News

A detainee with a diagnosed learning disability has been granted permission to challenge the failure of Home Secretary to have appropriate measures in place within immigration detention.

WHH brings a judicial review in the Administrative Court (WHH [by his litigation friend, Karris Hamilton] v Secretary of State for the Home Department [“SSHD”]) on the basis that individuals with learning disabilities are treated unfairly in immigration detention.

Summary:

WHH, who has autism and PTSD, was detained for 18 months after he was unable to engage in his immigration case due to his learning disability. WHH claims that his detention breached Article 14 ECHR and that he was indirectly discriminated against by a failure to screen him for learning disabilities.

Background of Claim:

WHH is a Sudanese asylum seeker who arrived in the UK in 2019 as an unaccompanied minor.

WHH was placed into the care of his local authority and enrolled in college where he initially did well in his studies. He experienced a delay of more than one year in receiving a substantive asylum interview.

WHH’s social workers noticed that he displayed traits of autism, OCD and possibly PTSD. His GP was unable to diagnose WHH due to a lack of previous medical history. After WHH was moved to a more independent living arrangement, his mental health severely deteriorated. This led to a psychotic incident in which he committed a series of criminal damage offences. He was arrested and was sentenced to 18 months imprisonment. WHH was unrepresented in his criminal matter.

It was noted in WHH’s prison and detention medical records that he was severely mentally unwell. WHH’s social workers queried his mental capacity. Healthcare staff suspected that WHH had Autism and PTSD; however, he did not receive a formal assessment.

WHH’s mental health continued to deteriorate and he continued to express a desire to return to Sudan. He was permitted to withdraw his asylum claim in August2021 [despite concerns being raised about his capacity to do so].The SSHD required WHH’s bio-data in order to process his return, however WHH was unable to provide this information due to his lack of capacity.

During his time in detention, the SSHD justified detention because of ‘non-compliance’ as he was too unwell to be able to provide the information that could lead to his voluntary return.

WHH subsequently made four bail applications with the assistance of a legal charity [Bail for Immigration Detainees], however these were refused on the basis of WHH’s non-compliance and his offending history. An immigration judge noted that WHH’s mental health was preventing his engagement with the returns process and ordered the defendant to assess WHH. This assessment appeared to be a brief meeting with WHH in which it was noted that he had litigation capacity and there were no concerns as to his mental health.

In September 2022, some 14 months after he was first detained, healthcare professionals diagnosed WHH with psychosis and began a course of treatment for him.

WHH instructed Duncan Lewis Solicitors in September 2022. He underwent an assessment by a psychiatrist, who noted that he lacked litigation capacity and noted that he was probably suffering from schizophrenia. It was also deemed likely that he had Autism and PTSD.

Karris Hamilton, of Gatwick Detainees Welfare Group, was appointed as WHH’s litigation friend. She provided WHH with invaluable support and advocacy during his detention.

The pre-action protocol was initiated, and the defendant was provided with evidence that WHH lacked litigation capacity and could not therefore engage with the returns process.

In October 2022, WHH issued his claim in the Administrative Court and sought permission and his release from detention.

The grounds noted as follows:

• His detention breached the SSHD’s Adult at Risk Policies
• 
  
• His removal was not imminent and in breach of the Hardial Singh Principles as he was not removable with his current mental ill health


• His detention breached Article 14ECHR due to his learning disability WHH was indirectly discriminated against by failing to make arrangements to screen him for learning disabilities

WHH was granted bail in principle in the Administrative Court on 27th October 2022 by Lane J, on the condition that he was provided with accommodation suitable to his needs.

WHH was served with a deportation order in November 2022 and the defendant made renewed efforts to remove WHH to Sudan, including obtaining a signed disclaimer from WHH with drawing his Article 3 representations, without the knowledge and consent of his litigation friend or legal representatives. Following a complaint, the Defendant acknowledged that WHH did not have litigation capacity and agreed to disregard the disclaimer.

WHH was provided with safe-house accommodation by the defendant, on the basis of his status as a potential victim of trafficking, and released from detention on 31st November 2022.

On 7th March 2023, Lang J granted permission to proceed to a full hearing, noting ‘the claimant has raised arguable grounds which merit consideration at a full hearing’.

Duncan Lewis solicitor Jamie Bell Jamie Bell and caseworker Elleanor Wilkins-Bell, of the Duncan Lewis Public Law team, instruct Chris Buttler KC and Roisin Swords-Kieley, of Matrix Chambers.

Jamie Bell Jamie Bell
is highly experienced in a wide variety of complex and high profile public law and immigration cases. His commitment to his clients is demonstrated by a willingness to take on cases at extremely short notice and to work at all hours in order to prevent the unlawful removal of asylum-seekers. Jamie has demonstrated a particular commitment to representing Afghan claimants during his time at Duncan Lewis.

For advice in any public law or immigration matter contact Jamie at via email at jamieb@duncanlewis.com or via telephone on 07342 081719.