For the second time in three months, a High Court judge has condemned the immigration detention of a mentally ill offender as inhuman or degrading.
Campaigners are calling for a thorough review of the detention of vulnerable people after the judgment in October 2011 that the detention of a mentally ill man for deportation violated the prohibition on torture, inhuman or degrading treatment in Article 3 of the Human Rights Convention. BA, who was convicted as a drugs carrier in 2006, became psychotic while serving a prison sentence and began starving himself, which led to his transfer to hospital under the Mental Health Act. Upon discharge from hospital in February 2011 the UK Border Agency (UKBA) detained him in Harmondsworth, a secure removal centre equivalent to a medium security prison, despite medical advice that it would cause him to relapse, which it did. Private medical care providers at Harmondsworth did not monitor his health for two months; it took them seven weeks to arrange for him to see a psychiatrist; and he was handcuffed for hospital visits, making him unwilling to go. In July, a consultant psychiatrist brought in by Medical Justice warned that he could die if detention continued. Medical staff at Harmondsworth agreed that he could die ‘imminently’.
UKBA’s director of criminality and detention, David Wood, responded by authorising BA’s continued detention, while his colleague Philip Schoenenburger, although apparently ‘surprised’ that BA had not been released, made plans to manage press coverage ‘if he does subsequently pass away’ (a ranking of priorities described by the judge as ‘chilling’). Harmondsworth’s healthcare manager prepared an ‘end of life plan’. Even after a court order, when there were signs of lasting physical damage, it took nearly two more weeks to transfer BA to Hillingdon hospital. As soon as the hospital discharged him, two months later, UKBA sent him back to Harmondsworth, despite medical warnings and in breach of another order, having assessed his condition as ‘self-inflicted’.
‘Bureaucratic inertia and callous indifference’
The judge ruled that from June onwards (when signs of BA’s relapse became obvious) his detention was unlawful, and from 4 July to the date of his transfer to hospital, it was inhuman or degrading, breaching the guarantee against torture and inhuman or degrading treatment contained in Article 3 of the Human Rights Convention. She put his treatment down to bureaucratic inertia, lack of communication and coordination and, on one occasion, callous indifference.
BA was the second immigration detainee in three months to obtain a ruling from the High Court that his detention was not merely unlawful but inhuman or degrading. The first, in August, was S, another mentally ill offender detained for deportation at Harmondsworth despite a mass of psychiatric evidence that it would harm him. S, an Indian Sikh, suffered severe post-traumatic stress disorder and psychosis after being raped as a 14-year-old by four masked gunmen who murdered his parents. S lived illegally in the UK for nearly ten years, working and starting a relationship with a Polish woman, before an assault on four people led to his arrest and an eventual 16-month prison sentence. He claimed asylum and applied to stay with his fiancée. In custody, he regularly self-harmed and attempted suicide, but at the end of his sentence UKBA decided to detain him for deportation. Officials recorded that he seemed ‘in good health’ and that there were no ‘compelling or compassionate circumstances’ preventing his detention or deportation. UKBA never revised this opinion, despite his relapse into psychosis, hallucinations, repeated wrist-slashing, an escape attempt leading to a criminal charge, an interim hospital order imposed by the crown court and numerous psychiatric reports confirming that his continued detention was literally driving him mad and he should not be detained. He was held in prison from April to June 2009 (until his arrest for attempted escape) and then, following his discharge from the psychiatric hospital where he served his sentence, at Harmondsworth from April to August 2010, when a High Court judge ordered UKBA to arrange his urgent transfer to hospital. In September 2010 another High Court judge ordered his release on bail. So far as UKBA officials were concerned, there was ‘no evidence’ of mental illness, the evidence of torture had been ‘considered when the order for detention was made’ and did not need to be reviewed, and as for his fiancée, there was ‘no evidence of cohabitation’.
Placating the Right or human rights?
The cases of BA and S are by no means the only cases of mentally ill people being detained unlawfully. A significant number of cases over the past couple of years have featured detention of mentally ill people in breach of UKBA’s published policy, which was only to detain such people in ‘very exceptional circumstances’. Judges have repeatedly found that officials have simply not bothered to apply the policy, or even look at it, until the High Court hearing or shortly beforehand. In cases such as S, there was no explanation at all for the failure to consider release. And the cases that get to court are, human rights lawyers fear, only the tip of the iceberg. In July 2010, a plan to move a mentally ill, suicidal detainee out of Chelmsford prison and into immigration detention failed; it was impossible to find a space in an immigration removal centre because of the large number of mentally ill detainees in the immigration detention estate – when one would expect only a handful, according to the policy of non-detention.
What these cases reveal is the extreme reluctance of senior UKBA officials to release anyone whose release could offend the Right, whatever the consequences, in the present political and media climate where foreign offenders are seen as deserving not even minimally decent treatment (the phrase ‘human rights’ is so inflammatory it can’t even be used). Officials appear prepared to allow people to die in immigration detention rather than risk negative publicity along the lines of ‘Immigrant drug king/ Illegal immigrant who attacked FOUR people is freed to offend again’. Their actions indicate that they are far more afraid of the press than of the courts. Earlier this year, it was disclosed that a secret policy to detain all foreign national offenders for deportation had been drawn up in the wake of the ‘foreign prisoners’ scandal’ in 2006. The policy contradicted the official presumption in favour of release, which applies to all migrants who could be detained. The Supreme Court ruled that detention under the secret, ‘blanket’ policy was illegal. These cases beg the question: was the secret policy ever rescinded – or is it still in operation? Human rights lawyers suspect that the same policy is once more being applied, and that UKBA will never release a foreign national prisoner without a court order. The judges are being told to carry the can for release. Sadly, many immigration judges appear unwilling to take the responsibility; in S’s and other cases, bail has been refused until the case comes before a more senior judge. But when granted bail, both S and BA responded positively and complied with all the conditions – and the rate of absconding is minuscule.
Learning the wrong lessons
UKBA appears unable or unwilling to learn from these cases and to the severe criticism to which judges have subjected the agency. At a ‘stakeholders’ meeting on detention in November, attended by a number of senior UKBA officials as well as representatives from Bail for Immigration Detainees (BID), Medical Justice and other groups concerned with immigration detention, the officials, who included the head of detention policy at UKBA, claimed to be unaware of the cases of BA and S. But they do appear to have learned one lesson: in August 2010 they changed their policy of not detaining mentally ill and other vulnerable people except in ‘very exceptional circumstances’, presumably in an attempt to avoid further litigation. The new policy states that only the seriously mentally ill whose condition ‘cannot satisfactorily be managed within detention’ should not be detained. It also loosens the criteria for detention of those with other serious medical conditions, the elderly and those with disabilities. UKBA has made the specious claim that its policy has not been changed, but merely clarified. But the Immigration Law Practitioners’ Association has expressed concern that the revised guidance, imposed without consultation, will expose many more vulnerable people to detention which will exacerbate illness and distress and lead to further inhuman treatment. A legal challenge to the change of policy is under way in the High Court.
Read the BA judgment here
Download a copy of the Bhatt Murphy press release on the BA judgment here (pdf file, 60kb)
Read the S judgment here
Read an IRR News story: ‘How to get rid of foreign prisoners’
Read an IRR News story: ‘Segregation policy for foreign national prisoners condemned’
Download a copy of the IRR’s report: Foreign nationals, enemy penology and the criminal justice system (pdf file, 217kb)
Read an IRR News story: ‘Segregating foreign national prisoners’
Read an IRR News story: ‘Pressure to deport foreign national prisoners’