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The forgotten: Legal Limbo Faced by Asylum Seekers requiring Mental Health support (17 August 2017)

Date: 17/08/2017
Duncan Lewis, Main Solicitors, The forgotten: Legal Limbo Faced by Asylum Seekers requiring Mental Health support

Many migrants with no status that have fled their country of origin due to torture, violence and/or the fear of persecution will escape to countries which are globally perceived as havens of justice, equality and liberty.

One such example of these perceived ‘havens’ is the U.K. However the experiences of these vulnerable individuals when they arrive in this country, many of whom have developed mental health issues as a result of their experiences, tell a different story.

The sad reality is that these individuals are often passed between different governmental departments with incompatible objectives. The inconsistent views of various departments often leave these vulnerable individuals in administrative limbo, which in turn can have a profound impact on their already strained mental health. This article in particular reviews the plight of migrants with no status who are suffering from mental health issues and their treatment by the U.K government upon arrival.

Immigration law stipulates that persons with a ‘serious mental illness which cannot be satisfactorily managed within detention’ should be detained ‘only in very exceptional circumstances’. It further stipulates that the more suitable alternative to detention in an Immigration Removal Centre (IRC) should be a transfer to a mental health hospital, where the risks can be appropriately managed.

Many asylum seekers flee their country of origin because of persecution, and have developed mental health issues as a result of either the fear and distress related to this, or the traumatic experiences that they have suffered during their arduous journey to a safe country like the UK. Upon arrival in the UK, these individuals are expected to immediately make a claim for international protection, by trusting and disclosing sensitive and personal information to the UK authorities i.e. Secretary of State for the Home Department (SSHD).

Where there is a real and current threat of violence or persecution due to the current situation in their home country, the SSHD will inevitably grant the individual international protection. But what happens to these vulnerable individuals, whilst they are awaiting a decision on their asylum claim?

The SSHD gives themselves a time estimate of 6 months to process claims. However, due to a pressure on resources, the length of time that the SSHD takes to make a decision on a claim has recently increased exponentially. If, in accordance with the current legislation, it is recommended that such individuals should be detained in mental health institutions rather than IRC’s, it is important to consider what impact the current immigration policy has on mental health services, and whether the law as it stands today protects the human rights of some of society’s most vulnerable individuals.

Where individuals are awaiting a determination of their claim, the uncertainty they feel may have a detrimental impact on their mental well-being, even if they are in a hospital setting. This is due to the fear of being returned to a country from which they have fled persecution, and the prospect of receiving no treatment and therapy to deal with their issues of anxiety, depression and Post-Traumatic Stress Disorder once discharged from hospital.

Migrants without status in the U.K, who are subsequently detained in mental health institutions and apply for release from the hospital via the process of a Mental Health Tribunal (MHT), may face insurmountable obstacles in attempting to secure a release from the institution, no matter how stable their mental state has become. This is because the clinical treating team and MHT panels are unable to make fully considered decisions regarding the necessity of the person’s continued detention. Part of the decision-making process is to contemplate the risks that the individual may pose were they to be discharged from hospital into the community; and where a mental health patient has no leave to remain in the U.K, they are not entitled to aftercare or community support upon discharge from hospital.

Furthermore, the risk assessment will not only be based upon the provision of support available to the person were they to be discharged from hospital, but also their ongoing compliance with medication and/or therapy in the community, as this is vital for their recovery and relapse prevention strategy upon discharge. Inevitably, where there is no appropriate aftercare support available in the event that they leave hospital, which is often fundamental to maintaining recovery in the community, it is highly unlikely that they will be discharged. This causes the MHT to become a futile exercise in maintaining the patients’ rights to liberty.

Consequently, although the individual may have applied for asylum in the U.K, without a decision from the SSHD the patient is likely to remain liable for detention within a mental health institution without any fixed timeframe, in order to manage the risks associated to their diagnosed disorder. This could ultimately mean that a mentally disordered migrant patient with no status, who is currently in a stable mental state, could be detained for months, despite regular requests to the SSHD by practitioners to determine their status and entitlement to aftercare in the community.

The tribunal do have the power to defer discharge to a future specified date in order to allow preparations to be made for a patient’s return to the community. However, if aftercare arrangements cannot be put in place because the person is not entitled to this provision of care, the tribunal cannot make such a recommendation, again undermining the procedural efficacy of the judicial process.

Furthermore in the case of R. (on the application of H) Ashworth Hospital Authority [2002] EWCA Civ 923; [2002] M.H.L.R. 362, at paragraph 68 Lord Justice Dyson stated that:

‘If the tribunal had any doubt as to whether [after-care] services would be available they should have adjourned to obtain any necessary information…I regard the alternative of deferral…as less satisfactory…[where there is] doubt as to whether suitable after-care arrangements will be available, it is difficult to see how they can specify a particular date for discharge. In cases of doubt, the safer course is to adjourn.’

But again this would be an ineffectual exercise should cases be adjourned for lengthy periods of time, as this would be in contravention of the patient’s Article 5 & 6 Convention rights, given that in recent months the SSHD has failed to adhere to their own time estimate (i.e. 6 months) as to when to decide on a claim.

Additionally, any recommendations made by a tribunal will be non-legally binding and cannot coerce the SSHD into action in determining the asylum seekers claim, accordingly judicial discretion in relation to recommendations will usually err on the side of caution, and is unlikely to be utilised in cases of this nature, as it would not have any real impact on the migrant patient’s asylum claim for protection.

Consequently , although the patient may now be at a stage where they are ready to be discharged into the community as ‘the least restrictive option’; a fundamental principle underlying the Mental Health Act, the medical professionals and MHT panel members have no choice but to uphold the migrant patient’s section status in hospital, no matter the impact that continued detention in a mental health institution may have upon their stable mental state, particularly given that the SSHD do not follow their own recommended guidance on timescales for resolution of the claim.

Although it is accepted that the SSHD’s objective for the cases of vulnerable individuals is to have their claims prioritised and determined more speedily, in reality there is usually still a considerable delay in processing the case prior to the final determination. Guidance has been provided by the Courts in relation to the issue of delay in the case of R(FH) v SSHD [2007] EWHC 1571 (Admin). The lead judgement from Mr Justice Collins gave guidance as to when the delay of making a decision by the SSHD would be considered unlawful:

8. What is reasonable will depend on the circumstances. It is not possible for the court to say that a particular period of time should be the limit of what is reasonable. In MM v Secretary of State for the Home Department [2005] UKIAT 00763, the Asylum and Immigration Tribunal was faced with a not particularly unusual case where a claimant who had fled Kosovo in 1998 had not had his asylum claim dealt with until 2005. At paragraph 7, the Tribunal decision stated:-

"The reasonable time-limits for a decision on an asylum claim has been taken in a number of cases by the Tribunal as 12 months."

The appeal related to an initial claim to asylum but, even so, I do not think that 12 months should be regarded as any sort of bench mark. No doubt, delays of 12 months or more in dealing with an initial claim to asylum may well need an explanation, but, provided the approach of the defendant was based on a policy which was fair and applied consistently; such delays could not be regarded as unlawful.

9. In R (Noorkoiv) v Secretary of State for the Home Department [2002] 4 All ER 575 the Court was concerned with a Article 5(4) of the European Convention on Human Rights 1953 (ECHR). and the requirement for a speedy determination of the lawfulness of detention. In such a case, lack of resources could not be relied on by the defendant. Buxton LJ referred to counsel's recognition that she could not dispute that the Strasbourg Court would not regard the failure to provide the necessary resources as a defence to a claim that there was a breach of Article 5(4).

In Noorkoiv the point was based on the provision of insufficient resources by other government departments, but here there is only the Home Office which is responsible. Article 5(4) imposed, as Buxton LJ put it at paragraph 25, "a more intense obligation than that entailed in the need for a prompt trial of people who are not in custody." In accordance with Article 6(1) of the ECHR.

In Procurator Fiscal v Watson [2002] 4 All ER, the Privy Council considered the 'reasonable time requirement'…It was said that the threshold of proving a breach of the reasonable time requirement was a high one, not easily crossed, and unless the period of delay was one which, on its face and without more, gave grounds for real concern it was almost certainly unnecessary to go further.

11. As was emphasised by Lord Bingham, the question was whether delay produced a breach of Article 6(1). Here the question is whether the delay was unlawful. It can only be regarded as unlawful if it fails the Wednesbury test and is shown to result from actions or inactions which can be regarded as irrational. Accordingly, I do not think that the approach should be different from that indicated as appropriate in considering an alleged breach of the reasonable time requirement in Article 6(1).

What may be regarded as undesirable or a failure to reach the best standards is not unlawful. Resources can be taken into account in considering whether a decision has been made within a reasonable time, but (assuming the threshold has been crossed) the defendant must produce some material to show that the manner in which he has decided to deal with the relevant claims and the resources put into the exercise are reasonable.

That does not mean that the court should determine for itself whether a different and perhaps better approach might have existed. But the court can and must consider whether what has produced the delay has resulted from a rational system. If unacceptable delays have resulted, they cannot be excused by a claim that sufficient resources were not available. But in deciding whether the delays are unacceptable, the court must recognise that resources are not infinite and that it is for the defendant and not for the court to determine how those resources should be applied to fund the various matters for which he is responsible.


As provided in the lead judgement above, there must be exceptional circumstances in a claim whereby the delay of making a decision would be considered unlawful and the SSHD should consider the claim as an urgent matter, for example where the delay has a detrimental impact on the individual. However, despite the continued efforts of practitioners to urge the SSHD to make a decision within a reasonable time frame, the consideration of what is deemed as ‘reasonable in the circumstances’, in practice can often amount to years.

Accordingly, a migrant with no status suffering from a mental disorder with a pending claim, would be in a position where they are very unlikely to be entitled to a discharge from hospital. This is due to the fact that although the individual may be in remission of their symptoms due to their treatment in hospital, without the continuous provision of regular doses of prescribed medication and the appropriate aftercare support in the community, it will not be safe for them to be discharged.

Alternatively, in the event that the patient is considered fit for discharge from hospital prior to the determination of their claim, it is likely that they will be detained in an IRC, because the SSHD are likely to consider their removal as imminent. In the event that the migrant with no status is further detained in an IRC upon discharge, it is highly probable that further incarceration will have a profound detrimental impact upon their mental well-being and recovery. This could lead to a relapse of their disorder, and further re-admission to a mental health institution, which would be counterproductive. Accordingly, the option of discharge could be just as undesirable a choice for the treating team and MHT panels as continued detention in hospital when the patient is mentally stable.

In practice, migrants with no status to remain in the UK who are detained in mental health institutions are not entitled to healthcare provisions upon discharge from hospital, which means that they may never be considered suitable for discharge until there is a determination of their claim, and that could take years. This is in direct contravention of their Article 3 & 5 ECHR rights, and makes a fallacy of their Article 6 ECHR right to a review of their detention in hospital.

The scenarios detailed herein make painfully clear the ways in which the UK government is systematically failing to provide healthcare provision to the most vulnerable and traumatised individuals within our society, many of whom are children and victims of persecution and torture. For fleeing migrants who have lost everything, including their job, their home and members of their family, they arrive in this country to then be denied their basic human rights. The government is failing to provide access to services and justice for migrants with no status that have nowhere left to turn, and upon arrival they are denying them their last refuge of safety and with that their last hope.

Written by Pardeep Biring and Phong Ma

Pardeep Biring specialises in Mental Health and Court of Protection matters throughout the company’s West and East Midlands offices. Pardeep provides comprehensive representation and advice in relation to complex mental health and mental capacity matters. She is experienced in representing clients before Mental Health Tribunals and in relation to mental capacity matters before the Court of Protection.

Phong Ma is a supervising solicitor in the Duncan Lewis Immigration Department in the Leicester office. Phong deals with a variety of immigration cases and is expert in representing vulnerable clients. Phong is experienced in providing specialist assistance and advice in relation to complex asylum claims, asylum appeals, deportation cases and Judicial Review claims.

Duncan Lewis Immigration Solicitors

Duncan Lewis Immigration Solicitors are one of the UK’s leading firms of immigration specialists and are able to advise vulnerable clients at all levels in all aspects of immigration, asylum/human rights and nationality matters. Duncan Lewis immigration lawyers can also advise on the Modern Slavery Bill, UK immigration law and the Human Rights Act. There are Duncan Lewis offices nationwide and in most major cities. Our specialist immigration solicitors will be able to advise individuals on any changes to UK immigration law during Brexit negotiations and post Brexit. The firm’s Immigration practice was recommended by Legal 500 UK 2016 as a Top Tier Immigration Practice in London and Wales and as a Leading Immigration Practice in the Midlands area respectively.

For expert advice on immigration law, call Duncan Lewis immigration solicitors contact for the Midlands Phong Ma (Supervisor) on 02070147317 and for London on 0333 772 0409.

Duncan Lewis Mental Health Solicitors

Duncan Lewis is the UK’s largest provider of Legal Aid mental health services and can advise mental health patients on a wide range of issues – including access to NHS mental health services and detention under the Mental Health Act. Duncan Lewis mental health solicitors regularly visit NHS hospitals to advise on mental health law – and are available across England and Wales at short notice for hospital and police station appointments. In some cases, Duncan Lewis mental health solicitors may be able to advise the nearest relative or carer of a mental health patient on a range of issues, including initiating treatment reviews where appropriate.

For expert legal advice on mental health law, call the Duncan Lewis Mental Health Solicitors Helplines; for London, Rachel Caswell (Director) on 0207 275 2793 or Midlands helpline; Pardeep Biring (Supervisor); 0207 923 8496.

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