parent or that her children were taken from her appropriately. Her account of being “tired” and thus asleep in the back of a taxi and of accidental collision of heads with a police officer is clearly a significant misrepresentation of the likely truth.

There clearly are issues where the evidence of this Claimant and the accounts she has given historically may have been unreliable in light of her drinking, her desire to keep her children, her desire to avoid conviction, her mental health issues, her desire to be released from detention, her desire not be deported and her desire not to be held in a mental institution. I accept that it is a feature of her personality that she tends to blame others (see paragraph 61 above). It seems to me that I must balance taking a realistic approach to the likely behaviour of somebody in these situations with the need to identify in relation to the issues in this case the extent to which I can accept her evidence as accurate and perhaps more importantly the extent to which the account she has given to various professionals and the Defendant over the years needed to be heeded and acted upon rather than questioned, dismissed or ignored. For the most part however, I find that the important factual evidence is agreed or set out in the documents. I accept the tribunal finding that she and her partner were untruthful about their relationship. That does undermine her credibility in the context of her immigration claims, but I consider it to be of only limited relevance in the overall picture of this claim.

In so far as it went beyond a review of the documents, much of Miss Buckle’s evidence amounted to little more than assertions or assumptions about the documents’ contents. Since she was not directly involved, this is no criticism of her as a witness, but her evidence was of limited value. She made some assertions and assumptions for which there was no objective evidence. She did not in fact make the decision as to whether there was independent evidence of torture or assess the Claimant’s credibility. She did say that as long as the prospects of removal are good the Defendant would look to detain a person in the Claimant’s position and she expressed the view that reliance on advice from Healthcare without further inquiry or investigation was reasonable. I do not consider that Miss Buckle had the appropriate legal criteria at the forefront of her mind when she made these comments. I do not accept the majority of her assertions and assumptions because they were either not supported by the evidence or were based on an interpretation of policy which is not accurate/is for me to decide. I have set out her evidence above. In particular, I find that there was no ongoing review or fresh consideration by the Defendant balancing the prospect of removal against the information about the Claimant’s deteriorating mental health. There was no inquiry or investigation whether by medical evidence or objective questioning into the true state of the Claimant’s mental health. Simply relying on being told that the Claimant was “fit for detention” did not apply the correct test and was in any event inadequate in light of the other information available (see paragraph 44 above). There was no ground put forward for treating the Rule 35 report as merely additional information. The failure to report a clear and credible account of trafficking to the NRM is a serious matter and not explained at all by Miss Buckle’s reference to thinking it would be picked up in the asylum claim. There clearly was a breakdown in communication. There was no attempt at identifying the likely timescale for removal. Miss Buckle approached this issue with the benefit of hindsight in respect of the ban on returns to Sierra Leone and from a presumption of continued detention as far as the other obstacles were concerned. The failure to consider the Claimant’s mental health properly or at all meant that this issue, as an obstacle to removal was not taken into account at all. Miss Buckle’s denial of the import of the email from Mr Vidic was, I find, untenable.

Dr Leahy was in a difficult position. He did not see the full history relating to the Claimant. He saw the psychiatric liaison nurse’s review which was as I find flawed. His advice was not followed. It is apparent that he expected he would be asked for further advice and he was not. For example, he was unaware that the Claimant was refusing medication. He considered Dr Mounty’s report and then suggested a low secure unit might be suitable for the Claimant. He accepted that the Claimant’s mental health deteriorated. I find that he should have been involved more frequently and from an earlier stage. He should have been asked for a more detailed assessment of the effect of the Claimant’s continued detention and her deterioration. I find that but for the intervention of Dr Mounty he would not have been consulted even in the perfunctory way that he was in September. I accept Dr Mounty’s findings as at 9 August set out in her report and therefore I consider that Dr Leahy’s earlier assessment was inadequate. I do not consider that Dr Leahy’s opinion and/or advice were properly heeded. If he made the comment referred to by nurse Kelly (see paragraph 40 above) then there is a conflict between that and the evidence he gave about the Claimant’s deterioration in detention. If he did not, then Nurse Kelly’s account is inaccurate or her account may be selective.

The experts considered that there was not a great deal of disagreement between them, but in general terms where there is such disagreement I prefer the evidence of Dr Smith. I accept the correct diagnosis is CPTSD. I accept that it worsened in detention resulting in pseudo-psychosis. I find that the major cause of the Claimant’s deterioration was her ongoing detention in light of her history. My finding is based not only on the evidence of Dr Smith, but also on the opinions of Dr Mounty and ultimately Dr Samuels. It accords with the hospital records following the Claimant’s transfer. Moreover, it explains the deterioration from April 2012 onwards.

I accept that the evidence supports a diagnosis of delayed onset PTSD. I accept Dr Smith’s view that the Claimant did not meet the crisp criteria of alcohol dependence syndrome and I reject Prof Maden’s view that alcohol dependence had become the Claimant’s major problem. I accept that having misused alcohol in an attempt to block out her memories the Claimant was subject to a significant exacerbation in reliving the symptoms of PTSD but that this would have begun much sooner when alcohol was no longer available to her.

I find that the Claimant’s mental health deteriorated markedly from about April 2012. I accept Dr Smith’s evidence that the Claimant’s mental illness and risk of self-harm was not effectively managed in detention. I find that the Claimant was not adequately assessed. I agree with the view of both experts that with the benefit of hindsight it would have been better if the Claimant had been transferred to hospital earlier. I find that she should have been assessed as suffering from serious mental illness by no later than the date of the review by Noel Finn on 13 May 2012. She was seriously ill at that stage by reference to the suicidal ideation and attempts and the pseudo-psychosis and by reference to the subsequent assessments in particular of Dr Mounty and Dr Samuels.

I accept Dr Smith’s view as set out at paragraph 85 above.

Some aspects of Professor Maden’s evidence were difficult to reconcile. He considered that PTSD and emotionally unstable personality disorder are “virtually synonymous”, but emphasised the distinction between the diagnoses in order to support his opinion with regard to causation, the effect of detention and the prognosis. I find it hard to accept his view (see paragraph 72 above) that the Claimant presented with a cycle “sadly familiar in women offenders” but he did not think that the deterioration in her mental health in detention was foreseeable despite it being a “common pattern”. Similarly, he stressed that the Claimant “settled” quickly when she was admitted to hospital to support the view that she was not suffering from serious mental illness. I find that the Claimant was suffering from serious mental illness and in this respect I prefer the opinions of Dr Smith, Dr Mounty, the hospital records and Dr Samuels.

On this point it also seems to me that Professor Maden has overlooked the fact that the Claimant was detained in hospital for a very long period of time and only deemed fit for discharge in January 2014. Considering his review of the records from the two institutions and my own brief overview of those records it is apparent that the Claimant was not only unwell and required lengthy inpatient treatment, but was considered to be suffering from serious mental illness by those who were treating her. It is hard to imagine given the pressure on resources and beds that had she not been seriously unwell the Claimant would have been kept in hospital for such a long period of time. Further it does not seem to me that “settling” is the same as improving. If she did improve so rapidly on admission to hospital I consider that this would support the finding that detention in an immigration centre was a major cause of the deterioration in her mental health.

Whilst I clearly accept that the Claimant’s issues with alcohol and her subsequent inability in detention to turn to alcohol will have contributed to her mental health issues I find that Professor Maden placed too much emphasis on the alcohol dependence in light of all the other factors acting as stressors. Moreover, I consider that having been in detention initially in prison and then in the detention centre for such a long period of time any actual withdrawal symptoms would have resolved quite quickly and the effect of the inability to turn to alcohol would have worn off or been so diminished as to have been a negligible factor at Yarl’s Wood.

It did not seem to me that in looking at “adequate management” of the Claimant, Professor Maden focused on the test of “satisfactory management” or the need to keep the Claimant’s illness under control and prevent suffering. Similarly, it does not seem to me that, whatever the situation with the benefit of hindsight, the Defendant can properly rely on Professor Maden’s opinion that the effect of detention was to bring the Claimant’s pre-existing problems to light and so get a place in a specialist treatment service. The question for me is whether or not she was unlawfully detained and if so from when. Professor Maden’s point could only really affect any assessment of damages and only in the event that continued unlawful detention did not impact upon the Claimant’s mental health. I do not consider that there was evidence of deterioration so great between July and September (see Dr Mounty’s report) to support Professor Maden’s view that up until her transfer the Claimant’s problems were manageable in custody.

I prefer the view of Dr Smith which is that the Claimant would not have reached the same level of distress in the community but would have received more intensive treatment following assessment. The outcome of such treatment is difficult to assess with hindsight. However, I find that the Claimant would not have been so unwell had she not been detained and so she would have received treatment in the community before she was so unwell that she could not have that treatment. Professor Maden’s hypothesis does not accord with his view that in the Spring of 2012 the Claimant was too unwell to access CBT. I find that on balance as per the evidence of Dr Leahy, Dr Smith and indeed Professor Maden, CBT and psychological therapies would not have been available to the Claimant at Yarl’s Wood.

Although as I have set out above the tests to be applied when considering the common law and public law claims are different they depend upon, in large part, the same findings of fact.

I find that it was not reasonable for the Defendant to rely on the information from Healthcare in circumstances where there was no proper assessment of the Claimant and where the Defendant was in fact using Healthcare to refute the evidence of others and the reports that were being received (see paragraph 37 above). In any event the information from Healthcare was simply incorrect particularly the reference on 9 May 2012 that the Claimant was suffering from “no known mental health issues”. The Defendant ignored other information including incident reports and risk assessment forms. It seems to me it is apparent from the emails as I have referred to above that the Defendant had in fact made up her mind to detain the Claimant without a proper exercise of the appropriate criteria and is seen in the emails to be seeking to “counter” the evidence of Dr Mounty. In light of the sequence of events referred to at paragraph 44 above I take the view that the Defendant was clearly not trying to get the appropriate or adequate information about the Claimant. In light of the information available to the Defendant it should have been apparent that the assessment by Noel Finn on 13 May 2012 was untenable (see paragraph 84 above).

The Defendant’s initial presumption of detention as referred to by Miss Buckle is not consistent with the application of policy or the appropriate test at common law. The Defendant failed properly to consider the prospects of removal within a reasonable timescale (see paragraph 42 above).

It seems to me that the Defendant’s arguments in support of the need to detain the Claimant fail to take account of two significant features. Firstly, the Claimant’s “conduct” whilst in detention which was seen throughout by the Defendant as being as a result of her deliberate disruptive and violent behaviour was as I find in fact as a direct consequence of her mental illness. As is apparent following treatment that conduct has been dramatically modified. Secondly her history shows that her offending was carried out at a time when she was heavily abusing alcohol. The picture is a depressingly common one. But from the time of her sentence in, I think, May 2011 until her arrival at Yarl’s Wood in March 2012 and between then and July she had been free of alcohol. Her offending whilst at liberty was inevitably also in part caused by her mental illness. The offences she had committed (apart from child cruelty which would not be repeated) were minor. She had not breached immigration law and had not previously been on immigration bail. No consideration seems to have been given to any other method of control. In the circumstances it seems to me that whilst there clearly was a risk of absconding or reoffending it was not properly considered in an appropriate balancing exercise. I find that the risk to the Claimant’s mental health and her suffering (as detailed above) outweighed the risk of absconding and reoffending. I am also concerned to note the approach of the Defendant apparent from the documents. An intention was formed to detain her. Throughout the documents there is a clear sense of a presumption of detention rather than of liberty. Shortly before her transfer, despite information then available about post-traumatic stress disorder, torture, trafficking, mental illness self-harm and suicide attempts there is an expressed determination to maintain her detention. Following her release from hospital the Claimant did not in fact abscond although her asylum claim was not resolved until about a year later. This is of course with the benefit of hindsight, but gives weight to the argument that the Claimant had an incentive to comply with her outstanding appeal and/or fresh claim at the time that she was detained.

Under the Hardial Singh principles therefore, I have to consider whether or not it was reasonable to maintain the Claimant’s detention in light of her ongoing mental illness. As I have already said to some extent my findings in this respect are inevitably going to overlap with the findings in respect of the breach of public law point, but I must remind myself that I am not reviewing the Defendant’s decision in this instance but making it afresh. There was a breakdown in communication which meant that the incidents in May affecting the Claimant were not made known to the relevant department of the Defendant. That information should have been available and had it been available I consider that it was sufficient to put the Defendant on enquiry and that in the circumstances here that enquiry was not simply to ask whether or not the Claimant was fit to be detained, but to ask whether or not the reasonableness of the length of detention and/or maintaining that detention was outweighed by the effect on the Claimant’s mental health. Had that proper enquiry and investigation been made and had the Claimant’s records been considered and/ or had she been subject to an independent assessment like that carried out by Dr Mounty then I find on the basis of the records I have seen and the expert opinion here that the Defendant would have been likely to conclude that the deterioration in the Claimant’s mental health was in large part attributable to the fact of and length of her detention and that the facilities at Yarl’s Wood were not adequate to keep her illness under control and prevent suffering.

A proper mental health assessment should have been done on 13 May 2012. I find that that should have led to an assessment by a psychiatrist no later than the end of that month and following that the Defendant should have carried out a full and fresh consideration of detention. The Claimant’s serious mental illness and the deterioration in detention would have been identified. I find that, had that been done, then by 30 June when she was hearing voices it should have been apparent that her mental health was deteriorating by reason of her ongoing detention and that her illness was not being satisfactorily managed in detention. The conclusions reached by Dr Mounty (see paragraph 55 above) should have been reached by the Defendant then. A review at that stage by the Defendant would have shown that contrary to the letter of 2 July, the Claimant was not fit for detention and given the obstacles to removal she should have been released from detention. On medical grounds she would probably have been transferred to a psychiatric unit.

Further, whilst I accept that up until the point of the asylum claim made on 23 July 2012 the Defendant was properly entitled to consider that the merits of the Claimant’s appeals as they were put forward were not good, that does not apply, however, as I find to the asylum claim. At that point the Defendant had an obligation to consider the length of time which it would take for that claim to be considered. She had or should have had knowledge of the Claimant’s accounts of her past torture and trafficking which would form the basis of such a claim. That claim was ultimately successful.

I find that the Defendant did not give sufficient thought to the prospect of obtaining an ETD for the Claimant. She certainly did not act with expedition. I find that by 17 July 2012 when there was no realistic timescale for the ETD, the Defendant should properly have considered whether or not the Defendant could continue lawfully to detain the Claimant. She did not do so.

I find that had proper consideration been given by the Defendant to the position from the date that the Claimant was transferred to hospital the conclusion must have been that there was no reasonable prospect of removal within a reasonable period and her detention from that point under immigration law was unlawful. She had at that point been in detention for more than a year. Of course at that stage given that she was also sectioned under the Mental Health Act there was no realistic risk of absconding or reoffending.

The Claimant’s illness was clearly continuing to deteriorate and cannot be described as having been under control. If only by reference to the incidents of self-harm it would have been apparent that she was suffering. I consider that at the time of the assessment on 13 May 2012 by Noel Finn it should have been recorded that the Claimant was clearly suffering from mental illness which was deteriorating and which was not being appropriately managed. A full enquiry should have been made at that stage as to the reasonableness of the Claimant’s continued detention and given the further instances of self-harm in May and the instances of hallucinations and suicide attempt on 30^th June it should have been apparent that the detention centre could not keep the Claimant’s illness under control and at that point she should not have been detained any longer unless the risk of reoffending and absconding justified her ongoing detention.

As to the public law claim, based on my findings set out above there is no evidence I have seen to suggest that the Defendant considered the impact of the Claimant’s mental illness at all and no information that the Defendant considered the seriousness of the Claimant’s mental illness or whether or not it could be satisfactorily managed and whether the risks were so exceptional as to justify detention. I accept that the evidence is that some of the advice sought was not heeded. The detention reviews do not consider what is required satisfactorily to manage the Claimant. The Defendant did not seek further information beyond “fit for detention”. The deterioration in the Claimant’s mental health does not seem to have been considered at all.

In the circumstances, I have reached the conclusion that there was no proper consideration by the Defendant of her policy under Chapter 55. The policy is not even mentioned until August 2012. I am concerned that given that the Claimant was detained by the Defendant whilst in prison and the records there show that she had a history of PTSD and self-harm in prison there does not seem to have been any mechanism in place for the Defendant to be informed of that and the Defendant made no effort to obtain the information about the Claimant’s mental health. It is difficult therefore to see how the Defendant could properly apply her own policy. Nonetheless I have to consider the point from which the proper application of the policy would have caused the Claimant to be released from detention, if at all. The difficulty here is two-fold. Firstly, I have to ask whether or not there came a point in time when had the policy been properly applied the Claimant would have been released from detention because of the seriousness of her mental health which could not be satisfactorily managed. Secondly, it seems to me as set out in the experts report that had there been proper consideration given to the Claimant’s mental illness it may be that she would have been transferred to hospital sooner (allowing for any delay in finding a bed). Had she been released from detention before then she would have been released into the community and the question then is whether the other factors apart from detention which were affecting her mental health would nonetheless have produced the same level of deterioration.

I have concluded that the Defendant should have been on notice of the need to consider the Claimant’s mental health while she was in prison. She was detained by the Defendant in prison and the mere fact that there seems to be no mechanism by which the Defendant is notified of any mental health issues does not seem to me to be an answer to the failure to consider Chapter 55. Similarly, when she was moved to Yarl’s Wood and gave the account of matters which gave rise to the Rule 35 report there should have been some proper mental health assessment carried out.

However, taking into account that clearly there are people in detention who have mental health issues and there was a risk of absconding here and reoffending, although not at such a level as the Defendant identified, I take the view that had the policy been properly applied the decision would still have been made to detain the Claimant. However, when the instances of self-harm in the form of the three Part C reports received in May 2012 became known I take the view that an assessment then of the deterioration in the Claimant’s state and of her levels of PTSD would have caused the decision to be made that she could not be satisfactorily managed in detention and that the risk of her absconding/reoffending was not so great as to justify her continued detention. She should not have been detained any further from that point.

She was in fact detained further and the obligation to monitor closely increased such that by the time of Dr Mounty’s report dated 27 August 2012 it should have been clear to the Defendant (see p83 TB 1) that not only was the Claimant not fit for detention, but that she needed to be transferred to an acute psychiatric ward for assessment. It should have been apparent that she was clearly extremely distressed by her continuing and indefinite immigration detention and that that detention was a significant cause of her deteriorating mental health.

The foregoing paragraphs deal with the issue of detention of the Claimant in circumstances where she was suffering from serious mental illness. Chapter 55 also states that where there is independent evidence that a person has been tortured and where persons are identified by the Competent Authorities as the victims of trafficking, they, too, are normally considered suitable for detention in only very exceptional circumstances. I need to consider therefore whether or not the Defendant applied her policy properly in respect of the Claimant in light of the information about those matters. As before I have concerns that the Defendant was unaware of the matters the Claimant had disclosed whilst in prison. However, that was on 15 August 2010 and the Claimant was not detained by the Defendant until 31 August 2011 and in the circumstances it seems to me that the Defendant would not be required to seek disclosure of a Claimant’s medical records from pre-detention unless she was on notice of something which would give rise to concern about ongoing detention pursuant to the policy. It does not seem to me therefore that the Defendant in the circumstances should be fixed with that knowledge. The Defendant did not have that knowledge.

There is no reference in the Defendant’s letter responding to the Rule 35 report to any lack of clinical information and there is no reference to any lack of independent evidence. Clearly as far as the female genital mutilation is concerned an examination should have been requested. I find that the Claimant would have acquiesced. She did at a later date. As per Dr Millington’s report there would then have been clear independent evidence of torture. For the reasons I have already given the Claimant’s risk of absconding and reoffending could not reasonably have been considered to be so great as to amount to very exceptional circumstances in this case in these circumstances. The Defendant’s response was not adequate and was not a proper application of policy. The Claimant’s detention should have been reviewed and I find that she should have been released by reason of the Chapter 55 policy in respect of torture within not more than two weeks of the receipt of the Rule 35 report.

In opposition to this argument the Defendant says that the Claimant’s credibility was poor, the matters were not raised in the appeal she had seen the GP who concluded that she was physically and mentally well and her circumstances were exceptional such as to justify her detention in any event. For the reasons set out above I reject these arguments. There were no very exceptional circumstances here. That very high threshold was not crossed.

In all the circumstances of this case I conclude on this issue that the Defendant acted irrationally since no reasonable Secretary of State could have reached the conclusion that the Claimant could be detained in a detention centre on or after receipt of the Rule 35 report dated 4 March 2012 (the letter in response was sent on 8 March 2012) in a manner which would be compatible with her then policy (HA para 203).

As to the Article 3 claim there is not enough evidence that I have been directed to or from the Claimant herself for me to find that she was subject to assaults by other residents and certainly not such as would amount to a breach of Article 3. The point about her lacking capacity is a reflection simply of the extent of her mental illness at the time that she was transferred to hospital and again does not, as I find, breach Article 3.

The Claimant further or in the alternative argues that these facts engage the private life aspect of Article 8 because of the effect on the Claimant’s moral and physical integrity (R (Razgar) V SSHD [2004] UKHL 27). On this latter point I agree with the Defendant that this adds nothing to this claim over and above the unlawful detention point. I am not satisfied in the circumstances of this case that the Claimant meets the hurdle of the test for Article 3 simply because of the distress she suffered because of the deterioration in her mental health. However, it does seem to me that the Claimant’s treatment as somebody who was showing disruptive behaviour rather than mental illness did breach her Article 3 rights. This led to her being isolated in a segregation cell, watched by officers rather than medical staff under what I find to have been a punishment-based regime (Removal From Association) and removed forcibly on one occasion. She was clearly in significant distress. She was clearly significantly mentally unwell at the time. It may be that within a psychiatric unit she would have been “put” in a safe place where she could not harm herself, but the Kingfisher Unit at Yarl’s Wood is a segregation unit. It is used for punishment for poor behaviour and this was not a medical decision or one taken for the Claimant’s benefit. Those aspects of her detention as somebody suffering serious mental illness from mid May 2012 does amount in my view to a breach of her Article 3 rights.

Finally, the Claimant relies upon Article 4 ECHR which imposes positive obligations on the state towards victims and potential victims of trafficking and where there is any suspicion or claim of trafficking there should be a referral to the NRM as Competent Authority. For the reasons I have already given it does not seem to me that the Defendant should have made a referral in respect of the account given in 2010 at HMP Peterborough. However, the Claimant made a further allegation that she had been trafficked to the UK in an interview on 18 July 2012. It was recorded in Dr Mounty’s report and the Claimant raised it in her screening and asylum interviews. Miss Buckle on behalf of the Defendant conceded in cross examination that the accounts given on 18 July 2012 and raised by Dr Mounty should have resulted in a referral to the NRM. No referral was made until after the Claimant’s release from detention. The outcome was that she was made the subject of a positive conclusive grounds decision that she had been trafficked. Miss Buckle’s attempts to explain away the failure to refer on the basis either that there was “a credibility issue” or that it was something which would be picked up in the asylum claim is an inadequate response and not based on evidence and certainly not based on any indication that the Defendant made a positive decision on those points. I find that the report was improperly ignored. The Defendant accepts that she had a duty to investigate, but considers that it is not enough for the Claimant simply to show that there was a delay in the referral and the Article 4 claim is only a makeweight.

I find that the Defendant failed to act in accordance with her duties to investigate and failed to refer the Claimant’s account to the Competent Authority. When the referral was made by the police on 9 May 2014 a reasonable grounds decision was made on 30 May 2014 and the conclusive grounds decision was made on 28 November 2014. In terms of the consequences to the Claimant, therefore of the Defendant’s breach it does not seem to me that the Claimant has suffered any compensatable loss in light of the other findings I have made. Referral in July 2012 would have produced a first decision by the end of July and a conclusive decision by the end of January 2013.

Although in light of my other findings with regard to mental illness and torture it does not really add a great deal it does seem to me, however, that following the claim of trafficking made on 18 July 2012 the Defendant failed to give appropriate consideration to her policy under Chapter 55 because the Claimant would have been identified by the Competent Authorities as a victim of trafficking and her continued detention should have been considered afresh and fully at that stage. If necessary, I will hear further argument in respect of damages in relation to my findings in these last two paragraphs.

In terms of the quantum of damages in relation to the public law error, the issue is whether there would be substantive damages payable in the event of such a finding being made or if the Claimant could and would have been detained in any event had that public law error not been made. If so, damages would be nominal. It is the Claimant’s case that damages should be substantive because had the policy been properly applied the Claimant would not have been detained. In this respect I find that the Claimant is entitled to substantive damages in circumstances where the Chapter 55 policy should have been found to be engaged, the Claimant’s mental illness was not satisfactorily managed in detention and there were no “very exceptional circumstances” justifying her ongoing detention.