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Reported Case

Aboro, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 1436 (Admin) (23 October 2018)

Date: 23/10/2018
Duncan Lewis, Reported Case Solicitors, Aboro, R (on the application of) v Secretary of State for the Home Department [2018] EWHC 1436 (Admin)

In this case, the Secretary of State for the Home Department (SSHD) has been found to have been in breach of chapter 55.10 of the UK Border Agency Enforcement Instructions and Guidance (UKBA EIG) in unlawfully detaining the Claimant on the basis that his mental illness could not be reasonably managed in detention.

History of the Case


The Claimant is a Nigerian national of Christian faith and is 41 years of age. He left Nigeria after his wife and friend were murdered by Boko Haram as he feared for his own safety. He arrived in the UK in January 2012 on a six month’s visitor’s visa. Soon after his arrival, he attempted to travel onward to France using a false identity document. He was arrested and convicted of this offence. He was served with a deportation order pursuant to section.32 (5) of the UK Borders Act 2007.

The Claimant was detained under immigration powers from 6th August 2012 until 23rd September 2013. Throughout his time in detention, the Claimant presented as suicidal and was placed on constant watch. On numerous occasions he refused food and fluid for prolonged periods. The treating clinicians in immigration detention and the medical experts instructed by the Claimant’s solicitors were in disagreement in respect of whether the Claimant was suffering from a mental illness.

The Claimant’s Case

The Claimant argued that his detention was unlawful on the basis of the following grounds:

  1. The Claimant’s primary ground was that he was suffering from a serious mental illness which could not be satisfactorily managed within detention. He argued this was contrary to the SSHD’s policy Chapter 55 (Detention and Temporary Release) of the UKBA EIG which states that "those suffering serious mental illness which cannot be satisfactorily managed within detention" should only be detained in "very exceptional circumstances". The Claimant argued that the SSHD did not address whether the policy applied in the Claimant’s case and had acted in breach of the policy.
    1. In the context of the primary ground above, the Claimant raised an issue as to the intensity of review to be adopted by the court when reviewing the SSHD’s decision refuting that the Claimant was suffering from a serious mental illness which could not be satisfactorily managed within detention. The Claimant submitted that no lawful, rational or reasonable decision maker could determine that a mental illness as satisfactorily managed if it was progressively deteriorating within detention and/or detention is maintaining the condition and/or impeding recovery. The Claimant accepted that the standard of review to be applied by the Court is Wednesbury but that the intensity of review must vary with the context, which in the Claimant’s case is one which requires a more intense level of scrutiny into the rationality of the SSHD’s decision.

  2. Secondly, his continued detention breached one or more of the Hardial Singh principles.

  3. Thirdly, his detention was in breach of Article 3 of the European Convention on Human Rights.

Judgment

Deputy High Court Judge Karen Steyn QC accepted the Claimant’s primary claim that his detention was unlawful; she did not consider that his illness could be managed satisfactorily in detention and concluded that the SSHD was in breach of chapter 55.10 of the UKBA EIG. Therefore, the Claimant’s detention was procedurally flawed and unlawful. However, DHCJ Steyn QC ruled that the Claimant should be awarded nominal damages because had the SSHD considered Chapter 55.10 then he would have been detained lawfully in any event.

DHCJ Steyn QC did not determine the issue in respect of the intensity of review to be adopted by the Court when reviewing the SSHD’s decision regarding the Claimant’s mental health and the management of such within detention, on the basis that the SSHD did not address the question, so there was no such decision to be reviewed on rationality grounds.

In relation to any breach of the Hardial Singh principles, DHCJ Steyn QC found that the SSHD had been reasonable to believe that the Claimant’s removal was imminent for the duration of his detention.

When referring to ground 3, DHCJ Steyn QC used the judgment in R (VC) v Secretary of State for the Home Department to form her decision, recognising that where a high level of ‘severity’ can be evidenced in relation to the SSHD’s failure to meet their positive protection duty, the breach is valid. DHCJ Steyn QC did not find the severity level to be high enough to merit a breach in this and so dismissed this ground.

It is clear from DHCJ Steyn QC’s ruling, that though it appeared to be a relatively straightforward deportation case, the SSHD did neglect her positive protection duty to assess the Claimant’s continued detention with reference to whether his mental health could be appropriately managed in detention. In doing so, this case has demonstrated that chapter 55.10 of the UKBA EIG must be considered with the utmost scrutiny to justify detention and it will influence future cases with similar merits.

Representation

The Claimant was represented by Sonali Naik QC and Irena Sabic, of Garden Court Chambers, who were instructed by Ahmed Aydeed and Rachael Davis, of Duncan Lewis Solicitors.

 

Find full details of this case on Bailii’s website here.
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