CASE OF S.M.M. v. THE UNITED KINGDOM
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo
5. The applicant was born in Zimbabwe and lives in London. 6. The applicant arrived in the United Kingdom in May 2001 and was granted six months’ leave to enter as a visitor. In or around 2003 he began suffering from a mental illness which led to his hearing voices in his head and at least two suicide attempts. 7. In 2004 and 2005 the applicant was convicted of a number of driving offences, including driving otherwise than in accordance with a licence, using a vehicle while uninsured and driving whilst disqualified. He was also convicted of resisting or obstructing a police officer and failing to surrender to custody. No custodial sentence was passed. 8. On 18 April 2005 the applicant made an application for asylum. However, the application was refused on 22 June 2005 on non-compliance grounds as the applicant had failed to attend his substantive asylum interview. Notice of this decision was served on the applicant on 27 June 2005. On the same day, he was served with notice of liability to removal as an overstayer. 9. The applicant did not appeal against this decision. When he subsequently failed to comply with his reporting conditions he was treated as an absconder. 10. On 13 August 2007 he was convicted of possessing Class A drugs with intent to supply and sentenced to three years’ imprisonment. He did not appeal against conviction or sentence. 11. While serving his sentence the applicant was prescribed a variety of antipsychotic drugs. This was the first time he had received any treatment for his mental illness as he had previously declined to engage with psychiatrists and other health care professionals. 12. The applicant made a second asylum application on 27 March 2008. In doing so, he described two violent incidents he had experienced in Zimbabwe: first, he claimed that in 2000 he had been attacked by Zanu-PF supporters with knives, sticks and sandbags while protesting about gay rights; and secondly, he claimed that later that same year he had been arrested for demonstrating and beaten on his back and the soles of his feet while detained at a police station. 13. On 30 October 2008 the applicant was interviewed in relation to his second asylum claim. 14. On 14 November 2008 the applicant was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department’s immigration powers. 15. On 20 February 2009 the applicant was admitted to hospital for a psychiatric assessment and was sectioned for six days after his mental health deteriorated significantly. 16. On 26 May 2009, a further asylum interview took place following which the applicant submitted further evidence in support of his claim. 17. On 22 October 2009, an interview took place with the applicant for the purposes of obtaining a travel document. The applicant refused to provide bio-data for the purposes of the travel document asking to contact his solicitor first. 18. On 3 November 2009 the applicant’s representatives asked the Government to allow them more time to submit medical evidence supporting the applicant’s second asylum claim. The Government did not indicate whether they responded to this request. 19. On 3 December 2009 the applicant applied for bail which was refused on 9 December because the tribunal judged he posed an unacceptable risk of absconding. 20. On 16 February 2010 the Secretary of State enquired of the applicant’s representatives about their intentions concerning the medical report. The applicant’s representatives indicated they had requested an appointment and asserted that it would be unreasonable for the Secretary of State to make a decision without awaiting the outcome. On 10 June 2010 the Secretary of State telephoned the applicant’s representatives again to ask what their intentions were regarding the medical report. The representatives indicated they would reply in writing. 21. On 22 June 2010 the applicant was interviewed again to obtain further bio-data to issue a travel document but he would not provide further details. 22. On 28 June 2010 the applicant’s representatives wrote to the Secretary of State. The letter stated that his detention was unlawful and that he should be released. The representatives sent a second letter to the Secretary of State on 8 July 2010, in which they again requested that the applicant be released due to his medical conditions and pursuant to the Secretary of State’s policy on not detaining mentally ill persons. 23. The Secretary of State replied to these letters on 12 July 2010 in the following terms: “1. The Secretary of State, having considered the particulars of your client’s case, is satisfied that the presumption in favour of release is outweighed by the seriousness of the offence, risk of harm to the public, and risk of absconding and that your client’s detention is justified and lawful. 2. It has been decided that your client should be detained because: - Your client is likely to abscond if given temporary admission or release. - Your client does not have close enough ties (e.g. family or friends) to make it likely that he will stay in one place. - Your client has previously failed to comply with conditions of his stay, temporary admission or release. - Your client has previously absconded. - Your client has used or attempted to use deception in a way that leads us to consider he may continue to deceive. - Your client has not produced satisfactory evidence of his identity, nationality, or lawful basis to be in the United Kingdom. - Your client has previously failed or refused to leave the United Kingdom when required to do so. - It is conducive to the public good for your client to be detained.” 24. On 26 July 2010 the Secretary of State set a time limit of 31 August 2010 for the provision of further information in support of the applicant’s asylum claim. 25. On 28 August 2010 the applicant was examined by Dr S. and her expert report, dated 3 October 2010, was sent to the Secretary of State on 22 November 2010. 26. Dr. S noted that the applicant had a number of scars which accorded with his description of the first assault by supporters of Zanu-PF. She also noted that he had a clear history of a psychotic illness which was characterised by many first-rank symptoms of schizophrenia. He was being treated but still experienced some symptoms, including auditory hallucinations and ideas of reference. In addition, he had symptoms of posttraumatic stress disorder, including poor sleep, nightmares, intrusive daytime thoughts, and physical symptoms of fear, hopelessness and isolation. 27. On 3 November 2010 the detention centre where the applicant was detained raised concerns about his mental health. He was assessed by the Health Care Manager as unsuitable for detention under the Mental Health Act on 8 November 2010 and on 12 November 2010 as not requiring compulsory mental health treatment. 28. On 16 November 2010 the applicant applied to the tribunal for bail but withdrew his application on 19 November. 29. On 22 November 2010, the medical report was provided to the Secretary of State. 30. On 14 January 2011 the applicant submitted his application for permission to apply for judicial review, in which he challenged his continuing detention on the grounds that it was contrary to the Secretary of State’s published policy on the detention of persons suffering from serious mental illness (“the mental health concession”); that it was contrary to the Secretary of State’s published policy on the detention of persons who had been victims of torture (“the torture concession”); and that it was contrary to the principles set down in R v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (“the Hardial Singh principles”). The applicant also claimed damages for unlawful detention. 31. On 18 January 2011, the applicant’s representatives sent a new medical report and informed the Secretary of State that they were no longer relying on the medical report provided on 22 November 2010. 32. On 8 February 2011 the Secretary of State refused the applicant’s second asylum claim and made a deportation order pursuant to section 32(5) of the United Kingdom Borders Act 2007. The applicant’s appeal was dismissed on 7 April 2011. On 4 May he was refused permission to appeal against that decision. 33. On 3 June 2011 the applicant was refused permission to apply for judicial review on the papers by Mr Justice Calvert-Smith. In refusing permission, he observed that the mental health concession only applied where the detainee was suffering from a serious mental illness which could not be satisfactorily managed within detention. As a consequence, he concluded that the applicant’s condition fell short of the severity required. 34. With regard to the torture concession, the judge noted that the alleged torture which had happened some eleven years previously and which was said to be the cause or part cause of the mental illness the claimant was suffering from could have no bearing on the reasonableness or otherwise of the current detention. Finally, he found that the Hardial Singh principles were not infringed because: “a. the 1st principle is not engaged. b. The 2nd and 3rd principles are not infringed. The dangers of absconscion and reoffending are and have always been real in view of the claimant’s behaviour between July 2005 and his arrest in respect of the drugs matter. The recent decision of October 2010 means that the detention is not open-ended. c. the 4th principle is not infringed. There has been no lack of expedition by the defendant since the expiry of the claimant’s sentence in late 2008.” 35. The applicant was released from detention on 15 September 2011 after being granted bail by the Upper Tribunal. 36. On 28 October 2011 the applicant was again refused permission to apply for judicial review by Mr Justice Ouseley at a renewed oral hearing in which he heard from representatives for both parties. In the renewed application, the applicant had contended that his detention became unlawful on 28 June 2010, when the pre-action letter was sent to the Secretary of State. However, Mr Justice Ouseley rejected that claim and found that the applicant had no arguable case. In particular, he noted that there was no evidence to suggest that his mental illness could not be satisfactorily managed in detention; that there was no independent evidence that he had been tortured because his scarring was only consistent with an assault by Zanu-PF supporters which did not amount to torture, and there was no scarring consistent with his allegations of ill-treatment at the police station; and finally, that there was nothing to indicate the applicant’s prospects of removal at the relevant time were nil or that efforts did not take place to effect his removal. 37. On 22 February 2012 the Court of Appeal, Civil Division refused the applicant permission to appeal the decision of 31 October 2011, finding that the High Court had been correct on every point. There was no independent evidence of torture and the fact that the mental health concession had been clarified on 26 August 2010 to refer to satisfactory management in detention did not mean that the position was otherwise before that date. 38. In the meantime, the applicant had challenged the decision to refuse his asylum claim and sought to appeal to the Court of Appeal. On 28 April 2012 the Secretary of State agreed that the decision of 8 February 2011 refusing the applicant’s asylum claim was flawed and that the case should be remitted to the Upper Tribunal. 39. On 20 November 2012 the Upper Tribunal allowed the applicant’s asylum appeal on human rights grounds. On 30 January 2013 the deportation order was revoked and the applicant was subsequently granted discretionary leave until 25 September 2013. He applied for further discretionary leave on 26 September 2013. According to the observations submitted, a decision on that application remains outstanding.