In this case, unusually, the High Court has issued a judgment following an application for an interim order. The claim challenges EK’s detention under immigration powers in HMP Leicester since 11 April 2019, a period of more than one year and two weeks. It raises pressing and important points concerning the Defendant’s duties toward detainees with mental health issues held in prisons who lack litigation capacity, including her duties to secure, within a reasonable time, suitable accommodation for release.
EK has a long history of mental heath issues. A professor of Clinical Psychiatry has diagnosed him with Schizotypal Disorder and Mixed Personality Disorder. No less than four medical professionals have assessed him to be so unwell that he lacks litigation capacity.
Over 12 weeks ago, on 13 March 2020, the First-tier Tribunal (FtT) granted EK bail in principle, subject to the provision of an address. On 21 April 2020, the Defendant accepted the Claimant’s eligibility for accommodation under s.4(2) Immigration and Asylum Act 1999. The Defendant has not provided EK with accommodation and in consequence, EK is still detained, under 23-hour lock down, in prison at HMP Leicester.
EK sought to challenge his detention on five grounds:.
Ground 1: EK's detention breaches the third Hardial Singh principle, there being no realistic prospect of removal within a reasonable period on account of barriers to removal posed by:
- EK's outstanding appeal to the FtT, which presents a statutory bar; and
- the suspension of flights to Sierra Leone due to the Covid-19 pandemic;
: EK's detention breaches the second Hardial Singh
principle, the reasonable period having already expired;
the Secretary of State has failed to take reasonable steps to secure accommodation and/or there has been unreasonable delay in the provision of accommodation;
: the Secretary of State has breached the Equality Act 2010 and/or has breached her common law duty of enquiry in respect of continued detention; and
: the Secretary of State has breached the Equality Act 2010 in relation to release arrangements and/or accommodation under section 4 of the 1999 Act.
Permission was granted on all grounds. The Honourable Mr Justice Murray concluded that:
Having attempted carefully to balance the foregoing factors, I consider that some form of interim relief is necessary. It would, however, be wrong to issue an order that cannot practically be complied with or that would force the Secretary of State to release EK to accommodation that is not wholly suitable given his complex needs.
Immigration bail having been approved in principle by the FTT, as well as support under section 4 of the 1999 Act by the Secretary of State, the Secretary of State should continue using best endeavours to source suitable accommodation. I propose to make an order to that effect, requiring the Secretary of State to provide a statement to the court on or before a date falling two weeks after the date of the order confirming that suitable accommodation has been found or, if not, detailing the steps that have been taken during that period to find suitable accommodation and explaining why those steps have not been successful. The order will require further weekly reports until suitable accommodation is found or further order. I will reserve this matter to myself and will, if necessary, direct a further hearing to consider the position and whether a further order is necessary. Given the length of time that EK has been in detention, I will also order expedition of his claim.
The judgment confirms that SSHD has a ‘special duty’ to ensure no unnecessary delay in cases where there is a medical need for release to accommodation. It was confirmed that there is a duty on the SSHD to use reasonable endeavours to provide a release address.
Public Law director Bahar Ata
and solicitor Ruth Karimatsenga
instructed Grace Capel and Stephanie Harrison QC of Garden Court Chambers.