R (on the Application of MMH) v. Secretary of State for the Home Department; R (on the Application of SRH) v. Secretary of State for the Home Department

"Issues/questions of law:
(1) The effect of a person's refusal to return voluntarily on the lawfulness of their detention pending deportation.
(2) The effect of a person's poor mental health on the lawfulness of their detention pending deportation.

Decision:
Para 40: ""In the present case there is a significant risk of absconding, but a risk of re?offending which the defendant accepts is not very high. Leaving aside the second claimant's mental condition, I would hold that the period of their detention (thirteen months to date for the first claimant, and nine months for the second claimant) is, despite its length, in the circumstances reasonably necessary for the purposes of the deportation order and so lawful. This degree of risk of absconding in my judgment, together with the claimants' refusal to go voluntarily, so that their detention was a product of their own making, justified the defendant a substantially longer period of time within which to arrange removal. These factors do not, however, necessarily justify a period as long as that in A (Somalia), given the different levels of risk. It is incumbent on the Secretary of State to keep the position of the first claimant under review both in relation to the risks he poses and in relation to the position of enforced returns to southern Iraq. He has a lower risk of re?offending than A had and the evidence before me does not enable me to express myself in the way Calvert?Smith J and Toulson LJ did about A's risk of absconding.""

Para 48: ""I also agree with Miss Giovanetti that it is implicit that, in the reference in paragraph
38.10 to those suffering from serious medical conditions or the mentally ill, there is a level of seriousness required to engage the policy for mental illness as well as for physical medical conditions. Her submission is that the policy was not engaged because the second claimant's mental condition was not serious enough and did not cross that threshold. However, it is necessary for a Secretary of State who takes that position to have engaged with the policy. (I hesitate to use the word, used in a number of contexts, that a decision?maker must ""grapple"" with the matter.) But the letter of 4 June does not indicate that any consideration was given to the implications of the diagnosis. It does not state that the level of illness is insufficient. It does not address the diagnosis at all, for example, by questioning it or saying that this level of PTSD is not sufficiently serious. It simply says that there was at that time no risk of suicide. That is, in the light of the policy, insufficient. The letter states that Dr McKee's report does not refer to a past history of self?harm. The prison records to which the defendant would, however, have access would have informed him of the position.""

Para 49: ""I conclude that, once the issue of the claimant's mental health was squarely raised and evidence of the diagnosis was submitted and brought to the defendant's attention, the failure to apply the policy in paragraph 38.10 is a flaw susceptible to judicial review. Accordingly, I conclude that from 4 June, when the decision was made, until 3 July when he was released, the second claimant's detention was not lawful. In the circumstances of the case, as he has been released, the claim for mandatory and coercive relief is not appropriate. Subject to any submissions that either party may wish to make, I propose to make a declaration that the detention after 4 June was unlawful. To that extent the second claimant's application is allowed."""