United Kingdom: High Court of Justice, Queen's Bench Division, Administrative Court, Case EH, R v. the Secretary of State for the Home Department, [2012] EWHC 2569

Friday, October 4, 2013

The Claimant applied for asylum based upon his account of an attack during the Rwandan genocide and subsequent events.  The Home Secretary refused the application and the Claimant appealed. At the appeal he was unrepresented and he adduced no medical evidence.  The Immigration Judge dismissed his appeal, disbelieving the entirety of his account. Once his appeal rights had been exhausted, the Secretary of State detained him on 19 October 2010 for the purpose of removal. At the time of detention he suffered from depression and post-traumatic stress disorder (PTSD). His mental health deteriorated during five months of detention, evidenced by acute episodes of PTSD and attempted suicide, and he was eventually released on 1 March 2011. Subsequently, the Defendant cancelled removal directions and granted the Claimant discretionary leave to remain (paragraphs 7-106).

The Judge held that the Defendant had acted unlawfully in failing to consider whether the Claimant should still be detained, under the terms of her policy, even though he was suffering from a serious mental illness from 4 November 2010 onwards.  The Defendant should have been able to evaluate the relevant evidence by 16 November 2010 and so detention became unlawful from this date onwards. Nevertheless, the Judge also stated that had the Defendant properly applied her policy, continued detention would have been justified and lawful, given that the Claimant’s mental illness, albeit “serious”, could be satisfactorily managed in detention (paragraphs 157-159).

Regarding compliance with the ECHR, a breach of Article 5 (right to liberty) was found to have taken place, but only in terms of the periods where the Judge had found that detention was unlawful under traditional public law grounds because of the Article 5(1) requirement that deprivation of liberty be ”in accordance with a procedure prescribed by law”.  In respect of Article 8 (right to family and private life) under the Defendant’s concession that the Claimant’s detention from 29 December 2010 was unlawful, detention from this point was not in accordance with the law as required by Article 8(2).  Furthermore, in light of the Defendant’s concession that it was not appropriate to detain the Claimant for the legitimate purpose of implementing a firm and effective immigration policy, detention was also disproportionate.(paragraphs 179-183) A more detailed analysis was undertaken in respect of Article 3 (inhuman and degrading treatment / torture) .The Judge rejected the Claimant’s arguments and held that there had been no breach.  The Judge made clear that it did not follow from the Defendant’s concession that continued detention from 29 December 2010 was unlawful, that there was a breach under Article 3, since the legal tests are quite different.The Judge stated that it was the ongoing threat of imminent removal to Rwanda which triggered the Claimant’s acute episodes of post-traumatic stress, rather than detention itself.  Even where there was expert evidence to show that, despite the care available, detention was exacerbating the Claimant’s mental illness, it did not follow that the Claimant was subjected to inhuman or degrading treatment or punishment. Reference was made to the recognition by the European Court of Human Rights that a degree of suffering is an inevitable consequence of detention; the question the Court has to go on to determine is whether any additional level of suffering by a mentally ill detainee amounts to inhuman or degrading treatment.  A decisive factor in the Judge’s conclusion that there was no breach of Article 3 was the high standard of care which he received in detention (paragraphs 184-220).

The High Court  ruled that the failure to consider the continued detention of a mentally ill failed asylum seeker in accordance with immigration policy rendered his detention unlawful in part (paragraph 255).

For the full text of the judgment please visit: Bailii: EH, R v. the Secretary of State for the Home Department, [2012] EWHC 2569

For a relevant blog post on the judgment please visit: UK Human Rights Blog: Back in the spotlight: The detention of mentally ill asylum seekers

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Personal circumstances of applicant
Inhuman or degrading treatment or punishment