Gomes, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 1169 (Admin)

Case No CO/12469/11[2014] EWHC 1169 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 April 2014
Before
TIMOTHY DUTTON QCsitting as a Deputy Judge of the High Court
Between
ReginaClaimant(On the application of Maria Monica Valente De Achada Gomes)ClaimantThe Secretary of State for the Home DepartmentDefendant
Leonie Hirst (instructed by Wilsons Solicitors LLP) for ClaimantTom Poole (instructed by Treasury Solicitor) for DefendantHearing Hearing dates: 13 June 2013
JUDGMENTTimothy Dutton QC:
[1]The Claimant seeks judicial review of her detention under immigration powers between 11 July 2010 and 7 March 2012.[2]The Claimant is claiming that her detention was unlawful on four grounds:(1) That there was no lawful authority to detain her nor to continue to detain her at all or from 20 January 2011 following her successful appeal against deportation. She contends that her detention after this date without a fresh decision to detain was unlawful. In respect of this ground, the Claimant acknowledges (through her counsel, Ms Hirst) that an appeal was “pending” when the Defendant was granted permission to appeal on 7 February 2011 so that a statutory power to detain the Claimant under Schedule 3 of the 1971 Immigration Act arose again. However, she contends that the detention was nevertheless unlawful because there was no “fresh decision” to detain but merely an administrative authorisation.(2) That her detention was unlawful under the principles adumbrated in R. v. Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 (the “Hardial Singh Principles”). In short, the Claimant contends that her detention was unlawful principally because (a) there was no reasonable prospect of removal from the jurisdiction at any point and/or (b) she was detained for more than a reasonable period, such that her detention was either unlawful throughout the period of her detention or was unlawful once a reasonable period of time had expired.(3) Her detention was rendered unlawful by public law error, namely the Defendant’s failure to follow published policy and consider alternatives to detention and/or by the failure to provide a bail address.(4) The Claimant’s detention in prison, rather than in an immigration detention centre (i.e. immigration detention), throughout the period of her detention breached Article 5(1) of the European Convention on Human Rights (“ECHR”).

The Factual Background

[3]The Claimant is a Portuguese national. On 28 March 1998 she married Jose Louis Correia Gomes who is also a Portuguese national. They travelled to the UK on 12 April 1998. The Claimant initially worked at hotels at Heathrow Airport as a chambermaid, but she stopped work in March 1999 before the birth of her first child. The Claimant and Mr Gomes have three children, all born in the UK, namely A (dob 19 June 1999), B (dob 28 October 2001) and C (dob 1 March 2004).[4]The Claimant and her husband separated in December 2006 but they remained married at the date of the hearing.[5]In 2007 Mr Gomes returned to Portugal, leaving the three children in the Claimant’s care. In April 2008 the Claimant’s three children were placed in foster care following a report by hospital staff that injuries to child C were non-accidental. Care proceedings were initiated by the local authority. The Claimant continued to have supervised access to her children whilst in the community.[6]On 21 November 2008, following a fact-finding hearing in the Family Court, HHJ Morgan determined that the Claimant had been responsible for causing the injuries to child C. Amongst the papers provided to the Court is a Schedule of Findings made by HHJ Morgan and they demonstrate that child C had suffered serious injuries at the hands of the Claimant including, for example:
“2(b) The elbow, clavicle, scapula and finger fractures were all caused non-accidentally, with considerable force … (e) The fractures to the fingers were caused by extreme deviation/angulation of the fingers caused by the deliberate bending back of those fingers. (f) The soft palate injury required a degree of coordination and a deliberate jabbing, jamming or thrusting force and was a non-accidental injury.”

The Judge concluded:

“On the basis of the above findings of physical harm and failure to supervise, the threshold criteria are met on the basis that [C] had suffered and was at risk of suffering significant harm in the care of his mother, her care not being what it would be reasonable to expect a parent to give. [A] and [B] are likely to suffer significant harm in the care of their mother.”
[8]On 17 July 2009 the Claimant was convicted at Kingston Upon Thames Crown Court of one count of cruelty to a person under 16 years old, being her youngest child, C. She was sentenced on 27 August 2009 to 21 months’ imprisonment. The Claimant had pleaded not guilty but had been convicted by the jury. In his sentencing remarks HHJ Crocker stated that the Claimant had been in a position of trust and that:
“when Dr Chapman looked at the x-rays he found a very significant fracture of the arm/elbow [of child C]. There were two further injuries to the collarbone and the scapula. He found three further fractures to the right hand, fingers bent backwards. The explanations which you put forward were clearly disbelieved by the jury. You knew quite well how those injuries had been caused. And in my view only a custodial sentence is appropriate.”
[9]I mention these details because they are of relevance to some of the submissions made on behalf of the Defendant in relation to the question of the lawfulness of the Claimant’s detention and the fact that she was detained in prison and not in an immigration centre.[10]The custodial portion of the Claimant’s criminal sentence ended on 11 July 2010. Thereafter she would have been subject to the terms of a licence under the Criminal Justice Act 2003 which would have meant (subject to her immigration detention) that she would have been required, amongst other things, to : “(1) [Be] well behaved, not committing any offences and not doing anything which could undermine the purposes of her supervision … (2) Keep in touch with her supervising officer. (3) If required, receive visits from her supervising officer at her home/place of residence. (4) Currently reside at an address approved by her supervising officer and notify him or her in advance of any proposed change of address or any proposed stay (even for one night) away from that approved address.” and to comply with various other licence conditions (see tab A, pages 9-14). Her licence period came to an end on 26 May 2011.[11]On 11 May 2010 the Claimant applied for a Certificate of Permanent Residence in the UK. This was refused on 8 July 2010. On the same day the Defendant notified the Claimant of a decision to make a Deportation Order under Section 5 of the Immigration Act 1971 on the grounds of public policy.[12]The custodial portion of the Claimant’s criminal sentence ended on 11 July 2010. She remained, however, at HMP Bronzefield after that date because on 8 July 2010 a decision was made [B/19] that she should be detained from the date of her release until a Deportation Order was made or “an appeal against the decision under Part 2 of the Immigration Act 1971 is finally determined in her favour”.[13]By a minute of a decision to detain a person in accordance with paragraph 2, schedule 3 of the Immigration Act 1971 dated 12 July 2010, the Secretary of State’s reasons for detention are set out. In short, these record that there were serious concerns in respect of the release of the Claimant in terms of reoffending and the risk of serious harm to others, in particular children. It was said that the Claimant had not addressed the issues surrounding children in her presence, and had intimated that she would harm them and did not want to be near any child. The Offender Manager had assessed her as a MAPPA nominal with a high risk of serious harm to children. She was “in denial of the serious nature of her offence and has no stable accommodation given that she cannot return to where her children currently reside”. It was said that “no appeal has been lodged but should she appeal against the decision to deport, removal can be effective within a reasonable timescale in the event that this is dismissed”. It was, therefore, concluded that “the presumption to liberty is fully outweighed and [I] authorise an initial period of 28 days pending the deadline to appeal”. That decision was signed by a Higher Executive Officer (HEO).[14]The Claimant appealed the decision to make a Deportation Order and the matter came before the First Tier Tribunal (Immigration and Asylum Chamber) on 1 October 2010 when it was adjourned. The appeal hearing concluded on 10 December 2010. And by a decision promulgated on 10 January 2011, the Claimant’s appeal against deportation was allowed under the Immigration (European Economic Area) Regulations 2006 and under Article 8 of the ECHR.[15]The Secretary of State is able to appeal an adverse determination of the First Tier Tribunal but time for appealing expired on 20 January 2011. Meanwhile the Claimant remained in detention. The Defendant brought an appeal out of time by notice dated 25 January 2011. Permission to appeal out of time was granted on 7 February 2011. The matter came before Senior Immigration Judge Warr in the Upper Tribunal on 27 April 2011 but was adjourned because the Home Office Presenting Officer had not been provided with the Appellant’s representations (his own client) and hence was not ready for the hearing.[16]On 28 March 2011 the Claimant applied for accommodation under Section 4(1)(c) of the Immigration & Asylum Act 1999 (“Section 4 Accommodation”). That application was refused on 27 June 2011. However, the Refusal Letter stated that the Claimant was a national of France with no spouse or children in the UK and refused her application on the basis that lack of accommodation would not result in a breach of Article 3 or 8 of the ECHR. The Claimant’s representatives wrote to the Defendant on 1 July 2011 correcting these factual errors.[17]The Claimant’s immigration case, i.e. the Defendant Secretary of State’s appeal was heard on 8 August 2011. In a determination promulgated on 13 August 2011 the Upper Tribunal found that there were material errors of law in the First Tier Tribunal’s determination promulgated on 10 January 2011, and they set the decision aside. Directions were issued by the Upper Tribunal following the first stage hearing and the Claimant’s appeal was, therefore, listed for rehearing on 7 October 2011. However, as no evidence as to Mr Gomes’ economic activity was available by the time of that hearing, the hearing was limited to submissions on the legal issues in the appeal. Further directions were agreed between the parties for the hearing and issued by the Upper Tribunal on 13 October 2011 by which the Defendant Secretary of State was directed to apply to HMRC for details of Mr Gomes’ economic activity and to supply details to the Upper Tribunal by 4 November 2011.[18]On 14 October 2011 the Claimant’s solicitor sent a letter before action to the Defendant challenging the Claimant’s ongoing detention. By a response dated 20 October 2011 the Defendant stated that the Claimant’s detention had continued because she was unable to provide a suitable release address but indicated that the Claimant’s release would be considered if no decision on her immigration appeal was imminent.[19]By letter dated 25 October 2011 the Defendant informed the Claimant’s solicitors that her detention would be maintained pending the outcome of her “reconsideration hearing” based on the risk of harm which it was believed the Claimant would pose to others and her previous immigration history.[20]On 16 November 2011 the Upper Tribunal sent a memorandum to the parties requiring the Defendant to renew enquiries to HMRC and indicating that the Upper Tribunal would write to Mr Gomes’ family solicitors to request his particulars with a view to issuing a Witness Summons. On 17 November 2011 the Upper Tribunal issued further directions that the Claimant’s representatives obtain an expert report on her current circumstances and mental health, to be filed and served by Friday, 30 December 2011. In due course a medical report was obtained.[21]The Claimant issued her claim for judicial review on 21 December 2011. The claim was initially refused on paper but was granted on all grounds following an oral hearing which took place on 11 October 2012. HHJ Sycamore, sitting as a Deputy High Court Judge who considered the papers on 7 February 2012, pointed out that it was open to the Claimant to apply to the Upper Tribunal for bail. The Claimant duly made an application and was granted bail on 7 March 2012 and was released provided she resided at an address in Essex, with electronic monitoring.[22]The Claimant’s case did not come before the Upper Tribunal again until 21 May 2012. In a determination promulgated on 24 August 2012 (MG) (EU Deportation – Article 28(3) – Imprisonment [2012] UKUT 268) the Upper Tribunal made a reference to the Court of Justice of the European Union on the correct application and interpretation of Article 28 of Directive 2004/38.[23]At the time of the hearing before me, on 13 June 2013, the hearing before the Court of Justice of the European Union was due to take place the following week.

Monthly Reviews

[24]Throughout the period of her detention, the Claimant was subject to a monthly “Detention Review”. Both sides relied upon these reviews but for different purposes. On the one hand, the Claimant contended that the reviews were merely pro forma reviews which were provided for the purpose of satisfying documentary requirements for her continued detention. On the other hand, the Defendant Secretary of State relied upon the reviews for the purpose of indicating that care was given to the question of the continued detention of the Claimant on a month-by-month basis.[25]It is not necessary for me to set out the detail of each and every review. For present purposes, it is sufficient to summarise the reviews. The first review is dated 5 August 2010 and was undertaken by an acting SEO. It stated:
“Mrs Gomes’ appeal is scheduled to be heard on 1 October 2010, so it could take months before all appeal rights are exhausted. It is unclear as to whether the is prisoner holding her ID card, however, if they are not, then she could be removed on an EU letter, and this could be achieved in a matter of weeks. Proposal Mrs Gomes has committed a serious criminal offence, which shows a lack of respect for the law. The nature of her offence is a clear indication of her continued risk. Her Offender Manager has assessed her as a MAPPA Level 2, the purpose of which is the protection of the public and the very fact that she is appropriate to be monitored under risk management strategies as an indication of her posing a continuing risk. She has also been assessed as a high risk of serious harm to her own children and children in general and her Offender Manager stated that her continued denial in minimising the seriousness of the offence, together with no secure accommodation/emotional and financial support could easily lead to her relapsing into substance misuse and this could be the trigger to her probable reoffending, where this, in turn, would put her children and others at risk.”

Proposal

[26]Not all of the reviews are identical in their terminology. Broadly speaking, the language to be found in each review is similar from review to review. In terms of additions or variations, and by way of example only, in the review undertaken in September 2010 the reviewer states that:
“Mrs Gomes is no longer in the marriage to her Portuguese husband and he has a Residence Order for the three children to reside with him”
. Further, the review states:
“She submitted an appeal against deportation on 14 July 2010 and it is scheduled to be heard on 1 October 2010, however, this outstanding appeal cannot be relied upon to act as an incentive for her to remain in contact with police”
. During submissions the Claimant’s counsel stated that this was in part “nonsense”. That review concludes as follows:
“Having considered all the facts in this case, it is clear that the risk of harm to the public is high and the presumption in favour of release is outweighed by the risk of harm to the public, the risk of reoffending and the risk of absconding. Mrs Gomes has committed a serious offence against her own child and has made threats that she wishes to strangle her child. This clearly indicates her state of mind. Her MAPPA assessment reinforces this and therefore I am content that detention is justified and warranted in this case whilst we await the outcome of the ongoing appeal.”
[27]In the next review, dated 28 October 2010, the reviewer (SEO Operations) stated that “she has appealed against her deportation and as such there would be an increased risk that she would abscond to prevent the deportation process. She is a MAPPA nominal level 2 so her presence in society would need to be managed and monitored specifically in terms of her risk to children. I agree that the risks outweigh the presumption to liberty and I authorise detention for a further 28 days”. The Claimant contends that this risk assessment was unreasonable.[28]Further detention reviews were undertaken by SEO Operations managers on 23 November 2010, 22 December 2010 and by an Assistant Director on 25 January 2011. This review merits comment. By this time the Claimant had been successful in her appeal against deportation and on 24 January 2011 her legal representatives had provided a release address at which their client, it was said, would reside (her godmother’s address). The review continues:
“I have spoken to Offender Manager and initial checks show that proposed release address is less than 10 miles from the exclusion zone from her where family is currently residing. The Offender Manager is currently seeking alternative accommodation and awaiting further advice from Social Worker and Victim Liaison Officer. If agreed, it is proposed to detain Ms Gomes until such time as the Probation Services have found alternative suitable accommodation”
. The Assistant Director concluded that in light of the fact that the proposed address was near the 10 mile exclusion zone where the Claimant’s family was currently residing, her detention should continue pending “the allocation of a suitable release address to Ms Gomes”.[29]The review of 17 February 2011 concluded with a decision that the Claimant should be detained for a further 28 days. The address apparently continuing to be a problem from the Defendant’s perspective, it being stated that “Ms Gomes’ Offender Manager and Probation Service are currently looking for suitable hostel accommodation as a matter of urgency and we are in regular contact with them”.[30]The next review of 18 March 2011, by which stage the Defendant had initiated her appeal, continued to focus on the question of the lack of a suitable residential address. The reviewer commented that the Defendant was informed on 2 February 2011 that the owner of the property at which the Claimant proposed to reside had withdrawn her offer of accommodation. The Claimant’s Offender Manager and Probation Service was looking for suitable hostel accommodation as a matter of urgency in the event that an application for AIT bail is submitted. The Offender Manager had stated that “if Ms Gomes was released to an address not approved by themselves then they would have no alternative but to issue recall proceedings”.[31]In the April 2011 review (dated 15 April 2011) the reviewer stated:
“If application to appeal lodged by UKBA is refused, I will arrange for Ms Gomes to be released once suitable accommodation has been found by Probation Services.”
The Claimant notes that by this stage (see above) the application to appeal lodged by UKBA had already been granted. This is relevant to the submissions as to the lawfulness of her detention.[32]The review of 15 May 2011 is in very similar terms to the review of 15 April 2011, and it is not insignificant that the printed date “15 April 2011” has been crossed out in hand by the reviewer and substituted with “15.05.2011”. Accommodation is again a central question in this (albeit repeated) review and the reviewer states:
“Ms Gomes’ Offender Manager and Probation Service are currently looking for suitable hostel accommodation as a matter of urgency in the event that an application for an AIT bail is submitted. The Offender Manager has stated that if Ms Gomes was released to an address not approved by themselves then they would have no alternative but too [sic] initiate recall proceedings.”
[33]In oral submission the Claimant’s counsel commented that it was wholly wrong to suggest that the Offender Manager and Probation Service were looking for hostel accommodation as a matter of “urgency”.[34]The next review is dated 9 June 2011. In it the reviewer comments that since the last review of 15 May 2011 he had been informed that a hearing of 27 April 2011 against the decision to allow the appeal against deportation was adjourned until 8 August 2011. He also comments that on 25 May 2011 the Claimant’s Release Licence expired. He further states that:
“Ms Gomes has been informed on a number of occasions of her entitlement to apply for AIT bail however she has made no application”
. Despite these factors, continued detention for a further 28 days was authorised.[35]The next review took place on 9 June 2011 and in it the reviewer stated:
“Since the last Detention Review a date for the appeal hearing has been listed in August 2011 and the license conditions expired in May 2011 which effect the ability of the authorities to return the subject to prison should she find accommodation in an “unsuitable address”
. Therefore, the primary reason to maintain the subject’s detention until the outcome of the appeal hearing is known is to prevent further harm to children which there is deemed to be a high risk [sic] and to subsequently facilitate her removal should the appeal by UKBA be successful.”[36]The comments in this review merit repetition. “I am concerned that it is said that the primary reason for detention is to prevent further harm to the children. Whilst the risk of harm to the public may be a factor in considering the reasonableness of the length of detention, the prevention of harm cannot be the primary reason for detention under schedule 3 [of the Immigration Act 1971]. The reason for detention can only be the removal of the person detained and for detention to remain lawful [sic]. We must be satisfied that removal remains a realistic prospect within a reasonable timescale taking into account all the factors.”[37]Having focused his attention on this question, the reviewer continued:
“In this case the barrier to removal is the allowed appeal. UKBA have been given permission to challenge the appeal and if this is successful removal will be possible. This may be a reasonable timescale given the risk of harm Mrs Gomes presents and her inability to provide an address which was suitable under previous license arrangements. However, I think we need to know more about the current circumstances of the children. For example, I note it is said that the Supervision Order expired in January 2011. Has it been extended again? Is there any contact at all with Mrs Gomes or is this prohibited by the Order? This needs to be considered so that PC1/11 can be considered fully. Also, have we sought director authority for the family split for detection?”
[38]The next review took place on 7 August 2011. It stated:
“I have considered the presumption to liberty in this case. However, Ms Gomes is subject to deportation action. She has been assessed as posing a high risk of harm to her children and Probation Services believe that if released she could relapse into drug dependency and this would lead to an increased risk of reoffending. Ms Gomes has not provided a suitable release address and thus we would be releasing her to no fixed abode. Furthermore, given that she has ignored UK law in the past no reliance can be placed on her abiding by immigration restrictions placed on her release. An appeal by UKBA to overturn the appeal decision is scheduled to be heard on 8 August 2011. Should this appeal be successful and her appeal rights become exhausted then we will obtain a Deportation Order and documentation to support an EUL, and return Ms Gomes. We expect an outcome in six weeks. Therefore detention agreed in order to continue to pursue Ms Gomes’ removal.”
[39]An Assistant Director on 7 August 2011 concluded:
“The current barrier to her removal is an appeal against her allowed appeal due to be heard on 8 August 2011. Should UKBA be successful in overturning the decision then we will obtain a DO and ETD and request removal directions. Ms Gomes has been assessed as posing a high risk of harm and reoffending. Furthermore, given her disregard for UK law in the past and her inability to provide a fixed address to be released to then no reliance can be placed on her adhering to any restrictions placed on her release and UKBA will be limited should they wish to trace her. We expect to have an outcome on this case in 3-4 weeks. Therefore, detention agreed in order to progress Ms Gomes to removal.”
[40]During oral submissions, the Claimant pointed out that(a) the appeal here was effectively the Secretary of State’s appeal,(b) the suggestion that Ms Gomes “has been assessed as posing a high risk of harm and re-offending” did not accurately reflect the assessments and(c) although it was said that an outcome was expected on the case within 3-4 weeks Ms Gomes was not in fact released until 7 March 2012 following her successful bail application.[41]The next review took place on 2 September 2011. It noted that the hearing due to take place on 8 August 2011 had again been adjourned and that a new hearing date was awaited. This was not wholly correct: the hearing concluded on 8th August 2011 and judgment was given by the Tribunal on 13th August with the appeal by the Claimant effectively having to be undertaken again – leading to an inevitable passage of time for that to occur. In making the recommendation that she be subject to continued detention, the reviewer noted that:
“Ms Gomes has been convicted of a serious offence, namely cruelty to her youngest child for which she was sentenced to 21 months’ imprisonment. Due to the nature of her offence, Ms Gomes has been deemed unsuitable for transfer into UKBA accommodation and has remained at HMP Bronzefield … I am currently awaiting a new hearing date [for the proposed UKBA appeal] … previous consideration has been given to Ms Gomes’ release, however, the two addresses proposed by Ms Gomes were deemed unsuitable by Probation Services following site visits. As her prison license has now expired, Ms Gomes would not be subject to any form of statutory supervision if released. Social Services have expressed a number of concerns in regard to the safety of Ms Gomes’ children should she be released from UKBA detention. If Ms Gomes was released to no fixed abode it would increase the risk factor that she poses to her children as her whereabouts would be unknown.”
[42]At the review on 2 September 2011 a further 28 days of detention was authorised. Amongst other factors referred to in the review was the following:
“One proposed release address was withdrawn by the owner of the property and the further two proposed release addresses were deemed unsuitable by Probation Services and, therefore, if she was released to NFA, it would increase the likelihood of her absconding.”
[43]In the comments section of this review, the reviewer states:
“Ms Gomes has shown a lack of regard for UK law. Furthermore, she is unable to provide a suitable release address. As a result if she were released now it would be to no fixed abode. She is highly unlikely to adhere to any restrictions placed on her release and the UK Border Agency would have no way of tracing her in order to remove her from the United Kingdom.”
[44]The next review took place on 13 October 2011 by which time the adjourned hearing date for the Claimant’s appeal (of Friday, 7 October 2011) had already passed. Following upon that review a further review took place on 23 November 2011 (although there are documents in the Court bundle which indicate the processing with repetition of the documents of the earlier review through UKBA officials). At this stage, the reviewer noted that although there had been an adjournment on Friday, 7 October 2011 notification was awaited of a “new hearing date” and further:
“Until the outcome of the reconsideration appeal is known, UKBA are unable to take any further deportation action. On 7 October 2011 the reconsideration appeal was adjourned in order that HMRC checks could be made in regard to Ms Gomes’ ex-husband. The presenting officer has arranged for the checks to be made and is awaiting a response. I am currently awaiting notification of a new appeal hearing date.”
[45]The reasons for maintaining the detention were the same as before, namely that the Claimant presented a “continued risk” to children and that that risk outweighed the presumption in favour of release. Further, it was said that because “she had very limited access to her children [a reference to a Court Order of July 2011] it is deemed that her continued detention will not significantly affect her relationship with them”.[46]The next review took place on 20 December 2011. Continued detention was authorised, it being stated:
“We are closely monitoring the appeal for an outcome and as soon as one is known should it be unsuccessful then we will request removal directions as soon as possible. A submission has been sent requesting agreement for Ms Gomes’ release but has been refused. We expect an outcome of the appeal within the next four weeks. The Case-Owner needs to contact SAT and ask that they advise us of the appeal outcome before the next Detention Review. Detention agreed pending this.”
[47]A further Detention Review took place on 20 January 2012. By this stage, this application for judicial review had been launched and was noted within the papers. It was also noted that on 12 January 2012 the Presenting Officer from SAT wrote to the Appeals Tribunal to inform that they had received a response from HMRC following the adjournment of 7 October 2011. SAT requested an extension of time in order to obtain a new medical report in regard to Ms Gomes. SAT were “currently awaiting a response in regard to the application for extension”. Her continued detention was authorised.[48]The final review took place on 16 February 2012. Amongst other observations made in this review was the following:
“Psychiatrist, Dr Smith, and Probation, have expressed the view that she may relapse into substance misuse after she leaves prison. Psychiatrist, Dr Smith considers the risks posed by Mrs Gomes include her difficulty to adhere to boundaries and to recognise the needs of her own children. Ms Gomes has been assessed by Dr Smith as meeting the criteria of an emotional unstable personality disorder of impulsive type (IC10S60.300). Dr Smith summarised that the two main issues in relation to Mrs Gomes’ personality are her difficulty to manage her impulses and her inadequate management of her anger and aggressions, with poor behavioural controls which can result in aggressive and violent behaviour.”
The reviewer states:
“The risks still posed by Ms Gomes is of concern that outweighs the presumption in favour of release.”
[49]The reviewer notes that the specialist appeals team are “taking forward the appeal against the original decision in favour of Ms Gomes and a new hearing date is to be listed in the near future. The threat still posed by Ms Gomes leaves me to believe that the Strategic Director would not authorise release”.[50]In refusing to grant release, the reviewer commented:
“Ms Gomes has come close to release on a number of occasions, however, the release addresses have never been deemed suitable, which concerns me; it seems that her godmother, who agreed to accommodate her, is undecided, which gives doubt to Ms Gomes’ character and condition. She is also “off licence” which means supervision in the outside world is no longer available. She has committed a serious offence against her child and that combined with the fact that she is aware of UKBA’s intention to deport her raises the risk of absconding severely. I have also considered the imperative to protect the public from foreign nationals who have offended in the UK and are liable to deportation. For this reason, proximity of removal, risk of reoffending (usually based on NOMS assessments) and risk of absconding have all been taken into account in deciding whether or not to detain. In regard to her crime, Ms Gomes is in denial and this simply heightens the risk of reoffending if she feels she has done nothing wrong in the first instance. I sense severe mental health issue and recommend a further psychiatric assessment but include the forward look about her ability to cope in the outside world; I will not consider release without this and would be grateful if this could be expedited. If this results in sectioning then we will be much more informed as to the progress of this case, if not it will enable us to make the appropriate decision going forward. On balance I find that the above factors outweigh the presumption to liberty and I authorised continued detention.”
[51]As I have already stated, the question of further authority for detention was overtaken by the fact that the Tribunal granted Ms Gomes bail on 7 March 2012.[52]Each monthly review was followed by a “monthly progress report” to the Claimant as a detainee. These supplied her with the reasons for her continued detention and I need not repeat them. In the monthly progress report of 18 February 2011 the reviewer stated:
“I am in daily contact with the Probation Service who are currently in the process of arranging accommodation on your behalf, following the withdrawal of your proposed release address by the owner of the property. Once suitable accommodation has been found I will arrange for your release as a matter of urgency.”
[53]This, it is said on behalf of the Claimant, gave rise to the expectation on her part that the only matter which was preventing her release at this stage was the fact that she had not provided a suitable accommodation address and one had not yet been arranged on her behalf by the Probation Service.[54]Also provided to the Court were the GCID – case record sheets. The record sheets also refer to the question of the accommodation address and an entry made on (or about) 24 January 2011 records “as soon as I receive confirmation from Offender Manager that address is suitable or other accommodation is provided then customer will be released as a matter of urgency”.[55]Two days later the case record sheets reveal that the godmother was no longer happy to provide a permanent residence for the Claimant although she is “happy for her to stay on the floor for two days but does not want to provide her residence as a bail address”. The entry on 4 February 2011 records “Probation Services are currently trying to obtain a hostel place on behalf of Ms Gomes. Until an address is found we have no other alternative other than to hold her in UKBA detention”. It is to be noted that the detention was in the prison estate.[56]On 22 February 2011 the case record sheets record “… advised [the officer] that we could no longer detain Ms Gomes under UKBA powers as she had been successful in her appeal against deportation and that we would have to release her no later than Friday, 25 February 2011. As no address has been found by Probation, Maria will be released to NFA. [The officer] said she would contact prison and arrange for updated release licence to be served”.[57]The internal emails which had been provided by the Defendant on disclosure in this case reveal the concerns held by those who were responsible for carrying out the process of review which I have summarised earlier in this Judgment. For example, on 25 January 2011 one of the people who carried out detention reviews stated as follows to a colleague:
“I will have to fax the paperwork to prison by tomorrow at the latest to affect Ms Gomes’ release as she is now effectively being illegally detained by UKBA.”
[58]The communications, however, indicate to me that there were concerns being voiced elsewhere within the system, in particular by Buckingham Social Services who, by an email of 13 June 2011 sent to a UKBA officer, stated:
“The Gomes children are still subject to a Supervision Order with Buckinghamshire Local Authority and I will fax a copy for your attention today.”
[59]On 10 June 2011 Buckinghamshire stated:
“Social Care understand that Ms Gomes has not previously supplied any addresses that Probation had approved. This would indicate that Ms Gomes may leave prison with No Fixed Abode which Social Care considers would increase the risk factor that she poses to her children as her whereabouts would be unknown.”
[60]On 2 September 2011 a Detention Review Officer (UKBA) wrote to Buckingham Social Services saying: “As you are aware, Ms Gomes has been held in UKBA detention for almost 15 months. As her removal is not imminent, I have been asked to consider her for urgent release. I have been informed that as an EEA national, Ms Gomes would not be entitled to section 4 accommodation as she would be entitled to claim housing and other benefits afforded to EEA nationals. I am not sure if you could assist, but would you know who Ms Gomes would need to contact in order to make the relevant applications? I am not sure if Buckinghamshire Local Authority would be able to assist Ms Gomes in this instance.” [My emphasis][61]In a further exchange of emails (amongst many) between 29 and 30 September 2011, UKBA appreciated that the Claimant had a reconsideration appeal due to be heard on 7 October but was no longer “imminently removable”. She was nevertheless being held in detention. The email exchanges (for relevant purposes) culminated with an email of 19 October 2011 to one of the officers who carried out detention reviews stating:
“Thanks for sending me [the officer’s] when the last release submission was rejected. Due to [the officer’s] concern about the subject’s high harm and poor immigration history, I believe [the officer] will not agree to her release despite the appeal being adjourned and therefore detention is to be maintained.”
[62]The Claimant was subject to offender assessments under the “Offender Assessment System”. These record that the Claimant had no recognition or acceptance for responsibility for the crime of which the jury had found her guilty and (see Tab J/page 355):
“It is of concern that Ms Gomes does not accept any responsibility for her action and expressed no victim empathy. Furthermore she does not appear to have any insight into the pain that the victim is likely to have suffered as a result of his injuries.”
The report goes on that although this was the Claimant’s first conviction:
“Nevertheless it is of a very serious nature and it is my view that it is likely to be in the context of a wider pattern of abuse. It also represents a gross betrayal of trust given that she was the primary carer of the victim. It is my assessment that Ms Gomes presents a high risk of harm to children, given the nature of the offence and her continued denial. Moreover she continues to show a lack of insight and empathy for the victim and her other children.”
[63]Her risk of reoffending (as at 29 October 2009) was assessed as “low” (see K/page 359).[64]As to other risk factors, the Claimant informed NOMS that she “injected heroin in the past” whilst in the company of friends who had influenced her. She stated that she was not “overly confident” about staying clear of drugs on her release. There is other (and ample) evidence in the papers provided to me which indicate that the Claimant had been using heroin for a considerable period of time before she was convicted of the offence on her youngest child (see, for example, Tab K/page 394). The papers also indicate that she had “difficulties with anger management and behavioural controls” and “has made threats to kill or harm others”. She was described as having no “insight into her difficulties”.[65]Against the foregoing factual background, I turn now to the grounds upon which this application is brought.

Was there lawful authority to detain?

[66]The Claimant contends that the detention between 11 July 2010 and 7 March 2012 was unlawful in whole or in part because there was no lawful authority to continue to detain her from 20 January 2011 following her successful appeal and her detention without a fresh decision to detain, it is said, was unlawful from then onwards.[67]The Secretary of State, on the other hand, contends that the detention was lawful throughout and that for the period between the “success” of the appeal, namely from 20 January 2011 to 7 February 2011 when the Secretary of State was granted permission to appeal, the Claimant continued even during that interregnum to be lawfully detained. Further, the Secretary of State contends that if and insofar as any period of detention was unlawful damages would be merely nominal if it is established that the Claimant would have been otherwise lawfully detained in any event. For this submission, the Defendant relies upon Lumba v SSHD [2011] UKSC 12.[68]Section 2(2) of Schedule 3 of the Immigration Act 1971 confers a power on the Secretary of State to detain an individual pending the making of a deportation order. It provides:
“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 detained in pursuance of the sentence or order of the court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”
[69]Schedule 3 therefore provides a power to the Secretary of State to detain a person where a notice (of necessity a lawful notice) to make a deportation order has been served and where the person is not detained pursuant to a sentence or order of the court.[70]Under Section 104 of the Nationality, Immigration and Asylum Act 2002 (“the NIAA 2002”) an appeal before the First Tier or Upper Tribunal is “pending” during the period beginning when it is instituted and ending when it is “finally determined, withdrawn or abandoned (or when it lapses under Section 99)”. An appeal is not pending when it has been finally determined nor is an appeal pending in an interregnum period when it would be possible for permission to be made and for time for appeal to be retrospectively extended.[71]I reach this conclusion by reference to the reasoning in R (Erdogan) v. SSHD [2004] All ER (D) 421. In Erdogan the Court of Appeal considered an appellant’s eligibility for asylum assistance following his successful application for permission to appeal out of time. The court held that there was no longer a pending appeal when the time limit for appealing expired (see paragraph 11 of the Decision) and that there was therefore no longer a pending appeal at that point for the purposes of Section 104 NIAA 2002. The court held that once permission to appeal out of time was granted, there would then be a pending appeal by virtue of the Tribunal’s Procedure Rules (see paragraph 13 of the Judgment).[72]On 8 July 2010 the Claimant was notified by the Defendant of the Defendant’s intention to make a deportation order under Section 3(5) of the 1971 Act. The Claimant was then detained from 11 July 2010 when the custodial portion of her criminal sentence ended under paragraph 2(2) of Schedule 3 to the 1971 Act. The power to detain, therefore, existed at that stage because the detention was occurring “pending the making of the deportation order” of which the Claimant had been notified. The Claimant accepts that a statutory power existed at this point. Although the Secretary of State did not accept that the statutory power to detain the Claimant lapsed once she had(a) won her appeal before the First Tier Tribunal and(b) the time limit for seeking permission to appeal had expired, I have reached the judgment that the statutory power to detain did indeed lapse once the time period for appealing had expired. I reach this conclusion as a matter of logic and also based upon the principles to be derived from Erdogan.[73]It follows that as from 20 January 2011, and until the appeal became a “pending” appeal again the Claimant could not lawfully be detained. This means that the Claimant’s detention was unlawful for the period from 20 January 2011 until 7 February 2011 when the appeal became pending following the grant of permission to appeal out of time and the statutory power to detain had arisen again.[74]However, in order to counter the Defendant’s submission that the detention became lawful from 7 February 2011, the Claimant contends that(1) the original authority to detain had lapsed and(2) a fresh power to detain only arose from 7 February 2011. Therefore, the Claimant contends, unless and until a fresh decision to detain the Claimant was made, her detention remained unlawful despite the fact that the appeal had become pending.[75]As to these submissions, the Defendant makes three points. First she says there was no need to re-authorise detention after 2011 as it was a continuous period of detention. I reject this submission. If a detention has become unlawful from a particular date because there is no “pending” appeal then the fact that there has been authority for the detention given at an earlier point prior to the time period for appealing expiring does not somehow render the continued detention lawful if there is no “pending” appeal thereafter. In this respect the Defendant’s contention seems to me to run contrary to logic and also to the principles which can be derived from Erdogan.[76]The second submission which the Defendant makes is that the Detention Reviews on 25 January 2011 and/or 17 February 2011 were authorisation for the Claimant’s continued detention and therefore the detention, if it had become unlawful on 20 January 2011, became lawful again.[77]In response to the Defendant’s contention, the Claimant argued that the authorities which were given for continued detention on 25 January and 17 February 2011 did not constitute fresh authority to detain. The Claimant contends that detention can only be authorised pursuant to a form IS91 – see the decision of the Supreme Court in Kambadzi [2011] UKSC 23. It is, therefore, said that the Detention Reviews of 25 January and 17 February or indeed any other subsequent Detention Review could not constitute a fresh decision or authority to detain.[78]Save as to one respect, I do not accept the Claimant’s submission. First, each period of detention lasted for a matter of 28 days only. If there was no review at the end of 28 days the Defendant was bound to release the Claimant (see Kambadzi). It therefore follows that as a matter of both practical reality and indeed authority, a review was required at the end of 28 days which took into account relevant facts and circumstances and which effectively required authority to be given at an appropriate level within the UKBA for the continued detention of the Claimant. Whilst I accept that the form used was not IS91 nevertheless, in substance the decisions which were made in respect of each monthly review constituted a fresh decision to detain. Thus, I do not accept the submission that the Detention Reviews of 25 January or 17 February 2011 did not constitute sufficient authority to detain. However, I agree with the Claimant to this extent: since there was no pending appeal until 7th February 2011 it was the 17th February decision which rendered the detention lawful and not the 25th January decision, since at that point there was no pending appeal.[79]The third argument of the Defendant is that the Claimant would have been lawfully detained in any event because of a lack of a suitable bail address and that, therefore, any damages should only be nominal. In light of the fact that there is, on my analysis, a period, between 20 January and 17 February, when there was no lawful authority to detain, it is necessary to address this point. It is also necessary to deal with the point in case I am in error in relation to the question of whether Detention Reviews in substance constituted fresh authority to detain.[80]For present purposes, at this stage of the Judgment, I deal with this question by reference to what is likely to have happened, on the balance of probabilities, if events had taken a different course – i.e. if there was no lawful authority on the part of the UKBA to detain the Claimant pending deportation in the period from 20 January 2011 up to the expiry of her licence period on 26 May 2011.[81]It is very clear to me from the papers and all of the evidence that I have read that there was real concern both within the UKBA and by the Probation Service that the Claimant had to reside at an address which was known to the authorities and which meant that she was outside a ten mile radius of her children. Unless and until an address had been provided by her, or provided to her pursuant to any duty on the part of the authorities, she would have remained in custody until either an appropriate address had been found or her license period had expired, namely 26 May 2011. I therefore conclude that in all likelihood the Claimant would have remained in custody unless and until a suitable address had been found for her to live at from which the Probation Service could monitor her pending the expiry of her licence and so as to ensure that she did not present a continued risk to any of her children. On the facts as I have summarised them above, there was no such address available. The brief offer of accommodation by the godmother had lapsed and the Probation Service had not located any. It therefore follows that if and insofar as there was no lawful authority to detain by virtue of the decisions of 25 January 2011 and/or 17 February 2011 (or subsequently), nevertheless, I conclude that the Claimant would have remained in custody until such an address had been found.[82]For completeness I should add that for the period after the licence period ended a suitable accommodation address would have been found in all probability by 2nd September 2011 but that until that point it does not seem to me that on the evidence one would have been. The Claimant would therefore have remained in prison until 2nd September 2011 (and see further below).

The Hardial Singh Principles

[83]Although Schedules 2 and 3 to the Immigration Act provide a discretion to the Secretary of State to detain a person ahead of deportation, the exercise of the power to detain must comply with the principles to be found in R v. Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704, summarised at page 706. Both parties also referred to R (I) v. Secretary of State [2003] INLR 196 and in particular the Judgment of Dyson LJ, as he then was, at paragraph 46. Whilst there was some dispute between the parties as to the full meaning and effect of the Judgment of Dyson LJ in I, it seems to me that the following are well established and uncontroversial principles: (1) The Secretary of State must intend to deport the detainee and can only use the power to detain for that purpose; (2) The proposed deportee may only be detained for a period that is reasonable in all the circumstances; (3) 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, she should not seek to exercise the power of detention; (4) The Secretary of State should act with reasonable diligence and expedition to effect removal.[84]The burden is on the Secretary of State to justify that the detention is lawful: see I v. SSHD at paragraph 28. It follows that it is not merely the existence of the power to detain that is required (see above) but also the continuing exercise of the power must remain lawful throughout the period of detention.[85]Each of the Hardial Singh Principles must be fulfilled for the detention, or continued detention, to be lawful. As to the question of what constitutes a “reasonable period”, this is a determination which will depend upon the particular facts of any given case including the factors referred to by Lord Justice Dyson in I at paragraph 45, such as the length of 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, the conditions in which the detained person is being kept, the effect of detention on the person and his family, the risk that if released from detention the proposed deportee will abscond, and the dangers that if released the proposed deportee will commit criminal offences.[86]As to the risk of reoffending, the following observation by

Lord Justice Dyson is relied upon by the Claimant:

“As to the risk of absconding, first, the relevance of the likelihood of absconding if proved should not be overstated. Carried to its logical conclusion, it could become a trump card that carried the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the length of the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake. Secondly, it is for the Secretary of State to satisfy the court that it is right to infer from the refusal by a detained person of an offer of voluntary repatriation that, if released he or she will abscond. There will no doubt be many cases where the court will be persuaded to draw such an inference. I am not, however, satisfied that this is such a case.”
[87]When considering the risk of absconding or reoffending and whether such risks justify detention on the individual facts of a given case, it is necessary for the reviewing court to consider whether there are or have been conditions of release which would provide a proportionate measure of security against such risks: see R (on the application of A (Iraq) v. SSHD [2010] EWHC 625 (admin) at paragraph 65. In that case the risk of absconding and of reoffending could have been controlled by appropriately restrictive conditions such as electronic tagging.[88]Finally, in a case of detention where the grounds for continued detention are relied upon by the Secretary of State are the risks of absconding or reoffending, I agree with the Claimant’s submission that that risk must be assessed by reference to the individual facts of the particular case. The adoption of a blanket policy which might preclude consideration of individual circumstances would be unlawful – see R. v. Secretary of State, ex parte Venables [1998] AC 407 at 496G. Whilst the adoption of a blanket policy is inappropriate, it does not follow that the Secretary of State is not permitted to evaluate the question of risk by reference to the particular type or category of offence, the seriousness of it, and the question of risk which the offender may pose using methodologies of assessment familiar to the Probation Service and the Secretary of State. In this case the Claimant was assessed subject to the “medium” level of multi-agency public protection arrangements (MAPPA) level 2. She had also been subject to a NOMS 1 assessment. A MAPPA level 2 assessment requires that the Claimant be monitored by agencies (including the police) for a period of five years from the date of her sentencing. A NOMS 1 assessment meant that the Claimant posed a “low” risk of reoffending although the assessor highlighted the fact that the Claimant continued to deny and minimise the seriousness of her offence and that she had been heard making threats against children in general terms at the end of the custodial period of her sentence.[89]There is a divergence between the Claimant and the Defendant as to whether or not it is the court’s function to assess whether the period of detention is reasonable in all of the circumstances or whether the court should be undertaking a conventional judicial review assessment so that it is for the Secretary of State to be satisfied of the relevant factors set out in Hardial Singh (as developed by subsequent authorities) with the Secretary of State being open to challenge only on well-known Wednesbury public law grounds. Whilst I do not need to decide the case by resolving this divergence it seems to me that ultimately, in a case concerning the liberty of the subject and the lawfulness of detention, it must be for the court itself to decide whether or not the detention is lawful and in particular whether the period of detention for the purpose of deportation is “reasonable”.[90]The parties have referred me to extensive authorities on this question and it is, for present purposes sufficient to refer to Hardial Singh [1984] 1 WLR 704 at page 706, and Dyson LJ in R (I) v. SSHD [2002] EWCA Civ 888 whose judgment on the issue as to what was a reasonable period seems to me to require that the court ultimately must decide whether the period was reasonable or not albeit paying appropriate regard to the views of the Secretary of State in respect of the particular circumstances of the individual case. Although later judgments have questioned passages to which I refer above in the judgment of Dyson LJ in R (I) such as R (A) v. SSHD [2007] EWCA Civ 804 and R (MH) v. SSHD [2010] EWCA Civ 1112, I regard these authorities as being consistent with the court itself making a judgment as to whether or not in all of the circumstances, assuming that the power to detain arose, the period of detention was in all of the circumstances reasonable.[91]My conclusion is consistent with the observation of Rix LJ (albeit recording a concession made on behalf of the Secretary of State) in R (AM) v. SSHD [2012] EWCA Civ 521 at paragraph 21 in which he said: “The decision on such questions is for the court itself, and does not depend upon the application of the Wednesbury principles of review”.[92]It was pointed out to me in written submissions by the Secretary of State that in R (LE) Jamaica v. SSHD [2012] EWCA Civ 597, Richards LJ at paragraph 29 said that compliance with the policy limitation should be reviewed on Wednesbury grounds, echoing the same conclusion which he had reached in R (OM) v. SSHD [2011] EWCA Civ 999 at paragraph 24. The passage in LE was accepted by the Secretary of State to be obiter although forming part of the essential reasoning of the court.[93]In R (EO & Ors) v. SSHD [2013] EWHC 1236 (Admin) the claimants accepted that the court should review the legality of detention on traditional public law grounds (therefore following the approach of Richards LJ in LE and OM) although they reserved their position to argue the point differently elsewhere should the circumstances arise.[94]It seems to me that the authorities are not all speaking with one voice on this question. However, whether or not individual elements of the application of policy are lawful in the Wednesbury sense, it seems to me that the question which arises in particular in respect of the Hardial Singh second principle, namely whether the period of detention is reasonable in all of the circumstances, must ultimately be a question that rests with the court as opposed to being subject to public law review only. Since it is the liberty of a person for administrative purposes which is at stake, and since some of the appellate authorities as I have cited them support this proposition, it seems to me that if there is doubt it should be resolved in favour of the detainee. Having said that, I am satisfied that in respect of Hardial Singh second principle there came a point in the detention when the period of detention was unreasonable for the purpose of deportation whether that be judged on the grounds of an objective assessment by the court itself, or on conventional Wednesbury grounds, and I do not consider that it is therefore necessary to resolve the issue.[95]The custodial portion of the Claimant’s deportation ended on 11 July 2010. She was finally released when granted bail on 7 March 2012, bail having been granted by the First Tier Tribunal on 7 March 2012.[96]As to the first principle, deportation can only be lawful if the Secretary of State intends to deport the detainee, and uses the power to detain only for that purpose. Although there are significant passages in the Detention Reviews which might indicate that the Secretary of State was using the power of detention not for the purpose of deportation but so as to keep a person in prison in circumstances where she had committed a serious offence, had no accommodation address to go to and presented a risk of absconding or further criminality, I am satisfied, having read all of the documents, that the Secretary of State was using the power to detain for the purpose of deportation. The extensive references to risk of absconding or reoffending all go to the question of the justification of the detention for the legitimate statutory purpose – i.e. for deportation.[97]I take the second and third principles together. The answer to the questions posed is, in my judgment, different in respect of these two principles. Deportation itself would not have been difficult had there been a realistic prospect of deportation occurring, the Claimant being an EU national – from Portugal.[98]It seems to me that the question of the reasonableness of the period of detention and whether or not deportation could be effected within a reasonable period (grounds 2 and 3) fall to be considered by reference to what was known to the Secretary of State at each stage of this long process.[99]In the first period of the Claimant’s detention, that is from 11 July 2010 to 7 February 2011, there was a prospect that the Claimant could be deported within a reasonable time albeit not during this period itself because she was exercising her right of appeal. The fact that she was exercising her right of appeal and that an appeal was therefore pending does not ipso facto render the detention during this period unlawful. The question as to whether or not the detention was unlawful during this period depends upon whether the period was reasonable and whether deportation could be effected within a reasonable time having regard to all of the facts and circumstances.[100]During this period the Defendant considered that the Claimant presented a significant risk of absconding and/or reoffending. Whilst I accept that there are aspects of the underlying assessments which indicate that, for example, her risk of reoffending was not as high as some of the reviews describe, I do not accept that the Secretary of State was unreasonable in making this assessment or indeed that the assessment of risk of reoffending or of absconding was such that the period of detention pending the outcome of the Claimant’s appeal for this first period was unreasonable. It seems to me that the evidence amply demonstrates that the Claimant did present a risk to her own children, she had made comments which the Secretary of State was entitled to take into account indicating that she might present a risk to other children, and that there was a risk that she might abscond. Although during part of this phase her godmother had offered her a place to stay, that offer was withdrawn and the Claimant would effectively have been a person of no fixed abode. I am also not satisfied that in relying on the Claimant’s MAPPA status during this period the Defendant failed unlawfully to consider her individual risk. Taken as a whole, although there is repetition within the Detention Review documentation, it seems to me that different individuals were applying their minds to the question of risk during the period of her detention and there was not simply a blanket approach to this question.[101]Further, it is said, that the Secretary of State failed to take into account the fact that the Claimant’s appeal stood a good prospect of success. It is indeed correct that the Claimant won her appeal but it must be borne in mind that subsequently the Secretary of State was given permission to appeal out of time and as at the date of the hearing before me on 13 June 2013, the Claimant’s appeal had not yet been determined because it had been sent to the European Court. In these circumstances I do not accept the submission that the Defendant acted unreasonably by not assessing the prospects of success in the appeal, or by not reaching a conclusion that the prospects of success were good.[102]The Defendant operates under guidance known as Enforcement Instructions and Guidance (EIG). The guidance included, by paragraph 55.3, that there was in general a presumption in favour of temporary admission or release, there must be strong grounds to believing that a person would not comply with conditions of temporary admission or release for detention to be justified; or reasonable alternatives to detention must be considered before detention is authorised; once detention has been authorised, it must be kept under close review to ensure that it continues to be justified; and each case must be considered on its individual merits.[103]A number of factors are listed at paragraph 55.3 of EIG as relevant to consideration of the need for initial or indeed continued detention. They include the likelihood of a person being removed and the period within which removal would take place; evidence of previous absconding; evidence of previous failure to comply with conditions of temporary release or bail; a determined attempt to breach immigration laws by means, for example, of entry in breach of a deportation order, or clandestine entry; a history of failing to comply with the requirements of immigration control; ties to the UK including the presence of close relatives or dependence upon a person within the United Kingdom and a settled address or employment, any incentives in place the person concerned to remain in communication, such as the merits of an outstanding appeal, any risk of offending or harm to the public, whether the subject was a child, had a history of torture or physical or mental ill health.[104]Whilst I am satisfied that the detention was lawful and justified at its start, as the period of detention went on so the need for the Secretary of State to give particular consideration to whether or not detention was still required for the purpose of achieving deportation and whether deportation could be effected within a reasonable period, grew.[105]In my judgment, the factors which pointed increasingly towards the need for release after the Secretary of State had been granted permission to appeal, were not appropriately considered by the Secretary of State after the hearing of the Secretary of State’s appeal on 8th August 2011. In my judgment the prospects of the deportation occurring within a reasonable time, despite the fact that the Secretary of State had succeeded in her appeal, were actually diminishing, and the period of detention had become very long.[106]The stark reality is that after the Secretary of State was granted permission to appeal, the process ground on effectively leading to the Claimant’s appeal being reinstated. She could not be removed from the jurisdiction whilst this appeal was extant. It had taken from 11 July 2010 until 7 February 2011 for the Claimant’s appeal to be “finally” determined in her favour. Although an appeal was pending thereafter (by virtue of the Secretary of State’s appeal, and then the reinstatement of the Claimant’s appeal), it seems to me that after a period of no more than seven months from 7th February 2011 it became unreasonable to continue to detain the Claimant. This would take her detention to a period which would not, in my judgment, have been reasonable (whether in a conventional objective or Wednesbury sense) by very early September 2011, (and also little over 3 months after the end of her licence period). I reach this conclusion for the following reasons:(1) A period of more than 13 months in custody after determination of the custodial period of a sentence pending the arrangements for an appeal is a long period of time for a person to be held in custody.(2) Whilst the Claimant did present a risk of reoffending and a risk of absconding, it appears to me that insufficient consideration was given to the question of tagging or of other measures being taken so as to ensure that the Claimant could be appropriately monitored. By August 2011 failing to consider such steps and act upon them, in my judgment, became unreasonable (in both senses).(3) Whilst the Secretary of State was entitled to consider the risk of absconding and reoffending as justifying a period in detention, the risk was not so great as to justify detention without any apparent limit of time. The risk of reoffending and of absconding were risks to be held in balance having regard to other relevant factors. One particular relevant factor was the length of time of the Claimant’s incarceration.(4) There was no real indication that a final determination of the renewed appeal was imminent and the prospects of the appeal being determined finally in favour of the Secretary of State within a reasonable period of time seem to me to have been diminishing as time went on.[107]A review took place on 13 August 2011. Then on 2 September 2011 a Detention Review Officer (UKBA) wrote to Buckingham Social Services (see para 61 above) saying:
“As you are aware, Ms Gomes has been held in UKBA detention for almost 15 months. As her removal is not imminent, I have been asked to consider her for urgent release.”
By now it was clear that the length of the detention was unreasonable and that removal would not occur within a reasonable time.[108]R (Razi & Ors) v. SSHD [2010] EWHC 3151 (Admin) is authority for the proposition that the Secretary of State must use “reasonable endeavours to provide a bail address if the person concerned would otherwise be likely to remain in detention”. There is, it is conceded by the Claimant, no duty to provide such an address but nevertheless there was a duty for reasonable endeavours to be used. As the period of the Claimant’s detention continued the Secretary of State was bound to use reasonable endeavours to provide a bail address and that such endeavours, the longer the period went on, required extra effort. The facts do not reveal that real endeavours were being made as the detention continued, and in my judgment had such endeavours been made, it is reasonable to conclude that the Claimant would have been released and that detention was no longer required for the purposes of deportation, nor would it have been reasonable for it to continue, after the hearing in August 2011 and by no later than 2nd September 2011.[109]Having regard to all of the circumstances, and in particular the factors which I have set out in this Judgment, I conclude that the period of detention of the Claimant was not reasonable from 2nd September 2011 by which time I conclude that the Secretary of State could no longer reasonably consider that deportation would occur within a reasonable period of time. I therefore find that the detention was unlawful from this date, namely 2nd September 2011, until the Claimant was released, namely on 7 March 2012.[110]The Secretary of State relied upon the fact that an accommodation address was not provided by the Claimant’s godmother until September 2011. In circumstances where the Secretary of State had an obligation to use reasonable endeavours to provide a bail address if the person concerned was otherwise likely to remain in detention and where the process through the Tribunal service was taking a considerable period of time with, at best, from the Secretary of State’s point of view, an uncertain prospect of success it seems to me that the detention had become unlawful by no later than 2nd September 2011. I am fortified in this conclusion by the fact that a bail address did apparently become available shortly after this date.

Ground 4: Article 5(1) ECHR

[111]The Claimant contends that there was a breach of Article 5(1) of the ECHR because the Claimant was detained in prison and not at an immigration centre.[112]The Claimant points out that it is for the reviewing court to determine directly whether there has been a breach of Article 5(1): see R (Wilkinson) v. Responsible Medical Officer Broadmoor [2002] 1 WLR 419 at paragraph 26. Further, in an immigration context, the deprivation of liberty and the place and conditions of detention are linked by virtue of Article 5(1). In Aerts v. Belgium [2000] 29 EHRR 50 the European Court of Human Rights held at paragraph 46:
“There must be some relationship between the ground of permitted depravation of liberty relied on and the place and conditions of detention.”
[113]Thus, it follows that even if in principle detention is lawful for the purposes of deportation, it does not follow that detention in a prison is lawful: Article 5(1) may be violated by detaining an immigration detainee in a prison, even where there is lawful authority for detention. This is supported as the Claimant’s counsel submitted to me by the standards adopted by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT) which, inter alia, state that:
“On occasion, CPT delegations have found immigration detainees held in prisons. Even if the actual conditions of detention for these persons in the establishments concerned are adequate – which has not always been the case – the CPT considers such an approach to be fundamentally flawed. A prison is by definition not a suitable place in which to detain someone who is neither convicted nor suspected of a criminal offence. Admittedly, in certain exceptional cases, it might be appropriate to hold an immigration detainee in a prison, because of a known potential for violence. Further, an immigration detainee in need of an inpatient treatment might have to be accommodated temporarily in a prison health-care facility, in the event of no other secure hospital facility being available. However, such detainees should be held quite separately from prisoners, whether on remand or convicted.”
[114]The parties have referred me extensively to authorities on this question. Section 55.10.1 of the EIG to which I refer above sets out a non-exhaustive list of factors which indicate when it may be appropriate that a detainee should be held in prison rather than an immigration centre – with an immigration centre being the norm. These include individuals who are subject to MAPPA levels 2 or 3 (as in the case of the Claimant). As I read the authorities, there must be “exceptional circumstances” which justify holding an immigration detainee in the prison estate as opposed to in an immigration centre. The question, therefore, in this case is whether or not there were such exceptional circumstances.[115]I am satisfied that there were exceptional circumstances in this Claimant’s case which justified her detention in the prison estate. She had committed a serious criminal offence involving violence on her own child, and had given expression of feelings of violence towards other children. She had been a user of heroin and she had little or no recognition of the seriousness of her criminal conduct: indeed, in a witness statement provided by her in 2010 she continued to deny that she had been guilty of any criminal conduct towards her child despite the verdict of the jury.[116]In these circumstances, the Secretary of State would have taken a very considerable risk if she had placed the Claimant in detention in an immigration centre. In such a centre the claimant would or might have come into contact with children in circumstances where she posed a risk to them. I am satisfied that this is a case where there were exceptional circumstances which justified there being a reasonable period of detention in the prison estate. I, therefore, reject the Claimant’s submission that detention in prison was unjustified.

Conclusions

[117]I will hear the parties further on the question of what is the appropriate relief and measure of damages to be awarded on the facts of this case. I am prepared to provide a declaration that the Claimant’s detention was unlawful for the period from 2nd September 2011 to 7 March 2012. I will not make a declaration that her detention in prison breached Article 5(1) of the ECHR.[118]I will therefore hear the parties further on the question of the form of the declaration, damages and costs.