Unlawful detention breaches Article 3 and Article 5 rights of woman with mental illness

Thursday 10 July 2014

In a High Court judgment handed down on the 8 July 2014 the claimant, a young woman who came to the UK to join her husband under a policy for the family reunion of a refugee, was found to have been unlawfully detained for 11 months.

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During this time, her mental state deteriorated to the point that she suffered both major depression and post-traumatic stress disorder. The judge accepted that this was caused by the continued detention and lack of any satisfactory medical treatment.

The claimant, represented by Stephanie Harrison QC, was entitled to damages at common law and   under Article 5 European Convention on Human Rights (ECHR). The judge found that there were breaches of the third Hardial Singh principle and that the Secretary of State failed to properly apply the policy regarding the detention of those suffering from mental illness.

Importantly and in addition, it was found that the treatment of the claimant whilst unlawfully detained subjected her to inhuman and degrading treatment in breach of Article 3 of the ECHR.

The case raised the complex issue of the detention of those with mental illnesses or those who develop mental illness during their detention.

This is the sixth case in which detention under Immigration Act powers of those with serious mental illness has been held by the High Court to constitute a breach of the fundamental rights protected by Article 3 ECHR:  S v Secretary of State for the Home Department [2011] EWHC 2120 (Admin), BA v Secretary of State for the Home Department [2011] EWHC 2748 (Admin), HA (Nigeria) v Secretary of State for the Home Department [2012] EWHC 979 (Admin), D v Secretary of State for the Home Department [2012] EWHC 2501 (Admin) and S v Secretary of State for the Home Department [2014] EWHC 50 (Admin).

This is, however, the first case in which the claimant had no pre-existing mental illness and the detention itself caused the claimant’s mental breakdown. Shortly after the release from detention the Home Office withdrew the initial decision to cancel the entry clearance to join her husband, recognising that the initial decision that led to the detention was wrong.

This judgment is available here: R (MD) v Secretary of State for the Home Department [2014] EWHC 2249 (Admin) along with the five other cases where a breach of Article 3 was established.

Stephanie was instructed by Jed Pennington of Bhatt Murphy Solicitors.

Stephanie Harrison QC is a member of the Garden Court Chambers Public and Administrative Law Team.

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