Moussaoui, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 126 (Admin)

Case No CO/8262/2010

[2012] EWHC 126 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 3 February 2012

Before

MR JUSTICE LINDBLOM

Between

The Queen (on the application of Mustafa Moussaoui)Claimant

The Secretary of State for the Home DepartmentDefendant

Ranjiv Khubber and Gilda Kiai (instructed by Turpin & Miller) for Claimant

Jonathan Auburn (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing dates: 19 and 20 September, and 3 November 2011

Further written submissions: 12 and 13 January 2012

Judgment

Introduction

[1]This is a claim for judicial review of the detention of the claimant by the defendant, the Secretary of State for the Home Department (“the Secretary of State”), under powers provided by the Immigration Act 1971 (“the 1971 Act”). The claimant’s detention lasted from 17 May to 29 November 2010, when he was released. The challenge in its amended form was made on four grounds: first, that the Secretary of State failed properly to apply her own policy for the detention of those suffering from mental illness; secondly, that the claimant’s detention offended the principles acknowledged in R v Governor of Durham Prison, ex p Hardial Singh

[1984] 1 WLR 704

and in many subsequent cases; thirdly, that the Secretary of State misused the relevant statutory provisions, in paragraph 16 of Schedule 2 and paragraph 2 of Schedule 3 of the 1971 Act; and fourthly, that the Secretary of State failed to keep the claimant’s detention under review. Permission to apply for judicial review was granted by Nicol J on the first of those four grounds. The Secretary of State later accepted, in the light of the Supreme Court’s decisions in R (on the application of Lumba) v The Secretary of State for the Home Department

[2011] UKSC 12

and R (on the application of Kambadzi) v The Secretary of State for the Home Department

[2011] UKSC 23

, that her failure to carry out formal reviews of the claimant’s detention was unlawful, and thus conceded – though only in this respect – that the claimant’s detention had constituted the tort of false imprisonment. However, the Secretary of State contended that the claimant would and could lawfully have been detained in any event, and that no more than nominal damages should be awarded to him. This became the main contest between the parties. The case was subsequently adjourned for a hearing of those parts of the claim that remained in dispute.

Background

[2]The claimant’s nationality was for a long time in doubt, but it is now acknowledged by him, and accepted by the Secretary of State, that he is a national of Algeria, born on 11 October 1989. He arrived in the United Kingdom on the back of a lorry on 4 July 2006. Initially he adopted the alias of “Karim Snousi” and said he was Palestinian, but claimed asylum, on 20 July 2006, as a Moroccan national, under the name “Mustafa Moussaoui”. His age was disputed. Kent County Council (“Kent”) conducted an age assessment, which found his date of birth to be 11 October 1987. At first the claimant said that he came from the Polisario region of Morocco. The Secretary of State treated him as Moroccan. Later in July 2006 the claimant said he was Algerian.His first screening interview was to have taken place on 20 July. The interview was suspended as the claimant wanted an Algerian interpreter and said he was not feeling well. He said he had mental and psychological problems. On 25 July his age was assessed again, this time by the London Borough of Croydon Council (“Croydon”), and his date of birth was found to be 11 October 1989.On 27 July he was sent to NASS accommodation, but failed to arrive there and was recorded as an absconder.On 5 August 2006 his interview by the Secretary of State’s officials was suspended because they were “unhappy with the mental state of the subject”. Concerns about his mental health were again raised on 10 August during another screening interview. On 15 August 2006 his asylum claim was refused.On 5 September 2006 he was served with notice of his removal from the United Kingdom to Morocco. On 2 October 2006 he was reprimanded for common assault, under section 39 of the Criminal Justice Act 1988.

[3]On 16 January 2007 a further age assessment was undertaken by Croydon. The claimant’s date of birth was now found to be 10 November 1989. It was noted that his mental health required “urgent medical assessment”, that he was a “vulnerable young person because of his experience of drug taking and mental health problems” and that “his general personality might be perceived as an adult person”. On 5 March 2007 Croydon indicated that it was now relying on the age assessment conducted by Kent. On 26 April 2007, in a further age assessment, the claimant’s date of birth was estimated as being 10 November 1987. The Secretary of State now regarded him as an adult. On 9 May the claimant harmed himself at the offices of Croydon Social Services and was taken to hospital. On 4 June 2007 a further claim for asylum was refused. The claimant was again served with notice of removal, and also with notice of his liability to be detained. On 20 June 2007 he appealed against the refusal of his claim for asylum. He did not attend, nor was he represented at, the hearing of that appeal, which took place on 18 July 2007. On 25 July 2007 the AIT dismissed the claimant’s appeal. On 2 August 2007 his appeal rights were exhausted. On 10 September 2007 he was convicted by the Balham Juvenile Court of theft and attempted theft, and received a referral order of six months. On 28 November 2007, at West London Magistrates’ Court, he was convicted of attempted theft and sentenced to three months’ detention in a Young Offender Institution. On 24 December 2007, at Balham Juvenile Court, he was again convicted of theft, and was sentenced to 12 weeks’ detention.

[4]On 9 March 2008 the Secretary of State’s officials recorded that the claimant was suicidal, having attempted to cause himself serious harm, and that he required constant watch. On 26 September 2008, at the Thames Magistrates’ Court, he was convicted of three offences – attempted handling, attempted theft and theft – for which he received a total of 10 weeks’ detention. On 7 November 2008, at the same court, he was again convicted of theft, and was sentenced to 10 weeks’ detention.

[5]On 18 February 2009, at Thames Magistrates’ Court, the claimant was convicted of two counts of theft and sentenced to a total of six months’ detention. On 22 April 2009 he was again served with notice of deportation. On 14 May 2009 he was sectioned under the Mental Health Act 1983. On 29 June 2009 he was transferred from hospital to the Islington Drug Intervention Programme. He was discharged from this programme in July 2009. His discharge summary, prepared for the Camden and Islington NHS Trust by Dr Nigel Lester, a consultant psychiatrist, and Dr Sara Alsaraf, a core trainee in psychiatry, recorded that he had “a 4 year history of ‘depression’ and suicidal thoughts”, and went on to say this about his symptoms and the circumstances of his admission:

“Mood – worsened recently – feeling angry, low mood, fatigued, cutting self more, anhedonia, fighting people. Only thing he enjoys is drugs. Has cut himself frequently in the past – last cut 2/12 ago. The day prior to admission, he went to Tower Bridge to jump off it, wanting to kill himself. This was triggered by frustration at his probation officer. On initial assessment he still wanted to end his life – thoughts of jumping off building, off bridge, in front of train, OD of valium, walk in front of car, eating batteries. No current active plan, but concerned he may attempt one of these. He also reported some pseudohallucinations. In the past 4 years – multiple attempts (8-9) at suicide – tried to hang himself in prison, ate batteries and ate metal. Never succeeded – unable to say what stops him/protective factors. It was felt that he was suffering from moderate depression with poly substance misuse and psychotic experiences likely secondary to drug misuse rather than psychotic depression. Problems maintained by ongoing social situation (unable to claim benefits/housing due to problems with ID). He was admitted informally”

. Under the heading “Summary of progress/significant events while in hospital”, the discharge summary stated:

“[The claimant] admitted to £200 of crack use per day and was stealing in order to obtain drugs. He has been in and out of prison. He already has a substance misuse worker from St [Giles’] Trust for resettlement for offenders. He did not appear psychotic and was no longer suicidal and was therefore discharged. However, a day later he took an overdose and was readmitted informally. He was not noted to be psychotic. He went out and returned to the ward intoxicated and appeared elated on his return. He became abusive towards staff and attempted to hit a member of staff. He was therefore discharged from hospital.” 6. As to the “Ongoing issues at discharge” the discharge summary states: “Substance Misuse No fixed abode Isolated Impulsive attempts to end life”

. At the Oxford Magistrates’ Court, on 4 September 2009, the claimant was convicted of theft. For this offence he was later – on 18 September 2009 – conditionally discharged for nine months.

[6]On 17 May 2010 the claimant was arrested by the police. His custody record stated his nationality to be French. On 18 May 2010 he was convicted by the Oxford Magistrates’ Court of failing to surrender to custody at the appointed time, on 2 October 2009. No separate penalty was imposed for that offence.

The Enforcement Instructions and Guidance

[7]Chapter 55 of the Secretary of State’s Enforcement Instructions and Guidance (“EIG”) deals with “Detention and Temporary Release”. Paragraph55.1.1 gives general guidance, stating that, to be lawful, “detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but also accord with this stated policy”. Paragraph

55.1.2 deals with cases handled by the Criminal Casework Directorate (“CCD”). It says that the “starting point in these cases remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention”. It goes on to say this:

“However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation … are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.”

For non-EEA nationals, the deportation criteria include “a single sentence of 12 months regardless of when it was passed” and “an aggregate of 2 or 3 sentences amounting to 12 months in total over the past five years”.

[8]Paragraph 55.1.3 concerns the “Use of detention”. It states that “[detention] must be used sparingly, and for the shortest period necessary”. As to CCD cases it adds this: “As has been set out above, due to the clear imperative to protect the public from harm, the risk of re-offending or absconding should be weighed against the presumption in favour of temporary admission or temporary release in cases where the deportation criteria are met. In CCD cases concerning foreign national prisoners, if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. If detention is appropriate, a foreign national prisoner will be detained until either deportation occurs, the foreign national prisoner (FNP) wins their appeal against deportation …, bail is granted by the Asylum & Immigration Tribunal, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful (see 55.3.2 and 55.20.5 below). In looking at the types of factors which might make further detention unlawful, case owners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered …”.

[9]Paragraph 55.3.Adeals with the “Decision to detain [in] CCD cases”:

“As has been set out above, public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release might well be outweighed by the risk to the public of harm from re-offending or the risk of absconding, evidence by a past history of lack of respect for the law. However, detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life could be shown to be disproportionate. In assessing what is reasonably necessary and proportionate in any individual case, the caseworker must look at all relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences …”

. A list of “Factors influencing a decision to detain” is set out at paragraph 55.3.1. These include: “What is the likelihood of the person being removed and, if so, after what timescale?”; whether there is any evidence of previous absconding; whether there is any evidence of a previous failure to comply with conditions of temporary release or bail, whether the person has “taken part in a determined attempt to breach the immigration laws … (e.g. entry in breach of a deportation order, attempted or actual clandestine entry)”; whether there is a history of him complying with the requirements of immigration control “(e.g. by applying for a visa, further leave, etc)”; the nature of the person’s ties with the UK – whether he has close relatives here; whether anyone relies on him for support; whether he has a settled address and a job; his expectations about the outcome of his case, including whether there is an outstanding appeal or a claim for judicial review; whether there is a risk of offending or harm to the public; and whether there is “a history of physical or mental ill-health”.

[10]Paragraph 55.3.2 gives “Further guidance on deciding to detain in CCD cases”, and emphasizes again that “substantial weight” should be given to the risk of further offending and of harm to the public. Paragraph 55.3.2.4 states that, in all cases, caseworkers should consider on an individual basis whether removal is imminent. If removal is imminent, detention or continued detention will usually be appropriate. If removal is not imminent “due to delays in the travel documentation process” the detainee “may be considered for release on restrictions”. This paragraph goes on to provide, however, that “where the FNP is frustrating removal by not co-operating with the documentation process, and where that is a significant barrier to removal, these are factors weighing strongly against release”.

[11]Paragraph 55.6.3, under the heading “Form IS91R Reasons for Detention”, explains the procedure for the service on a detainee of a form IS91R stating the reasons for his detention. It states: “This form is in three parts and must be served on every detained person, including each child, at the time of their initial detention. The IO must complete all three sections of the form. The IO must specify the power under which a person has been detained, the reasons for detention and the basis on which the decision to detain was made. The detainee must also be informed of his bail rights and the IO must sign, both at the bottom of the form and overleaf, to confirm the notice has been explained to the detainee (using an interpreter where necessary) and that he has been informed of his bail rights. It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure they are always justified and correctly stated. A copy of the from must be retained on the caseworking file. If any of the reasons for detention given on the form IS91R change, it will be necessary to prepare and serve a new version of the form. It is important that the detainee understands the contents of the IS91R. If he does not understand English, officers should ensure that the form’s contents are interpreted. Failure to do so could lead to successful challenge under the Human Rights Act (

Article 5(2) of the ECHR

refers.)”.

[12]Section 55.8 of the EIG explains the need for and importance of detention reviews:

“Initial detention must be authorised by a CIO/HEO or Inspector/SEO (see section 55.5). In all cases of persons detained solely under Immigration Act powers, continued detention must as a minimum be reviewed at the points specified in the appropriate table below. At each review, robust and formally documented consideration should be given to the removability of the detainee. Additional reviews may also be necessary on an ad hoc basis, e.g. where there is a change in circumstances relevant to the reasons for detention. … Rule 9 of the Detention Centre Rules 2001 sets out the statutory requirement for detainees to be provided with written reasons for detention at the time of the initial detention, and thereafter monthly (in this context monthly means every 28 days). The written reasons for continued detention at the one month point and beyond should be based on the outcome of the review of detention. … Detention reviews are necessary to ensure that detention remains lawful and in line with stated detention policy at all times. …”

. It is made clear that in CCD cases there is no requirement for an adult detainee’s detention to be reviewed during the first 28 days, but that reviews should be conducted monthly, by officials at the levels indicated in the relevant table (Table 3).

[13]In the form in which it appeared when the claimant was first detained, paragraph 55.10 of the EIG, under the heading “Persons considered unsuitable for detention”, stated:

“Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere. Others are unsuitable for Immigration detention accommodation because their detention requires particular security, care and control. In CCD cases, 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. The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere: … • those suffering from serious medical conditions or the mentally ill – in CCD cases, please contact the specialist Mentally Disordered Offender Team; …”

. On 26 August 2010 this part of the policy document was amended. The new policy stated:

“Certain persons are normally considered for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. In CCD cases, 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. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention. The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: ... • those suffering from serious medical conditions which cannot be satisfactorily managed within detention • those suffering serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act; …”. … • those suffering from serious medical conditions or the mentally ill – in CCD cases, please contact the specialist Mentally Disordered Offender Team; …”. ... • those suffering from serious medical conditions which cannot be satisfactorily managed within detention • those suffering serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act; …”

The claimant’s immigration detention

[14]The claimant was detained by the Secretary of State, at Colnbrook IRC, on 17 May 2010. The claimant was served with a form IS91 authorizing his detention as an “illegal entrant or a person to whom section 10 of the Immigration and Asylum Act 1989 applies”. The power under which the claimant was being detained was identified, in footnote 2, as being “paragraph 16(2) of Schedule 3 to the Immigration Act 1971”.

[15]The corresponding form IS91R, also dated 17 May 2010, notified the claimant of the reasons for his detention and his bail rights. Note (2) in that form, which was ticked by the official who completed it, refers to the detention power “For an illegal entrant or a person to whom section 10 of the Immigration and Asylum Act 1999 applies – Paragraph 16 of Schedule 2 to the Act”. The form indicated the reasons for his being detained at that stage, namely “a. You are likely to abscond if given temporary admission or release.”, “b. There is insufficient reliable information to decide on [sic] whether to grant you temporary admission or release.”, and “e. Your release is not considered conducive to the public good.”. The form also identified the factors on which the decision had been made, namely “1. You do not have enough close ties (e.g. Family or friends) to make it likely that you will stay in one place.”; “2. You have previously failed to comply with conditions of your stay, temporary admission or release.”; “3. You have previously absconded or escaped.”; “5. You have used or attempted to use deception in a way that leads us to consider you may continue to deceive.”; “7. You have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK.”; “8. You have previously failed or refused to leave the UK when required to do so.”; and “13. Your unacceptable character, conduct or associations.”. Section 3 of the form explained the claimant’s “Bail Rights”.

[16]The Secretary of State’s form IS91RA Part A, also of the same date, recorded both a “history or a threat” of “Psychiatric disorder” and “Medical problems/concerns”, both of which indicated a “potential risk”, but not a “history or a threat” in any of the other categories of risk, including “Self harm/attempted suicide/food refusal/fluid refusal”. In the “Comments” section of that form this note appears:

“States he has Asthma and depression. Takes Ventolin and Becotide for Asthma. Valium 6 mg per day for depression. PNC relates to mainly theft.”

[17]The Secretary of State’s officials’ minute of the decision to detain, dated 18 May 2010, was headed “Minute of a decision to detain a person in accordance with paragraph 2, Schedule 3 of the Immigration Act 1971”. In that minute, in the section entitled “Consideration”, it was noted that the claimant had entered the United Kingdom by “clandestine means” under an alias. It stated that the claimant was “aware that UKBA intend to remove him from the UK” but “not aware it is our intention to deport him”. It was indicated that there were no “[other] compassionate factors (such as the medical condition of the subject …)”. As to the “[likelihood] of removal within a reasonable time scale …”, the minute states:

“Mr Moussaoui is a Moroccan national and removal to this country is via EUL. However Mr Moussaoui does not have any documentary evidence of his nationality. Furthermore he is now claiming he is an Algerian national and not Moroccan as previously claimed. Given this latest development an ETD interview and status interview has been arranged. Deportation action is yet to be commenced. Mr Moussaoui will be granted an in country appeal should he choose to appeal deportation. A time scale to his removal is therefore unknown.”

It was noted, under the heading “Risk to Public”, that the claimant had “shown that he can be considered a risk to the public due to his continued [re-offending] for Theft”; under the heading “Risk of [re-offending]”, that “[since] arriving in the UK in July 2006 [he] had amassed 8 convictions from 11 offences with a further hearing outstanding”; and, under the heading “Risk of Absconding”, that “given that he has avoided contact with UKBA since his release in April 09 he can be considered a Medium to High risk of absconding once he is informed of UKBA’s decision”. The “Proposal” was stated to be:

“To detain [the claimant] on an IS151 as an illegal entrant until his true nationality can be confirmed and enable CCD to make a decision on … his deportation. Also to enable a travel document to be obtained for his removal from the UK.”

[18]On 21 May 2010 a review of the claimant’s detention was undertaken.The review stated that it was “done in [view] of information received from police station that subject has stated he will commit suicide”. In the section headed “Brief case summary” it recorded the fact that the claimant had been “issued with an IS151 in June 2007 as an illegal entrant liable for removal and was detained on these grounds on 18 May 2010”. It was noted that he had recently claimed to be an Algerian national, and that a “status interview will be required to ascertain his true nationality”. It was also noted that he met the criteria for deportation because of the periods of “imprisonment” he had amassed. The claimant’s having told a police officer that he was going to commit suicide was recorded under the heading “Changes in circumstances (include full details of notified Human Rights factors)”. Under the heading “Likelihood of removal within a reasonable time scale (outline barriers to removal, including availability of travel documents, and likely time needed to resolve these)”, the review stated:

“Mr Moussaoui is a Moroccan national and removal to this country is via EUL. However Mr Moussaoui does not have any documentary evidence of his nationality. Furthermore he is now claiming he is an Algerian national and not Moroccan as previously claimed. Given this latest development an ETD interview and status interview has been arranged. Deportation action is yet to be commenced. Mr Moussaoui will be granted an in country appeal should he choose to appeal deportation. A time scale to his removal is therefore unknown.”

[19]On the same day the UK Border Agency (“UKBA”) wrote to the claimant informing him that the Secretary of State took “a very serious view” of his offences and that she was now considering his immigration status and his liability to deportation. The claimant was invited to provide the Secretary of State with any reasons why he should not be deported to either Algeria or Morocco, two countries of which he had claimed to be national. He was also given a “one-stop warning” – requiring him now to make a formal statement about any reasons why he thought he should be allowed to stay in the United Kingdom.

[20]The claimant’s first reception screening on 22 May 2010 recorded, among other things, that he was on medication for asthma, that he was using heroin daily, that he claimed to suffer from depression but was not on any medication for it, that he had tried to harm himself three years ago, that he did not feel like harming himself now, that he had attempted suicide three years ago, and that he had been “on constant watch” in the police station. He was referred to the “RMN” for assessment the next day.

[21]On 23 May 2010 a Medical Office Admission Assessment form was completed. It noted that he suffered from asthma and that he was using heroin and crack cocaine.

[22]Also on 23 May the claimant was served with notice of his liability to deportation. He was now maintaining once again that he was from Polisario. Bio-data for his removal to Morocco was sought.

[23]On 25 May the claimant’s confidential medical application recorded that he wanted to see a doctor as soon as possible; he had not slept for the past five days because he had stopped using heroin, was vomiting frequently and could not eat. On 26 May a further confidential medical application recorded, among other things, that the claimant wanted to see a psychiatrist and the doctor about having his medication changed because he was not sleeping and kept being sick. On 28 May the claimant's physical care records refer to his body aching, sleeping problems and feeling sick. It noted that he had a history of depression, but he had “no feelings of self harm or harm to others”, and that there was no evidence of any psychotic symptoms.

[24]On 1 June 2010 the claimant’s physical care records stated that he had tried to strangle himself by wrapping his T-shirt around his neck. It was recorded that he had been put on “constant watch” because of his attempts to harm himself and that he had been told he would be put in “anti-ligature clothing”. However, his physical care records for 2 June noted that he had denied trying to strangle himself and that there was no objective evidence of any withdrawal symptoms and no evidence of any psychotic symptoms. It was noted that he had said he was not stupid and that it was his cell-mate who had tried to harm himself. On 4 June his physical care records noted that he said he was well and did not wish to see a GP.

[25]The claimant’s mood was recorded as being “low”, on 8, 9, 16 and 18 June 2010.

[26]On 8 June the claimant’s mental health records stated that he believed he was mentally unwell, losing control and in need of help. It was concluded that he “would benefit from anti-depressants and counselling”. On that day the claimant’s solicitors wrote to the Secretary of State requesting that he be granted temporary admission to the United Kingdom. They said they were “very concerned” about his welfare in view of his medical history. They referred to his having in the past been considered at risk because of his mental health problems, and to his having been sectioned under the Mental Health Act in 2009.

[27]On 9 June it was stated in the claimant’s mental health records that he had not been taking his medication (Mirtazapine) regularly, but that he had denied any desire to harm himself or others at the moment and that he showed no psychotic symptoms.

[28]On 11 June the claimant was sent to hospital after suffering a bad asthma attack. On 12 June his physical care records noted that he said he felt well. On 13 June the claimant was sent to hospital again after suffering a fit. On 14 June he was brought back from Hillingdon Hospital, and was abusive and aggressive to staff at Colnbrook. He said he had been suffering from epilepsy since he was five. It seems that he may have suffered another fit on that day.

[29]On 15 June the claimant was visited at Colnbrook by Dr CharmianGoldwyn and a nurse who acted as interpreter. They spent two hours with him.

[30]On 16 June the claimant's mental health records referred to him feeling low in mood, but denying any feelings of self harm or harm to others. He was complaining of having a poor appetite and difficulty in sleeping. No evidence was found of any “persecutory delusions” or any psychotic symptoms. He was said to be willing to take his anti-depressants regularly, and that he denied taking any illegal substances since being at Colnbrook. The record referred to the claimant suffering “depressive illness” and “mental and behavioural disorder due to polysubstance misuse”. In his physical care records for 17 and 18 June it was noted that the claimant was complaining of stress and anxiety. The record for 18 June noted that he denied any desire to harm himself, or others, and no symptoms of psychosis.

[31]On 18 June the claimant’s solicitors again wrote to the UKBA requesting that he be granted temporary admission. Their letter said that the doctor from Medical Justice – which must be a reference to Dr Goldwyn – had “raised serious concerns about his health[,] finding him to be very repetitive in his speech” and had recommended that he see a psychiatrist. The letter went on to acknowledge that arrangements had been made, through the healthcare department at Colnbrook, for a psychiatrist to see him; the psychiatrist had seen him, had prescribed medication for him and was to see him again that day. The claimant’s solicitors requested the Secretary of State carefully to consider the claimant’s suitability for detention. In the claimant’s mental health records for the same day a further “Psychiatric Review” noted, among other things, that the claimant had said that both of his parents had been murdered in Polisario, that he felt “stressed and anxious and low in mood”, that he had stopped taking illicit drugs before coming to Colnbrook and that he had been taking his medication, that he showed no evidence of psychotic symptoms, that he denied wanting to harm himself or others, that his mood, objectively assessed, appeared anxious and low, but that he showed no “passivity phenomena or … persecutory delusions”. The review set out a plan for the claimant’s medication.

[32]On 19 June 2010 the claimant declined a visit from a GP. His physical care records indicated that he continued to adhere to his treatment regime, and that no complaints had been recorded.

[33]On 21 June the claimant’s solicitors wrote to the Secretary of State requesting his immediate release from detention. With their letter they enclosed a report on the claimant, dated 18 June 2010, which had been prepared by Dr Goldwyn after her visit to the claimant on 15 June. Dr Goldwyn’s report referred to the claimant’s eight or nine suicide attempts, his history of substance abuse and misuse of drugs, his having been diagnosed as suffering from moderate depression, and his treatment as an in-patient at the Archway Hospital between 14 May and 3 June 2009. As to her examination of the claimant Dr Goldwyn said this:

“[The claimant] entered the room looking very unwell. He managed to maintain eye contact at first, but later in the consultation he was gazing inwards and half ignoring us. He was clean and kempt and respectful to us. He said he had “lost touch with life” for 7 days, and has had little to eat or drink. He looked dehydrated, I gave him some juice, but he drunk little and he said he felt sick. His weight on admission was 53 Kgs, he is now 51 Kg. This is more loss of weight than one would expect from natural changes. He said he didn’t remember where he was, or what day it was, and he found it difficult to answer any questions about his recent past. Sometimes he hung his head in his hands and looked despairing. He said that he still felt suicidal, and indeed he is on ‘suicide watch’ (ACDT) in the IRC. He said he cannot sleep at night and feels strangled. He hears voices telling him to kill himself. He has scars of self harm, on both right and left arms, and the scar of what appears to be a needle stick injury. This young man was extremely distressed and almost psychotic. In my opinion detention is having an adverse effect on his symptoms. He should be admitted to a mental health centre specialising in substance abuse for assessment and management as soon as possible. He is a serious suicide risk. He may need a long term as an inpatient. He may also be dehydrated and suffering from a lack of intake of food. I advised the Colnbrook Health centre to do the appropriate blood tests.”

In their letter of 21 June 2010 the claimant’s solicitors contended that Dr Goldwyn’s report and other material enclosed with the letter, including his discharge summary of July 2009 demonstrated that the claimant “suffers from a history of mental illness and there are currently serious concerns regarding his mental health. It is therefore submitted that our client is unsuitable for detention. If a decision is taken to continue our client’s detention we request that a response is provided setting out your reasons.” The Secretary of State was asked to respond by 23 June 2010, addressing the points the solicitors had raised. She did not do so.

[34]On 23 June it was noted in the claimant’s mental health records that the claimant had “completed detox”. It was noted that there was no evidence of “withdrawal symptoms”.

[35]On 6 July 2010 the claimant was interviewed by UKBA officials and claimed to be from Algeria.

[36]The claimant’s mental health records for 10 July 2010 referred to his feelings of anxiety and fear.

[37]On 13 July 2010 the claimant’s solicitors sent to the Secretary of State a letter setting out the basis of a proposed claim for judicial review, referring to Dr Goldwyn’s report as evidence that, under the policy in paragraph 55.10 of the EIG, the claimant was unsuitable for detention, requesting the claimant’s immediate release from detention, and inviting a reply by 19 July 2010. No reply came.

[38]The claimant’s mental health records for 17 July referred to his fears and his anxiety about the future. He had apparently said that when he was three years old his father had died, and that his mother had died five years ago.

[39]On 24 July the claimant’s case was transferred to the Secretary of State’s EEA team because he was now saying he was French.

[40]The claimant’s mental health records for 24 July referred to his anxiety, and to his having said that he was missing his family. His partner and her baby were moving away.

[41]By 29 July it had become clear that the claimant was not French, and his case was therefore sent back to the team dealing with non-EEA nationals.

[42]On 2 August 2010 the claim for judicial review was lodged with the court.

[43]The claimant’s anxiety about his situation and his frustration in detention were noted in his mental health records for 8 and 14 August and in his physical care records for 10 August.

[44]On 17 August the claimant’s application for bail was refused. The reasons given for the refusal of bail indicated that, in view of the claimant’s mental health needs, it was considered that there was insufficient support in place for his release.

[45]On 24 August the claimant’s solicitors wrote again to the CCD, seeking the Secretary of State’s help in arranging a care plan for the claimant, and asking for a response to the request for temporary admission.

[46]The claimant’s physical care records for 25 August stated that he seemed “in good spirits”.

[47]On 31 August 2010 the claimant’s solicitors sent the Treasury Solicitor a copy of his medical records.

[48]The claimant’s GCID - Case Record Sheet shows that on 10 September 2010 one of the Secretary of State’s officials told another that the claimant had been detained in May 2010 as “an illegal entrant” and now needed “to be redetained as a subject being considered for deportation”. The claimant was said to satisfy the criteria for conducive deportation, “(3 sentences in 5 years totalling 12 months)”. It was going to be necessary to “serve detention paperwork along with a 1070/1914” and “a fresh 350”. It was also noted that as the claimant had now claimed a further nationality “a status interview is required/language analysis”.

[49]On 15 September 2010 it was noted in the claimant’s mental health records that he had complained of being unable to sleep at night, that he felt “low in mood and very depressed”, felt anxious all the time, had lost his appetite and had decided to stop taking his medication.

[50]On 20 September the Secretary of State lodged her acknowledgment of service and summary grounds of defence in the judicial review proceedings.

[51]On 21 September it was noted in the claimant’s mental health records that he was eating and sleeping well, had “no problems except for Bronchial Asthma”, wanted no medication, had denied wanting to harm himself or others and exhibited no evidence of psychotic symptoms.

[52]On 27 September the claimant’s solicitors served a reply to the Secretary of State’s summary grounds.

[53]On 7 October 2010 Mr Justice Nicol granted permission to apply for judicial review, on the limited basis to which I have referred.

[54]On 13 October 2010 Dr Ruth Sagovsky, a clinical psychiatrist working for Medical Justice, visited the claimant in detention.

[55]On 19 October 2010 the claimant’s application for bail was considered by an Immigration Judge, who refused it for the following reasons:

“ • Clandestine entry to UK; • Used more than one identity and three nationalities; • Has failed to appear at a magistrates court and been recorded an absconder; • Has criminal convictions and faces deportation; • Failed asylum seeker.”

Bail had been opposed by the Secretary of State, who highlighted the claimant’s history of absconding and offending, stating:

“… • Mr Moussaoui has used deception in a way that leads us to believe that he may continue to deceive if released. He is an absconder who only came to light upon his arrest for criminal offences. As such, no reliance can be placed upon him in adhering to any reporting restrictions. • Mr Moussaoui proposes no sureties and only £1000 recognisance has been offered. We consider that this is disproportionate to the risk of absconding in this case, particularly given the late stage of his case and his previous Immigration history. • As an alternative to detention, we have [assessed] his suitability for … electronic monitoring. We advise that Mr Moussaoui failed to meet the criteria, as he is a previous absconder who has shown a blatant disregard to the United Kingdom immigration and criminal laws. It is noted that those who are resolute to abscond have removed electronic tags[. As] such the setting up of the [equipment] and the cost of daily monitoring will only increase the overload that has already been used up on his case. • We have had regard to his well-being and it is stated that he continues to receive treatment for asthma, and he is on Ventolin and Beclomethasine medications. Mr Moussaoui is currently detained at Colnbrook IRC, which is staffed with Healthcare Team. • In light of the above it is considered that there are substantial grounds for believing that Mr Moussaoui, if released on bail (whether subject to conditions or not), would fail to surrender to custody. It is submitted that this bail application be refused similarly as his previous application.”

[56]On 22 October 2010 the Secretary of State served the claimant with notice of her decision to make an order for his deportation to Algeria. The notice of decision informed the claimant that the Secretary of State had decided to make an order “by virtue of section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999)”, that she proposed to give directions for his removal to Algeria – “the country of which you are a national” – but that she would not do so until his appeal rights had been exhausted. The claimant was told that he had a right of appeal under section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).

[57]On the same day the claimant was re-detained. The form IS91 relating to this detention indicated that he was being detained as a “person served with a Notice of Decision to make a deportation order, whose detention has been authorised by the Secretary of State”, under paragraph 2(2) of Schedule 3 to the 1971 Act. In the Secretary of State’s GCID – Case Record Sheet one of the entries for 22 October 2010 states:

“ICD 1070 approved by the SCW. In order to IS detain [the clalmant] IS91 faxed to Colnbrook IRC. Also faxed to Colnbrook IRC ICD1070 (decision to make a deportation order), ICD 1041(appeal notice) & ICD 2967 (confirmation of conveyance). Requested Colnbrook to return copy of confirmation of conveyance once paperwork is served on the subject. [The claimant] has been advised in the ICD letter that he will be served with the reasons for deportation letter (ICD 1914) shortly which will trigger his right of appeal given in the ICD 1070 letter.” (my emphasis). The following entry for the same date states: “On behalf of caseowner D.Burgis contacted Colnbrook IRC … and it was confirmed by Duty officer/Immigration that all the paperwork (IS91, ICD 1070, ICD 1070, ICD 1041 & ICD 2967) was received. Casework file returned to the Team Leader.”

In section 2 of the form IS91 it is indicated that the detention authorized by the Secretary of State is of a “person served with a Notice of Decision to make a deportation order …”, and, as the relevant footnote – footnote 3 – explains, the statutory provision relied upon was paragraph 2(2) of Schedule 3 to the 1971 Act. Evidently, the Secretary of State did not serve on the claimant at this stage a form IS91R, setting out the reasons for his detention.

[58]On 26 October 2010 the Secretary of State sent the claimant a letter setting out the reasons for her decision to deport him. The letter said that it had been concluded that the claimant’s deportation “would be conducive to the public good”, and went on to explain why. It told the claimant that he had a right of appeal against the Secretary of State’s decision, under section 82 of the 2002 Act.

[59]On 27 October 2010 Dr Sagovsky again visited the claimant in detention.

[60]On 28 October 2010 the claimant appealed against the Secretary of State’s decision to deport him.

[61]On 30 October 2010 Dr Sagovsky completed a “Confidential Psychiatric Report” on the claimant. In her report she said that when she first saw the claimant, on 13 October, she found him neatly dressed, looking physically fit and alert (para. 22). He was able to discuss matters coherently and talk about his history (para. 5). He described his mood as “low” but “denied suicidal ideation”. Indeed, he appears to have told Dr Sagovsky that he had last thought of killing himself three years ago (para. 23). It seems the claimant did not say anything about what he had done on 1 June. Dr Sagovsky did not find him “thought disordered”. There was no evidence that he was suffering from any psychotic symptoms (para. 24). He also appeared “orientated for time and place” and his memory appeared intact (para. 25). In stark contrast to that first meeting with Dr Sagovsky was the second, which had taken place two weeks later, on 27 October. Now the claimant appeared “dishevelled and perplexed”, and was distressed. He was “objectively and subjectively very low in mood”, but “not thinking of killing himself” (para. 28). There was “no new evidence of psychosis” (para. 29). In the section of her report headed “Diagnosis”, Dr Sagovsky stated that in her opinion the claimant was “currently suffering from a major depressive illness fulfilling the DSM-IV criteria” and that he was “also suffering from severe post traumatic stress disorder”, fulfilling six of the DSM-IV criteria (para. 33). As to the claimant’s “major depressive illness” Dr Sagovsky said this (in para. 32):

“… The following five symptoms have been present during the same two week period and cause clinically significant distress. • Depressed mood most of the day, nearly [every day], as indicated by subjective report • Markedly diminished interest or pleasure in all, or almost all activities, most of the day, nearly every day • Insomnia nearly every day • Fatigue or loss or energy • Diminished ability to think or concentrate nearly every day”

. As to the claimant’s “severe post traumatic stress disorder” Dr Sagovsky said this (in para. 33):

“In my opinion he is also suffering from severe post traumatic stress disorder, fulfilling the following of the DSM-IV criteria: • He experienced and witnessed events that involved actual death • His response was one of intense fear • The traumatic events are persistently re-experienced as recurrent and intrusive distressing recollections of the events and recurrent distressing dreams, flashback episodes, intense psychological distress and physiological reactivity at exposure to internal or external cues that symbolize or resemble an aspect of the events • Perisistent avoidance of stimuli associated with the trauma and numbing of general responsiveness indicated by efforts to avoid conversations associated with the trauma, inability to recall important aspects of the trauma and markedly diminished interest or participation in activities. Other symptoms of avoidance may have been present but could not be elicited because of [the claimant’s] distress and poor concentration. • Persistent symptoms of increased arousal indicated by difficulty falling and staying asleep, increased irritability and outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. • The disturbance causes clinically significant distress and has lasted for more than 3 months.”

Dr Sagovsky could not readily explain the differences between the claimant’s presentation on 13 October and 27 October 2010 – a “marked deterioration in mood” and a “diminution in cognitive abilities”. She put forward (in para. 35 of her report) a number of possible explanations, none of which she found it possible to identify as the true cause. These included “illicit drug use”, the possibility that the claimant might be dissembling, and the possibility that as a consequence of his post traumatic stress disorder he had a dissociative disorder. Dr Sagovsky noted (in para. 36) that the claimant had been started on an antidepressant drug, Citalopam, on 26 October 2010, but he had had only one dose of this before she saw him a second time, on 27 October 2010. Dr Sagovsky gave this “Prognosis” (in para. 37):

“[The claimant’s] mental health problems are complex and require further extended psychological and psychiatric assessment. His mental state is unlikely to show consistent improvement without specialist treatment of his PTSD. His depression may respond to the prescribed medication if he continues to take it regularly but, after one dose, he was not confident it would help him and he may try to avoid taking it, as he did the Mirtazapine, because he found the side effects unacceptable. The treatment priority should, in my opinion, be to help him to sleep by reducing the intrusive thoughts, flashbacks, nightmares and the high levels of arousal. This could be attempted by introducing a low dose antipsychotic medication at night in addition to the antidepressant. When his acute symptoms have subsided, trauma focussed therapy, with a specialist experienced in assessing and working with dissociative disorders, is likely to be necessary in order to enable him to rebuild his life. He will also require support to avoid illicit substances which hinder the therapeutic work. Given that at the time of the second interview, he was not at risk of suicide, this work could be carried out as an out patient if he has sufficient support in the community, such as he felt he had when living in Oxford prior to detention. However, given the rapid changes in his presentation, it is possible that he will again become a suicidal risk and require further inpatient treatment. His current environment repeatedly brings to mind his traumatic experiences and so progress is very unlikely, even with medication and counselling, whilst he continues to be detained.” • He experienced and witnessed events that involved actual death • His response was one of intense fear • The traumatic events are persistently re-experienced as recurrent and intrusive distressing recollections of the events and recurrent distressing dreams, flashback episodes, intense psychological distress and physiological reactivity at exposure to internal or external cues that symbolize or resemble an aspect of the events • Perisistent avoidance of stimuli associated with the trauma and numbing of general responsiveness indicated by efforts to avoid conversations associated with the trauma, inability to recall important aspects of the trauma and markedly diminished interest or participation in activities. Other symptoms of avoidance may have been present but could not be elicited because of [the claimant’s] distress and poor concentration. • Persistent symptoms of increased arousal indicated by difficulty falling and staying asleep, increased irritability and outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response. • The disturbance causes clinically significant distress and has lasted for more than 3 months.”

[62]On 1 November 2010 the Secretary of State issued a monthly progress report on the claimant’s detention. That report stated, among other things, that regard had been had to the claimant’s “Mental Health concerns and [that] a referral for assessment had been made to the Hillingdon Hospital and the urgency has been communicated to all concerned”. The report continued:

“We are continuing to make arrangements to obtain a travel document for your removal from the United Kingdom. However this is taking longer than we would like because you have failed to provide documentary evidence of your nationality. You previously claimed to be a Palestinian, French, Morocco [sic] and Algerian national. If you wish to assist us in progressing your case, and potentially reducing the time you spend in detention prior to removal, please speak to one of the immigration officers at the removal centre. You are advised that your continued failure to co-operate with the Emergency Travel Documentation process is a factor in the decision to maintain detention. You should also be aware that continued failure to co-operate will remain a factor in deciding whether to maintain detention or grant bail in future. While decisions will be considered on the basis of all known, relevant factors, you should note that non-co-operation may result in a prolonged period of detention. In addition there is an onus on you to leave the country once your appeal rights have been exhausted.”

The report said that the claimant’s case had been reviewed and that it had been decided that he would remain in detention, for five reasons:

“ • To effect removal from the UK. • Your removal from the United Kingdom is pending all outstanding matter. • You are likely to abscond if given temporary admission or release. • Your release carries a potential high risk of public harm. • There is a risk of further re-offending.”

The report then went on to set out the factors on which the decision to keep the claimant in detention had been made:

“ • You have previously failed or refused to leave the UK when required to do so. You are a … multiple failed asylum seeker and your appeal rights were exhausted on 2 August 2007. • You have previously been listed as an absconder and who only came to light due to a criminal offence and arrest and there is a significant risk that you would do so again. • You have previously failed to comply with conditions placed upon [you] by the police or the courts. On 4 September 2009, at Oxford Magistrates Court you were convicted of failing to surrender to custody at the appointed time, you received 9 months conditional discharge. On 17 May 2010, you were arrested by Police as wanted on 2 court warrants and for immigration matters. • You have failed to observe the United Kingdom immigration laws by (entering in breach of a deportation order OR entering or seeking to enter by clandestine means). • You have entered the UK illegally on one occasion and have failed to depart even when your appeal rights were exhausted. • You have not produced satisfactory evidence of your identity, nationality or lawful basis to remain in the United Kingdom. You have claimed to be a Palestinian, Morocco, French and Algeria national without any evidence in support. • You have previously failed to comply with conditions of your stay. Temporary admission or release. You have been previously listed as an absconder. • You have used or attempted to use verbal deception to gain leave to enter, remain or evade removal and it is considered likely that you will do so again. On 4 July 2006, in the company of another male, you entered the UK via Ramsgate. When you were apprehended you claimed to be a Palestinian national and a minor and subsequently claimed asylum. You were screened for the asylum process. On 20 July 2006, at ASU you again claimed asylum under the identity Mustafa Moussaoui as a Moroccan national. On 4 June 2007, your asylum claim was refused and your subsequent appeal was dismissed on 25 July 2007. Your appeal rights were exhausted on 2 August 2007. • You do not have subsisting family ties or strong social connections in the UK to make it likely that you will stay in one place. Indeed even if these ties exist, it is not believed that they represent sufficient influence on you having been convicted of several criminal offences in the past. • You have shown a lack of respect for UK laws as evidenced by your convictions for serious crimes and poor immigration history. • You have committed a number of offences over a period of time (10 September 2007 and you were last convicted on 4 September 2009) and there is a significant risk that you will re-offend. • Your unacceptable character, conduct or associations since your clandestine entry into the UK • You previously claimed to be under the age of 18, however your physical appearance and demeanour very strongly indicates that you are significantly over 18 years of age and no credible evidence exists to the contrary.”

The report then stated: “Consideration has been given to the factors in favour of release, but due to the seriousness of the offences these must be particularly compelling to outweigh the above, therefore it is considered that detention for the purposes of deportation is reasonable. Your detention will continue to be reviewed on a regular basis and any significant material changes to your case will be considered against this decision. …”.

[63]On 3 November 2010 the claimant’s solicitors sent the Secretary of State a copy of Dr Sagovsky’s report.

[64]On 4 November the Secretary of State informed the claimant’s solicitors of the efforts that were being made to find a hospital bed for him, in accordance with the provisions of either section 47 or section 48 the Mental Health Act 1983 (“the 1983 Act”). The Healthcare Contract Manager at Colnbrook told the Secretary of State that a second psychiatric report would be needed before a bed could be provided for the claimant. She had referred the claimant to Hillingdon Hospital so that such a report could be prepared. The Secretary of State was told by officials in the Mental Health Unit at the Ministry of Justice that a second psychiatric assessment of the claimant would be required, and that they could not arrange such an assessment.

[65]On 11 November the Clinical Compliance Officer at Colnbrook informed the Secretary of State that an assessment of the claimant by Hillingdon Hospital was still awaited. The claimant’s medication was changed from Citolpram to Olanzapine.

[66]On 12 November the healthcare team at Colnbrook told the Secretary of State that an assessment for the claimant for his referral to Hillingdon Hospital was still to be prepared.

[67]On 16 November 2010 the CCD issued a detention review. In section 5 of that review, under the heading “Compassionate Circumstances/Medical Conditions – (including mental health issues)”, the officials wrote:

“Mr Moussaoui made a serious suicide attempt on 1 June 2010. He was referred to the Accident and Emergency on for Asthma attack. He was again referred on 13 June 2010 due to a major fit. He suffered another fit on 14 June 2010 and was treated with Rectal Valium. Mr Moussaoui saw the clinical psychology [sic] on 8 June 2010 where he admitted to taking Heroin, starting in 2007 when he was aged 17 and depressed. Mr Moussaoui was an inpatient in the drug treatment Opal ward of Archway hospital from 14 May 2009 to 3 June 2009. He was complaining of body pains all over, headache, difficulty in seeing and smelling. He claimed he had gone to Tower Bridge with the intention to jump off and kill himself. He had other idea suicide ideation [sic], and had made 8 or 9 attempts on his life. Mr Moussaoui claims to be suffering from mental health issues; however, there is no evidence to support that he has been sectioned under the Mental Health Act. On 11 November 2010, Colnbrook Health care advice is that the psychiatrist has changed Mr Moussaoui’s medication from Citolpram to Olanzapine 10mg and a referral has been made to Hillingdon Hospital for assessment.”

In section 6, under the heading “Changes in status of the case (new barriers)”, the review stated:

“On 7 October 2010, Mr Moussaoui’s Judicial Review application was allowed to proceed solely on Mental Health grounds. The application is listed for substantive hearing on 26November 2010.”

In section 7, under the heading “Progress since last detention review”, the review said this:

“The Clinical Compliance Officer and the Healthcare Contract Manager at Colnbrook IRC are acutely aware of the urgency on this matter. In regards to his well-being and mental health matters, we are in the process of securing a bed space at the Hillingdon hospital so Mr Moussaoui can be transferred under the relevant section applicable in his case. Our attempt to secure a bed space via MHU was refused as MHU advised that the referral to MHU [has] to be submitted by Colnbrook healthcare and not by CCD. We are keeping Mr Moussaoui’s solicitors, Tsols, Judicial Review caseworker in the loop as to the progress being made in securing a bed space via the Healthcare at Colnbrook IRC. On 12 November 2010, Healthcare advised the referral to Hillingdon is still pending an assessment and it is noted that prisoners in need of treatment at secure mental health hospitals often have to wait months for a bed.”

The “Plan of Action” in section 8 was this:

“The caseowner to: • Actively monitor the outcome of the JR application listed for substantive hearing on 26 November 2010 (the outcome of this hearing could have an impact on how this case is progressed thereon) • If Colnbrook are unable to secure a bed space, to pursue other avenues to secure a private bed space (will the NHS fund this?) • Continue to actively liaise with Healthcare team at Colnbrook IRC, Mr Moussaoui’s Solicitors, Tsols, Judicial Review caseworker [and] all other interests • Actively monitor the deportation appeal listed for 7 December 2010 • Obtain a signed DO should Mr Moussaoui’s appeal [fail] • Continue to respond and promptly deal with other matters as the arises [sic]”

In section 9, under the heading “Likelihood of removal within a reasonable time scale (outline details of barriers to removal, including availability of travel documents, and likely time needed to resolve these)” the review stated:

“Mr Moussaoui’s case and the timescale of his removal cannot be ascertained. There are mental health concerns, substantive hearing for a judicial review and deportation appeals. The outcome of the judicial review on 26 November 2010 could have an impact on how this case is progressed thereon.”

The “Recommendation” in section 10 of the review was this:

“Mr Moussaoui is considered a potential risk to the public due to his mental health concerns. Currently, the relevant avenues are being pursued in order to secure a bedspace in a Mental Health Unit pending on the assessments by Hillingdon hospital. Mr Moussaoui is a multiple failed asylum seeker who has previously been listed as an absconder and he has failed to comply with court orders. Mr Moussaoui has not submitted any evidence to support that he has subsisting family ties or strong social connections in the UK. Indeed even if these ties [exist], it is not believed that they represent sufficient influence on him having been convicted of several criminal offences [in] the past. As such, we know of no reliable person to entrust with his release. I have considered the presumption to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance, but in this case, the presumption is on balance outweighed by the significant risk of harm and absconding. I propose that detention is maintained.”

The official who approved that recommendation stated in her “Comments”:

“I agree that detention is vital at this stage as it is highly likely that Mr M will abscond if he was released at this stage. We need to ensure that whilst Mr M is [in] Colnbrook he is complying with the medication required and if during this period his detention is exacerbating his condition we will need to assess whether continued detention is appropriate in accordance with section 55.10. Mr M[’s] deportation is being pursued under the 1971 act and therefore should be transferred and section [sic] under Section 48 of the MHA. Please continue to liaise with Colnbrook whilst we continue to liaise with MHU.” • Actively monitor the outcome of the JR application listed for substantive hearing on 26 November 2010 (the outcome of this hearing could have an impact on how this case is progressed thereon) • If Colnbrook are unable to secure a bed space, to pursue other avenues to secure a private bed space (will the NHS fund this?) • Continue to actively liaise with Healthcare team at Colnbrook IRC, Mr Moussaoui’s Solicitors, Tsols, Judicial Review caseworker [and] all other interests • Actively monitor the deportation appeal listed for 7 December 2010 • Obtain a signed DO should Mr Moussaoui’s appeal [fail] • Continue to respond and promptly deal with other matters as the arises [sic]”

[68]On 19 November 2010 the Secretary of State’s officials approached the Hillingdon Hospital directly, seeking to secure a bed for the claimant. A mental health nurse at the hospital said the claimant could not be admitted because he was suffering from post-traumatic stress disorder, which was not an illness that could be treated there. Hospital staff agreed to assess the claimant. It was said that this might take up to two weeks. A doctor at the hospital, who had read Dr Sagovsky’s report, said she did not think that his condition warranted detention in a secure unit. On the same day the Mental Health Unit of the Ministry of Justice indicated they might be able to help in finding a place for the claimant in a mental hospital once the second psychiatric assessment had been undertaken.

[69]On 25 November 2010 Ms Gloriana Patrick, an Executive Officer in the CCD, made a witness statement, in which she recounted the events in the final four weeks of the claimant’s detention (in paras. 13 to 26 of her witness statement). In paragraph 13 of her witness statement, Ms Patrick said this:

“The [claimant’s] case was reviewed on 22 October 2010 and he was brought into a IS detention under Schedule 3 to the Immigration Act 1971. The decision to detain was made having taken into account his history of absconding and a potential danger he poses to the public. At the time of detention, the [Secretary of State] had no outstanding applications or representations to provide him with any incentive to maintain contact with the immigration authorities. His mental health was taken into consideration and at the time, his mental health did not deem [sic] to warrant detention in a mental health facility. Further enquiries into his case were required in order to consider a deportation decision.”

Ms Patrick said (in paras. 14 and 25 of her witness statement) that when the claimant’s detention was considered on 1 November 2010 it was concluded that there was little incentive for him to stay in touch with the UKBA. Ms Patrick explained (in paras. 16 to 23 of her witness statement) what happened after Dr Sagovsky’s report was received by the Secretary of State. In paragraph 23 of her witness statement she said this:

“On 19 November 2010 and due to the urgency we approached Hillingdon hospital directly in view of securing a bed space. The Colne Ward at Hillingdon hospital is a dedicated Ward for Colnbrook patients. The Mental Health Nurse advised that they are unable to make a reservation to admit the claimant as a patient as the psychiatric report shows that he is suffering from a post traumatic stress disorder and it is not an illness that they are able to monitor or treat. They did however, agree to undertake the assessment for UKBA and suggested that this make take up to two weeks. The Doctor for the ward outlined that having read the report she did not feel that his mental health warranted detention in a secure unit; however, a full assessment was scheduled for 26 November 2010 and re-scheduled for 30 November 2010 due to the Judicial hearing listed for 26 November 2010.”

Ms Patrick said (in paras. 25 and 26 of her witness statement) that when the claimant’s detention was reviewed on 25 November 2010 UKBA officials again found little incentive for the claimant to keep in touch with them if he were released. As Ms Patrick put it:

“… The seriousness of his crime and the risk of re-offending and the potential harm to the public were also considered to outweigh the presumption to liberty.”

Ms Patrick concluded her witness statement by saying (in para. 27):

“We have considered the presumption to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance but in this case, the presumption is on balance outweighed by the significant risk of absconding and potential public harm.”

[70]On 26 November 2010 Mr Stephen Morris QC, sitting as a deputy judge of the High Court, adjourned the hearing of the claim for judicial review to be fixed for the first available date. He also ordered, among other things, that the Secretary of State was to file the report of the claimant’s psychiatric assessment, which was due to be undertaken on 30 November 2010, within 48 hours of her receiving it, and that the claimant was to be released from immigration detention by midday on 29 November to an address to be identified by the Secretary of State, subject to appropriate conditions. However, the psychiatric assessment did not take place, because the claimant was released; he had refused to stay in detention for an extra day to allow it to be done.

[71]On 29 November 2010 the claimant was released from detention.

Subsequent events

[72]On 2 February 2011, after the claimant had been referred to her for an assessment of his competence to give evidence before the tribunal, Dr Sagovsky prepared an addendum report, in which she noted that the claimant’s “mental state fluctuates” but expressed her concern about his present mental state. She said that believed he was “[today] … at risk of suicide as he is finding it difficult to resist the instructions to harm himself given to him by his auditory hallucinations”. She expressed the opinion that because of the “current psychotic nature of his illness, his profound depression, poor memory and inability to concentrate” he was at present not competent to give evidence at a tribunal hearing. She referred him to King’s College Hospital for “an urgent psychiatric assessment”. He was referred back to his GP on the same day.

[73]On 9 February 2011 Simon J ordered that a psychiatric assessment of the claimant was to be prepared for the Secretary of State within 21 days, if it was still required.

[74]On 15 February 2011 the South London and Maudsley NHS Trust wrote to the claimant’s solicitor, saying: “[The claimant] is currently under our care at The Maudsley. We aim to discharge him on Thursday this week. Our impression regarding his presentation is that Mr Moussaoui was suffering an acute stress reaction, possibly precipitated by concerns regarding his potential relocation. His symptoms have subsided completely and we do not feel that he justifies a psychiatric diagnosis of further care”.

[75]On 3 March 2011 the Secretary of State told the court that she did not intend to obtain a psychiatric assessment of the claimant and requested that the matter should now proceed to a hearing.

[76]On 14 March 2011 the First-tier Tribunal heard the claimant’s appeal against the Secretary of State’s decision to deport him.

[77]On 10 June 2011 the claimant was convicted of a further offence of theft, for which he received a sentence of 10 weeks’ imprisonment.

[78]On 6 July 2011 the First-tier Tribunal allowed the claimant’s appeal, essentially because it found that to deport him would breach his rights under Article 3 of the Human Rights Convention. The tribunal found (in para. 20 of its determination) that the Secretary of State had been fully aware of the claimant’s poor mental health since he claimed asylum in 2006. It seemed surprising, therefore, that the Secretary of State’s officials apparently took no account of this as a consideration relevant to the claimant’s detention. The tribunal found (ibid.) that the claimant’s “underlying condition [was] serious and persistent” and had been so “almost since his arrival” in the United Kingdom. While it was not straightforward to distinguish in the claimant’s case between psychosis attributable to drugs and psychosis attributable to other causes, this, said the tribunal, did not mitigate the seriousness of his condition (ibid.). There had been “many instances of self-harm and attempts at suicide” (ibid.). The claimant’s condition was “very unstable and unpredictable” and likely to be affected by “stress factors” (para. 57).

[79]On 14 September 2011 Mr Philip Baker, a Senior Executive Officer in the CCD, made a witness statement. Mr Baker’s evidence largely replicated Ms Patrick’s. He said (in para. 11 of his witness statement) that when, on 22 October 2010, the claimant was detained under Schedule 3 to the 1971 Act his mental health was taken into consideration. The decision to detain him was made in the light of “his history of absconding and the potential danger he poses to the public”. At this stage the claimant “had no outstanding applications or representations to provide him with any incentive to maintain contact with the immigration authorities”. Mr Baker said that at that time “the initial view was taken that [the claimant’s] mental health did not warrant detention in a mental health facility, given that there was no formal evidence to support the suggestion that he suffered from a genuine mental illness. …”. Mr Baker said (in para. 9 of his witness statement) that on 2 July 2010 the claimant’s case was allocated to “the EEA team” because he had claimed to be a French national. Four days later, on 6 July, the claimant was interviewed and said he was from Algeria. Once his claim that he was a national of France had been investigated, it was clear that the claimant could not prove he was an EEA national. His case was therefore re-assigned to the “Non-EEA national team” on 29 July 2010. Mr Baker confirmed (in para. 13 of his witness statement) that the claimant’s detention was not formally reviewed between 21 May and 16 November 2010, but he went on (in paras. 14 and 15) to say this:

“14. However, as can be seen from the above paragraphs, the agreed Chronology and the medical records, this does not mean that the claimant’s case was being ignored or that informal reviews were not constantly taking place. For example the claimant was under constant review and in contact with medical staff throughout his period of detention. During June and July 2010 UKBA staff were attempting to identify the claimant’s true nationality to enable his matter to be processed, which was frustrated by the [claimant’s] lack of co-operation, including having his matter transferred to, and then back from, the EEA-national team. In October 2010 the claimant’s case was again reviewed and he was re-detained pending a Notice of Decision to Make a Deportation Order and in early November 2010 a Monthly Progress Report was completed. 15. In the course of preparing this witness statement I have fully reviewed the [claimant’s] detention file between May and November 2010 and have reached the conclusion that, had the relevant detention reviews been carried out during the period of May to November 2010, the [claimant] would have been detained as he posed a risk of absconding (given his history of absconding), he posed a risk of re-offending (given his previous criminal record) and he posed a risk to the public because of the violence in his crimes.”

[80]In a further addendum report dated 13 October 2011 Dr Sagovsky confirmed that, when she had seen the claimant in October 2010, he was in her opinion “suffering from a mental disorder as defined in the Mental Health Act 2007 (“the 2007 Act”), namely a major depressive illness and severe post traumatic stress disorder”. She added that the diagnosis of “moderate depression with polysubstance abuse and psychotic experiences likely to be secondary to drug misuse rather than psychotic depression”, which had been made when the claimant was an in-patient at Highgate Mental Health Centre, and for which he had been treated there, was also a mental disorder as defined by the 2007 Act.

[81]On 13 December 2011 the Upper Tribunal dismissed the Secretary of State’s appeal against the First-tier Tribunal’s decision of 6 July 2011. Although the Upper Tribunal found (at para. 11 of its determination) that the First-tier Tribunal had erred in not making a clearly finding as to the claimant’s family circumstances, this error was not material (para. 19), and that the tribunal had “made no material error of law” (para. 21) and had reached a decision open to it on the evidence before it (ibid.). The Secretary of State might not agree with the tribunal’s decision and “another panel or Immigration Judge might have come to a different conclusion”, but this was “not enough to establish that the panel made an error of law such that [its] decision should be set aside” (ibid.).

The issues in the claim

[82]There are four main issues dividing the parties at this stage:(i) if, in detaining the claimant, the Secretary of State failed to apply her own policy for the detention of those suffering from mental illness in paragraph 55.10 of the EIG, whether she would have detained him in any event, and whether she could lawfully have done so in accordance with her policy (“Issue (i): paragraph 55.10 of the EIG”);

(ii) whether the claimant’s detention offended the principles acknowledged in Hardial Singh (“Issue (ii): the principles in Hardial Singh”);

(iii) whether the Secretary of State misused the relevant statutory provisions for immigration detention, in paragraph 16 of Schedule 2 and paragraph 2 of Schedule 3 to the 1971 Act (“Issue (iii): the statutory provisions”); and

(iv) whether the claimant would and could lawfully have been detained if his detention had been regularly reviewed, and whether he is entitled to be awarded more than nominal damages (“Issue (iv): damages”). The law The statutory framework for immigration detention

The law

[83]Paragraphs 8 and 9 of Schedule 2 to the 1971 Act provide powers to give directions for the removal of persons who have been refused leave to enter the United Kingdom and illegal entrants. Under the heading “Removal of persons refused leave to enter and illegal entrants”, paragraph 9(1) of Schedule 2 provides:

“Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above [relating to “[a] person arriving in the United Kingdom [who] is refused leave to enter] are authorised by paragraph 8(1).”

Paragraph 16 of Schedule 2, under the heading “Detention of persons liable to examination or removal”, provides: “… (2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending – (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions. …”. (a) a decision whether or not to give such directions; (b) his removal in pursuance of such directions.

[84]Paragraph 2 of Schedule 3 to the 1971 Act, under the heading “Detention or control pending deportation”, provides:

“… (2) Where notice has been given to a person in accordance with regulations under Section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not a detained person in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”

[85]Rule 9(1) of the Detention Centre Rules 2001 provides:

“Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly.”

Article 5

[86]

Article 5 of the European Convention on Human Rights

– enshrining the right to liberty and security – prohibits detention save in several specified circumstances and in accordance with a procedure prescribed by law. Under Article 5(1)(f) the “detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition” must be “lawful”. Thus the question whether a person’s immigration detention is lawful under Article 5 corresponds to the question whether, in accordance with domestic law, he has been unlawfully imprisoned.

Domestic jurisprudence

[87]In R v Deputy Governor of Parkhurst Prison, ex p. Hague [1992] 1 A.C. 58, Lord Bridge observed (at p 162C-D):

“An action for false imprisonment is an action in personam. The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. …”

. Immigration detention is imprisonment in fact. The fundamental question in this case, as in every case of its kind, is whether the claimant’s immigration detention was at any stage unlawful.

[88]The well-known principles expressed by Woolf J in Hardial Singh, effectively defining the constraints on the Secretary of State’s powers of detention, were summarized by Dyson LJ, as he then was, in R(I) v SSHD [2003] INLR 196 (at p 207): “[46] There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in [Hardial Singh]. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Superintendant of Tai A Chau Detention Centre

[1997] AC 97

, at 111A-D … . In my judgment … the following four principles emerge:(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. [47] Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State my not lawfully detain a person ‘pending removal’ for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. [48] It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to para 2(3) of Sch 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.” (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.

[89]This summary of the relevant principles was endorsed by the majority of the Supreme Court in Lumba. In his judgment in that caseLord Dyson JSC said this about the principles in Hardial Singh:

“23. … As regards the first principle, I consider that Woolf J was saying unambiguously that the detention must be for the purpose of facilitating the deportation. The passage quoted by Lord Phillips PSC includes, at para 262, the following: “as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose”

(emphasis added). The first principle is plainly derived from what Woolf J said. 24. As for the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases where it is apparent that deportation will not be possible “within a reasonable period”. It is clear at least from (iii) that Woolf J was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation.”

[90]The court must decide for itself whether the detention is lawful. That this is so, and that the approach the court has to take is not governed by Wednesbury principles, was emphasized by the Court of Appeal in R(A) v The Secretary of State for the Home Department

[2007] EWCA Civ 804

, where Toulson LJ said this (in para. [62] of his judgment): “It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s view as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction).” (see also para. [74] of the judgment of Keene LJ).

[91]In Lumba the Secretary of State was found to have operated a secret and unlawful policy, which reversed the presumption of release and raised a presumption in favour of detention. That policy had been applied to the appellant. But the Supreme Court also accepted that if a lawful policy had been applied he would have been detained in any event. The court held that a breach of public law duty on the part of the person authorizing detention is capable of rendering that detention unlawful, and that it had rendered it unlawful in that case (see paras. 62 to 88 in the judgment of Lord Dyson JSC, paras. 198 to 207 in the judgment of Baroness Hale of Richmond JSC and para. 221 in the judgment of Lord Collins of Mapesbury JSC). Trespassory torts, such as false imprisonment, are actionable per se, regardless of whether the person imprisoned suffers any harm. The court therefore held, by a majority, that the fact that the person would have been lawfully detained in any event did not affect the Secretary of State’s liability for false imprisonment (see paras. 62 and 64 to 88 in the judgment of Lord Dyson JSC, paras. 197 and 208 to 211 in the judgment of Baroness Hale of Richmond JSC, para. 221 in the judgment of Lord Collins of Mapesbury JSC and paras. 239 to 247 in the judgment of Lord Kerr of Tonaghmore JSC). Lord Dyson said (at para. 68):

“… [The] error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain.”

[92]A further issue considered in Lumba concernedthe reasonableness of the length of detention. The court unanimously held that, in the assessment of whether a reasonable period of detention has elapsed, the risk of the person detained re-offending and the legal challenges he has pursued are relevant factors. The relevance of a refusal voluntarily to return, however, is limited. The risk of absconding can be a relevant factor. If it is, however, it must be considered in the light of the history and particular circumstances of the person detained (see generally paras. 106 to 128 in the judgment of Lord Dyson). As Lord Dyson observed (in para. 109 of his judgment), there is a connection between the risk of reoffending and the risk of absconding:

“… As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his re-offending will impede his deportation.”

Therefore, said Lord Dyson (in para. 110), the risk of re-offending is a relevant factor. He accepted (in para. 121) that the weight to be given to time spent in detention during appeals is “fact-sensitive”, and went on to say (ibid.):

“… The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.”

[93]Dealing with the question of damages Lord Dyson said this (in para. 95 of his judgment):

“The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied … it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages.”

[94]The court found the Secretary of State liable to both appellants in the tort of false imprisonment on the narrow ground that she had unlawfully exercised the statutory power to detain them pending deportation because she applied an unpublished policy inconsistent with her published policy. The appellants were, however, entitled only to nominal damages because, if the Secretary of State had acted lawfully and applied her published policy, it was “inevitable that both appellants would have been detained” (see para. 169 of Lord Dyson’s judgment, and also para. 237 in the judgment of Lord Collins, paras. 252 to 256 in the judgment of Lord Kerr and para. 335 in the judgment of Lord Phillips).

[95]The issue of principle in Kambadzi was whether a failure by the Secretary of State to comply with a procedural requirement in his policy relating to the detention of a foreign national prisoner would result in his detention being unlawful, thus allowing him to pursue a claim in tort for false imprisonment. By a majority (Lord Hope, who gave the leading judgment, Lady Hale and Lord Kerr) the court held that the appellant’s detention was unlawful for the periods when no review of his detention had been carried out, and that he had a claim for false imprisonment for those periods. Lord Hope (in para. 16 of his judgment) made it clear that he preferred to base his analysis on the “system of review that is set out in the policy rather than to the system required by rule 9(1) [of the Detention Centre Rules 2001]”, for rule 9(1) “is not concerned with limiting the Secretary of State’s power to detain”. The Secretary of State was under a public law duty to adhere to the policy relating to reviews unless there was good reason not to do so (see paras. 36 and 39 in the judgment of Lord Hope and para. 66 in the judgment of Lady Hale). Although some procedural requirements do not go to the legality of the detention itself, in this instance the policy was sufficiently closely related to the authority to detain to qualify the Secretary of State’s discretion under the 1971 Act (see para. 51 in the judgment of Lord Hope and para. 71 in the judgment of Lady Hale). Lord Hope stressed (in para. 51 of his judgment) that “reviews are fundamental to the propriety of continued detention”. In paragraph 73 of her judgment Lady Hale said this: “… But the whole point of the regular reviews is to ensure that the detention is lawful. That is not surprising. It was held in Tan Te Lam … that the substantive limits on the power to detain were jurisdictional facts, so the Secretary of State has to be in a position to prove these if need be. He will not be able to do so unless he has kept the case under review. He himself has decided how often this needs to be done. Unless and until he changes his mind, the detainees are entitled to hold him to that. Just as Mr Leachinsky’s detention was unlawful even though there were in fact good grounds for arresting him, the detainees’ detention is unlawful during the periods when it has not been reviewed in accordance with the policy, irrespective of whether or not the review would have led to their release. In my view, Munby J was right to hold that reviews were “fundamental to the propriety of the continuing detention” and “a necessary prerequisite to the continuing legality of the detention. …” (see also para. 86 in the judgment of Lord Kerr). The public law error bore directly on the decision to detain the appellant and thus satisfied the test adopted by the majority in Lumba for determining when a public law error will result in detention being unlawful (see para. 42 in the judgment of Lord Hope and para. 88 in the judgment of Lord Kerr). It was no defence to the claim that there were grounds which justified the appellant’s detention (see para. 54 in the judgment of Lord Hope, para. 73 in the judgment of Lady Hale and para. 88 in the judgment of Lord Kerr).

[96]Damages would, however, be nominal if it were found that the appellant would have been detained even if his detention had been reviewed as the policy required. False imprisonment is a trespass to the person and actionable in itself, without proof of loss or damage. A defendant is liable only for the loss which his wrongful act has caused. Therefore, if it were to be found that the detainee would not have been released had proper reviews been carried out, he would be entitled only to nominal damages. Lord Hope said this (in para. 55):

“ … [The] decision on this point in Lumba was that the appellants were entitled to no more than nominal damages as their detention was at all times justifiable. But this cannot be assumed to be so in every case, and in this case the facts have still to be established. So I would not foreclose entirely the possibility that the appellant in this case is entitled to more than a purely nominal award. … In any event, false imprisonment is a trespass against the person which is actionable without special damage … .” and (in para. 56): “… It may be that the conclusion in this case will be that an award of nominal damages is all that is needed to recognise that the appellant’s fundamental rights have been breached. But that does not affect the issue of principle.”

Lady Hale said (in para. 74) “It follows also, from the decision in Lumba … that the fact – if it be a fact – that had the requisite reviews been held, the decision would have been the same makes no difference. However, the result of any review, had it been held, cannot be irrelevant to the quantum of damages to which the detainee may be entitled. False imprisonment is a trespass to the person and therefore actionable per se, without proof of loss or damage. But that does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused. The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done. …”. And Lord Kerr said (in para. 89):

“As the majority in Lumba … held, … causation is relevant to the question of the recoverability of damages. For the reasons that I gave in my judgment in that case, I consider that if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation and that nominal damages only will be recoverable.”

[97]In R (on the application of MC (Algeria)) v The Secretary of State for the Home Department

[2010] EWCA Civ 347

the Court of Appeal held that when the Secretary of State’s policy – in that case the pre-26 August 2010 version – is considered in the context of the relevant statutory framework, references to those who are mentally ill are references to those who suffer from mental disorder as defined in the 1983 Act, as amended (see para. 42 in the judgment of Sullivan LJ). Section 1(2) of the 1983 Act defines “mental disorder” as “any disorder or disability of the mind”. Subsection (3) excludes from the definition “dependence on alcohol or drugs”. Paragraph 17 of the Explanatory Memorandum to the Mental Health Act 2007 specifies several examples of “clinically recognised mental disorders”, namely “schizophrenia, bipolar disorder, anxiety or depression, as well as personality disorders, eating disorders, autistic spectrum disorders and learning disabilites”.

[98]In R (on the application of Ruhul Anam) v The Secretary of State for the Home Department

[2009] EWHC 2496 (Admin)

, Cranston J considered the meaning of the policy in paragraph 55.10 of the EIG, in the form it took before its amendment in August 2010. He noted that the meaning of a policy such as this is an objective matter (see R (on the application of Raissi) v The Secretary of State for the Home Department

[2008] EWCA Civ 72

). And he went on (in paras. 51 to 55 of his judgment) to say:

“51. Paragraph 55.10 provides that those [who are] 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 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. 52. There are two points to be made. The first is that in my view mental health issues only fall to be considered under Chapter 55 where there is available objective medical evidence establishing that a detainee is, at the material time, suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. This consideration must be given to the nature and severity of any mental health problems and to the impact of continuing detention on it. 53. Secondly, the provision that the mentally ill be detained in only very exceptional circumstances does not stand in isolation. The opening part of paragraph 55.10 provides that for Criminal Casework Directorate cases “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”. Paragraph 55.13 indicates, as would be expected[,] that that demands a consideration of the likelihood of the person re-offending and the seriousness of the harm if re-offending occurred. With an offence like robbery, the paragraph specifically requires substantial weight to be given to the risk of further offending and harm. 54. Absconding as a consideration is introduced by paragraph 55.3A for CCD cases. That provides that in assessing what is a reasonable period of detention necessary for removal in the individual case, case-workers must address all relevant factors, including the risks of re-offending and absconding. That paragraph specifically mentions mental illness when considering more serious offences such as robbery. The relevant passage has been quoted earlier in the judgment: case-workers must balance the risk to the public from re-offending and absconding if the detainee is mentally ill. 55. 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.” On 28 November 2011 the Court of Appeal decided to re-open the appeal in Anam, holding now that the detention of the appellant had been unlawful from its inception in May 2008 to 14 August 2009, and directing that all questions of damages for this period of unlawful detention, together with any issue as to the lawfulness of any subsequent detention, were to be remitted to the Administrative Court “without regard to the observations of the Court of Appeal herein with regard to the inevitability of detention”.

[99]In R (OM) v The Secretary of State for the Home Department

[2011] EWCA Civ 909

the appellant had contended, in the light of the Supreme Court’s decisions in Lumba and Kambadzi, that she was entitled to substantial damages unless she would “inevitably” have been detained in any event had the Secretary of State applied her policy properly. In paragraph 22 of his judgment Richards LJ said this:

“… In my view, however, the use of that language is readily explained by the finding in the courts below, agreed with by the Supreme Court, that detention was “inevitable” on the particular facts (see e.g. per Lord Dyson at [60] [of his judgment in Lumba]). There are, moreover, passages in the judgments where the issue is discussed simply in terms of whether a person “would” have been detained if the decision had been taken lawfully (see e.g. per Lord Dyson at [93] and per Lord Kerr at [256]). Taking the judgments as a whole, I cannot discern any intention on the part of the Supreme Court to lay down a legal test of inevitability for determining whether only nominal damages are payable”

. On the burden and standard of proof Richards LJ said (in para. 23):

“Similar considerations apply to the judgments in Kambadzi. Indeed Lord Hope stated in Kambadzi at [56] that ‘an award of damages for false imprisonment is based on normal compensatory principles’. It seems to me that on normal compensatory principles it would be for a claimant to prove his loss on the balance of probabilities. It may well be that in circumstances such as these the burden shifts to the defendant to prove that the claimant would and could have been detained if the power of detention had been exercised lawfully, but I see no reason why the standard of proof should be anything other than the balance of probabilities”

. Richards LJ then added this (in para. 24): “In reality, however, the debate is academic in this case. Irrespective of where the burden of proof lies and whether the standard of proof is the balance of probabilities or inevitability, I am satisfied that the appellant would in fact have been detained during the first period if account had been taken of the paragraph of the policy relating to mental illness. That is clear from what happened in practice in the second period, from 29 April 2010, when the Secretary of State did take the relevant paragraph of the policy into account: the decision to detain the appellant was not only maintained but was defended vigorously in the judicial review proceedings. The question whether the appellant could lawfully have been detained is a matter of legal assessment in relation to which the burden and standard of proof are of no materiality. The assessment has two separate strands to it. The first, concerning the policy itself, depends on normal Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case? The second requires the lawfulness of the continued detention to be assessed by reference to Hardial Singh principles”.

[100]In OM, the appellant had a three year-old son, against whom she had committed an offence of child cruelty, which resulted him being admitted to hospital with several injuries and was eventually dealt with by the imposition of a sentence of 12 months’ imprisonment, the sentencing judge making a recommendation that the appellant be deported. In the meantime the appellant had absconded for a period of more than two years, and had been convicted of possessing a false instrument, for which she was sentenced to nine months’ imprisonment. Care proceedings resulted in the appellant’s son being returned to Nigeria after a residence order had been made in favour of his father. The appellant’s daughter, who had been born after she had absconded, was subsequently made the subject of a care order, and a placement order was made for her adoption. There was no dispute that the appellant suffered from mental illness, but there was disagreement as to the extent of her problems and how they should be managed. The judge found that during her detention she had shown the effects of psychotic illness by harming herself and attempting suicide. She had previously been diagnosed as suffering from recurrent depressive disorder and emotionally unstable personality disorder, but as not fulfilling the criteria for treatment under the relevant provisions of the 1983 Act.While she was detained her mental condition deteriorated (see paras. 1 and 8 of Richards LJ’s judgment). The judge found that there was no possibility of the appellant committing another offence of child cruelty in the way she previously had because she was now separated from her children. But she still presented a risk of “economic crime”. The judge concluded that the Secretary of State was entitled to place substantial weight on the risk of the appellant re-offending. Richards LJ noted (in para. 31 of his judgment) that although some of the appellant’s detention reviews had said that the risk of the appellant re-offending was low, the general tenor of the material before the court was to place substantial and justifiable weight both on the risk of re-offending and the seriousness of the harm that might result from the re-offending. Although the judge had put most of the weight in his analysis on the risk of economic crime, the risk of further offences against children could not be discounted, in the light of at least one assessment of the appellant’s psychological state, which had referred to her impulsivity and unpredictability. The risk of absconding was also significant. Richards LJ found it to be “very high” (see para. 36 of his judgment). The appellant had disappeared for over two years while on bail for the offence of child cruelty. She had no family ties, no home, no job, and no independent source of income. Though the risk of suicide or self-harm if the appellant was released into the community was not to be taken into account as a factor weighing in favour of detention, it seemed to be accepted that her condition could be managed appropriately in detention (see paras. 32 and 33 of Richards LJ’s judgment). Richards LJ concluded (in paras. 37 and 38 of his judgment) that, in the circumstances, it would have been open to a reasonable decision-maker, directing himself under the Secretary of State’s policy, to detain the appellant, and that the Secretary of State’s failure to take paragraph 55.10 into account during the relevant period had not caused the appellant any loss. Despite the appellant’s mental illness, the Secretary of State would, and could lawfully, have detained her for a period in excess of two years.

[101]In Anam, the appellant had chronic mental health problems. He had originally been diagnosed as suffering from paranoid psychosis. Latterly, the diagnosis was of paranoid schizophrenia, for which he needed anti-psychotic medication. A further diagnosis, which was made after he had been detained for more than a year pending his deportation, had confirmed that he was suffering from paranoid schizophrenia and that he was also suffering distinct symptoms of depression, which were attributed to his prolonged detention. He had a long criminal record, which had begun about 17 years before he was detained, with offences of assault occasioning actual bodily harm and going equipped for theft, and now ran to more than 25 offences, committed in 20 different names. Many of the appellant’s offences involved dishonesty. There were two further assaults, offences of perverting the course of justice, obstructing the police and several of failing to surrender to bail or to custody. On a number of occasions the appellant had been sentenced to short terms of imprisonment. When dealt with for his last three convictions, for an offence of robbery and two of theft, he had received a sentence of four years’ imprisonment. Having recognized (in para. 68 of his judgment) that the Secretary of State’s policy meant that there was a strong presumption in favour of his release because of his mental illness and that “the balance of other factors has to be substantial indeed for detention to be justified”, Cranston J went on (in para. 69) to say this:

“Here the claimant has a history from 1991 of prolific offending, some forty offences involving twenty-six convictions. This offending culminated in the robbery conviction, serious enough to warrant a four year sentence. … Apart from the escalating seriousness of the claimant’s pattern of offending and the risk posed as a result of that, there is also the very high risk of absconding. That is evident in the considerable number of offences relating to bail and failing to surrender to custody. Closely associated with that is the disruptive behaviour to frustrate removal, and the claimant’s failure to co-operate in an attempt to document him on the expiry of his Bangladesh passport. There are also the unmeritorious applications he has made for asylum and judicial review and the frequent and unsuccessful applications he has made for bail. Given all these factors, the balance is against release.”

Cranston J’s approach was endorsed by the Court of Appeal, Black LJ observing (in para. 80 of her judgment) that the factors he had identified were “well recognised by the authorities … as relevant in this regard, namely the risk of absconding and the risk of further offending, as well as the Appellant’s own disruption of legitimate attempts to effect his removal, his refusal to co-operate with attempts to obtain documentation from him and his belated challenges, aimed at frustrating his otherwise lawful deportation”.

[102]In MC (Algeria) the appellant had numerous criminal convictions, mostly for offences of theft, but including a variety of other offending, much of which had occurred while the appellant was on bail. Ultimately, the appellant was sentenced to a total of 33 months’ imprisonment for 11 offences. At the end of his period in custody for those offences he was detained by the Secretary of State pending his deportation. While in immigration detention the appellant harmed himself on numerous occasions, by swallowing razors, cutting himself with a scalpel, attempting to hang himself and taking overdoses of drugs (see para. 8 in Sullivan LJ’s judgment). At one stage his behaviour was so extreme that he had to be restrained in a body-belt (ibid.).The appellant was released from detention, soon offended again, was sentenced to 112 days’ imprisonment, and, once he had completed that sentence was detained by the Secretary of State a second time. He was diagnosed as having a personality disorder, which would not have been sufficient as a basis for sectioning someone under the 1983 Act, but the Court of Appeal was in no doubt that this condition fell within the Secretary of State’s policy in paragraph 55.10 of the EIG (see para. 42 of Sullivan LJ’s judgment). The appellant’s condition deteriorated substantially while he was in detention. The Secretary of State’s officials found, and the judge at first instance agreed, that the risk of his offending again and the risk of him absconding were significant. Eventually, his record of failing to comply with bail conditions, absconding and re-offending was so bad that he would inevitably have been detained either in prison or, “if his mental condition was found to be so serious as to make that inappropriate, compulsorily for treatment in a secure unit in hospital” (see para. 52 of Sullivan LJ’s judgment). By the time the case reached the Court of Appeal the appellant had been in immigration detention for 30 months. Bearing in mind that the appellant had been detained as long as he had partly because of his failure to co-operate with the Secretary of State, and despite his poor criminal record and his propensity to abscond, the Court of Appeal found the case “finely balanced”, but was not persuaded that his detention had been unlawful (see para. 68 of Sullivan LJ’s judgment).

[103]I cite those three cases not to demonstrate the existence of a clear standard by which the lawfulness of the detention of a person suffering from mental illness can be judged, but to show that there is no such standard. The factual spectrum in cases of this kind is wide, to say the least. In every case the outcome will depend on the particular facts and circumstances. Recent decisions at first instance which underscore this perhaps obvious principle include R (S) v The Secretary of State for the Home Department

[2011] EWHC 2120

, R (Sino) v The Secretary of State for the Home Department

[2011] EWHC 2249 (Admin)

and R (BA) v The Secretary of State for the Home Department

[2011] EWHC 2748 (Admin)

. Issue (i): paragraph 55.10 of the EIG Submissions for the claimant on issues (i)

Issue (i): paragraph 55.10 of the EIG

[104]For the claimant Mr Ranjiv Khubber submitted that, throughout the claimant’s detention, the Secretary of State failed to have regard to her policy in paragraph 55.10 of the EIG and that the claimant’s detention was therefore unlawful. In the circumstances of this case, it cannot be said that there was no causative link between the Secretary of State’s failure to apply the policy and her decision to detain.

[105]Mr Khubber made four basic submissions, which he developed fully in oral argument. First, he submitted, the claimant was, throughout, suffering from a serious mental illness, so that the original version of the policy in paragraph 55.10 applied to him. Secondly, there was a clear causal link between the Secretary of State’s failure to apply the policy and the claimant’s detention, and the factors necessary to displace the strong presumption againstdetention were absent. Thirdly, it was – or ought to have been – clear that the claimant’s detention was worsening his mental illness. This much was plain in Dr Goldwyn’s report and, later, in Dr Sagovsky’s. Fourthly, the claimant’s deportation was only being considered because he had committed a series of thefts, and not, for example, offences of violence, sexual assault, or the unlawful supply of drugs. Some alternative to detention should therefore have been considered.

[106]Mr Khubber said the Secretary of State was wrong now to contend that the policy governing the detention of the mentally ill did not apply to the claimant because there was not enough evidence to show he was suffering from such an illness. As paragraph 55.10 of the policy makes clear, and as the court noted in Anam,the critical question is whether, at the material time, the claimant was suffering from a mental illness serious enough to engage the policy. He was. And this should have been obvious to the Secretary of State, from material she had. On 1 June 2010 the claimant had attempted suicide. On 15 June 2010 Dr Goldwyn found him to be “almost psychotic” and a “serious suicide risk”. She noted that he had been diagnosed with moderate depression. Her view was consistent with the discharge summary completed by Dr Lester of the Highgate Mental Health Centre in July 2009. In the light of the claimant’s history of mental illness the absence of psychotic symptoms should have been treated with caution. When eventually she saw him in October 2010, Dr Sagovsky concluded that he was suffering from a major depressive illness and severe post-traumatic stress disorder. She found the claimant’s problems complex, requiring further assessment. Thus, Mr Khubber submitted, the Secretary of State clearly ought to have appreciated that the claimant fell within the scope of the policy in paragraph 55.10 of the EIG – both before and after the policy was amended – requiring very exceptional circumstances to be shown to justify detaining someone who was mentally ill. This error was significant, because it was not inevitable that the claimant would otherwise have been detained. Had a detention review been undertaken at any stage between May and November 2010, the basis for detaining him in spite of his mental illness would surely have been considered. It was not. There was no excuse for this. The Secretary of State knew, or ought to have known, from the outset that the claimant was mentally ill. Had she properly applied her policy in this case she would have been bound to conclude that the strong presumption against detention had not been displaced. Whilst the claimant’s offending had been both prolific and persistent, it was borne of his dependency on drugs, and this in turn was linked to his mental ill health. The crimes he might have committed had he not been detained were relatively minor offences of theft, which would probably have been dealt with in the magistrates’ court by the imposition of short terms of imprisonment. This, said Mr Khubber, distinguishes the claimant’s case from OM.

[107]In his further written submissions of 12 January 2012 Mr Khubber said that the recent decision of the Court of Appeal in Anam – to re-open the appeal, to remit the issues of liability and quantum to the Administrative Court, and to retract its previous finding that detention was inevitable – is relevant “in showing the weight to be given to the strong presumption against detention under the original version of the policy and the need for careful justification”. Mr Khubber submitted that the lack of detention reviews for a substantial period in the present case “therefore heightens the materiality of such an error”. The re-opening of the appeal in Anam showed that even in a case where the detained person’s offending was worse than the claimant’s it was not clear what the consequence of applying the policy in paragraph 55.10 might be.

Submissions for the Secretary of State on issue (i)

[108]For the Secretary of State Mr Jonathan Auburn argued that, in detaining the claimant, the Secretary of State acted wholly in accordance with her policy in Chapter 55 of the EIG, and in particular with paragraph 55.10. He made two main submissions. In the first place, though the Secretary of State did not undertake regular reviews of the claimant’s detention between May and November 2010, he was seen regularly by the medical staff, including Healthcare and Clinical Psychology staff, at Colnbrook IRC. Secondly, none of the detailed records kept by the staff at Colnbrook indicated that, while he was in detention, the claimant was suffering from a mental illness of sufficient seriousness to engage the policy, though he undoubtedly was showing the symptoms one might expect to see in a person with a history of drug abuse, or in a heroin addict undergoing detoxification. But in any event the Secretary of State plainly acted consistently with the provisions of paragraph 55.10 of the guidance in detaining him. To support these submissions Mr Auburn pointed to numerous entries in the claimant’s medical records for the period between May and September 2010, which, as a continuous record of the claimant’s health, including his mental health, in detention, demonstrated the absence of “mental health issues of sufficient seriousness … to warrant consideration of whether [his] circumstances [were] sufficiently exceptional to warrant his detention” (as Cranston J had expressed the relevant test in Anam). Throughout July, August and September 2010, the claimant’s mental health records described him as feeling anxious and frustrated by his being detained, but did not identify any psychotic symptoms or any symptoms other than those which one might expect to find in a person facing deportation from the United Kingdom and detained in the meantime. Dr Goldwyn, who is not a psychiatrist, but a GP, was no better placed than the other GPs working at Colnbrook to diagnose the claimant’s condition. She only saw the claimant once, for two hours. The medical staff at Colnbrook saw him regularly, were able to assess his condition from day to day, and did. Dr Goldwyn’s description of the claimant and his symptoms was not substantiated by the records made by the medical staff before and after she saw him. After 26 August 2010, when the reference to the “mentally ill” in paragraph 55.10 was replaced by a reference to “those suffering serious mental illness which cannot be managed in detention”, and at least until October 2010, there was nothing to prove that the claimant was suffering from a serious mental illness. And in any event his symptoms plainly could be, and were being, “managed in detention”. The first, and only, indication that his condition might have worsened during October 2010 was in the report produced by Dr Sagovsky, which was provided to the Secretary of State on 3November 2010. But Dr Sagovsky herself found a significant difference in the claimant between the first occasion when she saw him, on 13 October, and the second, on 27October (see para. 5 of the report). Even then, however, although the claimant was “objectively and subjectively very low in mood”, he was “not thinking of killing himself” (para. 28), and there was “no new evidence of psychosis” (para. 29). The worsening of the claimant’s condition between 13 and 27October 2010 did not mean that his symptoms could not be managed in detention. The Secretary of State’s response to Dr Sagovsky’s report, which was immediately to try to get the claimant into a mental hospital, was appropriate in the circumstances, but her decision to keep him in detention throughout October and November 2010 was entirely in accordance with paragraph 55.10 of the EIG.

[109]Mr Auburn acknowledged that the claimant had a history of mental illness before he was detained by the Secretary of State. But it is equally clear, he submitted, that the claimant’s condition could largely be attributed to his circumstances: his being homeless, without financial or other support, and expensively addicted to Class A drugs. This was the essential conclusion expressed in his discharge summary in July 2009. While detained, however, the claimant was not homeless; he was provided with food and shelter. He could get medication, and did. He could get counselling, and did. What had happened since his release from detention only confirmed, as Dr Sagovsky had said in her report, that his condition was liable to fluctuate.

[110]Mr Auburn submitted that even if the claimant could be regarded as either mentally ill, or even seriously mentally ill, during the time he was detained it is plain from the Court of Appeal’s decision in OM, that this did not necessarily make his detention unlawful. In OM the person who was detained plainly did suffer from a serious mental illness and was a suicide risk. The court held, however, that the Secretary of State had acted lawfully in detaining her for more than two years, given the likelihood of her absconding and re-offending. Mr Auburn submitted that the same conclusion should be reached here, on the same approach, and for similar reasons.

[111]In his further written submissions of 13 January 2012 Mr Auburn said that the re-opening of the appeal in Anam does not cast any doubt on the correctness of the Court of Appeal’s decision in OM. The Secretary of State had relied on the decisions in Anam, both at first instance and on appeal, only for points unaffected by the Supreme Court’s decisions in Lumba and Kambadzi – in particular, the need for a person’s mental illness to be sufficiently serious for the policy in paragraph 55.10 of the Secretary of State’s guidance to be engaged, and the need for there to be evidence of such illness that was both objective and available at the relevant time.

Discussion and conclusion on issue (i)

(i) Approach

[112]Against the background of the jurisprudence in the Supreme Court’s decisions in Lumba and Kambadzi it can be seen that the principal question for the court to resolve in dealing with this issue, as it was in OM, divides into two parts: first, whether the claimant would in fact have been detained if the Secretary of State’s relevant policy had been applied; and secondly, whether the Secretary of State could lawfully have detained the claimant if she had properly applied her policy (see para. 24 in the judgment of Richards LJ in OM). OM was a case in which regular detention reviews had been carried out. In that respect it can be distinguished from this case. But I do not think that in practice the distinction makes any difference. It does not bear materially on the application of the Secretary of State’s policy for the detention of the mentally ill, because in OM the detention reviews carried out in the first period of detention whose lawfulness was disputed did not grapple with the policy. In paragraph 14 of his judgment Richards LJ referred to the fact that the Secretary of State had failed to take into account paragraph 55.10 of the EIG when considering the justification for the appellant’s detention for a period of more than 20 months from the time when the appellant was first detained. The judge at first instance had held that the failure to take paragraph 55.10 into account did not cause the appellant’s detention; the decision to detain her would have been the same if the policy had been properly considered and applied. As the authorities made clear, the court must also be satisfied that the failure to apply or a breach of the policy had in fact caused prejudice to the person detained. In other words, the court would need to be satisfied that, if the policy had been applied, his continued detention could not have been justified. If the strong presumption in favour of release can reasonably be said to have been rebutted by factors such as the risk of absconding and reoffending, the detention would in this respect be lawful.

[113]I should add that I do not accept that the approach adopted by the Court of Appeal in OM was implicitly doubted or departed from by its recent decision to re-open the appeal in Anam. In my view it was not. Indeed, Mr Khubber did not suggest that it was. The Court of Appeal decided OM after, and in accordance with, the Supreme Court’s decisions in Lumba and Kambadzi. The present case too has been argued in the light of that jurisprudence.

Would the claimant have been detained in any event?

[114]In OM, when considering the first question – whether the claimant would have been detained had the policy been applied – the Court of Appeal adopted as the correct test the balance of probabilities rather than the concept of inevitability. Indeed, the court expressly rejected inevitability as the standard of proof (see paras. 22 and 23 in the judgment of Richards LJ), though it was also satisfied that the appellant would have been detained even if the relevant policy had been taken into account (see para. 24 of Richards LJ’s judgment).

[115]Mr Auburn submitted that the same conclusion as was reached by the Court of Appeal in OM ought to be reached here; the same factors apply with equal force. I agree. In my judgment, even if Mr Khubber was right in his submission on the standard of proof, the answer in this case would be no different. Whether it is necessary for the Secretary of State to prove that she would inevitably have detained the claimant, or only that on the balance of probabilities she would have done so, my conclusion would be the same. Even if the Secretary of State had consciously applied her policy in paragraph 55.10 at any stage when she did not do that, I believe she undoubtedly would still have detained the claimant for the whole of the period he was in detention. In other words, to make this absolutely clear, she inevitably would have detained him. It follows that I am also in no doubt that, if the test is the less stringent one of the balance of probabilities as indicated and applied by the Court of Appeal in OM, the claimant would have been detained throughout that period.

[116]I have come to that conclusion for two reasons.

[117]First, it is plain from the contemporaneous documents (including the minute of the decision to detain dated 18 May 2010, the detention review of 21 May 2010, UKBA’s letter to the claimant dated 21 May 2010, the monthly progress report of 1 November 2010 and the detention review issued on 16 November 2010) that the Secretary of State saw powerful reasons for detaining the claimant – in particular, the risks of his absconding and further offending – and found the factors weighing in favour of keeping him in immigration detention as compelling in November 2010 as she had six months earlier. It is no less clear, from the monthly progress report and detention review prepared in November 2010, that the Secretary of State believed that the considerations which had led her to detain the claimant and subsequently to maintain his detention were sufficient to outweigh the concerns now being urged on her about his mental health, and sufficient to justify continuing his detention notwithstanding the policy in Chapter 55 of the guidance. The official who endorsed the recommendation to maintain detention in the CCD’s detention review of 16 November 2010 was obviously aware of the need to assess the appropriateness of continued detention in accordance with paragraph 55.10. She nevertheless considered that detention was still “vital”. Numerous factors were recorded as weighing against the claimant’s release in the monthly progress report of 1 November 2010, including his history as an absconder who had come to the notice of the Secretary of State only after he had been arrested for a criminal offence, his failure to comply with bail conditions and to surrender to custody, his failure to produce satisfactory evidence of his identity or nationality, the various nationalities which he had claimed at different times, the deception he had used in seeking to gain leave to enter and remain in, and to evade removal from, the United Kingdom, his lack of family ties or social connections of the kind that would make it likely for him to stay in one place, his previous criminal offending and the likelihood that this would be repeated. A similar assessment is seen in the detention review itself, after efforts to get the claimant into hospital were under way. The review referred to the claimant’s “serious suicide attempt” on 1 June 2010, to his having been seen by clinical psychology staff on 8 June and to his admitted use of heroin, and to his treatment in hospital in May and June 2009. It said that he claimed to “be suffering from mental health issues”, but that there was no evidence that he had been sectioned under the 1983 Act. The conclusion was that the “presumption of liberty” in Chapter 55 of the EIG was said to be “on balance outweighed by the significant risk of harm and absconding”. Without more, therefore, I am able to conclude from the contemporaneous evidence before me that the claimant inevitably would have been detained for the entirety of the time he spent in immigration detention even if the Secretary of State’s policy in paragraph 55.10 had been used in his case.

[118]Secondly, the Secretary of State’s belief that the claimant’s detention was at all stages both justified and necessary is confirmed in the evidence of Ms Patrick (in paras. 24 to 27 of her witness statement) and Mr Baker (in paras. 11 and 14 of his). And, as she did in OM, the Secretary of State has vigorously defended the judicial review proceedings. Mr Khubber submitted that very little weight should be given to this. He described it as “ex post facto rationalization”, which he said was impermissible. I disagree. I think there is a distinction to be drawn between, on the one hand, the giving of reasons to explain or justify an administrative decision for which the contemporaneous reasoning may be unpersuasive or scant or even entirely absent, or an indication of what the decision itself would have been had a particular consideration been taken into account, and, on the other hand, a robust defence of that decision in proceedings such as these. I think it would be unrealistic to ignore the fact that the Secretary of State has firmly defended her decision, and the fact that, on her behalf, in the witness statements of Ms Patrick and Mr Baker it has been unequivocally stated that, had she made use of her policy on the detention of the mentally ill throughout the claimant’s detention, she would still have decided to detain him. Could the Secretary of State lawfully have detained the claimant in accordance with her policy in paragraph 55.10?

[119]Having thus concluded that the Secretary of State inevitably would have detained the claimant, I turn now to the question whether she could have done so – that is to say whether she lawfully could. As Richards LJ observed in paragraph 24 of his judgment in OM, this is not a question that involves any debate about a burden and standard of proof. It is simply “a matter of legal assessment”. It has two elements. The first element, concerning the Secretary of State’s policy, is governed by Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly on the policy, to detain the claimant in the circumstances of this case (see paras. 24, and 28 to 39 of Richards LJ’s judgment in OM)? As is well illustrated in the authorities to which I have referred (OM, Anam and MC (Algeria)), and in many others too, this necessarily involves an exercise sensitive to the facts of the particular case. The second element of the question, which arises as issue (ii) in these proceedings, is whether in any event the claimant’s detention was consistent with the principles in Hardial Singh.

[120]On the facts of this case I find it impossible to say that, at any stage of the claimant’s detention between May and November 2010, the Secretary of State could not reasonably have detained him in accordance with her policy for the detention of the mentally ill in paragraph 55.10 of the EIG.

[121]Whilst there may be force in Mr Auburn’s submission – relying on what Cranston J said in Anam (in para. 52 of his judgment) – that at least until Dr Sagovsky’s report reached the Secretary of State in early November 2010 the “available objective medical evidence” did not establish that the claimant was, during his time in immigration detention, suffering from a mental illness sufficiently serious to engage the policy in paragraph 55.10, I am prepared to accept that the policy was engaged in the present case, and that it was engaged throughout the claimant’s detention. This clearly assists the claimant, and it puts his case on the same foundation as OM. However, it is not tantamount to a finding that the Secretary of State acted unreasonably or unlawfully under the principles in Hardial Singh in detaining him, or that his detention was at any stage in conflict with the Secretary of State’s policy. In cases such as this, where the policy in paragraph 55.10 is engaged, the court may have to consider how cogent was the medical evidence available to the Secretary of State at the time when she was using her powers to detain. This is not to say that it is possible, or appropriate, for the court to form what is, in effect, a clinical judgment of its own, or to substitute such a judgment for that made by medical professionals, be it in a formal diagnosis or in the decisions of those responsible for managing a person’s condition and well-being from one day to the next. But where there have been conflicting or inconsistent assessments of someone’s mental health at a particular time, the court may have to consider whether there was then a proper basis for relying on one rather than another. This is likely to be not so much an exercise in making hard-edged findings of fact, as a mixture of fact-finding and inference. But it is necessary to keep in mind that the essential questions for the Secretary of State to consider in applying her policy in paragraph 55.10 are questions of judgment for her. If the claimant’s case did attract the strong presumption against detention implicit in the use of the phrase “very exceptional circumstances” in the policy, could the Secretary of State reasonably have concluded that the circumstances here were indeed “very exceptional” in the sense contemplated by the version of the policy current at the relevant time? This was a question that arose in OM. And it arises in this case too.

[122]Under the amended policy in paragraph 55.10 the Secretary of State must consider whether the person concerned is suffering from a “serious mental illness which cannot be satisfactorily managed within detention”. The crucial consideration, therefore, is manageability; if a person’s mental illness can be satisfactorily managed in detention, it is not serious enough to attract the strong presumption against detention in paragraph 55.10. This was, in effect, Mr Auburn’s submission on the new policy. He argued that the exceptionality required by the policy for the detention of a person suffering from mental illness applies only if that person’s condition cannot be satisfactorily managed in detention. In my judgment, that is right. Put another way, the general principle in the policy is that a mental condition which can be satisfactorily managed in detention will not cross the threshold of “sufficient seriousness” to which Cranston J referred in paragraph 52 of his judgment in Anam. This is not to say that if the Secretary of State believes a person’s mental illness can be satisfactorily managed in detention that of itself is a reason for detaining him. It is not. But it is an indication of the seriousness of his condition, and it bears on the decision as to whether or not he should be detained. In OM the manageability of a person’s mental illness in detention was recognized as an important factor in the application of the previous version of paragraph 55.10 (see paras. 33 and 39 in the judgment of Richards LJ). In paragraph 33 of his judgment in that case Richards LJ referred to the deterioration in the detainee’s mental health as a result of her continued detention. This, he said, was undoubtedly a factor to be taken into account, but which, on the facts of that case, carried little weight since the detainee’s needs “could be managed appropriately in detention”. This reinforces my view that the new version of the policy does not differ materially from the previous one in the way that it works.

[123]It is also important to remember that the policy relating to the detention of the mentally ill must be viewed not in isolation but in the context of other relevant policy in the EIG. Part of that context is to be seen in the policy for cases falling within the remit of the CCD. As Mr Auburn submitted, the policy for such cases makes it plain that they are to be treated differently from cases which are not the responsibility of the CCD. Under the heading “Criminal Casework Directorate Cases”, paragraph 55.1.2 of the EIG indicates that although the presumption in favour of release applies to such cases as it does to all others, “the nature of these cases means that special attention must be paid to their individual circumstances”. This paragraph says that “in any case” where the deportation criteria are met the risk of reoffending and absconding must be weighed against the presumption in favour of release. It also indicates that “in many cases” it is likely that a person will have to be detained “[d]ue to the clear imperative to protect the public from harm from the person whose criminal record is sufficiently serious to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond”. This imperative is seen again in paragraph 55.1.3, which also refers to the need to weigh the risk of re-offending or absconding against the presumption in favour of release. That paragraph says that in CCD cases concerning foreign national prisoners, “if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale”. It says that “[s]ubstantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality”. Paragraph 55.3.1 lists factors which will influence the decision to detain. Paragraph 55.10 itself acknowledges (in both versions relevant in the present case) that “[i]n CCD cases, 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”. It is also to be noted that the strong presumption against detention in paragraph 55.10 (again in both versions) is qualified by the word “normally”. Embraced in this part of the policy, therefore, is the recognition that some cases – and these would, in principle, include cases for which the CCD is responsible – are to be approached somewhat differently from others. In every case, however, a balance will have to be struck.

[124]Therefore, if, as I have accepted, the policy in paragraph 55.10 was engaged in this case, the judgment the Secretary of State would have had to make would have required the consideration of several matters, and not merely the claimant’s mental condition. Other relevant factors will often include, and in this case clearly did include, the risk of further offending and the risk of absconding. In paragraph 28 of his judgment in OM Richards LJ endorsed – as had Black LJ in paragraph 81 of her judgment in Anam

[2010] EWCA Civ 1140

– paragraph 55 of the judgment of Cranston J at first instance in that case, where he observed that the policy in paragraph 55.10 of the EIG “demands that with mental illness, the balance of those factors [namely factors such as the risk of further offending or public harm and the risk of absconding] has to be substantial indeed for detention to be justified”. To overcome the “strong presumption in favour of release”, as Cranston J described it, the countervailing factors must be strong.

[125]In this case there were, in my view, unusually strong factors weighing in favour of the claimant’s detention.

[126]By the time he was detained by the Secretary of State, he had shown himself to be a persistent, indeed prolific offender, and several of his crimes had been serious enough to earn custodial sentences. In the period of almost four years that elapsed between the claimant’s arrival in the United Kingdom and the Secretary of State’s decision to detain him, the claimant had been convicted of a number of criminal offences. He was convicted in September 2007, on two counts, one of theft, the other of attempted theft, for which he received a referral order for six months; in November 2007, for attempted theft, for which he received a sentence of three months’ detention in a Young Offender Institution; in December 2007, for theft, for which he was sentenced to 12 weeks’ detention in a Young Offender Institution; in September 2008, for theft and attempted theft, for which he received concurrent sentences of 10 weeks’ detention; in November 2008, for theft, for which he was sentenced to 10 weeks’ custody; in February 2009, on two counts of theft, for which he received a sentence of six months; and in September 2009, for an offence of theft, for which he was conditionally discharged. In May 2010 he was convicted of failing to surrender at the appointed time. The pattern here was perfectly clear and well established. When at liberty the claimant was in the habit of stealing. His habitual stealing was clearly related to his habitual use of controlled drugs, which, without money of his own, without a job and without any real prospect of getting one, he had no means of funding himself. By May 2010 there seems to have been no sign of this cycle being broken. In my judgment, there can be no doubt at all that when the Secretary of State detained him there was a considerable risk of the claimant re-offending, and continuing to do so for as long as he was dependent on drugs. The risk was the greater for his inability to fend for himself in the community. The fact that, after his release from immigration detention, the claimant returned to crime – he was convicted of yet another offence of theft in June 2011, for which he received a sentence of 10 weeks’ imprisonment – only serves to confirm what was already obvious when he was detained in May 2010, and throughout his detention: that there was a very high risk of his offending again.

[127]The risk of the claimant absconding was considerable too. When he entered the United Kingdom in July 2006 he did so clandestinely. He used an alias, and had at first claimed to be Palestinian. He later said he was a Moroccan national. In late July 2006, a week after making his second claim for asylum, contending now that he was Algerian, he was sent to NASS accommodation. He failed to go there, and was listed as an absconder. His whereabouts only became known to the authorities when he was later arrested for a criminal offence. When his appeal against the refusal of his second claim for asylum was rejected in July 2007 he did not leave the United Kingdom, staying for almost three years more before he was detained by the Secretary of State. For much of this period, apart from the terms of detention and imprisonment he served, he was homeless. At least once he failed to surrender to police custody. While in immigration detention he claimed to be from Polisario, which would have meant that he was either Moroccan or Algerian (on 23 May 2010), then Algerian (on 6 July 2010), and then French (on 24 July 2010). Refusing him bail on 19 October 2010, the First-tier Tribunal saw several reasons for its decision: that he had come into the United Kingdom clandestinely; that he had then used more than one identity and claimed several nationalities; that he had failed to appear at a magistrates’ court; and that he had absconded. Taking all of this into account, one can see that by the time the claimant was detained, the risk of him absconding if not detained was very high.

[128]It would be wrong to ignore what had happened in the four years before he was detained in May 2010. By then, as the Secretary of State was aware, the claimant had both a history of drug abuse and dependence and a history of mental health problems. Mr Auburn submitted, however, that the history, whilst documented in various ways, did not demonstrate that when he was detained by the Secretary of State the claimant was suffering from a mental illness serious enough to make it inappropriate to detain him at that stage. A year before, in May 2009, he had been sectioned under the Mental Health Act and put on a programme of intervention for drug users. In his discharge report, prepared in July 2009, it was noted that he had a history of depression and suicidal thoughts, self-harming and attempts at suicide, and that he was suffering from “moderate depression with poly substance misuse and psychotic experiences”, which were likely to be secondary to his use of drugs “rather than psychotic depression” and that his problems were “maintained by [his] ongoing social situation”. In the detention review prepared on 21 May 2010 the Secretary of State’s officials noted that the claimant had said to a police officer that he was going to commit suicide. This was evidently not seen as a consideration that made it wrong to detain him. And in my view the Secretary of State could reasonably have decided that detaining him was in accordance with her policy in Chapter 55 of the EIG, including paragraph 55.10.

[129]Once he had been detained the claimant began to undergo detoxification from drugs – a process which, it is clear, was difficult for him. Throughout the time he spent in detention, as the contemporaneous records show, he was regularly seen, assessed and medicated by the medical staff employed at Colnbrook. Their competence and expertise have not been questioned, nor have the clinical decisions they made been criticized.

[130]To assess the objective evidence as to the claimant’s mental state during his detention, it is, I believe, appropriate to look separately at three periods: first, the period between 17 May 2010, when he was first detained, and 21 June 2010, when his solicitors provided the Secretary of State with Dr Goldwyn’s report; secondly, the period from 22 June to 2 November 2010; and thirdly, the period between 3 November 2010, when his solicitors provided the Secretary of State with Dr Sagovsky’s report, until his release from immigration detention on 29 November 2010. These were the three periods suggested for analysis by Mr Khubber (in para. 4.5 of his skeleton argument). The second of them straddles the date on which the Secretary of State’s revised policy for the detention of the mentally ill was published (on 26 August 2010).

The period from 17 May to 21 June 2010

[131]Mr Auburn submitted that in this period the records compiled by the Healthcare and Clinical Psychology staff at Colnbrook do not indicate that the claimant was suffering from mental illness of sufficient seriousness – in the sense contemplated by Cranston J in paragraph 52 of his judgment in Anam – to engage the Secretary of State’s policy in paragraph 55.10. As I have said, however, I shall assume that the policy was engaged. If it was, I would conclude, in the light of the objective evidence available to the Secretary of State at the time, that the claimant’s needs were being managed appropriately in detention (see para. 33 of Richards LJ’s judgment in OM). The contemporaneous records support this view. On 17 May 2010 it was noted that he was taking valium for depression. The medical staff at Colnbrook knew about his history of drug use, as the records for 22, 23 and 25 May 2010 clearly demonstrate. The problems he was having in withdrawing from the use of heroin – including his “sleeping problems”, his loss of appetite and vomiting – were recorded in the Confidential Medical Application of 26 May, as was his desire to change his medication. None of this seems to have exceeded the range of mental health needs that could reasonably be regarded as manageable in detention.

[132]On 1 June 2010 the claimant apparently tried to commit suicide by strangling himself with a T-shirt. I say “apparently” because shortly after this incident the claimant himself cast doubt on his intention to take his own life. Whether this was doubted by the medical staff at Colnbrook, their response to what had happened was prompt and effective. Immediately afterwards the claimant was put on a “high ACDT watch”. On 2, 3 and 4 June he was seen several times by members of the healthcare team. On 2 June he was assessed by a psychiatrist, whose notes record him denying that he had in fact tried to kill himself. He said he had not taken any drugs in the last two weeks. The psychiatrist noted that the claimant was eating and sleeping properly. He found no objective evidence of psychotic symptoms. On 4 June, according to his Physical Care record, the claimant said he was well and does not want to see a doctor.

[133]Disturbing as it undoubtedly was, I think this episode has to be seen in the context of what happened in the days that followed, and, in particular, the clinical decisions of those who had day-to-day responsibility for the claimant’s welfare in detention and were able to form their own judgment about his condition from their observation of him and discussions with him. Having done that, I accept Mr Auburn’s submission that the Secretary of State could reasonably have concluded that the claimant should not be released from detention after what had happened on 1 June, and that continuing to detain him was consistent with her policy in paragraph 55.10, read together with the other relevant provisions of Chapter 55 of the EIG. The fact that a person has attempted to take his own life while in immigration detention does not necessarily mean that his detention is unreasonable or unlawful. This is clear from the decisions of the Court of Appeal in MC (Algeria) and OM. In this case I do not accept that it was unreasonable for the Secretary of State to keep the claimant in detention at this stage, or that her doing so was in conflict with her policy in Chapter 55.

[134]Between 8 and 21 June 2010 the claimant’s condition was closely monitored. There is nothing in the contemporaneous records to suggest that in these two weeks his condition had worsened materially or had become unmanageable, though on 13 June it was recorded that he had suffered epileptic fits. On 8, 9, 16 and 18 June his mood was recorded as being “low”. On 8 June he had complained of losing control and being mentally unwell. But the records for 9, 16 and 18 June noted that he denied any desire to harm himself, or others. Those for 9 and 18 June identified no symptoms of psychosis. On 12 June it was noted in his Physical Care record that he felt well. On 16 June (the day after he was seen by Dr Goldwyn) he disclaimed “any feelings of self harm or harm to others at the moment”, complained of poor appetite and difficulty in sleeping difficulty, denied “any unusual experiences such as passivity phenomena or any auditory or visual hallucination”, and showed no evidence of “persecutory delusion”. He was also said to be “[willing] to take his anti-depressants regularly”. On 17 June he was complaining of “stress and anxiety”. A Psychiatry Review referred to in the record for 18 June noted that he was “stressed, anxious and low in mood” but showed “no evidence of psychotic symptoms” and was again denying “any feelings of self harm or harm to others”. The record for 19 June said that that he was adhering to his treatment regime.

[135]In my judgment, therefore, in this period the Secretary of State would have been entitled to conclude, in the light of the objective evidence available to her, that the claimant’s detention was in accordance with her policy in the EIG, and that the strong presumption against detention was clearly outweighed by factors militating in favour of his being detained, including the risk of further offending and the risk of absconding, both of which were significant.

The period from 22 June to 2 November 2010

[136]Mr Khubber relied on Dr. Goldwyn’s report of 18 June 2010 as evidence of the claimant’s mental ill health during this period. He referred to the alarm about the claimant’s mental health expressed in letters sent by his solicitors to the Secretary of State in June and July 2010. Why those letters went unanswered has not been explained, and Mr Auburn did not seek to excuse the failure to respond. I do not think it can be excused. However, it is clear that the Secretary of State does not accept the conclusions Dr Goldwyn expressed. Mr Auburn said that Dr Goldwyn was no better placed than the doctors employed at Colnbrook to diagnose the claimant’s condition. She saw the claimant only once, for two hours, on 15 June. The medical staff at Colnbrook were able to make a regular assessment of his fluctuating behaviour and symptoms, and the severity of his condition. And Dr Goldwyn’s description of the claimant’s symptoms does not seem consistent with the records compiled by the staff at Colnbrook both shortly before and shortly after she saw him. I have already referred to those records, which do not suggest that the claimant was psychotic or that his mental condition was deteriorating because he was in detention. Mr Auburn offered what I consider to be a plausible explanation for the claimant’s condition when seen by Dr Goldwyn. The claimant appears to have started taking heroin and cannabis again about a month after he was detained on 17 May. Dr Goldwyn’s visit on 15 June came almost exactly at that stage. But leaving that point aside, if the Secretary of State had compared the findings in Dr Goldwyn’s report with the medical records prepared almost daily by the staff at Colnbrook, I think she could reasonably have preferred the information she gleaned from the latter. I accept Mr Auburn’s submission to this effect. In my judgment, the Secretary of State could properly have concluded that Dr Goldwyn’s assessment of the claimant did not prove that he was then suffering from a mental illness which made it inappropriate to detain him, or which could not be appropriately managed in detention.

[137]Throughout July and August 2010 the claimant’s mental health records describe him as feeling anxious or fearful, frustrated at being detained, missing his partner and child, and disappointed by the refusal of his application for bail on 17 August. They do not, however, refer to any signs of psychosis. On 25 August it was recorded that the claimant seemed “in good spirits”. On 15 September the claimant is recorded as being unable to sleep, “low in mood and very depressed”. He had apparently decided to stop taking his medication. By 21 September, however, he was apparently eating and sleeping well and eating well, denied any desire to harm himself or others, and showed no evidence of psychotic symptoms.

[138]In October 2010 the claimant was seen twice by Dr Sagovsky – on 13 and 27 October. Dr Sagovsky’s report was completed on 30 October, but it did not reach the Secretary of State until 3 November 2010. In my view, at least until the Secretary of State saw that report there was no objective evidence before her that the claimant was suffering from a mental illness that either made it wrong to detain him or was not capable of being satisfactorily managed while he was in detention. Taking into account his history of drug abuse, his detoxification and his use of drugs even while in detention, and putting those considerations together with the risks inherent in releasing him, it would have been reasonable to conclude that his detention was both legitimate and necessary, and in accordance with the policy in Chapter 55. Despite what Dr Goldwyn had said in her report, I am in no doubt that the Secretary of State could properly have decided that the strong presumption against detention was still outweighed by the risks of the claimant absconding and offending again, both of which were no less significant now than they had been when the claimant was first detained. Such a decision would have been justified both before and after the changes made to the policy in paragraph 55.10 on 26 August 2010. And again, I believe, the Secretary of State would have found sufficient support for it in the picture that emerges from the records kept at Colnbrook.

[139]In this period too, therefore, the Secretary of State would have been entitled to conclude that the claimant’s detention was in accordance with her policy.

The period from 3 to 29 November 2010

[140]The Secretary of State was sent Dr Sagovsky’s report on 3 November 2010. The report records the difference in the claimant’s demeanour on the two occasions when Dr Sagovsky saw him. Whether, as Mr Auburn suggested, the claimant’s decline was as sudden as it seems to have been, Dr Sagovsky’s opinion was perfectly clear. She concluded that the claimant was “currently suffering from a major depressive illness fulfilling the DSM-IV criteria” (para. 32 of her report) and that he was also “suffering from severe post traumatic stress disorder”, fulfilling six of the DSN IV criteria (para. 33). His mental health problems were “complex” and required “further extended psychological and psychiatric assessment” (para. 37). Dr Sagovsky’s prognosis was also clear. The claimant’s mental state was not going to improve consistently unless he received specialist treatment for his post-traumatic stress-disorder. His depression might be treatable by medication, if he was willing to take it. Anti-psychotic medication and “therapeutic work” were necessary. He would require “support to avoid illicit substances”. Whilst therapy might be possible if the claimant went back into the community, the risk of his attempting suicide again might make it necessary for him to be treated as an in-patient. Dr Sagovsky was definite in her view that the claimant’s “current environment repeatedly brings to mind his traumatic experiences” and that, even with medication and counselling, he was “very unlikely” to make progress while he remained in detention. It seems plain that the claimant’s mental condition was liable to change rapidly. About two months after he had been released from detention, on 2 February 2011, Dr Sagovsky was sufficiently concerned about his condition to refer him to hospital. Yet only two weeks later, on 15 February 2011, the South London and Maudsley NHS Trust recorded that his symptoms had been the result of an “acute stress reaction” and had now completely subsided; he no longer required a psychiatric diagnosis or further care.

[141]At the end of October 2010 the claimant clearly was suffering from a mental illness serious enough to engage the strong policy presumption against his detention. The monthly progress report prepared on 1 November 2010 – two days before Dr Sagovsky’s report went to the Secretary of State – noted that the claimant had been referred for assessment to Hillingdon Hospital. Efforts to have the claimant assessed at Hillingdon Hospital, with a view to his being admitted there, continued until he was eventually released from detention on 29 November 2010. Ms Patrick’s evidence in her witness statement explains what was done. In the meantime, on 16 November, officials in the CCD prepared a detention review. They proposed a “Plan of Action”, which included taking the steps that were necessary to get the claimant into hospital. But they concluded that he should for the time being remain in detention, essentially because the presumption of liberty in Chapter 55 of the EIG was “outweighed by the significant risk of harm and absconding”. The comments made by the official who endorsed the recommendation in the review referred specifically to paragraph 55.10.

[142]I accept Mr Auburn’s submission that if the claimant’s mental condition could not now be satisfactorily managed in detention, there were still circumstances in his case which could be seen as “very exceptional”, and the Secretary of State could reasonably regard these as strong enough to override the strong presumption against detention, at least while a place for him in a mental hospital was being sought. The risks of his absconding and re-offending remained high. The combination of these two factors would, in my view, have been enough to justify his continued detention at this stage. The fact that on 28 October 2010 he had appealed against the Secretary of State’s decision to deport him did not lessen either of those risks very much, if at all. Dr Sagovsky herself seems to have doubted that the claimant would be able to cope with life in the community, no doubt with good reason. He had no home of his own to go to, and no obvious means of supporting himself. To those considerations could now be added the difficulty that the Secretary of State had come up against in trying to get the claimant into a mental hospital. At least for the period of about four weeks between her receiving Dr Sagovsky’s report and the claimant’s release from detention, and in view of the risks entailed in his being released, the Secretary of State could legitimately point to this as another consideration in favour of his detention, in accordance with her policy. Paragraph 55.10, in its amended form, says that “in exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act”. This might not have been so, I accept, had the claimant been detained for much longer than he actually was.

[143]Thus, in my judgment, in this last of the three stages of the claimant’s detention, the Secretary of State, directing herself correctly under her policy in Chapter 55 of the EIG, could reasonably have concluded that the claimant should continue to be detained under that policy.

Conclusion on issue (i)

[144]On this issue, therefore, I reject Mr Khubber’s submissions, and reach two main conclusions.

[145]First, the Secretary of State would in any event have detained the claimant throughout the whole of the period of his detention, even if she had taken account of her policy in paragraph 55.10 of the EIG throughout. Indeed, in my view the Secretary of State would inevitably have done that.

[146]Secondly, in the circumstances of this case, it would have been open to the Secretary of State as a reasonable decision-maker, had she directed herself appropriately under her policy in Chapter 55 of the EIG, including paragraph 55.10 in either of the two versions current in this period, to detain the claimant for the whole of the time he spent in immigration detention. There existed throughout the claimant’s detention cogent factors weighing in favour of his being detained, which were at every stage sufficient to overcome the strong presumption for release under paragraph 55.10. Almost all of the factors referred to in paragraph 55.3.1 of the EIG pointed in favour of detention: in particular, that the claimant had entered the United Kingdom clandestinely and had no close relatives or other ties in the United Kingdom, as well as the fact that he had previously absconded, and his high risk of offending. At no stage of the claimant’s detention, including the final four weeks or so after the Secretary of State received Dr Sagovsky’s report, could it be said that these factors lacked enough force to qualify as the “very exceptional circumstances” required. From beginning to end, therefore, the claimant’s detention was consistent with the Secretary of State’s policy. The Secretary of State’s failure to conduct detention reviews between May and November 2010, regrettable as it was, does not displace this conclusion.

[147]I turn now to the second part of the second question identified by Richards LJ in paragraph 24 of his judgment in OM:

“the lawfulness of continued detention … assessed by reference to Hardial Singh principles”

. That is issue (ii). Issue (ii): the principles in Hardial Singh Submissions for the claimant on issue (ii)

Issue (ii): the principles in Hardial Singh

[148]Mr Khubber submitted that the claimant’s detention was unlawful, being contrary to the principles in Hardial Singh, and thus also a violation of his rights under Article 5 of the Human Rights Convention. Inherent in this unlawfulness were the Secretary of State’s admitted failure to carry out detention reviews, her failure to apply her policy in paragraph 55.10 of the EIG, and her misuse of her statutory powers. At no stage of the claimant’s detention was the strong presumption against his being detained overcome. It could not be said that the claimant’s removal from the United Kingdom was likely within a reasonable time. The claimant was entitled to a decision on his deportation. This was likely to be an appealable decision, and an appeal was likely if the decision went against the claimant. An appeal was pursued and succeeded, but the Secretary of State’s decision itself was unreasonably delayed. Once an appeal against it was lodged and a hearing date fixed, the claimant’s removal was not imminent, or even likely to be achieved within a reasonable time. The claimant was released only by the order of the court made on 29 November 2010, some five months after he was first detained. Not until 22 October 2010, long after this claim was issued, had the Secretary of State decided to make a deportation order. Mr Khubber submitted that her delay in making a decision to deport the claimant went against the fourth principle referred to by Dyson LJ in his judgment in I (at para. 46). The Secretary of State failed to act with reasonable diligence and expedition to bring about the claimant’s removal. Mr Khubber made six specific points. First, the Secretary of State never gave the claimant any clear indication of when his removal could take place. Secondly, she did not try hard enough to take the steps that needed to be gone through before the claimant could be removed. Thirdly, she delayed too long in deciding whether the claimant ought to be admitted to hospital. Fourthly, she failed to grasp the fact that detention was making the claimant’s condition worse, despite it being clear that this was so. Fifthly, she failed to balance against the risks in releasing the claimant – principally the risks of his absconding and re-offending – the help he could receive in the community or in hospital. Sixthly, she failed to take account of the possibility that the claimant was less likely to abscond while his appeal against deportation was live. And seventhly, she failed to consider the fact that the claimant had been granted bail by the magistrates – a relevant matter under paragraph 55.11.2 of the EIG, which refers to the need to take account of the fact that a detained person may have been released on bail by the criminal courts. Mr Khubber submitted that if a breach of the principles in Hardial Singh had been demonstrated andthe tort of false imprisonment established, the claimant would, in principle, be entitled to an award of substantial damages. All of those submissions were elaborated in oral argument.

[149]In his further written submissions of 12 January 2012 Mr Khubber submitted that the decision of the Upper Tribunal to dismiss the Secretary of State’s appeal against the First-tier Tribunal’s decision to allow the claimant’s deportation appeal, makes it clear that he had “a legitimate case to pursue and that he was hindered in being able to do so by … the delay in making a deportation decision”. The delay was unreasonable and led to the claimant being detained “longer than necessary and for an improper purpose”.

Submissions for the Secretary of State on issue (ii)

[150]Mr Auburn submitted that the Secretary of State had throughout the claimant’s detention acted entirely consistently with all of the principles in Hardial Singh. Even if his detention had not been supported by policy – though it was –the Secretary of State was fully justified in detaining him between May and November 2010, and his detention was at all times lawful. The Secretary of State always intended to deport him; and she used her powers to that end. He was not detained for longer than was reasonable in the circumstances. By the time that he was released from detention it had not become apparent that the Secretary of State would be able to deport him within that reasonable period. And the Secretary of State did act with reasonable diligence and expedition to effect removal. The claimant was kept in immigration detention for about six and a half months. This, said Mr Auburn, is a relatively short period. Anyway, it was not too long in this case. The reasons cited by the tribunal for refusing to grant the claimant bail on 19 October 2010 were telling: he had entered the United Kingdom surreptitiously, had used more than one identity, had claimed several nationalities, had failed to appear at a magistrates’ court, and had been recorded as an absconder. He was homeless, had no means of supporting himself, was actively addicted to drugs, and had a history of persistent offending. He was arrested by the police in May 2010, having failed to surrender to custody. In these circumstances it was, said Mr Auburn, inevitable that he would be detained by the Secretary of State using her powers of immigration control. At no time during his detention did the claimant have any right to be in the United Kingdom. Between 17 May and 22October 2010 his detention was properly authorized under the Secretary of State’s power to detain him as an illegal entrant, to make it possible for her to determine his nationality with a view to his being deported once this had become clear. The Secretary of State’s efforts to establish the claimant’s nationality were hampered by him. When initially detained, on 17 May 2010, he had said he was French. Later in the same month he claimed to be Algerian. He again claimed to be French in July 2010. As a result of this his case was transferred to the Secretary of State’s EEA National Team. But at the end of July the Secretary of State’s officials concluded that he was not French, and his case was transferred back to the Non-EEA National Team. After this the claimant did not provide any documents that would help to establish his nationality. Thus the delay in removing him from the United Kingdom was largely caused by his own failure to co-operate. In October 2010 he was told that the Secretary of State proposed to deport him from the UK, but, as was his right, he appealed against that decision. During his detention there were two obstacles to the claimant’s removal: at first the need to establish his identity – a task that required his co-operation – and later his outstanding appeal. Bearing in mind the risks of his absconding and re-offending, the Secretary of State was entitled to detain him for at least as long as she did. Mr Auburn relied on the principles apparent in paragraphs 40 to 47 of Richards LJ’s judgment in OM, where the application of the principles in Hardial Singh was considered on the facts of that case. Discussion and conclusion on issue (ii) Approach

Discussion and conclusion on issue (ii)

[151]I do not accept Mr Khubber’s submissions on this issue. In my judgment, at no stage of the claimant’s detention did the Secretary of State fail to act in accordance with the principles in Hardial Singh.

[152]When adjudicating on the lawfulness of a person’s detention in the light of those principles, the nature and degree of scrutiny the court must apply are not defined by Wednesbury jurisprudence. The question is not whether the detention was within the range of reasonable decisions open to a minister directing himself properly on the relevant material. Rather, the court must decide for itself whether the detention was lawful or not. As Toulson LJ remarked in R (A) (in para. [62] of his judgment), “it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked”. This is the responsibility of the court at common law, and Human Rights Act jurisprudence is consistent here with the common law (see also the judgment of Keene LJ, at para. [74]). The governing principles were summarized by Dyson LJ, as he then was, in R (I), in paragraph 46 of his judgment, and confirmed by the Supreme Court in Lumba.

[153]I take each of the four Hardial Singh principles in turn.

The first principle

[154]From the beginning of the claimant’s detention until he was released the Secretary of State intended to deport him from the United Kingdom, and she detained him for that ultimate purpose. That this is what she intended is clear in the minute of 18 May 2010, which recorded the decision she made. I see nothing inconsistent between that aim and the statutory basis for the claimant’s detention between 17 May and 22 October 2010, which was the power to detain an illegal entrant in paragraph 16 of Schedule 2 to the 1971 Act. The Secretary of State used that power while ascertaining the claimant’s nationality and making the formal arrangements for his deportation. The claimant met the criteria for deportation. After the Secretary of State re-detained him on 22 October 2010, under paragraph 2 of Schedule 3 to the 1971 Act, her purpose in keeping him in detention remained the same. At no stage did she have any ulterior or improper purpose for detaining him. I am therefore in no doubt that the first principle in Hardial Singh has been complied with in this case.

[155]Whether the Secretary of State misused the statutory powers available to her is a question I consider below, as issue (iii).

The second principle

[156]I also conclude that the claimant was not detained for any longer than was reasonable in all the circumstances. He was in immigration detention for approximately six months and two weeks, from 17 May to 29 November 2010. This is a very much shorter period than has been held lawful by the court in many cases in which the lawfulness of immigration detention has been tested. For example, the total length of administrative detention held lawful in OM was nearly two years, about four times longer than it was in this case. In R (NAB) v The Secretary of State for the Home Department

[2010] EWHC 3137 (Admin)

,another case in which the impact of detention on the detainee’s mental health was considered, it was more than four years. I do not say that this is conclusive in itself. It is not, for in every case the period that is reasonable will depend on the circumstances (as Woolf J said in Hardial Singh, at p 706 D-G). But it does provide a context for considering the reasonableness of the period of detention in the claimant’s case. Even without that context, however, I would conclude that the claimant was not detained for a period that was unreasonably long.

[157]None of the factors that the Secretary of State evidently thought relevant to the claimant’s detention, both at its beginning in May 2010 and near its end in November 2010, can be said to have been immaterial. I need not describe them in detail again. A simple outline is this. When he was detained the claimant was a failed asylum seeker who had been in the United Kingdom, in breach of immigration law, for about four years. In that time he had used at least three false nationalities, several false identities, and a false date of birth. He had absconded. He had no home of his own, no close relatives likely to provide accommodation for him, and no job. Despite his having appealed against deportation, the chances of his absconding once released were high. His behaviour in the past suggested strongly that he would abscond. This is not, in my view, to overstate the relevance of absconding in this case, still less to use it as a “trump card … regardless of all other considerations”, which Dyson LJ cautioned against in paragraph 53 of his judgment in R (I). The risk of the claimant re-offending was also obviously high. He had already appeared before the court on eight occasions and had been convicted of 11 offences, most of them crimes of dishonesty that warranted custodial sentences. If he started to steal again and wanted to avoid arrest, the risk of his absconding would be greater still; he must have known that if found guilty of theft he could well be incarcerated yet again. Mr Khubber submitted that the crimes the claimant had committed before being detained by the Secretary of State were far from being the most serious. That is so. But the gravity of the offending is not the only thing that matters. Another is the level of the risk itself. And another is the interplay between re-offending and absconding. As Lord Dyson said in Lumba (in para. 110 of his judgment), “if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence.” Either way, said Lord Dyson, deportation will be impeded. Those considerations plainly applied in this case. The claimant’s offending was entrenched and had several times been found to cross the custody threshold. Since his release he has offended again, and has again received a custodial sentence. As Lord Dyson said in paragraph 121 of his judgment in Lumba, the risks of absconding and re-offending “are always of paramount importance, since if a person absconds, he will frustrate the deportation for which he was detained in the first place”. In this case I believe those factors were, in themselves, more than enough to justify the claimant’s detention between 17 May and 29 November 2010.

[158]In my judgment, therefore, there was a compelling justification for the claimant’s detention in May 2010. That justification had not fallen away by the time he was released some six and a half months later. Nor at any stage between 17 May and 29 November 2010 did it cease to be a sound basis for detaining him. When he was released his detention had not exceeded a period that was reasonable in the particular circumstances of his case.

[159]In reaching that conclusion I have had regard to all of the considerations referred to by Mr Khubber in argument. As well as the claimant’s immigration history and his history of absconding and offending, I have borne in mind his age and relative vulnerability. I have taken into account the whole of the contemporaneous objective evidence available to the Secretary of State on the claimant’s mental health, both before and while he was detained, including what was said about the effect detention was having on his mental condition. I have considered the suggestion that, if released, he might be looked after in the community, and the fact that he had in the past been granted bail in the magistrates’ court, a factor highlighted in paragraph 55.11.2 of the EIG. And I have taken account of the prospect of his being removed from the United Kingdom within a reasonable time (a matter to which I shall come again in tackling the third of the principles in Hardial Singh), and the efforts that were made by the Secretary of State to effect his removal.

[160]For the Secretary of State to keep the claimant in immigration detention for six and a half months was not, in the circumstances, to go beyond what was a reasonable period for making progress with his deportation. When he was detained in May 2010 the claimant’s true identity and nationality both remained in doubt. This was not the Secretary of State’s fault. It is, in my view, entirely understandable that before going ahead with the formal steps required for the claimant’s deportation the Secretary of State wanted to be sure that she knew who he was and where he came from. In a case such as this the task of arranging deportation is always likely to take more time than it would for someone who is more co-operative. As Mr Baker explained in his evidence, during June and July 2010 UKBA officials were trying to discover the claimant’s true nationality, but the claimant was not helping them. On 2 July 2010 the claimant’s case was allocated to “the EEA team” because he had said he was French. On 6 July, he was saying he was from Algeria. Once it had become clear he was not French his case was sent back to the “Non-EEA national team”. By the end of July 2010, however, his nationality was still unclear. Three possible nationalities were still in play. In the end the Secretary of State managed to satisfy herself that the claimant was a national of Algeria: precisely when I do not need to decide. In the UKBA’s notice of decision to make a deportation order dated 22 October 2010 the claimant was informed of the Secretary of State’s proposed directions for his removal to Algeria. And when his appeal against the deportation order was made on 28 October 2010 it was stated in the appeal form that his nationality was Algerian. But the evidence before the court shows that even in the last month of the claimant’s detention, his nationality remained to some degree uncertain. In the monthly progress report prepared on 1 November 2010, the claimant was told that the Secretary of State’s officials were still trying to obtain a travel document for his removal from the United Kingdom, but that this was taking longer than they would have liked because he had still failed to provide documentary evidence of his nationality. He was also told that his continued failure to co-operate in the process of securing emergency travel documents for him was a factor in the decision to keep him in detention.

[161]I do not accept that either the period of more than five months during which the Secretary of State relied on the power to detain under paragraph 16 of Schedule 2 – rather than the power to do so under paragraph 2 of Schedule 3 – or, within that period, the three months that went by once she had satisfied herself that the claimant was not French, rendered his detention unlawful.

[162]Mr Khubber pointed to the inconsistency between the minute authorizing the claimant’s detention, completed by the Secretary of State’s officials on 18 May 2010, which referred in its heading to his being detained under paragraph 2 of Schedule 3, and the form IS91 dated 17 May 2010, which had authorized his detention under paragraph 16(2) of Schedule 2. Mr Khubber suggested that this inconsistency added evidential weight to his submissions on the alleged breach of the principles in Hardial Singh. I disagree. Both between 17 May and 22 October and between 22 October and 29 November the claimant was lawfully detained under a statutory power available to the Secretary of State at the time when she exercised it, and for as long as she used it. I shall have more to say about the Secretary of State’s use of her statutory powers when I come to the issue (iii). But I see nothing in Mr Khubber’s contention that his argument on that issue adds to the strength of his submissions on this.

[163]Nor do I accept that the claimant was, in fact, detained any longer than he would have been if he had been able to appeal against deportation in May 2010. I reject Mr Khubber’s submission to that effect. This is not one of those cases in which the court has to consider whether a person’s detention has been unreasonably lengthened because of the time taken for legal challenges brought by him to be pursued and concluded (see para. 121 of Lord Dyson’s judgment in Lumba). The claimant was, I believe, lawfully detained both for the five and a half months before he made his appeal and for the four weeks after he had done so. I acknowledge that he eventually won his appeal against deportation, and that the First-tier Tribunal’s decision has been upheld by the Upper Tribunal. But when the appeal was made it was by no means certain that it would succeed. As Lord Dyson said in Lumba (ibid.), in deciding whether a period of detention has become unreasonable in all the circumstances, “much more weight” should be given to detention while the person detained is pursuing a well-founded appeal to a period when he is pursuing one that is hopeless. But in this case neither the claimant’s appeal against deportation nor his claim for judicial review extended his time in detention. The claimant’s appeal against deportation was initially fixed to be heard on 7 December 2010, but in the event did not come before the tribunal until 14 March 2011. The tribunal’s decision was promulgated about four months later, in July 2011. This was more than seven months after the appeal was made, which is longer than the entire period of the claimant’s detention. The Secretary of State’s appeal against the tribunal’s decision was dismissed on 9 December 2011, more than a year after the claimant had been released from detention. The claimant’s claim for judicial review was issued on 2 August 2010, and permission to apply was granted on the papers on 7 October 2010. Whether or not the claimant had an apparently well-founded appeal against deportation, or an apparently well-founded claim for judicial review, he was not detained for longer than he otherwise would have been as a consequence of his having pursued either of those challenges. In the comments made under the heading “Likelihood of removal within a reasonable time scale …” in the detention review of 16 November 2010 it was noted that as well as “mental health concerns” there were a “substantive hearing for a judicial review and deportation appeals”, and that “[the] outcome of the judicial review on 26 November 2010 could have an impact on how this case is progressed thereon”. But these were not put forward as reasons for maintaining the claimant’s detention. And they did not, in fact, prolong it. If either his appeal or his claim for judicial review had any influence on the Secretary of State’s decision to maintain the claimant’s detention, which I do not accept, this did not render his continued detention unlawful. And in any event I have placed weight on the whole period of the claimant’s detention. A similar conclusion was reached by the Court of Appeal, albeit on somewhat different facts, in OM (see the judgment of Richards LJ at para. 45).

[164]I am not persuaded that the claimant’s detention was unlawfully lengthened in its final four weeks after he made his appeal to the tribunal. He was released from detention, on 29 November 2010, less than four weeks after the Secretary of State received Dr Sagovsky’s report on 3 November, approximately five weeks after he had appealed, on 28 October, against the Secretary of State’s decision to deport him, and some four months before his appeal was heard by the tribunal. In the last month of his detention the Secretary of State’s officials were doing what they could to get him into a mental hospital. They had not succeeded by the time he was released from detention under the order made by the deputy judge who heard the application for interim relief on 26 November 2010. The fact that the deputy judge made the order he did does not signify that the claimant’s detention had by then extended for a period longer than was lawful. In my judgment, that moment had not yet come.

[165]I do not believe that the Secretary of State’s failure to carry out any formal reviews of the claimant’s detention between May and November 2010 was, in fact, a cause of his being detained for as long as he was. This is not to condone that failure. No excuse has been offered for it, and I do not see how any could be. The failure to respond to the letters sent to the Secretary of State and to the Treasury Solicitor was also regrettable. Those letters deserved a prompt reply. They did not get one. And the claimant’s solicitors did what they had said they would; they lodged a claim for judicial review. But in my view the lack of a timely response to their letters does not, of itself, indicate that the claimant was detained for longer than was reasonable in the circumstances. In my judgment, he was not.

The third principle

[166]I do not accept that in this case it had become apparent, by the time of the claimant’s release or at any stage before he was released, that the Secretary of State would not be able to effect his deportation within a reasonable period. Her exercise of the power of detention was not, therefore, unlawful for that reason.

[167]The starting-point here is the conclusion I have come to on the second of the four principles in Hardial Singh. In my judgment, as I have said, by the time that the claimant was released from detention he had not been detained too long. And at no stage did the Secretary of State, or her officials, conclude that it would be impossible to deport him from the United Kingdom within a reasonable time. Nor should she have done so. The facts speak for themselves. The difficulties the Secretary of State had to contend with in seeking to achieve the claimant’s deportation were largely of the claimant’s own making. I need not repeat the detail. The problems arose from the claimant’s prevarication over his identity and nationality. It was hardly surprising that neither in the detention review prepared by the Secretary of State’s officials in May 2010 nor in the review completed in November were they able to fix a timescale for the claimant’s deportation. As was held by the Court of Appeal in R (MH) v The Secretary of State for the Home Department

[2010] EWCA Civ 1112

, the Secretary of State was not obliged to set a definite time by which removal could reasonably be expected to have been achieved (see the judgment of Richards LJ at paras. [64] and [65]). Plainly, the claimant was not going to leave the United Kingdom unless he was deported. But the reviews did not refer to any insurmountable obstacles to this being done. In my view, the Secretary of State was entitled to detain the claimant while the impediments to his deportation were overcome. By November 2010 some progress had been made. The Secretary of State had by now established that the claimant was a national of Algeria. Notice had been given to him of the decision to make an order for his deportation to that country. He had appealed. And he had also challenged his detention by issuing his claim for judicial review. He still had no intention of assisting the Secretary of State in her efforts to remove him from the United Kingdom. Again, I believe, the Secretary of State’s officials took a realistic view of the position. They acknowledged that “the timescale of [the claimant’s] removal cannot be ascertained”. They referred to concerns about the claimant’s mental health. They referred also to his claim for judicial review, which was then due to be heard within two weeks, on 26 November 2010, and to his deportation appeal. That they did not estimate how long it would now take to deport the claimant if his appeal were to fail, or try to gauge how strong the appeal itself might be, did not vitiate the decision to keep him in detention rather than release him immediately. There were still no insuperable barriers to the claimant’s deportation, and no reason to conclude that deportation would not be achieved within a reasonable period. There was no reason to think that the hearing of the deportation appeal would be unduly delayed. Its outcome was, of course, uncertain. But the existence of the appeal was not of itself a reason for concluding that the claimant was likely to remain in detention too long. If Mr Khubber meant to suggest the contrary, I think he was wrong.

[168]Some similarity may again be seen between this case and OM. In paragraph 46 of his judgment in OM Richards LJ referred to the extended timetable resulting from “the cumulative effect of the successive steps” the appellant had taken, but found that those steps had at not prevented deportation within a reasonable period being a sufficient prospect at every stage – “pending the outcome of the care proceedings, pending a decision on the “fresh claim” representations and pending the outcome of the judicial review proceedings”. The facts in this case too support the conclusion that deportation within a reasonable time was never less than likely.

The fourth principle

[169]I accept Mr Auburn’s submission that in this case the Secretary of State acted with reasonable diligence and expedition to effect the claimant’s removal from the United Kingdom.

[170]As I have explained in my conclusions on the second principle in Hardial Singh, I do not think the Secretary of State took more time than was reasonable in seeking to resolve the matters she had to resolve. That she might have acted more swiftly than it appears she did between 29 July and 22 October 2010 is a point Mr Khubber could fairly make. But when one looks at the claimant’s detention as a whole I do not believe one can say that the Secretary of State did less than she reasonably could to enable herself to deport him. I do not regard the lack of obvious momentum between late July and late October as unacceptable. This was a shorter period than, for example, the Secretary of State’s delay of almost six months in responding to the fresh claim representations made on behalf of the appellant in OM, which, said Richards LJ, “did not … constitute a failure to act with reasonable diligence and expedition to effect removal, or at least … did not constitute a failure of sufficient seriousness to render continued detention unreasonable” (see paras. 42 and 46 in the judgment of Richards LJ). The present case is not of the kind referred to by Irwin J in paragraph 42 of his judgment in NAB – “an indefinite detention of someone who is never going to consent to deportation, without taking all other steps that might be open, but merely sitting back without at least a plan to obtain the end of deportation”. Indeed, it is very far from being such a case. I can see no reason to conclude that the fourth principle in Hardial Singh was offended here.

Conclusion on issue (ii)

[171]It is my view, therefore, that the claimant’s detention was not inconsistent with any of the four principles in Hardial Singh. None of Mr Khubber’s submissions – oral and written – persuade me to a different view. Applying the approach that the court must adopt when deciding whether a person’s immigration detention was lawful, in accordance with the principles in Hardial Singh, I am in no doubt that for the whole of the period for which he was in immigration detention the claimant was lawfully detained. Even assuming that, throughout his detention, the underlying presumption against detaining him was materially enhanced by his mental condition, I am satisfied that his detention was nevertheless justified in the circumstances of his case. The factors weighing in favour of detention were never less than enough to outbalance the factors against. I should make it clear that this conclusion goes beyond being persuaded merely that the Secretary of State was reasonably entitled to regard the claimant’s detention as appropriate and necessary under her policy in the EIG. In my judgment, the claimant’s detention was not merely consistent with that policy, but lawful in any event under Hardial Singh principles. I do not accept Mr Khubber’s submission that the Secretary of State’s failure to conduct detention reviews in the claimant’s case between May and November 2010 makes it impossible for the court to conclude that she abided by the principles in Hardial Singh. Mr Auburn said that that submission is untenable, and I think he was right. As he submitted, the principles in Hardial Singh inform the issue of liability in tort. In determining such liability it is the task of the court to consider the facts. I have done that. In my judgment, there is ample evidence before the court to demonstrate that each of the principles in Hardial Singh was complied with in this case, and I conclude that all of them were.

[172]It follows that I do not accept that therehas been any violation of the claimant’s rights under Article 5 of the Human Rights Convention. Issue (iii): the statutory provisions Submissions for the claimant on issue (iii)

Issue (iii): the statutory provisions

[173]Mr Khubber made four main submissions on this issue, which he amplified in oral argument. First, as the Secretary of State now accepts, the reference to paragraph 2 of Schedule 3 in the minute of her decision to detain the claimant on 17 May 2010 was plainly wrong, even though the form completed on his initial detention correctly referred to him being detained under paragraph 16(2) of Schedule 2. Secondly, her inconsistency in describing the statutory basis for detaining the claimant betrays the Secretary of State’s confusion about this, and strengthens the view that she was acting in breach of the Hardial Singh principles. Thirdly, there was only a short time in which the power to detain under paragraph 16 could be used in this case, and that was exceeded. And fourthly, the Secretary of State’s delay in deciding to deport and the resulting delay in transferring the claimant from detention under paragraph 16 of Schedule 2 to detention under paragraph 2 of Schedule 3 was unlawful.

[174]Mr Khubber submitted that the Secretary of State wrongly relied on paragraph 16 of Schedule 2 to the 1971 Act as the statutory basis for detaining the claimant between the 17 May and 22October 2010. She did so in spite of the fact that she was clearly contemplating his deportation from the outset. In any event, said Mr Khubber, the Secretary of State relied on paragraph 16 of Schedule 2 for too long, certainly far longer than was reasonable in the circumstances of this case. In truth, however, she never really intended to remove the claimant as an illegal entrant. It was always her intention to remove him through deportation action. The central question here, therefore, is whether it was permissible for the Secretary of State to persist in using paragraph 16 of Schedule 2 for as long as she did. But there is a related issue too. Mr Khubber submitted that the claimant was not notified, as he ought to have been, of the change in the statutory basis for his detention that took place on 22October 2010. Although he had been notified at the beginning of his detention that he was being detained under paragraph 16 of Schedule 2, he was not notified on 22 October that the basis for his detention had now changed to paragraph 2 of Schedule 3. This point too, says Mr Khubber, cannot be divorced from the Secretary of State’s failure to conduct detention reviews. Had reviews been conducted, the Secretary of State’s officials would have had to ask themselves whether the correct statutory powers were being used as a basis for the claimant’s detention.

Submissions for the Secretary of State on issue (iii)

[175]Mr Auburn submitted that this ground of the claimant’s challenge is entirely without merit. It is true that the minute of the initial decision to detain him referred, mistakenly, to paragraph 2 of Schedule 3. However, the form “IS:91 Detention Authority” of 17May 2010 was the relevant form authorizing the claimant’s detention, and that form indicated that he was being detained as an “illegal entrant or a person to whom section 10 of the Immigration and Asylum Act 1999 applies”, under paragraph 16(2) of Schedule 2 of the 1971 Act. Plainly, therefore, the claimant’s detention was authorized under the appropriate statutory provision. If that submission is wrong, however, it is clear that the Secretary of State had the power to detain the claimant under paragraph 16(2) of Schedule 2 and equally clear that she would have exercised that power and could lawfully do so for as long as she did. If at first the Secretary of State referred to the wrong statutory provision, the claimant could and would have been lawfully detained even so.

Discussion and conclusion on issue (iii)

[176]There are three parts to this issue.

[177]The first part of it is the proposition that when the Secretary of State detained the claimant on 17 May 2010 she purported to use a statutory power, namely the power provided in paragraph 2(3) of Schedule 3 to the 1971 Act, which was not then available to her in the claimant’s case because at that time there was not a deportation order in force against him. I do not accept that proposition. It is true, as Mr Khubber submitted, that when she detained the claimant on 17 May 2010, the Secretary of State was considering deportation action. The minute of her decision refers in its heading to paragraph 2 of Schedule 3 to the 1971 Act. As Mr Auburn acknowledged on behalf of the Secretary of State, this was incorrect. Where the minute dealt with the likelihood of the claimant’s removal within a reasonable timescale, it referred to the uncertainty over his nationality, and it noted that deportation action was yet to be commenced, that the claimant would be granted an in-country appeal should he choose to challenge his deportation, and that a timescale for his removal was therefore unknown. The “Proposal” in the minute was stated to be to detain the claimant “on an IS151 as an illegal entrant until his true nationality can be confirmed and [to] enable CCD to make a decision on his deportation” and also “to enable a travel document to be obtained for his removal from the UK”. The Secretary of State was plainly well aware that at this stage none of the circumstances that would have had to exist if she was to exercise her power to detain under paragraph 2 of Schedule 3 had yet occurred. No recommendation for deportation had been made by a court under paragraph 2(1). Notice of a decision to make a deportation order against the claimant had not been given to him under paragraph 2(2). The form “IS91: Detention Authority” dated 17 May 2010, by which the claimant’s detention was authorized, indicated that he was being detained as “[an] illegal entrant or a person to whom section 10 of the Immigration and Asylum Act 1999 applies”. This is clearly a reference to the power to detain in paragraph 16(2) of Schedule 2 to the 1971 Act, which was an appropriate statutory basis for the detention of the claimant at that time. Any conceivable doubt about the statutory power the Secretary of State was relying on is dispelled by the relevant footnote – footnote 2 – which states “under paragraph 16(2) of Schedule 3 to the Immigration Act 1971”. This was confirmed by the corresponding form IS91R, also dated 17 May 2010, which gave notice to the claimant of the reasons for his detention and his bail rights. In that form note (2) was ticked by the official who completed it. Note (2) refers to the detention power “For an illegal entrant or a person to whom section 10 of the Immigration and Asylum Act 1999 applies – Paragraph 16 of Schedule 2 to the Act”. Mr Khubber expressly acknowledged (in para. 4.24 of his skeleton argument) that “the form completed on [the claimant’s] initial detention correctly referred to him being detained pursuant to [paragraph 16(2) of Schedule 2 to] the 1971 Act”. There is, therefore, no need to decide this part of the issue on the basis of Mr Auburn’s alternative submission – that the Secretary of State clearly had the power to detain the claimant under paragraph 16(2) of Schedule 2 and could have lawfully detained the claimant under that power. Mr Khubber’s submission that the inconsistency between the minute authorizing the claimant’s detention and the form IS91 is relevant to the alleged breach of the principles in Hardial Singh I have already addressed in dealing with issue (ii).

[178]The second and main part of the issue is the argument that if, on 17 May 2010, the Secretary of State exercised a power to detain that was available to her to use in the claimant’s case on that day – namely the power in paragraph 16 of Schedule 2 to the 1971 Act – the claimant’s continued detention under that power had became unlawful before he was detained again, this time lawfully under paragraph 2(3) of Schedule 3. Mr Khubber did not say precisely when the claimant’s detention under paragraph 16 of Schedule 2 had, as he contended, become unlawful. His submission was that five months – between 17 May and 22 October 2010 – was simply too long. This argument is, in my view, misconceived. The claimant could properly be detained under paragraph 16 of Schedule 2 to the 1971 Act because he was liable to removal from the United Kingdom under section 10 of the 1999 Act, but this did not preclude the Secretary of State considering whether to deport him. On 23 May 2010, less than a week after he had been detained, the claimant was notified of his liability to deportation. But this does not mean that the Secretary of State acted unlawfully in exercising and continuing to rely upon a statutory power which, as Mr Khubber recognized, it was open to her to use in May 2010.

[179]The length of time taken by the Secretary of State in preparing to go ahead with deportation action certainly bears on the lawfulness of the claimant’s detention when tested in the light of the principles in Hardial Singh. I have already dealt with that question. If the same point falls to be considered in this context too, my answer is the same. I do not accept that by the time the Secretary of State decided to proceed with the formal steps required for the claimant’s deportation, and to detain him under paragraph 2 of Schedule 3, the period for which she could lawfully detain him under paragraph 16 of Schedule 2 had expired. In the circumstances of this case her use of the power to detain the claimant under paragraph 16 of Schedule 2 was not unreasonably extended.

[180]Mr Khubber did not submit that when the claimant was re-detained under paragraph 2 of Schedule 3 on 22 October 2010 the Secretary of State could not lawfully use that power to do so. She plainly could. As Mr Auburn submitted, throughout the whole period of the claimant’s detention it would have been open to the Secretary of State to use her power to detain under paragraph 2 of Schedule 3, provided of course that one of the specified antecedent steps for the claimant’s deportation had been taken first. If any of those steps had been taken the claimant could have been detained either as an illegal entrant or for the purposes of his deportation. In any event there is no evidence to suggest that the particular statutory powers relied upon by the Secretary of State respectively in May and in October 2010 caused her to pursue deportation action more slowly or that the claimant remained in detention for longer than would otherwise have been so. The particular statutory power used by the Secretary of State made no practical difference, in either respect.

[181]The third part of the issue is that, in any event, the claimant was not properly notified of the changed basis for his detention under paragraph 2 of Schedule 3. Mr Khubber appeared to accept that the Secretary of State had served the claimant with a form IS91, duly authorizing his detention under paragraph 2 of Schedule 3, on or about 22 October 2010. The contemporaneous evidence in the Secretary of State’s GCID – Case Record Sheet for 22 October 2010 seems to confirm this. However, Mr Khubber pointed to the Secretary of State’s failure to serve on the claimant at this stage a form IS91R, setting out the reasons for his detention. This, he said, was an important failure, which went to the legality of the claimant’s detention. It was essential that the claimant be properly informed of the basis on which his liberty was being denied. In support of his submission he pointed to paragraph 55.6.3 of the EIG.

[182]I accept Mr Khubber’s submission that, in failing to serve on the claimant a form IS91R explaining to him the reasons why he was being re-detained on 22 October 2010, the Secretary of State did not follow her own policy in paragraph 55.6.3. However, I also accept Mr Auburn’s submission that, in the circumstances, the claimant suffered no prejudice through the Secretary of State’s failure to give him written reasons for his now being detained under a statutory power different from the one under which his detention had already been authorized. Mr Khubber could hardly submit that the claimant, or at least those advising him at the time, did not appreciate that the statutory basis on which he was now being detained was paragraph 2 of Schedule 3 to the 1971 Act. This had been made clear in the form IS91 served on him on 22 October. The reasons for his detention and the substantive basis on which the decision to detain him had been made were not obscure either. As I understood Mr Khubber’s argument, he did not contend that they were. Such a submission, had it been made, would have been wholly unreal. The claimant had already been detained under paragraph 16 of Schedule 2 to the 1971 Act. He had already challenged that detention by these proceedings for judicial review, which had been launched on 28 July 2010. In their correspondence with the Secretary of State and the Treasury Solicitor his solicitors do not appear to have raised any questions about the reasons for his detention. If this had been seen as a further ground worth adding to the claim, the court’s permission to amend could have been sought, but was not.

[183]I have held that the claimant’s detention under paragraph 16 of Schedule 2 had been properly authorized, and remained lawful when he was re-detained on 22 October 2010. There was, in my judgment, no breach of the specific requirement in rule 9(1) of the Detention Centre Rules 2001 that every detained person “will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention …”. The form IS91R served on the claimant on 17 May 2010 had indicated the reasons for his being detained at that stage, including that he was “likely to abscond if given temporary admission or release”, and that his release was “not considered conducive to the public good.”. The form also identified the factors on which the decision had been made: that he did not have enough close ties to make it likely that he would stay in one place; that he had previously failed to comply with conditions, and had previously “absconded or escaped”; that he had used or attempted to use deception in a way that led the Secretary of State to think he might “continue to deceive”; that he had not produced satisfactory evidence of his “identity, nationality or lawful basis to be in the UK”; that he had “previously failed or refused to leave the UK when required to do so”; and his “unacceptable character, conduct or associations”. Section 3 of the form explained his “Bail Rights”. An application for bail had been refused by an Immigration Judge on 19 October 2010, only three days before the claimant was re-detained, for reasons similar to those given by the Secretary of State when detaining him in May. On 1 November 2010, about a week after he had been re-detained, the claimant was served with a monthly progress report, which informed him that his case had been reviewed and that it had been decided that he would remain in detention for five reasons, including the need to “effect [his] removal from the United Kingdom”, that he was considered “likely to abscond if given temporary admission or release”, that his “release [carried] a potential high risk of public harm”, and that there was “a risk of further offending.” The monthly progress report then went on to record, in detail, the factors on which the decision to detain the claimant had been based. These too largely corresponded to the reasons stated in the form IS91R served on the claimant on 17 May 2010. In truth, therefore, neither the claimant nor his legal representatives could have been in any doubt, or under any misapprehension, about the reasons for his continuing detention. Nor could they have been unaware of his right to seek bail.

[184]For those reasons I am unable to accept that the Secretary of State’s failure on 22 October 2010 to serve on the claimant a form IS91R –as well as the form IS91, which she did serve – rendered his detention under paragraph 2 of Schedule 3 to the 1971 Act unlawful. But even if I were wrong about that, I would not accept that such unlawfulness caused the claimant any loss. It would not have invalidated his continuing detention under paragraph 16 of Schedule 2. On the contrary, his detention under that statutory power would still have been lawful and effective, and would have remained so for the rest of the time he was detained, that is to say from 22 October until 29 November 2010.

[185]I therefore conclude on issue (iii) that in this case the Secretary of State did not, in any respect, misuse the relevant statutory provisions for immigration detention. Issue (iv): damages Submissions for the claimant on issue (iv)

Issue (iv): damages

[186]Taking the Secretary of State’s concession that her failure to conduct reviews of the claimant’s detention rendered that detention unlawful with the relevant reasoning to be seen in the judgments in the Supreme Court’s decisions in Lumba and Kambadzi, Mr Khubber submitted that the omission to carry out reviews in this case is not only stark but fatal to the lawfulness of the detention itself. The failure to conduct detention reviews amounted to a failure to apply the principles in Hardial Singh, for it is only by conducting such reviews that those principles can be –and be seen to be –put into effect. It is clear that detention reviews are a fundamental part of the Secretary of State’s published policy for immigration detention. If they are not carried out the result will be that the detention itself is unlawful. The process of review requires the basis for the detained person’s detention to be reconsidered, at regular intervals. If it is not, the detention is arbitrary. In support of those submissions Mr Khubber relied, in particular, on what was said by Lady Hale in paragraph 73 of her judgment in Kambadzi. He submitted not only that the Secretary of State’s failure to carry out reviews of the claimant’s detention rendered his detention unlawful but also that the claimant is entitled to more than nominal damages. The claimant would not have been detained at all if the idea of doing that had been properly considered in May 2010. And he should and would have been released if at any time between May and November 2010 his detention had been properly reviewed. In his further written submissions of 12 January 2012 Mr Khubber added that in the present case there was a long period when reviews were not carried out, and when they were carried out they did not adequately address the relevant issues.

[187]Mr Khubber submitted that the court clearly has jurisdiction to consider all of the issues of liability before it, and also to consider the limited question of quantum that arises now, which is whether the claimant is entitled to more than merely nominal damages. He made three further points, on which he expanded in both oral and written submissions. First, though the Secretary of State clearly did not accept that the detention of claimant was unlawful because of her alleged failure to apply her policy on the detention of the mentally ill, her alleged failure to comply with the principles in Hardial Singh, or her alleged misuse of her statutory powers to detain, the claimant is entitled, on each of those grounds, to declarations and damages. Secondly, if the court is persuaded that the claimant’s detention was also unlawful for any of those reasons he would be entitled to more than nominal damages. Thirdly, it would plainly be right to consider the Secretary of State’s liability in damages at the same time as the other issues. It is inextricably related to those issues. OM is an example of a case like this, in which the issues overlap and both liability and quantum can be considered at the same time.

Submissions for the Secretary of State on issue (iv)

[188]Acknowledging that the Administrative Court has the requisite jurisdiction to determine the outstanding issues on liability, Mr Auburn submitted that the only respect in which it may be said that the claimant’s detention was unlawful was the failure to conduct regular reviews of it, that had such reviews been carried out the claimant would have been lawfully detained in any event, and therefore that he is entitled at most to nominal damages. As to jurisdiction, the position is made clear by the decision of the Court of Appeal in OM, in which the court held that the appellant would lawfully have been detained if the Secretary of State had not unlawfully failed to take into account paragraph 55.10 of the EIG for part of the period of her detention, and awarded her nominal damages in the amount of £1. Similar considerations to those in OM apply in the present case. It is hard to see how a different conclusion could be reached here. As is clear from the detention review and the monthly progress report prepared in November 2010, the claimant would clearly have been detained for the whole of the time that he was, regardless of whether his detention was regularly reviewed. The only remaining question is simply whether his detention was otherwise lawful, and it was. On the question of damages, the majority of the Supreme Court in Lumba, and also the majority in Kambadzi, held that, in circumstances analogous to these, the claimant should receive only an award of nominal damages. Mr Auburn relied on what Lord Dyson said in paragraph 95 of his judgment in Lumba. It follows, he argued, that the claim should succeed solely on the ground that the Secretary of State failed regularly to review the claimant’s detention, and should fail on all other grounds, with the result that he is entitled to nothing more than an award of nominal damages, in the sum of £1. In his further written submissions of 13 January 2012 Mr Auburn said that there was nothing inconsistent between his submissions on this – or any other –issue and the Court of Appeal’s decision to re-open its decision in Anam.

Discussion and conclusion on issue (iv)

[189]In principle, should the claimant receive an award of more than nominal damages for his unlawful detention? That essentially is the question that arises here, and there is no dispute that the Administrative Court has jurisdiction to deal with it. The contest is not about the lawfulness of the claimant’s detention.Only two detention reviews were carried out during the claimant’s detention – in May and November 2010. As the Secretary of State conceded well before the hearing of the claim, the claimant’s detention was unlawful because his detention was not regularly reviewed. That concession was inevitable in the light of the decisions of the Supreme Court in Lumba and Kambadzi.

[190]The sole remaining issue to be decided is whether the claimant is entitled to substantial damages for his unlawful detention. The answer to that question depends on whether the Secretary of State would and could lawfully have deprived the claimant of his liberty, for the same period as she did, if she had formally reviewed his detention at regular intervals, and –assuming that her policy for the detention of the mentally ill was engaged in his case –if she had properly applied that policy to him. In my judgment, if the Secretary of State had done both of those things, she not only would have detained the claimant but could lawfully have detained him.

[191]My conclusions on this issue match those I have reached on issues (i), (ii) and (iii). I can express them shortly.

[192]First, as Mr Auburn accepted, the importance of regular detention reviews is beyond dispute. Such reviews are required, at monthly intervals, by rule 9 of the Detention Centre Rules 2001. Paragraph 55.8 of the EIG spells out what this requirement means, and emphasizes that detention reviews “are necessary in all cases to ensure that detention remains lawful and in line with stated detention policy at all times. …”. I have referred to the salient passages in the decisions of the Supreme Court in Lumba and Kanbadzi. As Lord Hope stressed in Kambadzi (in para. 51), detention reviews are “fundamental to the propriety of continued detention”. Dicta to similar effect are to be seen in the judgments of Baroness Hale (at para. 73) and Lord Kerr (at paras. 86 and 88). However, awards of damages for false imprisonment are based on normal compensatory principles. No more than nominal damages will be awarded if the person detained would not have had to be released had proper reviews been carried out (see paras. 55 and 56 in the judgment of Lord Hope, and para. 89 in the judgment of Lord Kerr). A person’s entitlement to damages in such circumstances depends on whether he would have suffered loss “had things been done as they should have been done” (see para. 74 in the judgment of Lady Hale).

[193]Secondly, following the approach adopted by the Court of Appeal in OM, and for essentially the same reasons as I have already given in my conclusions on issues (i), (ii) and (iii), I am sure that the Secretary of State both would and lawfully could have detained the claimant throughout the period during which she did detain him, even if, in accordance with her policy and heeding the principles declared in Lumba and Kambadzi, she had carried out regular detention reviews. Whilst on normal principles of compensation for tortious loss it would be for the claimant to prove his loss, I accept that the burden of proof here lies with the Secretary of State (see para. 23 of Lord Justice Richards’ judgment in OM). Assuming that it does, I find that it has been discharged.That the claimant would, in fact, have been detained for the whole period he spent in immigration detention is plain from the two detention reviews which were prepared at the beginning and near the end of the claimant’s detention, in May and November 2010, as well as from the other contemporaneous documents to which I have referred. In the review dated 16 November 2010, the balance of relevant factors came down firmly in favour of maintaining his detention.When one looks at the whole of the material before the court, it is clear thathad detention reviews been carried out in accordance with rule 9 of the Detention Centre Rules and paragraph 55.8 of the EIG, the course taken by the Secretary of State in the claimant’s case would have been no different.In other words, the claimant would not have been released sooner than he was if his case had been regularly reviewed. As I have said in my conclusions on issue (i), this would be my conclusion even if the standard of proof were inevitability rather than the balance of probabilities. That the claimant could, in any event, have been detained lawfully for the whole period of his immigration detention I have also accepted, for the reasons I have already given on issues (i), (ii) and (iii). Neither the objective evidence as to the claimant’s mental condition both before and during his time in detention nor any other factor referred to by Mr Khubber in his submissions leads me to conclude otherwise.

[194]Thirdly, it follows that although his detention was unlawful and the tort of false imprisonment is established, the claimant has not suffered any loss. He would and could have been detained in any event in the lawful exercise by the Secretary of State of her powers of immigration detention. The proper measure of damages in this case is thus no more than nominal. An award of £1 is appropriate.

Overall conclusion

[195]For the reasons I have given, the claim succeeds to the limited extent that I have described. I shall hear counsel on the appropriate form of an order to reflect this result.