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Damages for asylum-seeker unlawfully detained and deprived of medication in detention in R (On the Application Of) Adegun v Secretary of State for the Home Department [2019] EWHC 22 (Admin) (25 January 2019)

Date: 25/01/2019
Duncan Lewis, Main Solicitors, Damages for asylum-seeker unlawfully detained and deprived of medication in detention in R (On the Application Of) Adegun v Secretary of State for the Home Department [2019] EWHC 22 (Admin)

This case provides another insight into whether a detained asylum system can be operated fairly and without detriment to detainees. In a ruling handed down on 10 January 2019, Nicholas Paine QC concluded that the Home Office failed to carry out Rule 34 assessments within 24 hours of the Claimant’s arrival at two separate detention centres and that as a result, Mr Adegun, had been unlawfully detained and deprived of his medication.

History of the case

In this case, Mr Adegun was detained at the end of November 2015 after police were called to an incident. He had entered the UK legally but had overstayed his visa and become ill. By the time of his detention, he was receiving treatment for bipolar disorder and took daily medication to manage his condition. He did not have his medication with him when he was detained at Campsfield IRC.

The Detention Centre Rules (Rule 34) require a medical examination to be carried out within 24 hours of arrival by a doctor, but Mr Adegun did not receive a medical examination. This occurred seemingly because he was moved to another room and did not receive notification of his appointment. Mr Adegun informed the IRC of the medication he required but did not receive it.

In early December 2015 Mr Adegun claimed asylum, was placed on the Detained Asylum Casework process and transferred to Harmondsworth IRC. No medical records from Campsfield accompanied his transfer and it transpired later that these were lost. At Harmondsworth, Mr Adegun once again did not receive a Rule 34 examination. He was unable to attend his GP appointment as it clashed with his screening interview. He told the interviewing officer that he had been ‘Depressed. Admitted to Newham Hospital for 2 months for depression. On medication: Olanzapine’ but no action was taken.

Mr Adegun did not see a GP until 5 January 2016, the date of his asylum interview. The GP asked for further information but did not prescribe medication. On 8 January, Mr Adegun’s legal representatives challenged his suitability for detention under Chapter 55 EIG. Paragraph 55.10 states that those suffering from serious mental illness which cannot be satisfactorily managed within detention should only be kept in detention in very exceptional circumstances. A Rule 35 examination was urgently requested by Mr Adegun and his representatives. The purpose of a Rule 35 is to report on patients who may be victims of torture or whose health may be injuriously affected by detention. On receipt of a report under Rule 35, the Secretary of State (SSHD) is required to respond and review the suitability of detention in the light of the findings. In Mr Adegun’s case, all detention reviews conducted up to that point had considered that he was fit and well and there were no concerns about his detention, despite the lack of medical examination and his repeated reference to his pre-existing mental health issue.

The Rule 35 report was submitted by a doctor on 9 January stating that Mr Adegun’s health was likely to be injuriously affected by detention. On 13 January, the SSHD responded, disagreeing and stating that there was no reason Mr Adegun’s case could not be satisfactorily managed in detention. His asylum claim was refused and certified as unfounded. It was only when serious concerns were raised by his legal representatives and by IRC staff about the deterioration in Mr Adegun’s health that he saw a psychiatrist on 19 January 2016 and received medication. A further detention review on 21 January concluded that his case could still be satisfactorily managed in detention, although Mr Adegun was in the midst of a psychotic episode and experiencing auditory and visual hallucinations. It transpired that his condition was not managed and Mr Adegun did not receive medication between 21 January and 1 February.

Judicial Review proceedings were issued on 12 February 2016 challenging the lawfulness of Mr Adegun’s detention, his suitability for detention under Chapter 55 and the certification of his claim. After a protracted series of adjournments for negotiation, the case came before Nicholas Paine QC on 11 September 2018. By this time, the SSHD had withdrawn the refusal and certification of the asylum claim, agreeing to reconsider, and the live issue was the lawfulness of Mr Adegun’s detention.

Judgment

The Judge found that Mr Adegun had been unlawfully detained between 30 November 2015 and 26 February 2016 as a Rule 34 examination had not been carried out within 24 hours of arrival at either IRC. He held that the SSHD could lawfully have detained our client from 30 November had she carried out a Rule 34 examination and potentially could have continued detention had efforts been made to stablish that his health condition could be managed in detention. However the failure to seek the opinion of IRC medical staff on the management of his condition led to a breach of Chapter 55. The Judge found that the Claimant had been unlawfully detained for 88 days and awarded substantial damages for 40 days of that period.

The Detained Asylum Casework procedure has been found to be lawful provided the appropriate safeguards and policies are followed. In Mr Adegun’s case, all the safeguards operating to ensure the safety and well-being of detainees and the fair processing of asylum claims failed.

Representation

Zofia Duszynska and Vilash Gami, of Duncan Lewis, acted for Mr Adegun, with Raza Halim and Louise Hooper of Garden Court Chambers, instructed as Counsel.

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