CASE OF V.M. v. THE UNITED KINGDOM
Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)
Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano
4. The applicant was born in 1977 and lives in West Drayton. 5. The applicant claims to have entered the United Kingdom illegally on 18 November 2003 with her son (“S”), who was born on 13 July 2000. On 22 November 2003 S was admitted to hospital with serious injuries. 6. On 3 December 2003 S became the subject of an interim care order and the applicant was later charged with child cruelty under section 1(1) of the Children and Young Persons Act 1993 and with Grievous Bodily Harm with intent. 7. On 29 January 2004 the applicant claimed asylum on the basis that if returned to Nigeria she would be killed by the wife of a man who, she alleged, had sexually assaulted her. Her application was rejected by the Secretary of State for the Home Department on 26 April 2004. 8. On 25 May 2004 the applicant was diagnosed with a psychotic illness and detained in hospital for one week. 9. In July 2004 the Asylum and Immigration Tribunal dismissed the applicant’s appeal against the refusal of her asylum claim on asylum and human rights grounds, finding, inter alia, that she was not a credible witness. 10. On 24 August 2004 the applicant pleaded guilty to one count of child cruelty. She was granted bail pending a further hearing set for 7 February 2005. She then absconded for a period of over two years. 11. In March 2005 a residence order was made in favour of S’s father and the child was returned to Nigeria. 12. On 14 July 2005 the applicant gave birth to her second child (“M”), who had a different father to S. 13. On 26 September 2007 the applicant was arrested and charged with possession of false documentation with intent to commit fraud. She was convicted and on 12 December 2007 she was sentenced to nine months’ imprisonment. 14. On 7 April 2008 the applicant was convicted of child cruelty. Before sentencing the applicant for the offence of child cruelty, the Crown Court asked Dr O, a specialist registrar in forensic psychiatry, to produce a report. The report, which was dated 29 May 2008, indicated that the applicant suffered from a recurrent depressive disorder and emotionally unstable personality disorder. However, at the date of the report her depressive and psychotic symptoms were being managed with medication and therapy, with the result that her mental illness was not considered to be of a nature or degree to warrant treatment either in the prison healthcare wing or in hospital. She did not, therefore, fulfil the criteria for treatment under the Mental Health Act 1983 (“the 1983 Act”). 15. On 21 July 2008 the applicant was sentenced to twelve months’ imprisonment for the offence of child cruelty. She also pleaded guilty to the offence of failure to surrender to bail and was sentenced to three months’ imprisonment, to be served concurrently. The judge recommended deportation in view of the seriousness of the offences. 16. On 5 August 2008 the United Kingdom Border Agency decided to deport the applicant. She therefore remained in detention under immigration powers when her criminal sentence ended on 8 August 2008. 17. On 12 August 2008 the applicant appealed against the decision to deport her. In her notice of appeal she reiterated her claim that she was at risk of being killed in Nigeria and that she had no family connections there. As M had been taken into the care of the local authority and was the subject of care proceedings, she also asserted a right to remain in the United Kingdom until those proceedings had concluded. 18. On 5 December 2008 the Asylum and Immigration Tribunal dismissed her appeal but found that it would be proportionate to allow her to remain in the United Kingdom for the short period that it would take to complete the care proceedings in respect of M. 19. The applicant was refused bail on 12 January 2009 and again on 17 March 2009 on the grounds that she could not be relied on to comply with bail conditions, she offered no sureties and she represented a danger to herself and to others. 20. On 30 April 2009 the applicant obtained a report from Professor K, a medical expert, on her mental health. He agreed with the diagnosis of Dr O and concluded that the applicant was not suitable for compulsory treatment under the 1983 Act as she was not in need of in-patient psychiatric care and her mental health needs could be met in the community. She was taking medication and if necessary could be admitted to hospital on a voluntary basis. Professor K did, however, note that the applicant’s mental health was likely to deteriorate in response to continued detention, although it should improve in response to release in the community. 21. Bail was again refused by the authorities on 1 June 2009 in view of the risk of the applicant once again absconding. 22. On 19 June 2009 the applicant made representations requesting that the decision to deport be reversed or, alternatively, that the representations be treated as a fresh asylum claim pursuant to the relevant immigration rules. In these representations the applicant claimed that she faced a real risk of treatment contrary to Articles 3 and 8 of the Convention if she were deported to Nigeria due to her mental health status and the poor standard of treatment facilities in the destination country. Additionally, the applicant claimed that her family life with M would be irrevocably disrupted. 23. On 25 June 2009 a judge in the Family Court made a care and placement order in respect of M. In concluding that the threshold criteria were met, he stated that: “I am satisfied the evidence supports a finding of likelihood, that is to say a real possibility, of harm to [M], founded on [S’s] grave injuries; the previous court’s findings in respect of those; the mother’s mental history; her plea to a seriously abusive offence against [S]; her absenting herself from the care and the criminal processes; the social and practical vulnerability produced by the parties’ lack of immigration status; and their criminal offending, with its practical consequences for their availability to [M]. I am satisfied the matters I have outlined placed [M], at the relevant time, at significant risk of physical and emotional harm.” 24. Following the decision of the Family Court, on 21 September 2009 Professor K prepared a further report. He noted that the applicant’s mental state had deteriorated considerably since he last saw her as she was more depressed and more floridly psychotic. She was also experiencing sideeffects from the medication she was taking. Between May 2009 and September 2009 she had fought with another detainee, sustained injuries while being restrained, ingested washing powder, attempted to tie a ligature around her neck, stolen food from other detainees and smashed things in her room. Professor K considered that the deterioration in her mental health was largely due to her continued immigration detention. He expressed the opinion that the applicant would now benefit from hospital assessment and treatment and recommended her transfer under the provisions of section 48 of the 1983 Act. 25. On 10 October 2009 Professor K gave an opinion that the applicant was not fit to act as a litigant. He reiterated that she should be transferred to hospital under section 48 the 1983 Act. However, a transfer to a mental health hospital required the agreement of two clinicians responsible for a patient’s care. The applicant was not transferred as there was no agreement about whether she fulfilled the relevant criteria. 26. On 8 December 2009 the United Kingdom authorities contacted the responsible clinicians to request another mental health assessment of the applicant. However, the clinicians indicated that a further assessment was unnecessary as she had had four assessments already. The applicant was seen by the General Practitioner in the Immigration Removal Centre, who was satisfied that the medication being prescribed was best suited to her mental health situation and confirmed that there was no merit in arranging a further psychiatric assessment. 27. On 14 December 2009, following what the Court of Appeal described as a “lengthy delay” the Secretary of State refused to treat the applicant’s representations as a fresh claim for asylum. Further similar representations led to a further decision on 26 April 2010 in which the Secretary of State maintained that the conditions for a fresh claim were not met. 28. On 16 December 2009 the applicant lodged a judicial review claim challenging the lawfulness of her detention and the failure to transfer her to a mental hospital for compulsory treatment. She then added a further challenge to the refusal to treat her representations as a fresh claim for asylum. She was represented in these proceedings by the Official Solicitor as she lacked capacity to conduct the litigation on her own behalf. 29. In or around February 2010 the applicant was admitted to the Acute Assessment Wing of a hospital after attempting suicide. 30. Around this time Professor K examined the applicant once more and produced a report dated 1 March 2010. He noted that her condition had deteriorated due to her continued detention; she was more depressed, was describing mood-congruent auditory hallucinations, and continued to make multiple attempts to self-harm. He once again expressed the view that she should be transferred to hospital for compulsory treatment under section 48 of the 1983 Act. 31. While the applicant was in hospital she was examined by a nurse. She assessed the applicant’s risk of harming children as grade three on a scale of zero to three. She was also at a risk of suicide, deliberate self-harm and other offending behaviour at grade two. This gave the applicant a summary risk to herself of two and to others of three. Although the nurse noted that the applicant’s mood had improved since 1 March 2010, she still considered that she had ongoing and enduring mental health problems and that her needs could not adequately be met in Yarl’s Wood Immigration Removal Centre. 32. The applicant was readmitted to the Acute Assessment Wing on 12 March 2010, following a further attempt to self-harm. 33. On 15 March 2010 the applicant was assessed by Dr R, a consultant psychiatrist, Dr S, Acting Consultant for the Crisis Team, and Dr I of General Adult Psychiatry. They noted that she displayed a tendency to act impulsively and without consideration of the consequences. She also had a tendency to self-harm and exhibited behaviour which could be interpreted as suicidal. Furthermore, they considered her to be in an extremely stressful situation, given her detention and the ongoing care proceedings. In view of these considerations, they concluded that the applicant remained at very high risk due to her impulsivity and unpredictability. Although that risk could only be contained by constant supervision, this need could be met at Yarl’s Wood. Hospital admission would not provide management different to that. 34. The applicant was accordingly discharged back to Yarl’s Wood. 35. On 23 March 2010 Professor K considered Dr R’s report along with other materials. He agreed that the applicant was at high risk of suicide, but considered that this required not only constant supervision but also treatment of the underlying problem, which would be more appropriately managed therapeutically in a hospital setting. He further noted that other doctors had recommended psychological intervention in a secure in-patient setting. 36. Throughout the applicant’s detention, monthly detention reviews were carried out. During these reviews any change in circumstances was recorded, the likelihood of removal within a reasonable time was considered, and a proposal was made with regard to whether detention should be maintained. 37. Permission for the applicant’s first judicial review challenge was granted on 14 May 2010 and the hearing took place on 22 and 23 July 2010. 38. On 13 August 2010 the judicial review application was dismissed by a High Court judge, who found that while the Secretary of State had failed to take into account paragraph 55.10 of her own policy, Enforcement Instructions and Guidance (see paragraphs 58-63 below), when considering the justification for the applicant’s detention between 8 August 2008 and 28 April 2010 (“the first period of detention”), that failure had not caused any damage since the decision to detain would have been the same even had the policy been correctly considered and applied. The judge therefore dismissed the claim for false imprisonment. 39. The judge found that the policy had been taken into account from 29 April 2010 up to the date of the hearing on 22 July 2010 (“the second period of detention”). He therefore found that continuing detention was lawful during this second period. The judge also rejected submissions that the period of detention had become unreasonable and unlawful under the principles set out in R v. Governor of Durham Prison, ex parte Hardial Singh [1974] 1 WLR 704 (“the Hardial Singh principles”) (see paragraph 54 below). In this regard, he noted that, taking an analytical approach to each of the periods of detention following 8 August 2008, the applicant’s detention was explicable by steps she had taken, or failed to take (for example, cooperation in relation to emergency travel documents, and the conflicting advice in the hands of the authorities as to the effect of detention on her mental condition and the possibility of treating it while in detention). In relation to the applicant’s own conduct, the judge noted that: “It is clear from the Hardial Singh principles that obstacles to the Claimant’s removal caused by the Claimant’s conduct do not count in the formula. The initial conduct of the Claimant was her commission of the offence on her son. Relevant to the decision to deport and to detain pending deportation were her conviction for absconding and her conviction for fraud. The Claimant’s utilisation of the rights available under the legislation to challenge the Defendant’s decisions allowed her to remain in the UK. In a sense she is rightfully in the United Kingdom while these processes unwind. On the other hand, they are of her choosing since she could repatriate herself voluntarily to Nigeria. Put neutrally as the authorities do, without tendentious issues such as fault, it is her conduct which has caused her to be here. She appealed asylum and deportation decisions, engaged at some stages in the family proceedings and issued a purported fresh claim and judicial review.” 40. With regard to the Secretary of State’s refusal to accept the applicant’s representations as a fresh claim, the judge found that the further representations were not “significantly different” from material that had already been considered. Further, and in any event, the judge found that there was no Article 3 issue within the meaning of N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008 and that any interference with the applicant’s rights under Article 8 § 1 was justified under sub-paragraph 2. 41. The applicant appealed to the Court of Appeal against the dismissal of her judicial review claim on 13 August 2010. Permission was granted in light of the recent judgment of 23 March 2011 by the Supreme Court in R (Walumba Lumba and Kadian Mighty) v. Secretary of State for the Home Department [2011] UKSC 12 (“Lumba and Mighty”) (see paragraphs 64-65 below), in which the application by the Secretary of State of a “secret policy” in respect of immigration detention was held to be unlawful in violation of public law principles. 42. On 31 August 2010 the applicant applied for assisted return to Nigeria under the Facilitated Reintegration Scheme (a scheme under which financial incentives are provided for a voluntary return by an individual to his or her country of nationality) but the application was refused. 43. The applicant was served with a deportation order on 25 November 2010. Although she submitted further representations for a fresh asylum and human rights claim the immigration authorities refused to revoke the deportation order. The immigration authorities also declined to give her a further statutory appeal right in relation to that decision and removal directions were set for 27 January 2011. The applicant challenged this decision by way of judicial review and obtained an injunction preventing removal until this judicial review claim had been determined. 44. On 6 July 2011, shortly before the Court of Appeal hearing, the applicant was released on bail by the Asylum and Immigration Tribunal. 45. At the court hearing, the Secretary of State conceded that following the decision of the Supreme Court in Lumba and Mighty the applicant’s detention between 8 August 2008 and 28 April 2010 had been unlawful on account of a failure to consider the guidance on detention of mentally ill persons in the published policy on immigration detention (see paragraphs 5863 below). As a result, on 28 July 2011 the Court of Appeal allowed the applicant’s appeal against the High Court’s judgment. However, as the Secretary of State had continued to detain the applicant after the relevant policy had been taken into account (from 29 April 2010 onwards), the court was satisfied that she would have been detained during the earlier period even if the policy had been considered. Moreover, having assessed all the evidence in the case – in particular, the risk of the applicant reoffending, self-harming, or absconding –Despite the concerns over her mental health, the balance of expert advice was that her needs could be managed appropriately in detention. It therefore concluded that not only would the applicant have been detained during this period, but that she could have been detained lawfully. 46. With regard to the Hardial Singh principles, the court did not consider that the period of detention had become unreasonable by the date of the hearing before the judge, either on account of its length or because it should have been apparent that it would not be possible to effect deportation within a reasonable period. On the contrary, the court considered that deportation within a reasonable period had remained a sufficient prospect at every stage. In this regard, it noted that there was no external barrier to removal and no case-specific problem such as the absence of travel documentation. The only intermittent delaying factor was the applicant’s legal challenges but that did not oblige a finding that the prospects of removal were fanciful. Although it accepted that the Secretary of State could have responded sooner to the “fresh claim” representations, the “lengthy delay” only had a minor effect overall and did not constitute a failure to act with due diligence. 47. Finally, in relation to the Secretary of State’s refusal to treat the new representations as a fresh claim, the court found that he had been entitled to reach the conclusion he did. 48. Consequently, the court awarded the applicant nominal damages of GBP 1 in relation to the period which had been conceded to be unlawful. Permission to appeal was refused by the Supreme Court on 7 February 2012. 49. The applicant succeeded in quashing the decision not to give her a further statutory appeal right in relation to the decision to refuse to revoke the deportation order in light of the second set of representations for a further fresh claim (see paragraph 43 above). This case is now being reconsidered by the authorities in light of all the current circumstances. 50. In the meantime, the applicant has brought further judicial review claims (not related to the present application). She has also been litigating in the Family Court and is bringing a personal injury claim against the immigration authorities. 51. By the end of July 2010 contact between the applicant and M had been limited to two hours every two months with a view to further reduction and the prospect of a goodbye meeting once the applicant was deported or M adopted. However, the local authority subsequently agreed not to proceed with adoption and instead opted for long-term fostering for M. The applicant had her first contact with M in July 2012 and the local authority have agreed to further contact every three months.