M, R (on the application of) v Secretary of State for the Home Department [2008] EWCA Civ 129

Case No C5/2007/2654[2008] EWCA Civ 129
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN’S BENCH DIVISION
(HIS HONOUR JUDGE MACKIE)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 30 th January 2008
Before
LORD JUSTICE BUXTONLORD JUSTICE HOOPER
Between
THE QUEEN ON THE APPLICATION OF MAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr R Drabble QC (instructed by Messrs Duncan Lewis & Co) appeared for Appellant.Mr P Nathan (instructed by the Treasury Solicitors) appeared for Respondent.
Judgment
[1]There are two matters before the court this morning. One is an application for permission to appeal from a determination of Judge Mackie QC, sitting as a judge of the High Court in judicial review proceedings. The other is an application for a mandatory order by this court, directed to the Secretary of State, requiring the applicant Mr B M to be immediately released.[2]The matter arises in this way. Mr M is an Iraqi national from Southern Iraq and on 21 May 2001 he was granted indefinite leave to remain. He had arrived in this country when he was fourteen years old. He has, unfortunately, during his time in this country, committed a number of offences of some seriousness. In September 2001 he was convicted of obtaining money by deception and given eighteen months’ imprisonment. In August 2004 he was convicted of persistently using public telecommunications systems to cause annoyance or needless anxiety. Most recently, at Reading Crown Court, he pleaded guilty to what apparently were a number of offences of burglary (those being, as HHJ Mackie pointed out, domestic burglaries), and also handling and obtaining property by deception. The court viewed those matters as ones of some seriousness, as is shown by the term of imprisonment of three years that was imposed on him.[3]Whilst he was still in prison the Secretary of State served him with a notice of intention to make a deportation order on the ground that his presence in the United Kingdom was not conducive to the public good and, on release from prison, he was detained, and still is detained, pursuant to the Secretary of State’s powers under schedule three of the 1971 Act. He is now held in the Colnebrooke Removal Centre. He is in the course of appealing to the Asylum and Immigration Tribunal, proceedings that have not yet concluded, in the sense that apparently a final determination is still awaited. After that we are told he has every intention, if the answer is unfavourable to him, of engaging this court in that matter. Mr M has not been removed from this country, as the Secretary of State seeks to do. The principal reason for that being that, if he were to be removed, he would have to be sent back to Southern Iraq. That would be the appropriate place for him to go; but in circumstances that do not need further investigation, although the Secretary of State apparently accepts that it would be safe for Mr M himself to go back to Southern Iraq, he is fearful of the safety of the escorts (British subjects) who would have to accompany him on that journey. There is no immediate prospect of that situation changing.[4]The other reason why it might be inappropriate (and I say no more than that) for Mr M to be returned is that he is still in the process of appealing against the order made against him. He has made two applications to the Asylum and Immigration Tribunal for bail, both of which have been refused. We have not seen the original proceedings, but HHJ Mackie quoted the terms of that tribunal’s refusal on one occasion, which stated that the tribunal was satisfied, both because of Mr M’s pattern of offending and the fact that during the criminal process he had on a number of occasions failed to comply with bail conditions and indeed not turned up for court when he was required to do so, that he would likewise fail to appear in the Asylum and Immigration Tribunal process. He made an application, with which we are now concerned with, to the Administrative Court for an order that the continued detention of him, and the length of time for which he had been detained, was inappropriate. HHJ Mackie, with respect, went carefully through the material that was before him on this subject, some part of which I have already indicated. He was, in my respectful judgment, entitled to consider that there was a high risk of offending and also a risk of Mr M, not to put too fine a point on it, simply disappearing and not making himself available to the authorities; as, of course, he would be obliged to do whilst he was still the subject of the Secretary of State’s order.[5]Mr Patel, who has represented the Secretary of State in these matters, rightly reminds us that we should not interfere with HHJ Mackie’s conclusions unless it can be demonstrated that he committed an error of law, and Mr Patel says there is no error of law at all in what HHJ Mackie said. There is much force in that contention, but, having considered the matter anxiously, I think that in the particular circumstances of this case there are aspects in respect of which it is arguable (and I say no more than that) that the judge was inadequately informed in the decision that he made. We have to remember that this man has been in detention for a very long period, of terms as what might be called administrative detention go, and there is no prospect of his being released in the ordinary course of events: that is to say, no prospect of his going back to Iraq in the immediate future. In those circumstances, as it would seem to me, anxious scrutiny was required of the background and prospects of the man, were he to be released, and the likelihood of his attending on the next occasion.[6]There was no material before the judge about the circumstances that Mr M would be in were he to be released. There is some suggestion that he has a brother with whom he could stay, but there is no certainty of that; and also, the monthly reports that the Secretary of State either is obliged to make or does make on each person in detention do not seem to have been entirely full.[7]In those circumstances it is arguable that the court did not have sufficient material upon which to conclude that the presumption, as I would think it to be, that a person should not be detained, was outweighed by the danger of not attending. I would, therefore, grant permission for this appeal to proceed. I am conscious that in so doing the court may appear to be adopting something of a role more appropriate for a court somewhat lower down in the judicial hierarchy, but that is a situation we not infrequently find ourselves in when wrestling with difficult immigration cases. The terms upon which I would order the permission to be granted are that the Secretary of State will procure a report by the probation service, not just on the question of the danger of re-offending, but also on what in criminal bail terms are called the social ties and connections of Mr M, so that it is clear where he was going to be and how available he would be to the authorities should he be released; and also that there should be up-to-date reports from the Secretary of State herself as to Mr M’s current position in terms of the customary monthly reports.[8]I should also add that Mr Patel said that the appropriate forum for these matters to be ventilated was not the Administrative Court but the Asylum and Immigration Tribunal. Mr M had tried there twice and failed and had not sought to re-apply. I do not accept that submission, because the Asylum and Immigration Tribunal will have properly been concerned solely with the question, as I would understand it, of whether the man was going to appear before them on the next occasion when he was required to be there. That, of course, is a very important consideration, but the Secretary of State has to have in mind wider considerations, balancing that factor against the length of detention. It is for that reason that I persuaded that this was a proper application for the Administrative Court to consider, and that it would be right to pursue it to this court. In order to ensure that when the matter comes back the material is properly available I would order, subject to any view expressed by my lord, that the case be heard on the first available date after 1 March. I would think that an estimate of two hours would be ample to deal with what is quite a short point. That is that application.[9]The other application, which was not before HHJ Mackie and concerns matters that were not ventilated before HHJ Mackie, is in relation to Mr M’s present mental state. He has in the past attempted suicide on certainly one occasion and in the estimation of his advisors, since the matter was before HHJ Mackie, things have got considerably worse; and a series of medical reports has been produced, both on behalf of Mr M and by the Secretary of State, in relation to his present mental condition. The reason for that is that the Secretary of State’s Operation and Enforcement Manual says at paragraph 38.10:
“Others are unsuitable for immigration service detention accommodation because their detention requires particular security care and control. The following are normally considered suitable for detention only in very exceptional circumstances, whether in dedicated immigration service accommodation or elsewhere.”
The case that is relied on is “those suffering from serious medical conditions or the mentally ill”. In his very helpful submissions this morning, Mr Drabble QC has drawn our attention to the series of medical reports, including a report from a distinguished consultant, Professor Katona, Fellow of the Royal College of Psychiatrists, who is a professor at the University of Kent, who has concluded, from notes of other doctors’ examinations of Mr M, that Mr M has symptoms of depressive disorder, is suffering from a mental illness and that the continuing detention is likely to result in the worsening of that mental illness. The Secretary of State has most recently procured a report from a Dr Erven, who agrees that Mr M has symptoms of depressive disorder but considers that the matter can be adequately dealt with by the health care staff who are dealing with the day-to-day care of this man.[10]Mr Drabble says that is not good enough and assumes, as I understand it, as soon as it is agreed, as it is agreed, that Mr M is suffering from some sort of mental illness and a fortiori if that mental illness is made the worse by his being in detention, then he falls squarely under paragraph 38.10 and he needs to be released. There are of course some elements of paradox in that claim, in that Mr M is at present receiving treatment, and no-one says treatment that is not appropriate, and if he is released, no-one knows, apparently, what treatment will be available or where it can be given to him. However, putting that aside, I, with respect, would not read the Operation Enforcement Manual as the straightjacket that Mr Drabble seeks to place upon it. True it is, that those suffering from serious medical conditions are said not to be appropriate for detention. That is because they may require particular security and care and control. Now, in the present circumstances of Mr M -- and this may change -- but in the present circumstances on the most recent medical evidence, although he does need care and control, his case does not appear to pass beyond the bounds of its being able properly to be dealt with within the immigration detention limits.[11]I would think that the Enforcement Manual is directed at conditions which really cannot be dealt with properly in immigration detention. On the present evidence, Mr M does not fall into that category. Certainly, I do not think it is a case for the court to make a mandatory order against the Secretary of State who, on all the evidence, is doing her best in difficult circumstances to do what is right for this gentleman, granted that at the moment there are reasons supporting, as they are at the moment in the view of a judge of the High Court --why he needs to remain in detention. I therefore would not grant the application made on Mr M’s behalf.[12]When this matter appeared two weeks ago before Laws LJ for directions, the Lord Justice, quite apart from ordering this matter to come on as a matter of urgency, made a specific order that:
“The suicide watch ACDT is to be restored immediately if it is not presently effective.”
[13]That suicide watch, as I understand it and trust, has been maintained ever since. I think that the correct way of dealing with that point is this. The Secretary of State will give an undertaking to take specific medical advice as to the circumstances in which, and the extent to which, this gentleman’s case requires suicide watch. The Secretary of State will be at liberty to act upon that medical advice. Once that advice has been taken, I would prospectively discharge the order of Laws LJ because the lord justice may have been given an account of the matter that subsequent medical evidence shows to be less alarming than was once thought. So I would discharge Laws’ LJ order once the Secretary of State has received and acted on such medical advice as she has about suicide watch.[14]I agree.

Order

Application granted; application for release from detention is refused