On 25 April 2019, the European Court of Human Rights (ECtHR) handed down judgment in the case of VM v UK (No 2) (Application no. 62824/16). The Court found that deficiencies in the detention review of a person suffering from mental health problems held in immigration detention did indeed amount to a breach of her right to liberty and security under Article 5 of the European Convention on Human Rights (ECHR). The judgment proclaimed a violation of Article 5 in VM’s detention from 4 March 2011 to 6 July 2011 and awarded her 3500 euros in damages.
This judgment, along with the earlier ECtHR judgment in the case of VM v UK (No 1) (Application no. 49734/12), handed down on 1 September 2016 (which also found a violation of Article 5 of the ECHR in VM’s detention from 19 June 2009 to 14 December 2009) brought VM’s long running challenges to a conclusion on the lawfulness of her detention for almost three years.
VM was sentenced to 12 months imprisonment for the offence of child cruelty on 21 July 2008. She also pleaded guilty to failure to surrender to bail and was sentenced to three months to be served concurrently and the judge made a recommendation for her deportation to Nigeria.
The Secretary of State for the Home Department (SSHD) decided to deport VM on 5 August 2008. She was due to be released from prison on 8 August 2008 due to time already served, but she was held in detention under immigration powers and remained in immigration detention until she was released on bail on 6 July 2011, almost three years, or more specifically, two years, ten months and 27 days later.
VM began her challenge against her detention on 16 December 2009 by way of judicial review. Her application was dismissed by the High Court, as the hearing took place on 22 and 23 July 2010, the High Court only considered VM’s detention from the duration of 8 August 2008 to 22 July 2010.
The Court of Appeal (OM v SSHD  EWCA Civ 909) allowed her appeal to the extent that it was accepted that the SSHD had detained VM unlawfully from 8 August 2008 to 28 April 2010. The court established that this was on account of the SSHD’s failure to consider guidance on the detention of mentally ill persons in the published policy on immigration detention. However, the Court also found that VM had suffered no loss, since she would and could have been detained in any event in the lawful exercise of the power of detention. She was awarded nominal damages, in the sum of £1.
Subsequently, the Supreme Court refused permission to appeal. VM then appealed to the ECtHR, maintaining that her detention had been arbitrary, which eventually resulted in the judgment of VM v UK (No 1). The Court found a violation of Article 5 of the ECHR in VM’s detention from 19 June 2009 to 14 December 2009. The court ruled that this was due to a failure of the SSHD to conduct the domestic proceedings with appropriate “due diligence”.
This litigation only dealt with VM’s detention up to 22 July 2010 and therefore a separate judicial review was lodged on 4 October 2011 to challenge the lawfulness of VM’s detention from 23 July 2010 to her release on 6 July 2011. Permission to apply for judicial review was refused and an appeal was made to the Court of Appeal. The Court of Appeal found that there had been errors in the reviews of VM’s detention, especially with respect to further medical evidence. The court also found that the SSHD had unlawfully failed to apply her detention policy, but that a lawful application of the policy would not have secured VM’s release any earlier than her actual release on bail.
The Supreme Court granted permission to appeal and they came to the same view as the Court of Appeal that the refusal to release VM was procedurally flawed. However the Court dismissed her appeal on the basis that if her case was permitted to proceed, the likelihood would be a declaration that her detention from 4 March 2011 to 6 July 2011 was unlawful and that she would be awarded damages in the sum of £1 (O v SSHD  UKSC 19).
Ultimately, VM appealed to the ECtHR which resulted in the judgment of VM v UK (No 2), where the Court found a violation of Article 5 of the ECHR. It was ruled that VM’s detention was unlawful from 4 March 2011 to 6 July 2011 due to the deficiencies in her detention reviews. The ECtHR also noted that it was not necessary for the domestic courts to remedy VM’s situation, as by the time they examined the case she had already been released.
Therefore, a major point in question for the ECtHR was whether; in refusing her appeal to challenge the unlawfulness of her detention, would VM be entitled to nominal damages and had the UK courts afforded VM sufficient redress. The ECtHR established that they did not offer her sufficient redress and that VM was indeed a ‘victim’ of a violation of Article 34 of the ECHR.
The detention of VM for almost three years was the equivalent of a criminal sentence of almost six years. She suffered from significant mental health issues. The domestic courts found that her detention was unlawful for a significant amount of that period, yet it was only worth £2. On the other hand, the ruling of the highest jurisdiction, the European Court of Human Rights, found that it was worth more than 7000 euros.
VM is represented by solicitor, Stefan Vnuk, of the Harrow public law department and Counsel, Hugh Southey QC of Matrix Chambers and Ranjiv Khubber of One Pump Court.