Death at Colnbrook IRC

A tragic death today of a detainee at Colnbrook IRC. This comes just over a month after the Shaw review into detention centres in which it was clear “a lot needs to be done
at Colnbrook to ensure that detainees’ needs are properly met“.

The review also found that the academic literature “demonstrates incontrovertibly that detention in and of itself undermines welfare and contributes to vulnerability“.

While the exact circumstances surrounding this death are unconfirmed, it underlines the need for urgent action on the part of the Government. Despite promising “significant and transformative reform” in his response to the Shaw review, the Minister for Immigration James Brokenshire has yet to act.

 

See http://detentionaction.org.uk/death-at-colnbrook-irc for further comment.

Unlawful detention judgment in R (Babbage) v SSHD [2016] EWHC 148 (Admin)

In a judgment handed down on 1 February 2016 Mr Justice Garnham gave detailed reasons for his decision, announced on 15 December 2015, that the continued detention of a Zimbabwean national who had been administratively detained by the SSHD for more than two years was unlawful.[1]  The judgment raises questions about the legality of the practice of detaining Zimbabwean nationals who do not have a current Zimbabwean passport and who are unwilling to return voluntarily. It also raises questions about the practice of pursuing prosecutions of such individuals under s.35 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”) for, essentially, declining to accept voluntary return.

A briefing note on the case can be found here.

 

Case summary:

Mr Babbage came to the UK as a child in April 2003 and was granted leave to remain via the rules on UK ancestry. From 2008 to 2011 he “built up a serious criminal record” (§28) culminating in May 2011 with a conviction for robbery, for which he received a 2 ½ year sentence. The Probation Service assessed his risk of harm as “medium”. In 2012, after his conditional release date, he was granted immigration bail but shortly after release he breached his bail conditions and the conditions of his licence and was recalled to custody to serve the remainder of his sentence. At the end of his sentence he was held in immigration detention but was again granted immigration bail. Again, he breached his bail conditions. On 6 October 2013 he was arrested for assault but the matter was not pursued by the police. When he was released from police custody he was again held in immigration detention.

 

As at the date of the hearing on 9 December 2015, Mr Babbage had been held continuously in administrative immigration detention since 7 October 2013. The judge made clear at the outset of his judgment his view that Mr Babbage was “likely, if released, to abscond and to commit further offences” (§1). The key question was whether there was a realistic prospect of removing him to Zimbabwe within a reasonable period of time. The task for the Secretary of State in demonstrating that there was such a realistic prospect was made all the more difficult by a failure to comply with orders for disclosure and a decision not to file witness evidence (see §§5-26).

 

For a number of years, it has only been possible for the Home Office to return Zimbabwean nationals where either they have a current passport or they are willing to return voluntarily.[2]  The judge accepted that this was unlikely to change, see §95:

The Zimbabwean authorities’ position has been made clear over a prolonged period; they will not accept the return of those who do not hold a current passport other than from those willing to go back. There is nothing to suggest that stance is likely to change in the foreseeable future…

 

Mr Babbage’s Zimbabwean passport had expired. At the hearing, counsel for the SSHD accepted that in order for the Zimbabwean High Commission (“ZHC”) to issue an emergency travel document he would need to: (1) sign disclaimer indicating his willingness to return voluntarily and (2) confirm this at a face to face interview with the ZHC.

 

On a number of occasions, the SSHD had sent Mr Babbage a form IS35 “Request for co-operation with the re-documentation process”, specifying that he was required to (a) attend for an interview with the ZHC to answer questions “accurately and completely” and (b) sign the attached voluntary return disclaimer. The documents stated the SSHD’s belief that the actions “will or enable a travel document to be obtained” and “possession of a travel document will factilitate your deportation or removal”. The documents went on that “[f]ailure to comply with the requirement(s) above, without reasonable excuse, is a criminal offence punishable by up to 2 years imprisonment”. A central part of the SSHD’s case was that Mr Babbage might change his mind about voluntary return and once it was clear that he would not the SSHD could detain him pending consideration of whether he should be prosecuted under s.35 of the 2004 Act.

 

At the hearing, counsel for the SSHD was pressed on what the constituent parts of the s.35 offence would be in Mr Babbage’s case. The response was confused and included a submission that failing to complete a voluntary return disclaimer when required to do so would be an offence under s.35 whilst completing a voluntary return disclaimer when the individual did not intend to voluntarily return would also.[3]

 

The judge dealt with two important issues which occur repeatedly in such cases.

 

Firstly, whereas the SSHD had repeatedly relied upon expeditious consideration of prosecution under s.35 as justifying ongoing detention, the judge held that such consideration of s.35 prosecution was not a lawful basis to maintain immigration detention. The power could be exercised solely to effect deportation, and not to facilitate prosecution for refusing to return voluntarily. Secondly and in any event, as to s.35 prosecution, the judge concluded that if voluntary return did not reflect the individual’s true intention, then he could not properly be required to sign a voluntary disclaimer to facilitate his removal and/or he would have a reasonable excuse for not doing so. The judge stated:

74. I cannot see how it can conceivably be said that pursuit of the possibility of prosecution under Section 35 can justify the Claimant’s detention. The first principle set out by Lord Dyson in Lumba was that the Secretary of State can only use the power to detain for the purpose of deporting the person concerned. If the true purpose for detaining him was to prosecute him under Section 35, that was not a lawful exercise of the power.

75. In any event, I have the gravest doubt whether a breach of Section 35 could be made out against the Claimant. The Claimant was being asked to sign a document indicating that he intended to leave the United Kingdom. If, in truth, he did not intend to leave the United Kingdom he could not properly be required to sign the voluntary disclaimer; or to put it another way, he would have a reasonable excuse for not doing so.

 

 

Although as stated the issue of past detention was not before the Court, the judge held that there had been no realistic prospect of returning Mr Babbage to Zimbabwe since “at least, August 2015” (§2).

 

The judgment also gives important guidance as to the SSHD’s duty of disclosure/ candour. In this case, the Judge criticised the failure of the SSHD and her advisers to provide documents of their own volition, when then prompted to do so by solicitors, and when the Mr Babbage subsequently obtained an order from the Court that she disclose “all documents relevant to the reasons for the Claimant’s detention”. The SSHD failed in response to disclose all such documents, and disclosed others in redacted form which was explained on the basis that GLD took the view that they were not relevant to the areas of dispute or were sufficiently covered by other documents that had been disclosed. The Judge said that:

19… It is wholly unacceptable for those acting for the Secretary of State to ignore or disregard the orders of the Court. Furthermore, once a Judge of this Court has identified specific documents which are required to be disclosed, there is no basis for the exercise of any discretion by the Secretary of State’s advisers. If the document falls within the class covered by the Order, it must be disclosed.

20. In particular, it is not open to the Secretary of State, or her advisers, to decide that some of the documents falling within the category made subject to the Order ought to be redacted to protect some interest of the Home Office or because they do not appear, to the Secretary of State, to be relevant to the issues in the case. The Order of the Court determines relevance and disclosability.

21. If it is thought that there are grounds on which material covered by the Court Order should be redacted before it is disclosed to the other party (or, conceivably, even to the Court) then a proper application should be made for the Order to be varied to accommodate that concern. What must never happen is that those acting for the Secretary of State (or any other party) decide, off their own bat, not to disclose material subject to an order of the court because they judge it irrelevant.

22. This case concerned allegations of unlawful detention. In such cases, an especially careful approach is necessary, by those acting for the Secretary of State, to issues of disclosure. It is plain there was no such approach here.

23. It strikes me as astonishing that more than 20 years after the decision of the House of Lords in M v The Home Office [1994] 1 A.C. 377, it should be necessary to set out what are, in truth, elementary principles of constitutional law…

25. Since the hearing in this case, I have received a letter from the head of the division of GLD responsible for this case, providing a fulsome apology to the Court, confirming that training in duties of disclosure was provided to those responsible for cases such as this, and indicating that “a review of disclosure in all claims where detention within [the relevant] team which challenge use of the power of detention” had been initiated.”

 

That letter referred to at para 25 said that “This matter has been considered at the highest levels in GLD” and that “your Lordship will of course be aware of our published guidance, “Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings” (“the Hogg guidance”)”. Natalie Lieven QC, acting for GLD at the hearing on 15 December 2015, confirmed to the Court that GLD continues to comply with the Guidance (which is published at [2010] JR 177) and has no internal policy or practice departing from it (transcript, p. 8B-C).

 

 

Analysis

The judgment is likely to be of use in other cases as follows:

 

  • In challenges to immigration detention: unless a Zimbabwean national has a current passport, the SSHD will only be able to enforce removal where he/she is willing to accept voluntary return. Once it is apparent that a detainee is unwilling to voluntarily return, the detainee should be released, even where there are significant risks of absconding and re-offending/harm. As the judge said “Those risks go to, and may have a very significant effect upon, what is to be regarded as a reasonable period of detention prior to the proposed removal. But the acid test is always whether there is a realistic prospect of effecting a return.” (para 90)

 

  • In all immigration detention challenges, detention cannot be justified by reference to expeditious steps to prosecute the claimant under s.35 because he continues to decline voluntary return (or to prosecute on any other ground). The power of detention can be exercised only for the purpose of effecting deportation, where there remains a realistic prospect of doing so. This applies regardless of the strength of the prosecution case.

 

  • Someone should not in any event be referred for prosecution under s.35 of the 2004 (or threatened with prosecution) for declining to complete a voluntary return disclaimer or state an intention to return, or for declining to say at a travel document interview with their national authorities that they are willing to return voluntarily if that does not correspond to their true intention.[4] The judgment means that it is exceptionally unlikely that someone could be convicted on this basis

 

  • The guidance on candour and disclosure is useful in the numerous cases where there are failings by the SSHD/GLD in this regard, together with highlighting the importance of an order for specific disclosure in such cases, and establishing the steps that the SSHD must take should she wish to redact or withhold a document covered by such an order. The judgment also confirms that the consequences of such failings and of the failure to lead witness evidence is that adverse inferences should be drawn against the SSHD where the position in the documents before the Court is unclear.

 

 

Mr Babbage was represented by Mark Henderson of Doughty Street Chambers and Jed Pennington and Rachel Etheridge of Bhatt Murphy.

 

 

Footnotes:

[1] There was no claim for damages for historic detention before the Court, essentially in order to secure an expedited final hearing and due to inadequate disclosure meaning that it was not possible for adequately particularise such a claim.  Mr Babbage repeatedly made clear that such a claim would be pursued separately, and no objection was raised to this course.

[2] See The Queen (Mhlanga) v SSHD [2012] EWHC 1587 (Admin), in particular at §§18-20.

[3] See transcript of 9 December 2015 hearing, pp53-54 and 60-63.

[4] NB a flat refusal to attend an interview is one of the matters in s.35(2) for which an individual may be prosecuted.

No entitlement to substantial damages where claimant could and would lawfully have been detained under another power

By Laura Dubinsky

Lee Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 marks a significant extension of the no loss/ no substantial damages principle.

The Supreme Court has previously held, in the context of detention under the Immigration Acts, that there is an entitlement only to nominal damages where the authority to detain is flawed by material public law error but detention would have been inevitable even had the error not been committed (Lumba and Mighty [2011] UKSC 12, [2011] 2 WLR 671; Kambadzi [2011] UKSC 23, [2011] 1 WLR 1299). The rationale is that the purpose of damages, other than exemplary damages, is to compensate loss actually suffered. See for example the discussion in Lumba and Mighty at §95 per Lord Dyson, §176 per Lord Hope, § 254 per Lord Kerr; see also Lord Blackburn’s dictum from Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 at 39 ‘that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation’.

In Bostridge v Oxleas, the Court of Appeal (the Chancellor; Vos and Christopher Clarke LJJ) upheld the order of the Administrative Court awarding only nominal damages of £1 to a mentally disordered patient who had been unlawfully detained in hospital for 422 days.  The appellant was a schizophrenic who had been detained under s.3 Mental Health Act.  He was made subject to a flawed Community Treatment Order; the NHS then purported to recall him to hospital under s.17E (6) Mental Health Act.  There was no power to hold him. Throughout the appellant’s detention, his readmission to hospital would have been indicated under s.3 Mental Health Act, although this would have required actions by third parties (two medical practitioners and either the patient’s nearest relative or an approved mental health professional).  The Court reasoned that the appellant had suffered no compensatable loss and so was entitled to substantial damages neither at common law nor under Article 5(5) ECHR.

Bostridge v Oxleas represents a double extension of the no loss/ no substantial damages principle: first, to cases in which there existed no power to detain; and second, to cases in which the hypothetical lawful detention would have required actions by third parties. It is the latter extension (third parties) that is particularly problematic. It involves the court in an extended hypothetical exercise involving the possible actions of multiple potential detainers; and has the unattractive consequence that for as long as a person could and would be detained under one power, he can be unlawfully detained under any other power (or without power at all) without entitlement to substantial damages for the detainee nor real sanction for the detainer. The case may revive the debate concerning vindicatory damages (whether there may be some intermediary form of damages to sanction unlawful detention even where no loss has been suffered).  The particular facts (£1 for 422 days) also vividly illustrate Lord Brown and Lord Rodger’s warning in their dissenting judgment in Lumba and Mighty that the award of only nominal damages would devalue the constitutional protection of the tort of false imprisonment.

Recent reports and reviews: immigration detention and the mentally ill

By Alison Pickup and Martha Spurrier

The last few weeks have seen a flurry of activity around immigration detention, particularly in relation to the key issue of the treatment of mentally ill detainees in detention. On 3 March 2015 the APPG on Refugees and the APPG on Migration published their Report of the Inquiry into the Use of Immigration Detention in the United Kingdom. As well as recommending that there should be a 28 day time limit on immigration detention, that detention should be “very rare” and that alternatives to detention should be utilised more readily, the report found that healthcare professionals dealing with mentally ill detainees do not have the training or resources necessary to identify and treat mental illness in detention and that the Rule 35 procedure is failing to protect vulnerable detainees. The panel stated that they were “particularly shocked by some of the personal testimony [they] heard of people suffering from mental health conditions who were detained for prolonged periods of time”, indicating that the evidence showed that “it is not possible to treat mental health conditions in IRCs” and that the Home Office policy of detaining people with serious mental health conditions if they can be “satisfactorily managed” in detention, “puts the health of detainees at serious risk” (p.59).

The APPG report comes less than a month after the Home Secretary announced a 6-month review into the welfare in detention of vulnerable persons on 9 February 2015. This announcement accompanied the publication of a report by the Tavistock Institute into mental health issues in immigration removal centres, a year after the report had been delivered to the Home Office, and the Home Office’s response to the recommendations made by the Tavistock Institute.

The detention of mentally ill persons in the immigration detention estate is, or should be, an issue of acute concern. In the 3 years between July 2011 and July 2014, the Home Office was found on six occasions to have breached Article 3 ECHR through the inhuman and/or degrading treatment of mentally ill persons in immigration detention. That is a shocking figure in itself, but legal representatives and NGOs will be aware of many other cases in which similar facts have suggested similar breaches, but which the Home Office has settled out of court.

Specific factors which contributed to the findings that Article 3 had been breached included the failure to properly take into account evidence of mental ill-health when reviewing detention; a failure to respond to professional assessments that detainees have become unfit for detention; failure to ensure timely transfer to hospital when needed; failure to communicate accurate and adequate information to senior decision makers; inappropriate use of force and removal from association; and a lack of proper psychiatric treatment and supervision of detainees.

The Tavistock report and the Home Office’s response to it must be seen in the context of those findings. The Tavistock report rightly recognises inadequate training and awareness on mental health issues, communication problems between healthcare staff, DCOs and casework staff, and inadequate specialist mental health professionals as key problems. The Home Office has accepted the majority of its recommendations. It has established a review to look at the care and treatment of detainees which will address many, but not all, of them.

It is striking that the terms of the reference for the review stipulate that “the review shall focus on policies applying to those in detention, not the decision to detain”. Yet as the reported cases show, a critical factor leading to the inhuman and degrading treatment of detainees is the failure of casework staff to take proper account of evidence of deteriorating mental health in their decision making, or to properly apply the Home Office’s policies on the use of detention where there is evidence of mental illness.

Delays and difficulty in communicating information contribute to the inadequacy of detention reviews but addressing those problems, and improving the care and support available to vulnerable detainees, is little more than a sticking plaster. Immigration detention is demonstrably damaging to the mental health of detainees, whether or not they are mentally unwell at the outset. The most damaging aspects include the uncertainty that goes hand in hand with potentially indefinite administrative detention with no automatic judicial oversight. No review into the welfare of detainees can hope to adequately address these repeated breaches of fundamental rights if it cannot consider the decision-making which places such vulnerable people in detention in the first place, and keeps them there for prolonged periods.

For further information see the Initial Report of the Mental Health in Immigration Detention Action Group here and its submission to the Joint Committee on Human Rights in 2013 here. The six judgments where a breach of Article 3 has been found are:

R (S) v SSHD [2011] EWHC 2120 (Admin) (5 August 2011)

R (BA) v SSHD [2011] EWHC 2748 (Admin) (26 October 2011)

R (HA) v SSHD [2012] EWHC 979 (Admin) (17 April 2012)

R (D) v SSHD [2012] EWHC 2501 (Admin) (20 August 2012)

R (S) v SSHD [2014] EWHC 50 (28 January 2014)

R (MD) v SSHD [2014] EWHC 2249 (Admin) (8 July 2014)

The review is being conducted by Stephen Shaw, formerly the Prison and Probation Ombudsman. He has written to a number of organisations seeking their input into the review and confirming that he will have some time for face-to-face meetings. Written evidence can be contributed to the review by email: IRWD@homeoffice.gsi.gov.uk. The deadline for contributions is 15 May 2015.

Detention Action win in Court of Appeal: second aspect of DFT unlawful

The Court of Appeal have found that the Secretary of State’s policy (which the court found to have been in place since 2008) of detaining individuals on DFT criteria post-decision and pending appeal is unlawful because it is not sufficiently clear and transparent, and even if it had been clear, that there is no Saadi justification for this period of detention.

Sonal Ghelani of the Migrants’ Law Project, the solicitor acting for Detention Action, said:

It appears that the Home Office has been detaining asylum seekers unlawfully for their appeals for the last six years.  It cannot be right or fair that the Home Secretary, as a party to an appeal, is entitled to detain her opponent when the effect of detention is to make the appellant’s conduct of the appeal much more difficult and therefore to make it less likely that he or she will be successful.”

A summary of the 4th  judgment and the full text are available below.

Summary of Judgment

Detention Action – 16 Dec 2014

Nathalie Lieven QC and Charlotte Kilroy of Doughty Street Chambers, instructed by the Migrants’ Law Project, represent Detention Action.