T, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 668 (Admin)

Case No CO/9282/2009[2010] EWHC 668 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 3 rd February 2010
Strand
London WC2A 2LL
B e f o r e:
SIR MICHAEL HARRISON
(SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
THE QUEEN ON THE APPLICATION OF TClaimantv
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
MR T BULEY & MR T FISHER (instructed by TURPIN & MILLER) appeared for ClaimantMR M BARNES (instructed by TREASURY SOLICITORS) appeared for Defendant
J U D G M E N T

SIR MICHAEL HARRISON: Introduction The claimant is a national of Zimbabwe, age 35, who challenges the legality of his detention by the defendant from 19 March 2009 to the present time. The defendant ordered his detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971, following a deportation order which had been made against him on 23 October 2006 and against which he appealed unsuccessfully. The legality of his detention is impugned on two main grounds. The first ground is that it was contrary to the defendant's Detention Centre Rules 2001, and also contrary to chapter 55.10 of the UKBA Enforcement Instructions and Guidance under which persons who are mentally ill and persons where there is independent evidence that they have been tortured should normally only be considered suitable for detention in very exceptional circumstances. The second ground is that the detention was rendered unlawful by the defendant's failure to act expeditiously to secure his removal. There is a third ground which is really a catch all ground.

[2]There is a lengthy factual history in this case relating to both the immigration and the medical aspects of the case. It is necessary to consider that factual history in some detail because, in a case such as this, the court has to decide the primary facts, weigh the relevant considerations and come to a decision on the legality of the detention. It is not a case where the court reviews the decision making process according to normal public law principles. Factual Background[3]The claimant came to this country from Zimbabwe in August 2001. According to him, he had made donations to the MDC in 1998 and 2000 and he had spoken out against the regime from time to time. In 2001 he was arrested, detained and severely beaten up by the authorities in Zimbabwe. Those matters are the subject of an asylum claim that he made much later in 2009, the refusal of which is currently the subject of an appeal to be held on 5 February 2010. Although I am not deciding that appeal, some of the factual matrix relating to it was inevitably the subject of submissions in this case in order to provide the context to the issue of the legality of the claimant's detention.[4]When the claimant entered the United Kingdom in August 2001, he was initially granted leave to enter as a visitor which was subsequently extended to enable him to study for a business management course, that leave being further extended until 31 October 2002. Thereafter, he did not have any leave to remain in the United Kingdom.[5]The next phase in the history of the matter relates to his criminal convictions. On 1 October 2002 he was convicted of using a false instrument and obtaining by deception and sentenced to a community rehabilitation order for 18 months. On 7 October 2002 he was convicted of driving with excess alcohol for which he was find £300 and disqualified for 12 months. On 6 May 2003 he was convicted of unlawful wounding. He had stabbed his wife with some scissors in a domestic dispute, and he was sentenced to nine months' imprisonment. An application for recommendation for deportation was refused by the court. Finally, on 26 April 2006 he was convicted of two offences of voyeurism and one offence of theft, for which he was sentenced to a total of 12 months' imprisonment and put on the sex offender register. According to the remarks of the sentencing judge, the claimant took advantage of a vulnerable girl on a train, got her drunk and invaded her privacy by taking photographs of her which he downloaded on to his computer. He also stole her bag and mobile phone.[6]On the claimant's release from prison on 23 October 2006, he was served with notice of intention to make a deportation order and he was detained under immigration powers. On 31 October 2006 he appealed against the deportation order and on 30 November 2006, he was granted bail by the Asylum and Immigration Tribunal subject to a weekly reporting condition. By notice dated 25 January 2007, the claimant was granted temporary admission by a document which warned that failure to comply with the reporting conditions was a criminal offence.[7]On 2 February 2007, the AIT dismissed the claimant's deportation appeal. The claimant had represented himself at the hearing although he had been represented by solicitors at the pre-hearing review. In its determination, the Tribunal quoted the following paragraph from the probation officer's report:
"TT presents as a confident, accomplished individual who has achieved a degree of success. However, I have to treat a number of grandiose statements he has made with caution as a result of the lies that he has also told me. During interview, he told me that he had indefinite permission to remain in this country although this was to be reviewed in 2008 at the conclusion of his studies. Having contacted HM immigration, I can inform the court that TT was allowed into this country on his wife's visa and given that he and his wife are now parted, he is in this country illegally ... In the face of his lack of honesty this leads me to question his statements concerning not only his version of the current matters, but also his claims to have been tortured by the Mugabe regime, his professional qualifications and the fact that his uncle was the Archbishop of the Catholic Church of Zimbabwe. These are a selection of the grandiose statements which TT made in the interview which served to indicate his positive self perception."
The probation officer's assessment of the likelihood of re-offending was described as medium.[8]In dismissing the claimant's appeal, the Tribunal stated at paragraph 28:
"We found that the Appellant is an intelligent man who continues to deny responsibility for the actions he has taken whilst he has been in the UK. He continues to blame other people for convictions that he has accumulated whilst being in the UK. He has blamed the breakdown of his relationship with his wife for his alcohol abuse and for his convictions for driving whilst disqualified and obtaining a driving licence by deception. Despite the fact that his two convictions for voyeurism and theft appear to be whilst he was drunk, he has told the Probation Officer the alcohol does not have a detrimental effect on his behaviour or impair his thinking and therefore has no motivation to address his drinking problem. He has denied responsibility for the actions that he took on the train. Despite being asked several times to speak of what led up to his conviction for the offence he did not do so in oral evidence. He said he was drunk and could not remember, but found the images on his camera. In the Probation Officer's report it shows that he said that he thought that the girl was consenting to his actions however he has been convicted by a jury of these offences having pleaded not guilty. To the Probation Officer he stills denies having taken the girl's bank card and says it was planted on him."
[9]Having been granted bail by the Tribunal on 30 November 2006 the claimant remained at liberty until 19 March 2009, a period of some two and a quarter years. However, he failed to report under his immigration reporting conditions from March 2007 onwards and, in July 2007, he was listed as an absconder. It is, however, apparent from the case records that he had been regularly reporting to the police under the requirements arising from being a registered sex offender, and he had reported no less than 11 changes of address by March 2009. Although there is a record of the police notifying the immigration authority of the claimant's address in January 2008, it seems that it was not until early March 2009 that the immigration authority discovered that the defendant had been reporting to the police regularly, after which his listing as an absconder was removed.[10]However, on 17 March 2009 the claimant was arrested for failing to provide his current address as a registered sex offender. According to him, on 4 March 2009 he had moved temporarily from his permanent address to permanent address to stay with a friend until he had enough money to pay his landlord, and he did not think he was required to notify a temporary change of address. On 18 March 2009 the Magistrates' Court sent his case to the Crown Court and granted him bail. Subsequently, on 23 September 2009 he pleaded guilty to failing to notify his change of address, and he was given a one month suspended prison sentence.[11]On 19 March 2009, the day after he had been granted bail by the Magistrates' Court, he was detained under immigration powers. That is the commencement of the detention which is challenged in these proceedings.[12]Following an unsuccessful bail application, the claimant claimed asylum on 27 March 2009. Another bail application was refused, and then on 14 April 2009 the claimant's solicitors requested temporary admission, stating that the claimant was a victim of torture, that he suffered from post traumatic stress disorder (PTSD) and other physical impairment, and that he had attempted suicide in October 2005. It was contented that he was therefore unsuitable for detention. The defendant's reply on 15 April 2009 was that the claimant had not provided any evidence to substantiate the claim of torture and PTSD. It was submitted on behalf of the claimant that the obligation was not on the claimant to produce that evidence, the obligation was on the defendant to satisfy himself that the detention was appropriate.[13]That is an appropriate point to refer to the Detention Centre Rules 2001. Rule 34(1) provides:
"Every detained person shall be given a physical and mental examination by the medical practitioner ... within 24 hours of his admission to the detention centre."
[14]Rule 35 provides:
"(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention. (2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions and the detained person shall be placed under observation for so long as those suspicions remain and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State. (3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture."
[15]In this case, there was no examination of the claimant by a medical practitioner within 24 hours of his detention on 19 March 2009, contrary to Rule 34(1).[16]On 19 April 2009, he was seen by a clinic nurse about a migraine and a stomach problem. The report states that no problems were reported at that time and the claimant denied any thoughts of self harm. Under what appears to a pro-forma list of potential problems, "yes" was entered against depressive disorder, but "no" against other post-traumatic health disorder, mental health disorder, self harm and torture.[17]On 20 April 2009 the claimant was seen, apparently for the first time, by a medical practitioner for vomiting during a UKBA interview, and he was prescribed diazepam.[18]On 24 April 2009, the claimant underwent an asylum screening interview during which he described a number of medical complaints, including PTSD, and referred to two suicide attempts in 2005. He also stated that his reason for coming to the United Kingdom was to escape torture, violence, and targeted persecution in Zimbabwe.[19]On 26 April 2009, the claimant underwent a medical examination which was the subject of a report to a UKBA manager pursuant to Rule 35(1) of the Detention Centre Rules. It records the clinical information as including various scars from 2001 and, on the second page, it continues:
"Persistent pain in R foot due to beatings on foot. Cannot feel L foot due to beating with flexible rubber ruler. Beaten on palms, back and made to sleep in metal casket. Taken from Harare Zimbabwe office by central intention organisation [to] police station [to] another place where he was aware [unreadable] canvass sack overhead, handcuffed, tortured for (1) Political beliefs. (2) association and financial contribution to movement for political change."
[20]The Rule 35 report stated that a copy of the report would be forwarded by the UKBA manager to the case-owner with responsibility for reviewing the decision to maintain detention, and that the manager would confirm that the detainee's case had been reviewed and that a response had been sent to the detainee and his legal representative.[21]It is the claimant's case that no response was sent to him or his solicitor and that there was nothing to show that his case had been reviewed with that information in mind. Documents show that the report was forwarded to and received by the decision maker, but thereafter there is no further mention of it.[22]On 1 May 2009, the claimant's asylum interview, which was to have taken place on that day, had to be cancelled. The claimant maintains that it had to be cancelled because he had a bail application on that day. The defendant contends that it had to be cancelled because the claimant had been moved to Colnbrook IRC because he had been the instigator of disruption at Brook House IRC involving 40 detainees refusing to return to their room at lock down. On the balance of probabilities, the documentary evidence tends to support the defendant's reason for the cancellation of the interview. Be that as it may, the asylum interview subsequently began on 27 May 2009, and because it was not finished on that day, it was finally completed on 29 June 2009.[23]In the meantime, on 2 June 2009 a medical report from Dr Sbaiti on behalf of the claimant was sent to the defendant. Not having received any reply from the defendant, Miss Bianchini, the claimant's solicitor, re-sent the report on 26 June 2009. The defendant accepts receiving it on that occasion, but not on the first occasion. For what it is worth, the documentary evidence tends to suggest it was received on the first occasion.[24]Dr Sbaiti is a medical practitioner who is a Foundation 2 House Officer. In her report, she described the claimant's suicide attempts in October 2005 and March 2009 and she described the claimant's physical symptoms said to be attributable to torture. Her diagnosis was, firstly, that the claimant has suffered from PTSD since his arrival in the United Kingdom and that it has been exacerbated by his detention. Secondly, she diagnosed that the defendant suffers from a severe depressive illness. And, thirdly, she concluded that the evidence strongly suggested that the claimant had undergone torture which included several head injuries. She thought he needed a formal assessment by a specialist in neuropsychiatry.[25]In response to Dr Sbaiti's report, on 8 July 2009 the defendant requested access to the claimant's medical records prior to detention. On 9 July 2009, the claimant's authority to access those medical records was sent to the defendant. The defendant's Acknowledgment of Service, dated 2 September 2009, contained a critique of Dr Sbaiti's report but contended that the claimant's case and Dr Sbaiti's report could not be properly evaluated until the claimant's medical records, which it was said had been requested but not yet disclosed, had been received. That point has not been pursued by the defendant in this court. That is not surprising because the documentary evidence, in particular the defendant's case record sheet, shows that the claimant's permission to access his medical records was sent on 9 July 2009.[26]Continuing the chronology of the medical evidence, there is an entry in the defendant's records on 14 August 2009 that there was a need for a mental health assessment. Entries for 15 August 2009 by Dr Ghaffar at HMP Elmley refer to PTSD due to torture whilst in Zimbabwe, bipolar affective disorder, and suicide and self inflicted injury. Entries for 20 August 2009 state that the claimant had told the doctor he wanted to kill himself, and that a doctor felt he needed assessment by the inreach team. The next day, a doctor stated that he had the impression that the claimant had serious mental issues.[27]On 28 August 2009, there is an entry in the case records that the claimant had said he had pain in his feet from being beaten by metal rods in Zimbabwe. He wanted to have crutches but the doctor felt that there was nothing to substantiate the need, although later some crutches were found which were given to him.[28]On 3 September 2009, the claimant is recorded as having a fight with a cell mate and kicking him with his left foot without mentioning any pain in his feet. On 7 September 2009, there is an entry stating that the claimant had refused to walk and had pulled himself along the floor with his arms. He is recorded as having fought twice during the last weekend using his feet. He complained of pain in his ankles which were found to be unremarkable. The doctor thought pulling himself along the floor seemed to be a protest. However, on 9 September 2009 there are entries stating that the claimant had pain from swollen feet and mobility problems as a result of which he was admitted into healthcare and was using a wheel chair.[29]On 1 October 2009 the claimant's solicitors sent to the defendant a psychiatric report on the claimant from Dr Katona dated 29 September 2009. Dr Katona diagnosed complex PTSD and Severe Depressive Episode. He stated that both the PTSD symptoms and the depressive symptoms appeared to have had their onset following the claimant's imprisonment and torture in Zimbabwe. In his view, the claimant's continued and openended detention had contributed to his recent acts of self harm and increased the risk of suicide attempts, and the continuing detention was aggravating his PTSD symptoms. He stated that people with complex PTSD need much longer and more individually tailored psychotherapy than the normal cognitive behaviour therapy used for PTSD and that it could only be provided in specialist centres and may need to continue for as long as two to three years. So far as Dr Katona could gather, the claimant was not currently being given any of those types of treatment. Finally, Dr Katona had considered the possibility that the claimant was feigning or exaggerating his symptoms. However, his clinical experience suggested that the claimant was trying hard to be accurate in his recollection of past events and in his description of his mental state.[30]On 9 December 2009, which was the day of the oral permission hearing for this case, the defendant served on the claimant a decision letter refusing the claimant's asylum claim, basically on the ground he did not belief the claimant's case. In that decision letter, the defendant referred to the reports of Dr Sbaiti and Dr Katona and accepted that the claimant suffers from severe depression and PTSD. On the 18 December 2009, an appeal was lodged against the decision to refuse asylum, and that appeal is due to be heard on 5 February 2010.[31]On 18th January 2010, the defendant sent to the claimant's solicitors a psychiatric report from Dr White dated 15 January 2010. When Dr White saw the claimant, the claimant was still using a wheelchair due to difficulties with walking. Dr White diagnosed PTSD and Depressive Episode. He stated that his diagnoses were formed almost exclusively on the basis of the claimant's self report. Whilst he had little reason to disbelieve what the claimant told him, it was possible he was not being genuine with the aim of preventing his deportation to Zimbabwe. However, Dr White stated that, during the interviews, the claimant appeared generally consistent in his account of events and the level of detail he expressed suggested that he was being genuine, although there were some accounts in the medical records that he had not been truthful in the past.[32]So far as treatment was concerned, Dr White said the mainstay for treatment for PTSD is psychological invention. The claimant had been seen by a clinical psychologist but he was too preoccupied with his immigration case to focus on his psychological work at the time, although the psychologist could recommence the assessment if the claimant was willing to engage. Dr White also commented that the claimant was not being prescribed any medical treatment, primarily due to his lack of cooperation with the medical inreach team.[33]Dr White stated it was difficult to assess the claimant's risk of harm to others due to a lack of collateral information, but it appeared it was at least in part associated with his stress, unhappiness and anger at his current situation.[34]Finally, Dr White summarised the claimant's history of suicide attempts as an overdoses in 2005, an attempt to kill himself by strangulation and suffocation whilst in custody in 2006, and jumping over a second floor landing and trying to asphyxiate himself whilst in custody in March 2009. An entry in the defendant's medical notes dated 2 October 2009 appears to refer to the last two of those incidents when it states that the claimant said he had put his head in the toilet and tried to asphyxiate himself whilst taking two gulps of water, and that he had tried jump from a second floor landing onto the netting, but an officer had stopped him by holding his leg.[35]There were monthly progress reports to the claimant during his detention, the first being 16 April 2009 and the last being on the 19 January 2010. In none of them was there any reference to the claimant's mental health problems.[36]There were also internal monthly detention reviews during the claimant's detention. Until the very latest detention review dated 20 January 2010, the first day of the hearing of this case, none of the detention reviews referred to the claimant's mental health problems, even after receipt of Dr Katona's report and even after the decision letter refusing asylum in which the defendant accepted that the claimant was suffering from mental illness. In the latest detention review dated 20 January 2010, the Deputy Director referred to Dr White's report and made the following comments:
"A difficult case given the difficulties in returning to Zimbabwe at present and the psychiatric issues raised in the report. Mr T's offending history - including a conviction for wounding and further convictions for voyeurism with a consequent requirement to sign on the sex offenders register for 10 years - indicate a significant risk to the public if at large. He has also previously absconded from AIT bail and was only located and re-detained some 21 months later. The AIT have also refused bail on 6 occasions. I accept the presumption to liberty in the case but consider this is outweighed by the significant risk of harm if at large and the strong likelihood of absconding. Mr T could chose to return to Zimbabwe if he wished to bring an end to his detention and we must seek to offer FRS. I have also considered the mental health issues in this case. Our current policy states that persons suffering from mental illness are normally considered suitable for detention in only very exceptional circumstances but that the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. I have considered these factors and believe that the risk to the public outweighs the mental illness and that detention remains appropriate."
[37]The reference in that extract from the latest detention report to the current policy of normally considering persons suffering from mental illness as suitable for detention in only very exceptional circumstances is a reference to Chapter 55.10 of the UKBA Enforcement Instructions and Guidance ("the EIG") which deals with persons considered unsuitable for detention. It states:
"The following are normally considered suitable for detention in only very exceptional circumstances."
It then lists six categories of persons, the last three of which are:
"- those suffering from serious medical conditions or the mentally ill - in CCD cases, please contact the specialist Mentally Disordered Offender Team. - those where there is independent evidence that they have been tortured. - people with serious disabilities."
[38]Chapter 55.8A of the EIG deals with Rule 35 of the Detention Centre Rules, which I quoted earlier. It states inter alia that the purpose of the Rule is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. It states that the information in the Rule 35 report needs to be considered in deciding whether continued detention is appropriate in each case. Upon receipt of a Rule 35 report, caseworkers must review detention in the light of the information in the report and respond to the centre within two working days of receipt of the report.[39]Finally so far as the EIG is concerned, Chapter 55.1.3 states that detention must be used sparingly, and for the shortest period necessary. Law[40]I turn next to the case law to which I was referred, there being no significant difference between the parties as to the principles involved. Firstly, the case of R(I) v the Secretary of State for the Home Department [2002] EWCA Civ 888. That was a case involving the detention of an Afghani asylum seeker who had been convicted on two counts of indecent assault, sentenced to three years' imprisonment and was liable to be registered as a sex offender. He had been in detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 pending removal for 15 months which, in the circumstances of that case, was held to be unlawful. Dyson LJ set out in summary of what has become known as the Hardiel Singh principles at paragraph 46 of his judgment as follows:
"(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. (ii) The deportee may only be detained for a period that is reasonable in all the circumstances. (iii)If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention. (iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal."
[41]At paragraph 53, Dyson LJ said that the relevance of the risk of absconding should not be overstated, because, carried to its logical conclusion, it could become a trump card in every case where such a risk was made out.[42]At paragraphs 51 and 52, Dyson LJ dealt with the refusal of voluntary repatriation, stating that it cannot make reasonable a period of detention which would be otherwise unreasonable, but that it could be relevant to the reasonableness of the duration of detention if it was right to infer from it that the detainee was likely to abscond when released.[43]Secondly, the case of R(A) v the Secretary of State for the Home Department [2007] EWCA Civ 804. That case involved the detention of a Somalian national who had been convicted of rape and indecency and sentenced to eight years' imprisonment. At paragraph 45 Toulson LJ stated that there must be a sufficient prospect of the Home Secretary being able to achieve the detainee's removal in order to warrant his detention, having regard to all the circumstances, including the risk of absconding and the risk of danger to the public if he were at liberty. At paragraph 54 Toulson LJ accepted the submission that a risk of absconding and a refusal to accept voluntary repatriation were bound to be very important factors, and likely often to be decisive factors in determining the reasonableness of the detention. At paragraph 55, he stated that the risk of offending is an additional relevant factor depending on the magnitude of the risk. Longmore LJ agreed with the judgment of Toulson LJ. Keene LJ, at paragraph 77, disagreed with the part of the judgment of Dyson LJ in R(I) at paragraph 53 where he stressed the need not to overstate the importance of the risk of absconding. In the judgment of Keene LJ, it is a factor which in most cases will be of great importance. When dealing with the refusal of voluntary repatriation, Keene LJ agreed with what Dyson LJ said in R(I) at paragraph 52, namely that it might be evidence of the likelihood of absconding but he did not accept it was of the fundamental importance contended for by the Secretary of State.[44]Thirdly, the case of Anam v the Secretary of State for the Home Department [2009] EWHC 2496. That case concerned the legality of the detention of a national of Bangladesh who suffered from mental illness, but who had a prolific criminal record culminating in a conviction for robbery resulting in a four year prison sentence. There was also a very high risk of absconding, as well as attempts to frustrate removal and unnmeritorious court applications. The Secretary of State had, however, failed to engage with his policy not to detain mentally ill persons unless there were, "Very exceptional circumstances" justifying that court action. He had never adverted to the claimant's mental illness in any decision communicated to the claimant. Or in any internal minute. In the circumstances of that case, Cranston J dismissed the main claim, deciding that the balance came down against release, although he granted a declaration that the Secretary of State had unlawfully failed to consider the implications of his policy for the detention of the claimant.[45]At paragraph 37, Cranston J stated:
"Non-compliance with the Secretary of State's policy does not ipso facto lead to detention being unlawful. It must be shown that, but for the breach, had a person's detention been properly assessed they would not have been detained."
[46]At paragraph 42, in setting out the principles to apply when judicial review is sought of a decision to detain on the basis of the non-application or breach of the Secretary of State's policy, Cranston J stated that, firstly, there must at the outset be a non-application or breach of the policy; secondly, any non-application or breach of the policy must have caused the detention; and, thirdly, the non-application or breach of policy causing the detention may give rise to ordinary public law remedies such as a declaration.[47]In paragraphs 51 to 55 of his judgment, Cranston J dealt with the meaning of the policy in Chapter 55.10 of the EIG. At paragraph 51, he stated:
"Paragraph 55.10 provides that those mentally ill are normally considered suitable for detention in only "very exceptional circumstances"
. To my mind, the existence of very exceptional circumstances demands both a quantitative and a qualitative judgment. Were this provision to stand in isolation in the policy the power to detain the mentally ill could only be used infrequently, and the circumstances would have to have a quality about them which distinguished them from the circumstances where the power is frequently used. Otherwise effect would not be given to the requirement that the circumstances not simply be exceptional but very exceptional."[48]Then at paragraph 55, he stated:
"The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy. The phrase needs to be construed in the context of the policy providing guidance for the detention of all those liable to removal, not just foreign national prisoners. It seems to me that there is a general spectrum which near one end has those with mental illness who should be detained only in "very exceptional circumstances" along it - the average asylum seeker with a presumption of release - and near the other end has high risk terrorists who are detained on national security grounds. To be factored in, in individual cases are matters such as the risk of further offending or public harm and the risk of absconding. When the person has been convicted of a serious offence, substantial weight must be given to these factors. In effect paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified."
[49]The next case to which I ought to refer is R (on the application of D) v The Secretary of State for the Home Department [2006] EWHC, 908 Admin, where Davis J considered the effect of Rules 34 and 35, of the Detention Centre Rules in conjunction with the EIG and other policy statements. He concluded at paragraph 50 that the medical examination required under Rule 34 is an important part of the safeguards to assess whether a person should continue to be detained and that it was a corollary of that that any such concerns as to torture as may be identified by the medical practitioner would at least be capable of constituting "independent evidence" of torture under chapter 55.10 of the EIG. At paragraph 53, Davis J considered that the existence of Rules 34 and 35 operated to displace any notion that there was an overriding burden on the detainee to come up with the "independent evidence", the obligation being on the detaining authorities to provide the medical attendance which may, in some cases, lead to a report capable of being independent evidence of torture.[50]Lastly, I should mention the case R on the application of Abdi v the Secretary of State for the Home Department [2009]EWHC 1324 admin, where Davis J accepted at paragraph 36 that the fact that a period of detention occurs whilst the applicant is pursuing an appeal or comparable judicial process will always be a highly relevant factor. Submissions[51]I come then to the parties' submissions. I deal firstly with the submissions relating to the first ground of this application.[52]Put shortly, the claimant's case under ground one is that the defendant acted in breach of the Detention Centre Rules and policy guidance by not carrying out a medical examination within 24 hours and thereafter by failing to consider the effect of the claimant's PTSD, severe depression and independent evidence of torture on the suitability of his detention. It was submitted that that breach caused the detention to be unlawful because if, the detention had been properly assessed, the claimant would not have been detained as there were not "very exceptional circumstances" to justify his detention.[53]The claimant contended that, besides the accepted breach of Rule 34, there was a breach of Rule 35 by the defendant ignoring the Rule 35 report. There was, it was said, a failure to recognise that it was for the defendant to investigate the claimant's claim of torture and PTSD, and there was a breach of policy by a complete disregard of the consequences of the claimant's detention on his mental health by failing to address Dr Sbaiti's medical report and Dr Katona's psychiatric report. It was submitted that the first time the defendant considered that matter was in the detention review dated 20 January 2010. I was invited to conclude that the defendant's failures were shocking.[54]On the issue of "very exceptional circumstances", the claimant submitted that the risk of re-offending was less than a medium risk, given that the offences he had committed were at the low end of seriousness, he had not committed any offences whilst at liberty between November 2006 and March 2009, and he was now in a wheelchair. As far as the risk of absconding is concerned, it was submitted that while he was failing to report to the immigration authorities, he was reporting to the police as a registered sex offender, including notifying the police of 11 changes of address, and that the immigration authorities knew of his address from the police for a significant period of time and had ceased treating him as an absconder. He had returned voluntarily to the police station after being granted bail on 17 March 2009 and, in any event, whatever happens to his asylum claim, he would not be removed for the foreseeable future because the defendant was not enforcing removals to Zimbabwe at present, so there would be no incentive to abscond. It was said that any risk of absconding could be met by the imposition of a condition of residence at a particular address, a reporting condition and electronic tagging or a curfew.[55]Finally on this ground I was invited by the claimant to grant a declaration that the defendant had acted in breach of his policy and the Detention Centre Rules, even if, contrary to his case, the breaches had not caused the detention to be unlawful.[56]The defendant's case relating to ground one, put shortly, was that, although there had been a failure to comply with the Detention Centre Rules and a failure to consider the effect of detention on the claimant's mental health, those matters did not cause the detention to be unlawful because there were "very exceptional circumstances" justifying the detention in any event.[57]The defendant relied, firstly, on a risk of re-offending and a risk of absconding. Reliance was place on the claimant's criminal convictions, some of which were serious and the responsibility of which he did not accept. He had been a troublemaker whilst in detention and he had shown no regard for immigration law having been here unlawfully since October 2002. So far as the risk of absconding is concerned, it was pointed out that the claimant had been warned that it was a criminal offence not to report to the immigration authority but he had failed to do so, and he had been convicted of failing to notify a change of address as a registered sex offender. It was pointed out that he had not been found to be credible by the jury on the voyeurism charges, by the probation officer and by the Tribunal. The defendant did not accept the need for the claimant to be in a wheelchair, as he had subsequently been involved in a fight twice using his feet, and no one had diagnosed the problem which prevented him walking. It was suggested that he must have been feigning when pulling himself along the floor with his arms. Finally on this aspect, reliance was placed on the statement through his counsel that he would not return voluntarily to Zimbabwe.[58]Secondly, the defendant contended that the claimant was responsible for his own position. If he had made his asylum claim on entry to the United Kingdom instead of eight years later, the present problems would not have arisen, and no good explanation had been given for failing to make the asylum claim earlier. If he wins his asylum case, he will be released but, if he loses it and refuses to return voluntarily, it will be a situation of his own making.[59]Thirdly, the defendant accepted that the claimant suffers from PTSD but pointed out that he is not currently being treated for it because he was too focused his asylum claim and would not engage with the mental health team. Whilst the defendant accepted that there was an increased risk of self harm it was contended that it had been overstated by the claimant. The defendant did not accept that there had been the two suicide attempts in March 2009 because it was only based on what was said by the claimant but, if I were to accept it, it should only be to the extent mentioned in the medical notes. It was contended that there had been no other serious suicide attempts.[60]The second ground of this application is that the defendant has failed to act with due expedition to secure that the claimant's removal takes place, contrary to the fourth Hardial Singh principle as summarised by Dyson LJ in the case of R(I), by failing to deal with the claimant's asylum claim expeditiously.[61]According to information on the internet produced at the hearing, the defendant aims to give a decision on asylum applications within 30 days. The claimant's case is that a decision should have been made within a month or two of the asylum application being made on 27 March 2009. Instead, it was made on 9 December 2009. The asylum interview was not completed until the end of June 2009. After permission to access the claimant's medical record was given on 9 July 2009, nothing further was heard from the defendant until the decision on 9 December 2009. The claimant's case is that the time taken by the defendant, at least since July 2009, was an unlawful failure to act expeditiously.[62]The defendant's case on this aspect is that the chain of events showed that a perfectly acceptable length of time was taken to reach a decision. An asylum interview had been arranged for 1 May 2009 which had to be cancelled because the claimant's disruptive behaviour had resulted in him being moved to another detention centre, and the re-arranged interview on 1 June 2009 could not be completed on the day and was finally completed on 29 June 2009. It was submitted that, even if there were some failure on the part of the defendant prior to receipt Dr Katona's report, that report effectively broke the chain of causation because it meant that the defendant would have to reconsider the asylum claim in any event so that the claim would not have had an effective decision until then. Alternatively, if there was any delay by the defendant, it was contended that it was because the claimant had delayed making his asylum claim until he was detained in March 2009.[63]The third ground of this application is a "catch all" ground, namely that standing back from the two individual grounds of the application and looking at the case in the round, the claimant's detention had been for an unreasonable time, particularly bearing in mind he cannot be returned to Zimbabwe at the moment. It was said that, if his detention today is lawful, it is difficult to see why it will not be lawful in four to six months time because there was no reason to think that anything would change except a deterioration in the claimant's mental condition, or that the claimant could win his asylum appeal. Both sides referred me to some cases as touchstones which were said to assist consideration of this ground. Conclusions[64]This is an anxious case, not only because it involves the liberty of the subject, but also because it involves the detention of somebody with mental illness consisting of PTSD and severe depression. Both parties agree that at the heart of the case under ground one, is the issue of causation because the non-application or breach of policy by the defendant must have caused the detention in order for the detention to be unlawful. In other words it must be shown that but for the breach, if the claimant's detention been properly assessed, he would not have been detained. That, in turn, depends on whether there were "very exceptional circumstances" justifying the claimant's detention under Chapter 55.10 of the EIG. Again, both parties agree that the existence or otherwise of "very exceptional circumstances" is at the heart of the case under the ground one.[65]Before I come to deal with the issue of causation, which in turn involves consideration of the existence or otherwise of "very exceptional circumstances", I should first deal with the defendant's non-compliance with, or breach of, rules and/or policy, most of which are admitted by the defendant.[66]In breach of Rule 34(1) of the Detention Centre Rules the claimant was not given a physical and mental examination by a medical practitioner within 24 hours of his admission to the detention centre. The earliest date recorded in the medical notes of the claimant being seen by a doctor is 20 April 2009, a month after his detention, and that was only because he had vomited during an interview. Previously to that, if the claimant's account of suicide attempts are to be believed, and on the balance of probabilities I consider that they are, the claimant had made two suicide attempts in March 2009. On 14 April 2009, the claimant's solicitors had notified the defendant that the claimant was a victim of torture and that he suffered from PTSD.[67]Eventually, on 26 April 2009 there was a Rule 35 report, that is to say a report by a medical practitioner to the manager about a person whose health is likely to be injuriously affected by continued detention or any conditions of detention. I have previously set out the content of that report which refers to the claimant's torture claim and his resulting injuries. Under Chapter 55.8A of the EIG, the caseworker had to review the claimant's continued detention in the light of the information in the report, and respond to the detention centre within two working days of its receipt. In breach of Chapter 55.8A, there is no evidence of any response to the Rule 35 report, either within two working days or at any time thereafter. There is no further reference to the Rule 35 report in the papers in this case. It seems to have been ignored.[68]The next bit of evidence which should have alerted the defendant to consider the appropriateness or otherwise of the claimant's detention was the receipt of Dr Sbaiti's report. There is a dispute when it was received by the defendant, either when it was sent on 2 June 2009 or when it was re-sent on 26 June 2009. The evidence tends to suggest the former date, but nothing much turns on that. The defendant has been critical of Dr Sbaiti's report, pointing out that she had only been a house officer for two years and that she is not a psychiatrist. Both of those matters are true, although it is pertinent to point out that her diagnoses were subsequently confirmed by both Dr Katona and Dr White. The relevant point to be derived from her report, however, is that it should have alerted the defendant to have considered the appropriateness of the claimant's continued detention in the light of Dr Sbaiti's diagnoses of PTSD and severe depressive illness and in the light of her independent confirmation of injuries consistent with torture. In my view, there was a failure by the defendant to review the appropriateness of the defendant's detention in the light of her report.[69]On 8 July 2009, the defendant's reaction to Dr Sbaiti's report was to seek access to the claimant's medical records. Permission to access those reports was given by the claimant's solicitors the next day. The claimant continued to do nothing, claiming in the Acknowledgment of Service that he was still waiting for permission to access the claimant's medical records, despite the fact that, as I find on a balance of probabilities, permission was granted on 9 July 2009. During all this time, there was no consideration of the effect of the claimant's mental health on the appropriateness of his detention, and it is conceded by the defendant that there was no attempt to access the claimant's medical records.[70]In August 2009, there are entries in the medical notes which I have summarised earlier which show concern about the claimant's mental health, but still, there was no consideration of the appropriateness of his detention in the light of those concerns.[71]At the beginning of October 2009 the defendant received Dr Katona's report which diagnosed complex PTSD and severe depression and which stated that the claimant's continued and open-ended detention had increased the risk of suicide and was aggravating his PTSD symptoms. If ever there was a report which should have galvanised the defendant into considering the appropriateness of the claimant's continued detention, that was it. Yet again, there was a complete failure by the defendant to address that issue.[72]Eventually, on 9 December 2009, the defendant issued his decision to refuse the claimant asylum. In that decision letter, he considered Dr Sbaiti's medical report and Dr Katona's psychiatric report and accepted that the claimant suffered from severe depression and PTSD, but the next detention report dated 23 December 2009 authorising the claimant's detention, made no reference to the claimant's medical condition which had been accepted by the defendant - another failure to take the claimant's mental illness into account when considering the appropriateness of the claimant's continued detention.[73]The first evidence of the defendant taking into account the claimant's medical illness when considering the appropriateness of the claimant's detention is the detention review of 20 January 2010, the first day of the hearing of this case. In that detention review, which I have quoted earlier, it was considered that the risk to the public outweighed the mental illness. Apart from that last minute consideration, made in the light of these proceedings, none of the progress reports or the detention reports during the claimant's detention of almost ten months even considered the appropriateness of detention in the light of the claimant's mental illness, let alone the evidence in the reports of Dr Sbaiti and Dr Katona relating to torture. There was a litany of failures and breaches of policy by the defendant which, in my view, were significant and serious. All the more so when there was clear evidence in Dr Katona's report and Dr Sbaiti's report that the claimant's continued and open ended detention was aggravating his PTSD symptoms and increasing the risk of further suicide attempts. In my judgment, it would need very compelling circumstances indeed to justify the claimant's continued detention in the light of that evidence. That is, no doubt, why Chapter 55.10 of the EIG provides that the detention of the mentally ill, or of those where there is independent evidence of torture, is normally considered suitable in only "very exceptional circumstances".[74]That brings me to the issue of "very exceptional circumstances" which both parties agree lies at the heart of the first ground of this application. It is right to say that there is evidence that the claimant is capable of dishonesty, and there is evidence that the claimant has on occasions been a troublemaker in detention although there is no knowing the degree to which his mental illness has contributed to that. Furthermore, there is no explanation why the claimant failed to make his asylum claim some eight years earlier. If he had done so, the present situation might not have arisen. He has been here unlawfully for that period of time. His failure to claim asylum for that period of time is the principle reason for the defendant refusing his asylum claim on the ground of lack of credibility. That is something which will be considered which by the Tribunal on the asylum appeal, as will be the very detailed account of his alleged torture in Zimbabwe contained in his asylum interview. I make no further comment on those matters because they are matters for the tribunal.[75]The main thrust of the defendant's case on the issue of "very exceptional circumstances" related to the risk of re-offending and the risk of absconding. In considering those aspects I bear in mind the case law relating to them to which I referred earlier in this judgment.[76]Turning first to the risk of re-offending, the claimant's offence of dishonesty in 2002 was not sufficiently serious to merit a custodial sentence, nor was the offence of excess alcohol. His offence of unlawful wounding was a more serious offence, meriting a nine month prison sentence. It was, however committed in a domestic environment over seven years ago and there were no other offences of violence whilst the claimant was at liberty between November 2006 and March 2009. The voyeurism offences for which he was convicted in April 2006 were unpleasant offences for which he was given a 12 month prison sentence and put on the sex offender register. In his pre-sentence report at that time, the assessment of the likelihood of his re-offending was said to be medium. Having regard to all that evidence my conclusion is that the claimant's likelihood of re-offending is no higher than medium.[77]Turning next to the risk of absconding, at first blush the evidence appears to be relatively strong because the claimant failed to report under his immigration conditions in March 2007, and was later listed as an absconder. Furthermore, he failed to notify his change of address in March 2009 as he was required to do as a registered sex offender, resulting in a conviction for that offence for which he was given a one month suspended prison sentence. However, when the reality of the situation is considered, the position is not so significant as it might first appear. Whilst it is quite right to say that the claimant should have complied with his immigration reporting conditions, and that the requirement do so notified him to that it was a criminal offence not to do so, the fact of the matter is that he was reporting all the time to the police as a registered sex offender and he had notified the police of no less than 11 changes of address. The occasion when he failed notify a change of address related to a temporary change of address which he did not think needed notification. Save for that instance, the apparently constant compliance with his reporting conditions to the police as a registered sex offender together with the fact that the immigration authority subsequently ceased to describe him as an absconder, leads me to conclude that the risk of him failing report if he were to be released from detention is substantially less than that contended for by the defendant. In my view, the risk of absconding can properly be described as between low and medium.[78]A further consideration relating to both the risk of re-offending and the risk of absconding is the fact the claimant is currently in a wheelchair, and has been so for some four months. It is quite properly pointed out on behalf of the defendant that there has been no medical diagnosis of the problem causing him to be in a wheelchair, and that the claimant is recorded as having been in a fight twice involving the use of his feet whilst using a wheel chair. On the other hand, Dr Sbaiti in her report referred to the claimant suffering chronic pain in both feet limiting his distance of walking, and Dr White in his report on behalf of defendant dated 15 January 2010 stated that the claimant was using a wheelchair due to difficulties in walking. I do not consider that this wheelchair aspect is a major consideration relating to either the risk of re-offending or the risk of absconding but, if anything, it tends to reduce to a minor extent the degree of risk on those aspects to which I have already referred.[79]Another matter relating relied on by the defendant is the refusal of voluntary repatriation as expressed on behalf of the defendant during the hearing. That can of course, only apply if the defendant were to lose his asylum appeal, something which in itself will involve consideration of the risk of return in light of the Tribunal's decision in RN(Returnees) Zimbabwe CG, 2008 UK AIT, 00083. Quite apart from that the fact of the matter is that the defendant is not currently and has not been for the last few years, returning failed asylum seekers to Zimbabwe. At the hearing, a ministerial announcement dated 29 October 2009 was produced by the defendant referring to an intention to make changes over time to the returns policy to Zimbabwe, moving towards enforced returns progressively as and when the political situation improved but, as counsel for the defendant said, it was not possible to say when that would arise. In the meantime, the existing situation of not enforcing return to Zimbabwe will continue to apply, which not only could be said to reduce the risk of absconding, but more importantly, renders the issue of refusal of voluntary repatriation academic.[80]Having regard to all the considerations to which I have referred, I have come to the conclusion that the balance comes down in favour of the claimant. For the reasons I have given, I do not consider that there are "very exceptional circumstances" justifying the detention of the claimant. There were, as I have said, significant and serious failures and breaches of policy by the defendant in this case when considering the ongoing detention of the claimant which, in my judgment, have caused his detention to be unlawful, because it cannot be justified by the existence of "very exceptional circumstances". I would therefore grant the claimant a declaration that his detention is unlawful and has been so since the defendant's receipt of Dr Katona's report at the beginning of October 2009. I will make a mandatory order that he should be released on bail on certain conditions which, subject to any submissions by counsel, should be reporting twice weekly at an immigration office or police station to be identified by the defendant, residence at an address to be identified or agreed by the defendant and electronic tagging at all times whilst on bail.[81]Counsel for the claimant agreed that if I were to find to in favour of the claimant on the first ground of this application, it would not be necessary for me to reach a conclusion on the second and third grounds of the application. In those circumstances, I do not propose to express any opinionson those grounds.[82]MR BARNES: My Lord there are just some finer details resulting from my Lord's judgment.

SIR MICHAEL HARRISON: Yes?

[84]MR BARNES: First of all, the question of how quickly the claimant is required to be released. It may take a day or two to arrange the tagging and the address. I don't know my Lord, exactly how long it will take, but I suspect it may take a day or two. I would be grateful if my Lord would indicate that it would be appropriate to maintain detention until those arrangements can be put in place with the proviso that they must be done urgently, or however my Lord choses to put it.

SIR MICHAEL HARRISON: I understand your point. Within two days time?

[86]MR BARNES: My Lord, we can take instructions now if it will assist as to how long it will take.

SIR MICHAEL HARRISON: Yes, thank you.

[88]MR BARNES: My Lord, whilst my instructing solicitor is doing that, can I just deal with the question of a draft order?

SIR MICHAEL HARRISON: Yes.

[90]MR BARNES: Arising out of my Lord's judgment. The draft order would, certainly often in these cases, contain a proviso that the case be stayed for one month or two months, we would certainly urge my Lord two months, for the parties to attempt to settle the matter in respect of the damages claim. My Lord, if settlement cannot be reached, the normal order would be that the case be transferred to the Queen's Bench Division for an assessment of damages, although my Lord there are authorities that show that my Lord can keep hold of the case if my Lord feels it is appropriate to assess the damages, if that will be the easier way of dealing with it.

SIR MICHAEL HARRISON: On that very last point, I think the answer is for it not to be kept to me, because I only sit from time to time.

[92]MR BARNES: Yes, my Lord.

SIR MICHAEL HARRISON: That would probably mean it would not be dealt with as expeditiously as otherwise it would be.

[94]MR BARNES: Yes, my Lord. We would respectfully invite you to make an order staying the matter for two months for the purposes of the parties attempting to settle the question of the damages claim and for the matter, if it is to be brought back, it be transferred to the Queen's Bench Division for an assessment of damages.

SIR MICHAEL HARRISON: Thank you. Shall we pause, there? Let us deal with that point now. Mr Fisher, what do you say about that last point?

[96]MR FISHER: My Lord, we would be satisfied that that would be the correct way it deal with it.

SIR MICHAEL HARRISON: Right, then I will make an order in those terms as you have just expressed it.

[98]MR BARNES: Thank you, my Lord. My Lord, aside from the question of how quickly release can take place, there is just one further issue, which is of course costs. I imagine my learned friend will ask for his costs. If he does, my Lord, I cannot say anything about it.

SIR MICHAEL HARRISON: That is realistic of you, Mr Barnes, thank you very much. I imagine you are asking for an order that the defendant pays the claimant's cost.

[100]MR FISHER: I shall be, that is my application.

SIR MICHAEL HARRISON: Thank you very much, I shall make such an order.

[102]MR FISHER: My Lord, there are two other points I wish to clarify. It is conventional to allow liberty to apply if it becomes difficult to comply with the conditions in these cases. If you could allow liberty to apply in your order, I would be grateful.

SIR MICHAEL HARRISON: If there is difficulty to comply it does come back to this court, does it?

[104]MR BARNES: My Lord, I am not sure what the answer to that is. If the claimant failed to comply with his conditions, then he would be liable to be redetained, and it would be a matter for the discretion of the Secretary of State whether or not to redetain in those circumstances, and it would be dependent on the assessment of the circumstances. The situation that would then arise is that the claimant would have two potential remedies, one bail and in the Tribunal, and two returning to this court, for a further claim for unlawful detention. My Lord, in my submission it would be both unnecessary and inappropriate to keep this claim alive just incase there is a difficulty in relation to complying with the conditions. The appropriate order that in my submission my Lord should make is that the detention has up until this point been unlawful. In the circumstances where the conditions my Lord has outlined can be imposed, continuing detention would be unlawful, and then my Lord that brings an end to the matter, save for the assessment of damages. My Lord, as I say, if there is a difficulty then the claimant has two potential remedies which he will have to rely upon.

SIR MICHAEL HARRISON: Mr Fisher, in fact as matter of reality, I would not have thought that liberty to apply was necessary. If you thought it was appropriate, you could always make an application. My inclination would be to say that it is not a matter which will be brought back to this court, but dealt with by the authorities policing the bail.

[106]MR FISHER: I am grateful, my Lord. I make the application only on the basis that it has been dealt with in previous cases, but if your Lordship thinks that is the appropriate way.

SIR MICHAEL HARRISON: By all means seek to persuade me if you think you should. You refer to other cases; I don't know anything about those other cases.

[108]MR FISHER: Given the conditions in this case are not particularly onerous, I think it is not necessary in this case.

SIR MICHAEL HARRISON: Very well.

[110]MR FISHER: May I just clarify, you indicated you would make a declaration that the claimant's detention has been unlawful, can I clarify that is from the outset?

SIR MICHAEL HARRISON: It is certainly not from the outset.

[112]MR FISHER: Is there a particular date?

SIR MICHAEL HARRISON: What I have said is it is unlawful now, I have not made any finding as to the date from which it is unlawful. If you wish me to do so, I will do so, but the matter was to be transferred.

[114]MR BARNES: My Lord, conventionally my Lord would reach a conclusion as to when it became unlawful to assist the Queen's Bench Division in assessing the damages claim and to assist the parties in resolving it in the two months.

SIR MICHAEL HARRISON: Then I will make it clear that I consider that the detention became unlawful by the date of the receipt of Dr Katona's report, which if I remember rightly is 1 October 2009.

[116]MR BARNES: I am grateful, my Lord. May I just take instructions?

SIR MICHAEL HARRISON: Yes.

[118]MR BARNES: My Lord, I am told it will take 72 hours minimum in order to put in place the arrangements for the conditions. My Lord, if you feel that sounds like a long period of time, I am told it will take some time to check out the address and make sure it is suitable for tagging and that is the administrative problem that will have to be overcome. I am only told what the minimum period will be required is, I am not told how long it is actually likely to take. My Lord, I would invite you in the circumstances to make an order that to the effect that the claimant can continue to be detained for so long as it takes to put in place the conditions outlined and my Lord, that if the matter is not resolved, say for example within a week, that the claimant has liberty to apply on that point alone.

SIR MICHAEL HARRISON: No, I am afraid I am not prepared to specify that length of time. I think what I will do is to specify a period of 72 hours, and that if there are any difficulties, then there is liberty to apply, and put it that way round.

[120]MR BARNES: Yes, my Lord.

SIR MICHAEL HARRISON: I think what would be useful is if you could between you agree a form of an order and send it through to me via the associate here.

[122]MR BARNES: Yes my Lord, in the usual way, certainly.

SIR MICHAEL HARRISON: In the usual way. I will incorporate into my judgment at the end of my judgment the matter which I have just referred to about the date when the detention became unlawful.

[124]MR BARNES: I am grateful, my Lord.[125]MR FISHER: I am grateful, my Lord. May I clarify, you did just say you would specify a minimum period of 72 hours, was that supposed to be a maximum period?

SIR MICHAEL HARRISON: If I said minimum, sorry. 72 hours.

[127]MR BARNES: I am grateful, my Lord.

SIR MICHAEL HARRISON: Is there anything else?

[129]MR FISHER: No, my Lord.

SIR MICHAEL HARRISON: Could you send through that draft order today?

[131]MR BARNES: My Lord, I am sure it could be done.

SIR MICHAEL HARRISON: As you are both here, you might agree it before you leave.

[133]MR BARNES: Yes, my Lord.

SIR MICHAEL HARRISON: Thank you very much.