Home Office to review policy on the detention of people who may lack capacity to make immigration decisions

The Home Office has conceded a judicial review and accepted that the ‘Detention Services Order 04/2020: Mental Vulnerability and Immigration Detention‘ was not operating effectively or as intended in ‘certain cases’, particularly in cases where there are concerns about a detained individual’s ability to make immigration related decisions.

The concession came following protracted litigation brought by WHH, a Sudanese former unaccompanied asylum seeking child via his litigation friend, Karris Hamilton of Gatwick Detainee Welfare Group. WHH has been diagnosed with autism spectrum disorder, mild learning disability, anxiety and depression as well likely schizophrenia and possible post-traumatic stress disorder. As part of the settlement, the Home Office have agreed to carry out a review of the Detention Services Order by 31 May 2024 and to notify WHH (through his litigation friend) of the outcome of that review.

Background

WHH arrived in the UK in 2019 as an unaccompanied minor who was seeking asylum. He was placed in semi-independent living in Kent. His social workers immediately expressed concerns about him, believing that he showed signs of autism. However, he was not diagnosed. Frustration at the lack of resolution in his asylum case as well as a move from his previous accommodation led him to committing a number of criminal damage offences. His social worker at the time expressed concern that the offences were as a result of his then undiagnosed mental illness.

After further criminal damage offences committed when he was on license, WHH was sentenced to 18 months’ imprisonment. He was unrepresented during these proceedings. The Home Office then sought to deport him.

At the end of his criminal sentence, on 16 June 2021, WHH was detained under immigration powers. He was moved to IRC Brook House on 4 October 2021. The Home Office initially sought to release WHH shortly after his detention, however this changed after WHH withdrew his asylum claim and indicated a wish to voluntarily return to Sudan. It is believed that he did not have the capacity to make this decision.

WHH remained in detention. The Home Office was unable to make any progress towards his removal as he lacked the capacity to participate in the process to obtain documentation that would have allowed him to be returned.

In March 2022, nine months into his immigration detention, WHH had his first bail application. The First-tier Tribunal judge ordered a full investigation into WHH’s mental health and capacity in order to identify the issues with the re-documentation process. A member of the detention healthcare staff assessed that he had the capacity to refuse medication. This was then deemed sufficient by three further bail judges to refuse bail as his ongoing detention was blamed on his lack of co-operation.

During his detention, the Home Office consistently failed to make any progress on re-documenting him so removal could take place and showed no curiosity as to why this was the case. While his release was recommended on multiple occasions following a Case Progression Panel meeting, the recommendation was not taken up and his detention continued.

The Detention Services Order

The Home Secretary’s Detention Services Order 04/2020 Mental vulnerability and immigration detention: non-clinical guidance is designed to (among other things) identify individuals who lack mental capacity to make decisions relevant to their detention under immigration powers. The guidance provides that if staff become aware of indicators that an individual may lack capacity, the detained individual should be referred to the healthcare team for an assessment “as described in the service specification”.

Other requirements include to keep a records of those for whom capacity concerns have been raised, and for the individual to be placed on a specific vulnerable adult care plan. The following conditions are deemed to potentially fall within the Detention Services Order:

• dementia;
• depression;
• bipolar disorder;
• obsessive compulsive disorder;
• schizophrenia;
• personality disorder;
• post-traumatic disorder;
• generalised anxiety disorder;
• autism spectrum disorder.

The guidance also refers to the following, non exhaustive, signs that an individual’s mental health may be deteriorating in detention:

• self harm or suicidal thoughts;
• a change in behaviour, becoming agitated, being low in mood, being quiet, being boisterous, becoming tearful, being angry;
• becoming disorientated or having confused thinking;
• feelings of extreme highs and lows or excessive fears, worries and anxieties;
• strange thoughts (delusions), flashbacks and nightmares;
• seeing or hearing things that aren’t there (hallucinations);
• changes in sleeping or eating habits (other than cultural needs) e.g. refusing food and/or fluids, binge eating, excessive exercise;
• poor hygiene;
• growing inability to cope with daily problems and activities;
• social withdrawal.

The judicial review

In detention, WHH was contacted and assisted by Gatwick Detainee Welfare Group. Their senior advocacy coordinator, Karris Hamilton was deeply concerned for WHH and his inability to take the necessary steps that would lead to his release from detention. She was able to refer the case to Duncan Lewis Solicitors and also agreed to act as his litigation friend.

The Home Office failed to engage and respond with the pre-action protocol process which included being provided with evidence that was later accepted as amounting to level 3 evidence under its Adult at Risk policy. Judicial review proceedings were issued on 14 October 2022.

WHH contended that his detention was unlawful on the following grounds:

1. It was in breach of the Home Secretary’s Adults at Risk in immigration detention guidance
2. It was inconsistent with the Hardial Singh principles, particularly in circumstances where the Home Secretary had failed to comply with his own Detention Case Progression Panels policy
3. The Home Secretary was in breach of WHH’s rights under article 14 (when read with article 5) of the European Convention of Human Rights. This was because 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 Detention Services Order or otherwise) to assess WHH’s mental capacity to make decisions relevant to his immigration position and detention, and
4. The Home Secretary indirectly discriminated against WHH, contrary to section 19 of the Equality Act 2010, by failing to screen those detained under immigration powers for learning disabilities.

Following an interim relief hearing in front of Mr Justice Lane, bail in principle was granted pending the provision of suitable accommodation. WHH was provided with safe house accommodation by the Home Secretary on the basis of his status as a potential victim of trafficking and released from detention on 31 November 2022.

He was detained for 18 months in total, leaving serious and lasting psychiatric damage.

On 7th March 2023, permission for judicial review was granted. Following the grant of permission, WHH sought further expert evidence and obtained witness evidence from Professor Cornelius Katona of the Helen Bamber Foundation, Theresa Schleicher of Medical Justice, Sally Prestt of Detention Action as well as Karris Hamilton.

The evidence all pointed to the same conclusion. The Detention Service Order was not operating as intended and there was no mechanism in place to assess litigation capacity within the detention estate. This led to the dangerous effect of the most vulnerable individuals being detained indefinitely without the capacity to effectively challenge their detention and seek release. There was no way to way to identify these individuals and therefore no way to help them.

After a number of requests for further information, the Home Office eventually conceded that while the Detention Services Order is intended 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. The consequence is that the guidance does not operate effectively to identify individuals like WHH who lack mental capacity to decide to cooperate with the removal process.

More broadly, the Home Secretary 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 parties subsequently agreed by consent to vacate the listed final hearing in the matter. The following is recorded in the agreed statement of reasons:

From 16 June 2021 to 30 November 2022 the relevant service specification did not (and currently still does not) make specific provision for the assessment of a detained individual’s mental capacity to make decisions relevant to their detention. To that extent, the DSO did not operate effectively to identify individuals like the Claimant who lacked mental capacity to decide to cooperate with the removal process.

WHH has now been accepted to have been a victim of trafficking. He continues to wait for a decision to be made on his claim for international protection.

Conclusion

For many years, practitioners have identified serious issues in the way that those who may lack capacity are treated within immigration detention. Issues include:

1. Difficulties in taking instructions from and signing up clients who may lack capacity. In particular individuals not understanding the purpose of a legal representative
2. Clients not being able to send their paperwork to their legal representatives and delays from the Home Office in responding to requests for documentation.
3. Individuals not being able to progress their case and participate in interviews.
4. Individuals who may lack capacity not attending legal advice surgeries or not being able to respond to requests for further information.
5. Individuals not understanding paperwork, including requests to provide further information and removal directions.
6. Individuals not being able to disclose or understand the purpose of disclosing important information, such as indicating that they are a victim of torture and/or trafficking.
7. A chronic shortage of doctors who may be able to assess and prepare capacity assessments on individuals combined with delays and failures within detention to carry out rule 35 assessments.

This case reveals that Home Office, despite its duty of care towards the most vulnerable detainees simply did not operate effective policies that would help these individuals. The result of these failings means that heavy reliance is placed on NGOs such as Gatwick Detainee Welfare Group, Detention Action and Medical Justice to identify these vulnerable individuals and to locate and refer them to legal representatives.

The result of the policy is that individuals who are deemed to be ‘difficult’ and ‘uncooperative’ can end up detained indefinitely. The case also raises concerns that many individuals did not have their particular vulnerabilities identified, did not receive proper assistance and may have been forcibly removed despite having good grounds for remaining in the United Kingdom.

Without the intervention of charities and legal aid solicitors, this could have been WHH’s fate.

This case demonstrates serious failings on behalf of the Home Office, failings that were only identified through judicial review proceedings. It is likely that many individuals may have been unlawfully detained between 16 June 2021 to 30 November 2022 and should bring false imprisonment claims if able to instruct legal representatives. There also remains the possibility that some may have been unlawfully removed from the UK.

We wait with interest for the outcome of the review to take place by 31 May 2024. In the meantime, the failures within the Detention Services Order will continue and individuals continue to be at risk.