The Claimant’s situation came to light when he instructed Duncan Lewis Solicitors in his bail matter in July 2018. The case concerns a challenge to the lawfulness of detention of a foreign national offender with accepted mental illness. It also deals with the correct procedural operation of Rule 35 of the Detention Services Rules, safeguarding vulnerable individuals, as well as the operation of unpublished policy relating to internal case progression panels.
The Claimant is an Algerian national. He was convicted of theft and served a sentence in prison. On the expiry of the custodial term, he was detained in an immigration detention centre pursuant to paragraph 2(2) of Schedule 3 to the Immigration Act 1971 ("the 1971 Act") pending deportation from the United Kingdom.
The Claimant argues that his detention was, or became, unlawful because deportation was not imminent. Additionally, his detention breached relevant policy provisions because he was an adult at risk as a result of his mental health issues dating from 16 February 2018, and should not have been detained. The Defendant also failed to send a defective report prepared pursuant to rule 35(3) of the Detention Centre Rules 2001 back to the relevant doctor for further information about the effect of detention on him.
By 13 July 2018, a clinical psychologist had identified that detention was detrimental to our client’s mental health. Therefore continued detention after that date was contrary to relevant guidance and the Home Office had failed to put in place a system ensuring vulnerable persons were not detained.
The bail judge noted that the client had been detained since January 2018, a considerable period, and there had been a failure to process his asylum claim since then. The judge was shown evidence that the Claimant’s mental and physical health had deteriorated in detention.
At the bail hearing, the Home Office produced decisions refusing and certifying as unfounded the Claimant’s asylum and human rights claims. The Home Office further stated that it was actively pursuing documentation from the Algerian Embassy which would permit the Claimant’s deportation, thereby rendering the detention lawful.
The evidence of contact with the Algerian Embassy was limited and indicated inaction and delay. The Home Office later accepted that the emergency travel document application pack was never sent to the Algerian consulate and the request to them for an update was sent in error.
Judicial review proceedings were issued, contending that detention had become unlawful because deportation was not imminent and there was a breach of policy in relation to the detention of adults at risk. The Claimant was known to be mentally ill from February 2018 and the Defendant failed to take action when a defective report under rule 35(3) was produced.
Permission for judicial review was granted but following the full hearing, Mr Justice Lewis held that the Claimant’s detention was unlawful for two days only, from 14 to 16 August 2018, as there was a delay in acting on a rule 35(1) report which was produced on 10 August and required a response within two days. The judge also noted that he would hear submissions in relation to assessing the amount of damages payable for the two days of unlawful detention.
The Claimant has applied for permission to appeal to the Court of Appeal.
The client was represented by immigration solicitor Vilash Gami, under the supervision of director Zofia Duszynska. Counsel instructed in the matter is Alison Harvey of No5 Chambers.