Wang, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 2619 (Admin)

[2014] EWHC 2619 (Admin)Case No CO/8641/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29 July 2014
Before
MS ALEXANDRA MARKSSitting as a Deputy Judge of the High Court
Between
THE QUEENClaimantOn the application ofClaimantMR XING WANGClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr Greg Ó Ceallaigh (instructed by Wilsons Solicitors LLP) for ClaimantMr Mathew Gullick (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 17 June 2014
JudgmentMs Alexandra Marks :Introduction
[1]The Claimant challenges the lawfulness of his detention for a period of 22½ months pending deportation.[2]The challenge is on three grounds:a. Breach of the principles first identified by Woolf J in Re Hardial Singh [1984] 1 WLR 704b. Breach of the Defendant’s policiesc. Article 5 of the European Convention on Human Rights[3]The third ground was not pursued during oral argument on the basis that the Article 5 issue is subsumed in the Hardial Singh principles.[4]The relief sought by the Claimant includes a declaration, and damages for unlawful detention.

Background

[5]The Claimant is a Chinese national who says he was born on 2 April 1971 (although on various occasions his year of birth has been stated as 1970 and 1972). The Claimant says he entered the United Kingdom clandestinely in early January 2009.[6]The Claimant only came to the attention of UK Immigration Authorities in April 2009 when he was arrested in Scotland for drugs offences.[7]On 30 May 2009, the Claimant was charged with cultivating cannabis and held on remand at HMP Edinburgh. His fingerprints were taken, and he was interviewed under caution. The Claimant admitted entering the UK illegally, and said he had claimed asylum in Austria. On the same day, the Defendant served on the Claimant notice of the decision to remove him pursuant to Section 82 of the Nationality, Immigration and Asylum Act 2002 as an illegal entrant to the UK.[8]On 11 June 2009, the Claimant underwent a travel history interview while still remanded in custody in Scotland. He indicated that he wished to withdraw all outstanding applications to stay in the UK, and wanted to leave the country voluntarily.[9]On 24 June 2009, the Claimant was interviewed for an Emergency Travel Document (ETD). He again stated that he wished to leave the UK as soon as possible.[10]On 7 July 2009, the UK Border Agency (UKBA) applied for an ETD for the Claimant on the basis of bio-data he had supplied.[11]On 13 October 2009, having pleaded guilty to drugs offences (cultivation of cannabis contrary to Section 4(2)(A) Misuse of Drugs Act 1971, and a minor possession offence), the Claimant was sentenced to three years’ imprisonment.[12]On 10 November 2009, some four weeks after sentencing, the Defendant wrote to the Claimant, noting his conviction and giving notice of his liability to deportation.[13]On 20 November 2009, the Chinese Embassy faxed UKBA that “no record has been matched” for the Claimant and thus the attempt to obtain an ETD for him had failed. A re-interview of the Claimant was sought in order to obtain correct information on his home address in China.[14]On 21 December 2009, the Claimant was re-interviewed by UKBA for ETD purposes.[15]On 15 March 2010, the Claimant answered a Home Office questionnaire giving various details about himself and his family, his aliases and his date of entry to the UK. He stated that he had lost his own passport and used a false Malaysian passport. He claimed asylum, and asserted that removal from the UK would breach his rights under Articles 2, 3 and 8 of the European Convention on Human Rights.[16]At an asylum interview in HMP Glenochil on 7 May 2010, the Claimant said that he feared persecution if he returned to China and his plan was to “get status in the UK and bring my family over.”[17]On 22 June 2010, the Returns Liaison Officer (RLO) for China wrote to UKBA, reporting that the Claimant’s wife had been telephoned on the number given by the Claimant. At first she had admitted that she was the Claimant’s wife but when she realised her husband might be returned, she denied what she had said earlier, and refused to give details of her precise whereabouts.[18]On 17 September 2010, the Claimant underwent two further interviews by UKBA. The first interview was a second asylum interview. The Claimant elaborated on his reasons for leaving China and the route by which he had done so. The second interview on 17 September 2010 (which immediately followed the first, with the same parties present), was conducted for the purposes of obtaining an ETD for the Claimant. The Claimant stated that his national ID card was in China because he had handed it to his wife before he left. He agreed to ask her to send it to him.[19]On 23 September 2010, the Defendant wrote to the Claimant, notifying him that it would not be appropriate to release him on expiry of his custodial sentence on 1 October 2010: his detention had been authorised until a deportation order had been made.[20]On 1 October 2010, on expiry of the custodial part of his sentence, the Claimant was detained at Dungavel IRC in Scotland.[21]On 9 February 2011, the Claimant was screened for asylum purposes.[22]On 15 February 2011, in the Defendant’s monthly Detention Review (DR) record for the Claimant, under the heading “Likelihood of removal within a reasonable time scale” it states:
“The subject’s asylum claim is still outstanding and a deportation order is yet to be served upon him. An ETD is required to facilitate his removal. An ETD interview was carried out previously if enough information/bio-data is on the file, it will be sent of (sic) asap. If not, then a new ETD interview will be arranged.”
[23]A deportation order was made in respect of the Claimant on 21 April 2011.[24]On 4 May 2011, the UK Border Agency wrote to the Claimant, rejecting his asylum and human rights claims, and notifying him that save in the event of a successful appeal, the deportation order would be enforced.[25]On 5 July 2011, the First Tier Tribunal dismissed the Claimant’s appeal against rejection of his asylum and human rights claims, concluding that the Claimant was “an economic migrant” whose “primary motive is to make money to support his wife and children in China”. The Tribunal described the Claimant’s asylum and human rights claims as “without foundation”.[26]On 5 August 2011, the DR records that “Subject became appeals rights exhausted today. ETD is the only barrier to removal and information provided by the subject has not been verified by the RLO [Returns Liaison Officer] in China... Caseowner to obtain further advice from the CSIT (Country Specialist Investigations Team) on the way forward with the travel documentation.”[27]On 30 September 2011, the DR records, “On 23 September 2011, another ETD interview was requested to cross examine the subject with details provided in June 2010 and/or get fresh information from him such as telephone numbers and addresses.”[28]On 29 November 2011, the Claimant underwent a further interview for ETD purposes but no record of the interview has been produced. The Defendant claims that the Claimant did not cooperate, which the Claimant denies.[29]On 11 January 2012, the Claimant’s case was referred to the Defendant’s CSIT for the next case surgery (held on 17 January 2012).[30]On 20 January 2012, the RLO reported that - following a request for a subscriber’s check on the wife’s telephone - he had made contact with LIN Hua Qin (the name given by the Claimant as that of his wife). LIN Hua Qin claimed that her husband was XUE Ren Guang, that he was in China, and that she had no family in the UK. The RLO stated the telephone number belonged to Fuzhou city, Fujian province (not Qingchian city in Sichuan province which was the address given by the Claimant).[31]The DR dated 11 May 2012 (CBD 197) records that, “On 13 March 2012, case surgery was held. It was suggested that we re-interview Mr Wang regarding the information we received from the RLO checks.”[32]On 16 April 2012, the Claimant was transferred from Dungavel Immigration Removal Centre (IRC) in Scotland to Colnbrook IRC in Berkshire so that he could be interviewed by CSIT. Following the Claimant’s move to Colnbrook IRC, CSIT was contacted to arrange an interview.[33]On 31 May 2012, CSIT officials interviewed the Claimant at Colnbrook IRC. He said that he did not have a telephone number for his wife, she lived with his parents, he did not know the names of his in-laws nor could he remember the names of any of his friends and teachers at school. He confirmed that the bio-data details he had previously given were correct.[34]On 1 July 2012, while still detained at Colnbrook IRC, the Claimant started refusing food and reduced his fluid intake.[35]On 9 July 2012, the Claimant was again interviewed by UKBA to obtain bio-data and on 13 July 2012 his case was accepted for “Operation Elucidate”, a nationality and identity exercise involving the use of Chinese officials.[36]On 18 July 2012, having been admitted to the Healthcare Facility at Colnbrook IRC, the Claimant explained during a nursing assessment that he had been in detention for two years and was therefore unable to support his family; he would rather die if he could not work; he felt that if he continued to refuse to eat, UKBA would eventually let him go.[37]On 24 July 2012, the Claimant signed an Advance Directive (in model form attached to Detention Service Order 07/2004 – to which I shall refer again below) stating that he did not intend to eat but agreeing to have water; refusing consent to the administration of nutrition, hydration or any form of medical treatment in the event of deterioration in his condition; and confirming that he fully understood the directive’s contents and effects.[38]On 25 July 2012, the Claimant was interviewed under Operation Elucidate to establish his nationality and identity. On that same date, UKBA wrote to the Claimant’s legal representatives stating, “As you are aware many attempts to document your client has (sic) been made and your client is still consistently providing the UKBA with incorrect information. It is in your client’s best interests to provide correct and accurate information so we can obtain a travel document for him. You may want to advise your client to contact the Chinese embassy himself in order to obtain a travel document.”[39]On 2 August 2012, Dr Mehta (at Colnbrook IRC) recorded that “surprisingly his BM (blood sugar level) is going up.. [but] HE IS NOT FIT FOR DETENTION KEEPING IN MIND IT IS DAY 32 OF FOOD REFUSAL. RISK OF MORTALITY VERY HIGH.”[40]On 4 August 2012, Dr Goldwyn (a retired GP with considerable experience of hunger strikers in IRCs but with no personal knowledge of the Claimant apart from his records) wrote that several different doctors had seen the Claimant in Colnbrook, and most had written good care plans but they had not always been followed through. In her view: “He urgently needs assessment in a hospital and plan as to his further management”.[41]On 7 August 2012, the Claimant’s legal representatives wrote to UKBA, “Our client has confirmed to us that he is willing to be admitted to hospital for medical treatment, if he is released from detention”.[42]On 9 August 2012, the Claimant’s doctor (Doctor Arnold) after a two hour examination of the Claimant opined, “I agree entirely with the Colnbrook clinicians that he is unfit for detention. Although they have offered and he has largely accepted, good care (within the limits of his clearly expressed wishes) his health is now reaching a point beyond their resources”.[43]On 10 August 2012, Dr Mehta recorded a “lengthy” discussion with the Claimant who said he wanted to eat but only after his release. He was aware that his hunger strike was life-threatening and was refusing to go to hospital. He was aware of the risks of his decision. The doctor’s care plan concluded: “In his current state, he is unfit for detention”.[44]Later that evening, the Claimant’s representatives made an ex parte application to this court and as a result Mr Justice Haddon-Cave ordered that “the Defendant is to convey the Claimant immediately to hospital”.[45]At approximately 2am on 11 August 2012, the Claimant was taken to Hillingdon Hospital. Colnbrook Healthcare records state that he was discharged later that day without any follow-up or any treatment, and that the Claimant had refused intravenous fluids/hydration. On return to Colnbrook, the Claimant denied that he had any symptoms.[46]On 12 August 2012, the Claimant’s representatives made a further application for the Claimant’s release and conveyance to hospital. Mr Justice Haddon-Cave refused the application for release but ordered his conveyance to hospital. On his admission to hospital later that day, the Claimant received fluids.[47]On 13 August 2012, the Claimant was returned to Colnbrook. On the same day, by internal email one of the Defendant’s officials wrote:
“Mr Wang was interviewed under the recent Op Elucidate however no ETD was agreed. There appears to be no prospect of removal within a reasonable timescale and therefore release under strict contact management is recommended.”
[48]However, later that day, UKBA emailed that the Claimant’s application had been re-submitted to the Embassy with a request that it be “re-visited as a matter of urgency in light of the compelling circumstances.”[49]The following day, on 14 August 2012, UKBA records state that the Embassy confirmed it would re-conduct verification checks as a matter of priority.[50]Later that evening, following application by the Claimant’s legal representatives, Mr Justice Fulford ordered that the Claimant be conveyed “forthwith” to Hillingdon Hospital and kept there “until he is in a fit state to be returned and detained at Colnbrook”.[51]On receipt of the court order, medical staff at Colnbrook wrote in the Claimant’s medical records that “there is no clinical concern at present ...[nor] clinical need to transfer him back to hospital tonight as they discharged him back to us yesterday after IV rehydration therefore he must have been fit to leave… he is not deteriorating at present and there are no immediate concerns.”[52]On 15 August 2012, Dr Mehta at Colnbrook recorded that the Claimant had agreed to go to hospital and the care plan referred him to hospital for “safe re-feeding” and assessment.[53]The following day, on 16 August 2012, Dr Sweatman (Consultant Physician in Emergency Medicine at Hillingdon Hospital) telephoned Dr Mehta to give an oral report. He later discharged the Claimant – whom he declared in his accompanying letter to Colnbrook IRC:
“FIT TO BE DETAINED on the following grounds: • he has no acute clinical problems • the results of his investigations give no reason for him to require an acute inpatient bed • he does not need any additional medication or further investigations or treatment in an acute hospital environment”
Dr Sweatman concluded that “he does require hourly BM monitoring until his BMs have risen into the range 4.5-5.0mmol/l and are stable”. • he has no acute clinical problems • the results of his investigations give no reason for him to require an acute inpatient bed • he does not need any additional medication or further investigations or treatment in an acute hospital environment”[54]The Claimant’s medical notes at Colnbrook IRC for that day record “Plan from hospital stated he needed hourly BMs however this is not currently clinically indicated (as BM within normal range).”[55]On that same day – 16 August 2012 – the Claimant’s legal representatives lodged an application at this court for interim relief. Mrs Justice Dobbs declined to grant interim relief but ordered listing of the case on 20 August 2012.[56]The Colnbrook observations/BM Chart for the Claimant notes that on various occasions during 17 August and again on 19 August 2012 the Claimant refused attempts to monitor his blood pressure and BM levels.[57]On 20 August 2012, the Claimant’s application in this matter came before Mr CMG Ockelton (sitting as Deputy High Court Judge). He granted interim relief at an inter partes hearing.[58]On 21 August 2012, following agreement of the terms of the order, the Claimant was conveyed to Hillingdon Hospital for refeeding.

Relevant law and policies

[59]The relevant provisions of Section 36 UK Borders Act 2007 state: “36 Detention(1) A person who has served a period of imprisonment may be detained under the authority of the Secretary of State — (a) while the Secretary of State considers whether section 32(5) applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.(2) Where a deportation order is made in accordance with section 32(5) the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 (c. 77) (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate…” (a) while the Secretary of State considers whether section 32(5) applies, and (b) where the Secretary of State thinks that section 32(5) applies, pending the making of the deportation order.[60]Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 provides:
“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 …”
[61]This Claimant was initially detained pursuant to the UK Borders Act 2007, and then, following making of the deportation order against him, pursuant to the Immigration Act 1971.[62]Important principles concerning the use of powers of detention for immigration purposes were set out by Mr Justice Woolf (as he then was) in the case of R (Hardial Singh) v Governor of Durham Prison [1984] 1 WLR 704.[63]In March 2011, in R (Walumba Lumba & Kadian Mighty) v Secretary of State for the Home Department [2011] UKSC 12, the Supreme Court endorsed and explained the so-called Hardial Singh principles in the following terms:(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose (principle 1);(ii) The deportee may only be detained for a period that is reasonable in all the circumstances (principle 2);(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 a reasonable period, he should not seek to exercise the power of detention (principle 3);(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal (principle 4).[64]In that same case (Lumba), Lord Dyson also considered the concept of “reasonable period” as follows:
“103. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in R (I), there may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.”
[65]The factors which Lord Dyson held to be relevant were (subject to the caveat that it is not possible to produce an exhaustive list):(i) the length of the period of detention;(ii) the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation;(iii) the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles;(iv) the conditions in which the detained person is being kept;(v) the effect of the detention on him and his family;(vi) the risk that if he is released from detention he will abscond; and(vii) the danger that, if released, he will commit criminal offences.[66]The question of whether or not an individual’s detention is lawful by reference to the Hardial Singh principles is for the Court. On an application for judicial review, the Court is not limited to an examination of whether the Defendant’s decision was rational (R(A) v. SSHD [2007] EWCA Civ 804).[67]The relevant part of the Defendant’s policy “Enforcement Instructions and Guidance, Chapter 55: Detention and Temporary Release” (EIG) provides:
“55.10 Person considered unsuitable for detention. Certain persons are normally considered suitable 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. ... 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 from serious medical conditions which cannot be satisfactorily managed within detention. ◦ … ”
[68]The Defendant’s policy in force at the time of this Claimant’s detention, “Detention Service Order 07/04: Food and fluid refusal in Immigration Removal Centres” (DSO), includes the following:
“PART A Introduction 8. If a competent detainee has made an advance directive, whilst they remain competent their views should be monitored to ensure that the directive continues to reflect their wishes for their future treatment when they have lost capacity to reach a decision for themselves. A competent person may withdraw or amend any advance directive that he has previously made. ….. 11. Where a detainee has made an advance directive, the wishes expressed in this directive must be honoured. It is a legal requirement to obtain a patient’s consent to treatment. ….. PART C Food and fluid refusals: General guidelines 1.8 Detainees who are refusing food do not necessarily require to be seen on a daily basis by health care staff. However, Immigration Service staff will need to be regularly informed of the state of health of a food refuser after food has been refused for more than five days and will require a daily update of the state of health of any detainee who has been refusing food and fluid for more than 24 hours. It is important that Immigration Service staff maintain a full written record of events and information passed on to them. 1.9 Food/fluid refusers requiring nursing care should be managed in one of the centres with 24-hour nursing. Centres without such facilities are advised to seek the transfer of fluid refusers at 48 hours and food refusers at 14 days. Immigration Service staff should follow advice given by their healthcare advisors and, if it is agreed that the detainee should be transferred, contact DEPMU. Form IS 91 RA Part C should be completed giving full details of the food and/or fluid refusal so that the most appropriate accommodation can be arranged. ….. Advance directives 2.1 A detainee who is currently competent may wish to make a “living will” or “advance directive” specifying how they would like to be treated in the case of future incapacity. Where a detainee refusing food/fluids wishes to make such an advance directive, they may want their own legal adviser to draw it up. This is acceptable. Alternatively, a model version is attached to this Order. 2.2 Detainees are unlikely to be aware of the ability to make an advance directive. As soon as a detainee begins to refuse food and fluids, and after a detainee has refused food for five days, he/she should be made aware of this facility. It is preferable that both the health professional and the IS manager (either the contract monitor or the CIO) are present when the ability to make an advance directive is being explained to the detainee. The purpose of an advance directive should be spelt out to the detainee, as well as the fact that once an advance directive is made, whether written or oral, the detainee has he the right to reverse this decision at any time during which they retain competence. …… Role of the health professionals 3.1 Where a competent detainee refusing food and/or fluids is also refusing medical treatment at a time when a doctor judges it is becoming necessary, whether or not an advance refusal of treatment has been made, the doctor must explain the consequences of these refusals to the detainee, in the presence of another healthcare professional. These explanations must include the following information: • That the deterioration in their health will be allowed to continue without medical intervention unless they request it; • That continuing food/fluid refusal will lead to death. This must include a description of the process of dying in terms of pain, what can be offered to ameliorate those symptoms and the physical effects of refusal of nutrition; • That prolonged food and fluid refusal which does not result in death may lead to permanent disability and organ damage. 3.2 It is important that this information is provided in a form that the detainee can understand. This may involve using an interpreter and every effort should be made to obtain the services of an interpreter as soon as possible. Should the detainee wish to use a fellow detainee or member of his/her family to interpret the doctor’s explanation then this would be acceptable. 3.3 The doctor must: • Write a full record of what has been said to the detainee, and the doctor, the second healthcare professional and the interpreter, if used, must sign to say that they were present when this advice was given. The doctor may wish to repeat this procedure from time to time; • Consider the appropriateness of transferring the detainee to the healthcare centre at Harmondsworth, Colnbrook or Yarl’s Wood; • Inform the IS Manager (the contract monitor or CIO) that this stage has been reached and request that the detainee is transferred to Harmondsworth, Colnbrook or Yarl’s Wood as appropriate.”
PART C Food and fluid refusals: General guidelines Advance directives Role of the health professionals • That the deterioration in their health will be allowed to continue without medical intervention unless they request it; • That continuing food/fluid refusal will lead to death. This must include a description of the process of dying in terms of pain, what can be offered to ameliorate those symptoms and the physical effects of refusal of nutrition; • That prolonged food and fluid refusal which does not result in death may lead to permanent disability and organ damage. • Write a full record of what has been said to the detainee, and the doctor, the second healthcare professional and the interpreter, if used, must sign to say that they were present when this advice was given. The doctor may wish to repeat this procedure from time to time; • Consider the appropriateness of transferring the detainee to the healthcare centre at Harmondsworth, Colnbrook or Yarl’s Wood; • Inform the IS Manager (the contract monitor or CIO) that this stage has been reached and request that the detainee is transferred to Harmondsworth, Colnbrook or Yarl’s Wood as appropriate.”

PRINCIPLES IN HARDIAL SINGH

[69]On the basis of the principles in Hardial Singh, Mr Ó’Ceallaigh invited the court to find that the Claimant’s detention was unlawful with effect from the following possible dates:• 4 May 2011 – the date of notice to the Claimant of the deportation decision against him. This was almost a full year after his first asylum interview on 7 May 2010 (at which date the Defendant had forgotten to arrange a prior screening interview, an error not rectified until 9 February 2011, some nine months later); and 15 months after the Claimant had first claimed asylum on the Home Office questionnaire on 15 March 2010;• 13 August 2012 – when one of the Defendant’s officials internally recommended that the Claimant should be released because there was no prospect of his removal within a reasonable time.[70]Mr Ó Ceallaigh also pointed out to the court that the Claimant’s first ETD interview had taken place on 17 September 2010 yet, Mr Ó Ceallaigh submitted, there was no further attempt at a ETD interview with the Claimant until 23 September 2011 (over a year later). In fact the second ETD interview took place only on 29 November 2011 (14 months after the first).[71]In response, Mr Gullick observed that the 2010 dates referred to by Mr Ó Ceallaigh fell within the period of the Claimant’s custody following his criminal conviction. Only following the Claimant’s release from custody on 1 October 2010 was he detained by the Defendant for the purpose of deportation. Such detention was, Mr Gullick submitted, lawful under the UK Borders Act 2007.[72]Mr Ó Ceallaigh accepted that on 7 May 2010 (the date of the Claimant’s first asylum interview) and 17 September 2010 (the date of his first ETD interview), the Claimant was still serving a prison sentence imposed in 2009 for the drugs offences of which he had been convicted. Consequently, there was no basis for finding the detention of the Claimant unlawful with effect from either of those dates. However, Mr Ó Ceallaigh proffered the 2010 events as relevant when considering whether the Defendant had acted diligently, which includes an analysis of what took place before detention.

Hardial Singh principle 4 – reasonable diligence

[73]MrÓ Ceallaigh described the Claimant’s detention as “characterised by profound delays, and a serious absence of diligence” by the Defendant.[74]He pointed to the “unjustified” nine month period between the Claimant’s first asylum interview on 7 May 2010 and his asylum screening interview (which in any case should have taken place first) on 9 February 2011.[75]Mr Gullick submitted the Claimant’s asylum screening interview (initially overlooked) was arranged for 12 December 2010 – two months after the Claimant had been detained. Due to bad weather that month, the interview was rearranged for February 2011, two months later.[76]In post-hearing submissions, Mr Gullick confirmed that there is no particular requirement for the Defendant to carry out an asylum screening interview before she makes a decision on an individual’s asylum claim. However, it is usual practice to do so in accordance with the Defendant’s guidance (as in force at the time of this Claimant’s asylum claim) in order to obtain essential personal information about an individual including bio data, travel history and fingerprints.[77]In response, Mr Ó Ceallaigh repeated his position at trial that there is no explicit requirement of policy or law that a screening interview take place prior to an asylum interview, or indeed at all. The Claimant underwent a travel history interview on 11 June 2009, an ETD/bio data interview on 24 June 2009 and was fingerprinted on several occasions before he claimed asylum, the first occasion being on 30 May 2009. There was therefore no need for the asylum screening interview which delayed consideration of his asylum claim for almost a year and which, MrÓ Ceallaigh argued, supported the Claimant’s case that the Defendant did not act with reasonable diligence during his detention.[78]It does not appear to me that an asylum screening interview is a necessary pre-requisite to making an asylum decision. Indeed, if the same information and biodata usually obtained during such a screening interview has been elicited in other ways, there seems no need for one, even if that is the Defendant’s usual practice.[79]Whether or not a screening interview was in fact required before an asylum decision could be made, there is no dispute that the Defendant delayed making an asylum decision until a screening interview had taken place on 9 February 2011.[80]However, I do not accept that any such delay in determining the Claimant’s asylum claim demonstrated any failure on the Defendant’s part to act with reasonable diligence and expedition to effect removal. It is clear from the chronology set out above that, in parallel with the Claimant’s asylum claim, efforts were being made by the Defendant preparatory to the Claimant’s removal should his asylum claim fail. For example, the Claimant was interviewed for ETD purposes on 17 September 2010, the very same day he underwent an asylum interview. Further, the deportation decision against the Claimant was made on 21 April 2011, before his asylum claim was rejected on 4 May 2011.[81]Thus I do not find that any errors, omissions or delays as regards the Claimant’s asylum claim demonstrate any failure on the Defendant’s part to act with reasonable diligence and expedition to effect the Claimant’s removal.[82]MrÓ Ceallaigh further submits that there was no progress of any kind in effecting the Claimant’s removal for two lengthy periods - between 29 November 2011 (the second ETD interview) and 20 January 2012 (when the RLO reported contact with the Claimant’s wife in China); and between 20 January 2012 and 31 May 2012 (when the Claimant was re-interviewed).[83]Mr Gullick submitted that the process of obtaining an ETD for the Claimant had begun whilst he was in custody. During that period, at an ETD interview on 17 September 2010 he had agreed to obtain his national ID card from his wife. It was unclear what efforts had been made to do that.[84]However, Mr Gullick submitted, once the Claimant’s asylum claim appeal rights had been exhausted in August 2011, the Defendant requested another ETD interview of the Claimant in September 2011.[85]That ETD interview was scheduled for two months later, on 29 November 2011 but, Mr Gullick submitted on the basis of records made at the time, the Claimant had failed to cooperate. In December 2011, UKBA referred to CSIT for advice, which pursued enquiries in China during January 2012. Following unhelpful responses from the Claimant’s wife that month, CSIT suggested in March 2012 re-interviewing the Claimant for which purpose the Claimant was transferred from Dungavel IRC in Scotland to Colnbrook IRC in April 2012. His further interview took place the next month – in May 2012 – but that too proved inadequate so an interview under Operation Elucidate was sought. UKBA also wrote to the Claimant’s representatives in July 2012 suggesting the Claimant contact the Chinese Embassy himself.[86]Mr Gullick submitted that the information the Claimant provided during his various interviews was inconsistent. For instance, on no fewer than seven different occasions the Claimant had stated his children’s dates of birth but he had provided different dates on all but two occasions. Information provided by the Claimant contained other important and inexplicable discrepancies too. Whilst apparently complying with the Defendant’s processes, Mr Gullick submitted that in reality the Claimant was not cooperating with the process which would enable his return to China.[87]I find that the Claimant’s asylum claim did not stall the Defendant’s efforts to prepare for the Claimant’s removal should his asylum claim fail. As I have already mentioned, in parallel with processing his asylum claim, the Defendant took preparatory steps for the Claimant’s removal and persisted throughout the Claimant’s detention with efforts to obtain documentation for travel purposes (the only obstacle to the Claimant’s removal once his asylum claims and appeals had been exhausted). I do not accept MrÓ Ceallaigh’s submissions that for two lengthy periods no progress was made to effect the Claimant’s removal. While it may have appeared that way to the Claimant at the time, as the chronology I have set out above in some detail makes clear, there were numerous and frequent steps taken by the Defendant throughout the Claimant’s detention in an attempt to obtain an ETD for the Claimant and thus effect his removal.[88]I therefore find no absence of reasonable diligence and expedition by the Defendant to effect the Claimant’s removal.

Hardial Singh principle 3 – operating removal machinery

[89]MrÓ Ceallaigh submitted that the Defendant knew, or should have known, that once the Chinese Embassy had rejected the first ETD application in November 2009, it was going to be very difficult to re-document the Claimant. Thus, MrÓ Ceallaigh argued, it was (or should have been) apparent to the Defendant that she was going to be unable to operate the deportation machinery within a reasonable period for lack of a ETD, so continuing to detain the Claimant in such circumstances was in breach of Hardial Singh principle 3.[90]Mr Gullick cited Lord Justice Richards in R (on the application of Muqtaar,) v Secretary of State for the Home Department [2013] 1 WLR 649 at paragraph 38, “there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all.”[91]Mr Gullick further submitted that it would be erroneous to regard the inability even now (in 2014) to operate the machinery of removal against the Claimant as reflecting the prospects of removal at an earlier point in time.He submitted that statistics recently provided by the Defendant showed that, over recent years, hundreds of individuals have been forcibly returned to China each year.[92]Only two weeks before detention began, Mr Gullick pointed out, the Claimant had agreed to obtain his national ID card from his wife in China. Moreover, Mr Gullick submitted, the Defendant’s efforts to obtain travel documentation for the Claimant had continued throughout his detention, and right up to the date of his release in August 2012: ETD interviews had been arranged; CSIT had become involved; enquiries had been made in China; the Chinese authorities had been involved; and the Chinese Embassy had been contacted as late as August 2012. Mr Gullick argued that no “stalemate” had been reached at any point during the Claimant’s detention: on the contrary, a realistic prospect of removing him with a reasonable period pertained throughout his detention.[93]In my judgement, given the Defendant’s numerous, various and continuing efforts, right up to the date of the Claimant’s release from detention in August 2012, to obtain an ETD for the Claimant, it cannot be said that the Defendant knew, or ought to have known, that such efforts would be unsuccessful.[94]By participating in the way that he did, the Claimant gave the impression of cooperating in the attempts to obtain such documentation for him. To the extent that the Claimant’s inconsistent or inaccurate information contributed to the Defendant’s difficulties in being able to operate the necessary machinery to effect his removal, it ill-behoves the Claimant to argue that it should have become apparent to the Defendant that the necessary deportation machinery would have been incapable of operation within a reasonable period.[95]In this context, the words of Mr John Howell QC (sitting as a Deputy High Court Judge) in R (Sino) v SSHD [2011] EWHC 2249 (Admin.) at paragraph 56 are apposite:
“Thus in my judgement it is likely, all other things being equal, that a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may well be longer than it will be in the case of an individual who co-operates. Similarly it is likely, all other things being equal, that a reasonable period may be still longer in the case of an individual who seeks to frustrate efforts to obtain one by supplying false or misleading information (leading to false hopes of obtaining, and unsuccessful attempts to obtain, a travel document)… [but] The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him.”
[96]By extension of Mr John Howell QC’s view above, it seems to me that even if an individual’s behaviour falls short of obvious non-cooperation, or deliberate frustration, or sabotage of efforts to deport him – but repeated interviews and other attempts to elicit consistent and verifiable information have so far failed - then all other things being equal, a reasonable period for his detention may be longer than it might otherwise have been.[97]On the basis of the evidence in this case – including the Claimant’s ostensible cooperation with numerous interviews and supply of information, and the Defendant’s persistent and various efforts to overcome the only obstacle to his removal, namely travel documentation - I do not accept that it became apparent to the Defendant that she would not be able to effect the Claimant’s deportation within a reasonable period.

Hardial Singh principle 2 – reasonable period of detention

[98]MrÓ Ceallaigh argued that the Claimant’s 22½ months’ detention (from 1 October 2010 following his release from custody until 21 August 2012 by order of this court) was “very long”, certainly beyond that reasonably necessary for the Claimant’s deportation.[99]While not suggesting any kind of tariff, Mr Gullick submitted that, for a serious criminal offender who was not fully cooperating with efforts to deport him, the period for which this Claimant was detained was not at the outer limit held to be reasonable by the court on previous occasions.[100]I agree that direct comparison with other cases is inappropriate because each case turns on its particular facts and circumstances.[101]Taking account of the factors listed by Lord Dyson in Lumba, MrÓ Ceallaigh submitted that the risk of absconding and the risk of committing criminal offences had been mischaracterised for this Claimant. MrÓ Ceallaigh submitted that the Claimant had substantially cooperated with attempts to remove him and that, to the extent that there had been any failure to cooperate, it was by others (such as family members in China). In any event, MrÓ Ceallaigh argued, lack of cooperation is not tantamount to risk of absconding. Further, MrÓ Ceallaigh submitted, there was no basis on which to suggest that the Claimant would present a harm to the public by reason of the danger that, if released, he would commit criminal offences.[102]In response, Mr Gullick submitted that the risks of the Claimant absconding and of committing criminal offences were very high: the First Tier Tribunal which rejected his asylum claim found he was an economic migrant; he is a criminal deportee whose appeal rights have been exhausted, and who has no family or other known ties within the UK; on the Claimant’s own account, he entered the UK (and several other European countries) clandestinely, and had used a false passport; he came to immigration authorities’ attention only as a result of his arrest for drugs offences.[103]In my view, it was appropriate to give considerable weight to the risks of the Claimant committing criminal offences and absconding. He had already been convicted of a serious indictable offence, served a custodial term, withdrawn initial indications that he would leave the UK voluntarily, and possessed no obvious family or social links in the UK which would inhibit him from absconding.[104]MrÓ Ceallaigh further submitted that the conditions in which the Claimant was detained during his hunger strike (in July/August 2012) – an act borne, MrÓ Ceallaigh submitted, of desperation rather than “blackmail” as had been suggested – also had a bearing on the reasonableness of the period for detaining him.[105]Mr Gullick submitted that, as the Court of Appeal made clear in R (on the application of IM (Nigeria)) v Secretary of State for the Home Department [2014] 1 WLR 1870, detention does not become unlawful on Hardial Singh principles by reason of the detainee’s hunger strike, nor are Articles 2 and 3 ECHR engaged.[106]In my judgement, it clearly cannot count against the Claimant that his declining physical health as a result of his hunger strike was self-imposed. However, the Court of Appeal decision in IM (Nigeria) is authority for the proposition that – notwithstanding the factors identified in Lumba - detention does not become unlawful on Hardial Singh principles by reason of the detainee’s hunger strike. It is notable that, compared with the hunger-striking detainee in the IM case, this Claimant’s hunger strike was for a shorter duration, and the Claimant’s decline in health was less marked than IM’s (for whom an “end of life” plan had been prepared).[107]Finally under this head, MrÓ Ceallaigh cited the recommendation by one of the Defendant’s own officials on 13 August 2012 that the Claimant should be released because “There appears to be no prospect of removal within a reasonable timescale.”[108]In response, Mr Gullick submitted that the fact an official had recommended release of the Claimant on 13 August 2012 was not determinative: the decision to release – and determination whether a reasonable period had been exceeded (or would be before there was a realistic prospect of removing a detainee) – was for the Defendant and ultimately the court.[109]I accept Mr Gullick’s submission that the recommendation for release of the Claimant, made by one of the Defendant’s officials on 13 August 2012, was not determinative of the matter. It was for the Defendant to decide - taking account of that recommendation, and other factors such as the imminent outcome Claimant’s court-ordered admission hospital that very same day, and renewed efforts to obtain travel documentation - whether or not a reasonable period of detention had been or would be exceeded. No such recommendation could therefore, of itself, render continued detention unlawful.[110]In all the circumstances and applying the Lumba factors to the facts of this case, I find that the period of the Claimant’s detention was reasonable in accordance with Hardial Singh principle 2 even beyond 13 August 2012, right up to the point of his release from detention on 21 August 2012.

BREACH OF POLICY RELATING TO POWERS TO DETAIN

[111]MrÓ Ceallaigh further submitted that the Claimant’s detention breached the Defendant’s own policies “Enforcement Instructions and Guidance, Chapter 55: Detention and Temporary Release” (EIG) and “Detention Service Order 07/04: Food and fluid refusal in Immigration Removal Centres” (DSO).[112]MrÓ Ceallaigh invited the court to find the Claimant’s detention unlawful with effect from the following possible dates:• 1 July 2012 – when the Claimant started his hunger strike• 2 August 2012 – when Dr Mehta (at Colnbrook IRC) first declared the Claimant unfit for detention

Breach of EIG

[113]MrÓ Ceallaigh submitted that whilst the Claimant had, through an advance directive, refused medical treatment, he was also occasionally accepting it and generally allowing himself to be monitored. The Claimant was also accepting fluids, without which he knew he would have died. As MrÓ Ceallaigh reminded the court, on 2 August 2012 and again on 10 August 2012, Dr Mehta at Colnbrook had assessed and recorded the Claimant as unfit to be detained (and, on 2 August 2012, at very high risk of mortality).[114]In response, Mr Gullick pointed out that the present case is on all fours with the Court of Appeal decision in IM (Nigeria). In that case, IM had argued that because he had been certified as unfit for detention by IRC doctors, his serious medical condition could not be managed satisfactorily in detention so his continued detention was unlawful as breaching the Defendant’s published policy on detention. In that case too, the detainee was sometimes refusing observations by medical staff. In IM (Nigeria), however, both this court and the Court of Appeal held the detention to be lawful both under the Defendant’s published policies, and Hardial Singh principles. Moreover, Mr Gullick submitted, the fact that in this case the Claimant was repeatedly discharged from hospital to the IRC demonstrated that he was fit for detention.[115]In my judgement it is significant that, when Dr Mehta first recorded (on 2 August 2012), that the Claimant was not fit for detention and at high risk of mortality, he also recorded no adverse clinical findings (apart from thinning of skin), and noted that the Claimant was “alert, conscious and coherent” as well as “surprisingly” that the Claimant’s blood sugar levels were going up. It is also significant, in my view that Dr Mehta did not at any time after 10 August 2012, following the Claimant’s three court-ordered attendances at hospital and subsequent discharges to Colnbrook IRC, opine that the Claimant was unfit for detention.[116]In my judgement, given the Claimant’s advance directive refusing treatment, his repeated assertions to Colnbrook healthcare staff that he felt well and had no symptoms, and that he was consistently assessed by the medical team caring for him as alert, and possessing capacity - despite concerns expressed by Dr Mehta on two occasions that the Claimant was not fit for detention - I find no basis for concluding that, because of the Claimant’s medical condition, he was unsuitable for detention in accordance with the policies of EIG.[117]MrÓ Ceallaigh further submitted that when the Claimant was for the third time discharged from hospital on 16 August 2012, on the basis that he was suffering no acute clinical problems, Dr Sweatman nevertheless recommended hourly monitoring in detention. However, submitted MrÓ Ceallaigh, there was no proper facility for monitoring him in Colnbrook and care plans for him were not adhered to. Thus, MrÓ Ceallaigh argued, there was inadequate care for the Claimant in detention, amounting to breach of the Defendant’s policy in EIG, thus rendering the Claimant’s detention unlawful.[118]Mr Gullick responded that the Claimant’s medical notes showed the frequency with which he was monitored and assessed at Colnbrook IRC, as well as the Claimant’s occasional refusals to be monitored. While it was true that the Claimant was monitored at the IRC less than hourly as recommended by the hospital when discharging him on 16 August 2012, that was because the healthcare staff at the IRC found no clinical indication to do so.[119]It seems to me clear from the Claimant’s detailed medical records that his medical condition was assessed at an early stage of his hunger strike, and thereafter he was frequently subjected to nursing assessment, medical assessment of his mental capacity, and regularly monitored physically for blood pressure, blood sugar levels, weight and body mass index. Save when the Claimant refused them, nursing and/or medical observations took place on at least a daily basis in the healthcare facility at Colnbrook from 18 July 2012 onwards (17 days into the Claimant’s hunger strike). The Claimant was also repeatedly encouraged to eat and drink, as well as repeatedly and clearly advised of the risks of continuing to refuse food. Nevertheless, he continued to decline vitamins, and hospital assessment or treatment (except when admitted to hospital pursuant to court orders).[120]In my judgement it is significant that, within hours of each court-ordered transfer to hospital, the Claimant was returned to detention by the hospital without treatment (apart from re-hydration on one occasion) or follow-up appointments, thus indicating that that there was no medical need for the Claimant to be monitored, observed or treated in hospital and that his care in detention was adequate.[121]I therefore do not accept that the Claimant’s medical condition was not being satisfactorily managed within detention. Accordingly, I do not find that the Claimant fell within the category of those not normally suitable for detention under the Defendant’s policy in the EIG.

Breach of DSO

[122]According to MrÓ Ceallaigh, there was uncontradicted evidence from the Defendant’s own doctors at Colnbrook IRC that the Claimant’s condition could not be adequately monitored, and that he was not fit for detention. Thus, MrÓ Ceallaigh submitted, the Claimant was being detained in breach of the Defendant’s own DSO and was therefore unlawful.[123]In response, Mr Gullick submitted that the Court of Appeal decision in IM (Nigeria) means it is not unlawful to detainee a deportee who is hunger striking – at least not at the stage this Claimant had reached. Mr Gullick pointed out that the detainee in IM (Nigeria) had refused food for a far longer period than this Claimant, and an end of life plan had even been prepared for him. The Court of Appeal had held that even those circumstances did not render detention unlawful.[124]MrÓ Ceallaigh submitted that the DSO applying at the time of this Claimant’s detention (07/04) did not provide for transfer to a prison hospital if the healthcare facilities in the IRC were inadequate. MrÓ Ceallaigh submitted that, in contrast to the DSO applicable at the time of the Claimant’s detention, this “gap” has since been plugged by the current DSO 03/13.[125]Mr Gullick submitted that the amendment to the DSO made since the Claimant’s detention (and which applied by the time of the IM (Nigeria) case) enabled a hunger striking detainee to be lawfully detained in a prison hospital if healthcare facilities in the IRC were inadequate. However, that refinement of the DSO would have made no difference in the present case, Mr Gullick submitted, because the healthcare facilities at Colnbrook were not inadequate. In this case, after each court-ordered hospital admission, the Claimant had been discharged back to Colnbrook IRC.[126]In the context of the Defendant’s DSO policy, I think it notable that:• para. 1.8 of the DSO states that “detainees who are refusing food do not necessarily require to be seen on a daily basis by health care staff”. However, from the date of his admission to the Colnbrook Healthcare centre, the Claimant was observed daily by healthcare staff except when the Claimant refused• the Claimant repeatedly declined offers by Colnbrook doctors to attend hospital, and only attended pursuant to three court orders (dated 10 August, 11 August and 14 August 2012)• after all three hospital attendances, the Claimant was discharged to Colnbrook having received no treatment or medication (apart from 3 litres of intravenous saline solution during the second hospital visit)• on 16 August 2012, following a telephone discussion between the A&E consultant at Hillingdon Hospital, the Claimant was returned to Colnbrook with a care plan specifying hourly blood glucose measurements. However, at Colnbrook the doctors assessed this was not currently clinically indicated as the Claimant’s blood sugar levels were within normal range.[127]It is also worth noting that para. 3.3 of the DSO explicitly refers to the healthcare centre at Colnbrook, presumably due to the availability there of 24-hour nursing. The Claimant was, of course, already detained at Colnbrook and admitted to its healthcare facility as a result of his hunger strike.[128]I am therefore of the view that, far from the Claimant being detained in breach of the DSO, the terms of the DSO were followed and fulfilled by the healthcare professionals caring for the Claimant in detention, by the IS managers at Colnbrook IRC, and by the Defendant.

Irrationality

[129]MrÓ Ceallaigh briefly submitted that the Defendant acted irrationally in detaining the Claimant beyond 13 August 2012, when one of her officials recommended the Claimant’s release. Alternatively MrÓ Ceallaigh suggested, the Defendant acted irrationally in detaining an individual without providing adequate medical care. These submissions were not further developed during oral argument or subsequently.[130]For the reasons I have given above, I do not accept that it was or should have been apparent to the Defendant by 13 August 2012, when efforts were still actively ongoing to obtain an ETD for the Claimant, that it would not be possible for the Defendant to effect removal of the Claimant within a reasonable period. As I have also explained above, I do not accept that the Defendant provided inadequate medical care for the Claimant. I therefore reject Mr Ó Ceallaigh’s submission that on either of these bases the Defendant’s continued detention of the Claimant was irrational.

Conclusion

[131]Despite the able submissions by MrÓ Ceallaigh on behalf of the Claimant, I do not find that the Claimant’s detention by the Defendant was, at any time prior to his release on 21 August 2012, either in breach of Hardial Singh principles, or a breach of the Defendant’s policies, or irrational. Accordingly, I find no basis for concluding that the Claimant’s detention was at any time up to and including 21 August 2012 unlawful.[132]I therefore decline to make any declaration of unlawfulness of the Claimant’s detention. His claim for damages therefore fails.