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R oao IS (Bangladesh) v Secretary of State for the Home Department (15 October 2019)

Date: 15/10/2019
Duncan Lewis, Main Solicitors, R oao IS (Bangladesh) v Secretary of State for the Home Department

Today, the High Court ruled that our client was unlawfully detained for almost five months of the total 28 months that he was held in immigration detention, breaching his rights under Article 5 European Convention of Human Rights (ECHR). The Court also found that the 75 days that our client was under constant suicide watch breached his Article 8 ECHR rights to privacy.

Our client, who was 18 when he was first detained and has a history of self-harm and risk of suicide, challenged his detention on the grounds that it violated his rights under articles 3, 5 and 8 of the European Convention of Human Rights. He also challenged the adequacy of Rule 35 of the Detention Centre Rules 2001, which is the mechanism by which detainees’ medical concerns are reported by healthcare staff in the detention centre to the Home Office, and which trigger a review of the detention. This rule requires the detention centre’s medical practitioner to report the case of any detainee whose health is likely to be injuriously affected by detention, but excludes other medical professionals from the same obligation.

‘This case highlights the total inadequacy of the Home Office’s procedures for the identification of vulnerable people in immigration detention’, explains Lewis Kett, representing our client. ‘There was mounting evidence of our client’s high risk of suicide, and that detention was causing him further harm, and yet the Home Office repeatedly decided to maintain his detention. The fact that he was detained for 28 months is wholly unacceptable.’

In ruling that five months of our client’s detention was unlawful, the Court is strongly critical of the Home Office’s manner of dealing with our client’s suicide risk. The Court finds that this was clearly a chase where a Rule 35(2) report should have been issued and was not. While the Court did not go as far as declaring the Rule 35 process ultra vires for its exclusion of psychiatrists from the duty to report concerns, the Court found that there are clear failings in the management of detainees at risk of suicide in detention.

At paragraph 172-3 of the judgment, the Court finds that detention was unlawful and breached our client’s rights under Article 5 ECHR for a period of five months:

“During this period the Claimant was being unlawfully detained. The evidence as to the adverse impact of detention on him accumulated, but the Defendant was initially too slow to react and too slow to accept the medical evidence at face value. The Defendant’s policy states “caseworkers should not usually disagree with medical evidence unless there are very strong reasons for doing so”…This does not mean that the content of a medical report provided by lawyers acting for a detainee should be immediately accepted without question. The Defendant is entitled to a reasonable period of time to consider the content of the report, and the material on which it is based, and to seek input from medical staff at the IRC. Here, the medical report of Dr Burnham-Roy arrived after the medical staff at the IRC had already diagnosed PTSD and expressed concern about the ability to provide the medical treatment that he needed. There had, by now, been a long history of self-harm and claimed suicidal ideation. Even if (contrary to the finding I have made) detention up to this point could be justified, the Defendant should have released the Claimant within a short time of receipt of the report of Dr Burnham-Roy, unless clear medical evidence was obtained to contradict the conclusions of Dr Burnham-Roy. As it was, even when the conclusions of Dr Burnham-Roy were corroborated by other clinicians, there was push-back at the suggestion that the Claimant should be released.

Finally, the Court found that there was a breach of our client’s Article 8 ECHR rights as a result of him having been placed on constant observations under suicide watch for a period of 75 days, as:

“for that period of time he was subject to the constant observation of a person immediately outside his room, for 24 hours of each day… Of course, a court will be slow to find that a measure imposed for a person’s safety amounts to a breach of Article 8 ECHR. However, the Claimant should not have been detained during this period in any event. Putting him under constant observations for this period of time amounted to an interference with his right to respect for private life which could not (since the detention itself was unlawful) be justified. It amounted to a discrete breach of the Claimant’s rights under Article 8 ECHR.” (paragraphs 179 and 184).

Legal team: Lewis Kett and Emma Dawson of Duncan Lewis Solicitors' Harrow based Public Law team, instructing Nick Armstrong and Ayesha Christie of Matrix Chambers

Thank you to Medical Justice and Helen Bamber Foundation for providing crucial witness evidence.

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