A judge has rebuked the Home Office for failing to release an asylum seeker despite receiving a “Rule 35” medical report stating that he was suffering from a severe mental illness which had deteriorated because of detention. In R (Bah) v Secretary of State for the Home Department [2018] EWHC 2942 (Admin), the High Court ruled that the man had been unlawfully detained for over a month and should be awarded substantial damages. Although the claim failed on several other grounds, this decision is a welcome example of a judge acknowledging Home Office bias against detainees when applying its Adults at Risk policy.

Mr Bah is a national of Sierra Leone who suffers from post-traumatic stress disorder. In 2015 he was convicted of arson and the Home Office began deportation action against him. Mr Bah was detained in March 2016 despite evidence that he suffered from mental health problems. Predictably, detention caused his mental health to deteriorate and in November 2017 a psychiatrist employed at the detention centre issued a Rule 35 report stating:

He is objectively suffering from Psychotic Disorder and complex PTSD. His mental illness has deteriorated while in detention according to objective reports from mental health staff. The conditions of detention are causing his serious mental illness to become worse.

Separately, on 28 December 2017 Mr Bah was granted permission to appeal the refusal of his asylum claim to the Upper Tribunal, and a stay on removal.

Andrew Thomas QC, sitting as a deputy High Court judge, ruled that the combination of deterioration in Mr Bah’s health and the grant of permission by the Upper Tribunal meant that the Home Office should have decided to release Mr Bah on 11 January 2018. The judge was scathing about the approach taken by the Home Office in deciding to maintain detention beyond this point:

I recognise that the Defendant may disregard medical evidence of a risk of deterioration if there is good reason to do so. However, by this stage this involved rejecting the evidence of two separate assessments. With respect to the author of the letter of 17th January 2018, by this stage there appears to be a focus on looking for reasons not to release the Claimant rather than a clear application of the AAR policy in the light of the new evidence.

Andrew Thomas QC has confirmed the suspicion shared by practitioners that when applying the Adults at Risk policy in detention reviews, the Home Office is aiming to maintain detention rather than conducting an open-minded assessment of the evidence. No policy designed to protect vulnerable detainees will be effective unless it is applied properly.