Public Law Solicitors

Following a legal challenge brought by Duncan Lewis Solicitors, the Home Office have conceded that Detention Services Order 04/2020: Mental Vulnerability and Immigration Detention (“the DSO”) is not operating ‘effectively or as intended in certain cases, in particular, in cases where concerns are raised about a detained individual’s ability to make immigration related decisions’.

The Home Office further conceded that the DSO did not operate effectively in our client, WHH’s, case, with the consequence that WHH was detained under immigration powers for over 18 months despite the fact that he lacks (and likely lacked throughout his detention) mental capacity to make immigration related decisions, including whether to cooperate with removal to Sudan.

As part of the settlement, the Home Office have agreed to carry out a review of the DSO by 31 May 2024 and to notify WHH (through his litigation friend) of the outcome of that review.

Overview:

WHH is a Sudanese asylum claimant who arrived in the United Kingdom in 2019 as an unaccompanied minor. He has been diagnosed with autism spectrum disorder, mild learning disability, anxiety and depression as well likely schizophrenia and possible post-traumatic stress disorder. WHH was detained from 16 June 2021 to 30 November 2022, when he was released on High Court bail following a successful application for interim relief. As a result of his mental impairments, WWH lacks, and is likely to have lacked throughout the period of his detention, mental capacity to make immigration related decisions, including mental capacity to decide to cooperate with attempts to remove him to Sudan.
By Judicial Review, WHH contended that his detention was unlawful on the following grounds:

1. It was in breach of the Defendant’s Adults at Risk in Immigration Detention Guidance (“the AAR Policy”) (“Ground 1”);

2. It was inconsistent with the Hardial Singh principles, particularly in circumstances where the Defendant had failed to comply with his own Detention Case Progression Panels Policy
(“Ground 2”);

3. The Defendant was in breach of WHH’s rights under Article 14 (when read with Article 5) of the European Convention of Human Rights (“the ECHR”), in that he did not make adequate arrangements to treat WHH (a detained individual with a learning disability) differently from a detained individual without a learning disability, in particular by failing to make adequate arrangements (whether by the DSO or otherwise) to assess WHH’s mental capacity to make decisions relevant to his immigration position and detention (“Ground 3”); and

4. The Defendant indirectly discriminated against WHH, contrary to s.19 of the Equality Act 2010, by failing to screen those detained under immigration powers for learning disabilities.

Following a number of requests for further information and specific disclosure, the SSHD eventually conceded that - while the DSO is designed (among other things) to identify individuals who lack mental capacity to make decisions relevant to their detention under immigration powers - there is currently no mechanism by which such individuals can in fact be identified (or assessed), with the consequence that the DSO does not operate effectively to identify individuals like WHH who lack mental capacity to decide to cooperate with the removal process. More broadly the Defendant has accepted that: “the assessment of capacity in respect of immigration related decisions is not operating effectively or as intended in certain cases, in particular, in cases where concerns are raised about a detained individual’s ability to make immigration related decisions”.

The Defendant further conceded that material aspects of the DSO, including the need for each IRC to maintain a “Mental vulnerability Log” and for the Home Office to keep a central record relating to clinical mental capacity assessments and their outcome, was not operational.

In light of the concessions made by the Defendant and his commitment to review the DSO and pay WHH’s costs, WHH has withdrawn Grounds 3 and 4 of his challenge, with Grounds 1 and 2 proceeding as a private law claim for false imprisonment in the High Court.
WHH is an accepted victim of trafficking who continues to seek leave to remain in the United Kingdom as a refugee and victim of trafficking.

Lead Solicitor, Jamie Bell states: ‘The Home Office has a special duty towards the most vulnerable immigration detainees. Yet again, this case has shown that immigration detention is not fit for purpose and those who need the most help are left abandoned and helpless. This case also demonstrates abject failures in the SSHD’s Office’s duty of candour as only the pressure of litigation led to the disclosure of vital information about the known failings in immigration detention policies.

It is shocking that WHH was detained for 18 months due to the Home Office’s disregard for vulnerable detainees and the failure to implement policies designed to care for them.

During the course of his detention, there was no mechanism in place that would have allowed for WHH’s learning disability or capacity to be assessed. He did not understand how to take steps to secure legal advice or apply for release from detention. He did not understand the documents given to him by the Home Office or how to engage with the system.

Understandably this has resulted in significant damage to WHH’s mental health, and he remains extremely unwell. We hope that he is granted permission to stay in the United Kingdom and he is given the opportunity to rebuild his life.

At present, in practice, detainees with learning disabilities are only being identified if they seek assistance from charities operating in immigration detention centres, such as Gatwick Detainee Welfare Group, Detention Action and Medical Justice, who then refer them for legal advice and assistance.

Given the failures of the policies in place for the identification of vulnerable detainees, We consider it likely that many detainees with learning disabilities (who lack capacity to make decisions relevant to their detention) may have been subjected to lengthy detention as well as unlawful removal. Such a state of affairs is unacceptable and unlawful, the SSHD must utilise his review of the DSO to remedy the current situation.’

Thanks:

We are extremely grateful for the time, effort and evidence provided by a wide range of individuals and NGOs. The outcome in this case would not have been possible without your help.

In particular we thank Professor Cornelius Katona, of the Helen Bamber Foundation, Sally Prestt of Detention Action and Theresa Schleicher of Medical Justice for their invaluable expertise and assistance. We also thank WHH’s social worker who provides him with continued support and assistance.

We give a special thanks to Karris Hamilton, of Gatwick Detainee Welfare Group, who supported WHH whilst detained, referred him to Duncan Lewis for legal assistance, and has since acted as his litigation friend with diligence and care.

Legal Team:

Duncan Lewis solicitor 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 is highly experienced in a wide variety of complex and high profile public law and immigration cases. His commitment to hi clients is demonstrated by a willingness to take on cases at such short notice and 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.