Da Silva v The Secretary of State for the Home Department [2015] EWHC 1157 (Admin)

[2015] EWHC 1157 (Admin)Case No CO/1779/2014IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30/04/2015
Before
MR C M G OCKELTON, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)
Between
Joao da SilvaClaimantThe Secretary of State for the Home DepartmentDefendant
Mr Adam Sandell (instructed by Lambeth Law Centre) for ClaimantMiss Lucinda Harris and Miss Lisa Busch (instructed by the Treasury Solicitors) for DefendantHearing Hearing dates: 10 June 2014 and 9 October 2014
Approved JudgmentI direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................MR C M G OCKELTON, VICE PRESIDENT OF THE UPPER TRIBUNAL (SITTING AS A DEPUTY HIGH COURT JUDGE)

Mr C. M. G. Ockelton :

[1]By this application for judicial review, the claimant challenges the lawfulness of his detention by the defendant under immigration powers. The detention began on 1 April 2014 and ended on 1 July 2014.

History

[2]The claimant was born in 1974. He is a national of Angola. He was caught up in the civil war there, was conscripted by UNITA, forced to fight, and held in detention after the 2002 peace agreement. In 2003 he came to the United Kingdom, entering on a false Portuguese passport. He claimed asylum the day after his arrival. His claim included the assertion that whilst in detention he had been tortured. His clam was refused.[3]He appealed to the Immigration Appellate Authority. His appeal was heard by an adjudicator, Mr J Azam, on 8 September 2003. The Secretary of State was not represented before the adjudicator. The claimant, as appellant, gave evidence. There was a supportive report from Dr Steadman. The adjudicator accepted the claimant’s account of his history, referring in his determination specifically to the credibility of the claimant’s account of his engagement with UNITA. He dismissed the appeal, however, finding that even with his history, the claimant had no well-founded fear of persecution in Angola at the date of the hearing; nor was there any other reason why he should not be removed there.[4]So far as I am aware, the claimant did not challenge that decision. It is clear, nonetheless, that he did not act on it. He remained in the United Kingdom. He has been here ever since. He has never had any leave.[5]In the ensuing years the claimant was convicted of a number of relatively minor criminal offences. In 2009, however, he committed serious offences. He followed a woman home, broke into her flat, climbed into her bed and assaulted her; when she woke and screamed he escaped from the flat taking her laptop with him. He pleaded guilty to charges of sexual assault, burglary and theft. On 28 September 2010 he was sentenced to a total of three years imprisonment. That sentence made him liable to automatic deportation under the provisions of s.32(5) of the UK Borders Act 2007. He was given the usual opportunity to say why such an order should not be made. A deportation order was signed on 5 September 2011.[6]On that date the position was that the portion of the claimant’s sentence to be served in custody had just expired (on 3 September). His detention continued under immigration powers.[7]He appealed against the deportation order. On application, the First-tier Tribunal granted him bail on 21 September 2011. On 22 November 2011 Professor Cornelius Katona completed his report on the claimant’s mental condition. His appeal was heard by a panel of the First-tier Tribunal; the determination was sent out on 8 May 2012. The claimant was represented by Mr Sandell, who represented him before me. The First-tier Tribunal considered numerous arguments and copious evidence. It allowed the appeal on human rights grounds only, apparently largely on the basis that as the claimant’s mental illness (to which I shall refer shortly) might have contributed to his wrong-doing, and as he appeared to pose no current risk to the public, it would be disproportionate to deport him. I do not need to set out the First-tier Tribunal’s findings in detail in view of the fact that their decision was reversed by the Upper Tribunal, but for present purposes I should note that the Tribunal noted of the adjudicator’s determination that he “did not make finding of facts as to whether the appellant had been tortured” and, although they based their conclusions about the claimant’s history on the adjudicator’s findings of fact, they rejected the claimant’s subsequent additional assertions designed to support a fresh asylum claim. Secondly, so far as the claimant’s then recent history was concerned, the Tribunal took the position that, since the completion of the claimant’s criminal sentence, “there was no evidence of any breach of his bail conditions or his parole”. In view of the Tribunal’s overall conclusion, it is I think fair to assume that that factor must have played some part in the balancing exercise they undertook. The Secretary of State appealed against the First-tier Tribunal’s decision. Permission was granted by a judge of the First-tier Tribunal on 22 May 2012, and following a hearing on 13 September 2012, Upper Tribunal Judge Allen set aside the First-tier Tribunal’s determination, adjourning the appeal to a further hearing for a new determination by the Upper Tribunal.[8]Before that could take place the claimant was found to be in breach of his licence conditions, and was returned to prison to serve the rest of his sentence. The sentence expired on 4 March 2013 and the claimant was again retained in detention under immigration powers. It took a considerable number of months before the Upper Tribunal could conclude determination of the appellant’s appeal. There was a hearing, again before Upper Tribunal Judge Allen, on 5 September 2013 where the claimant was again represented by Mr Sandell. The claimant applied for bail at the same time, and it was not possible to deal wholly with that application. The consideration of his bail application was concluded on 20 September 2013 and the claimant was granted bail by Judge Allen sitting as a First-tier Tribunal Judge; the claimant was released on bail, on conditions including electronic tagging, on 23 September.[9]The Upper Tribunal’s determination of the claimant’s appeal was issued on 19 December 2013. The appeal was dismissed on all the grounds argued. Again I do not need to go through the determination in detail: there have been subsequent proceedings in the Court of Appeal, to which I shall refer in due course. For present purposes, however, I need to draw attention to the fact that in considering the claimant’s character, Judge Allen worked with care through the various accusations made against him that had not resulted in convictions. He concluded that he was satisfied on balance of probabilities that three charges in relation to assault on ex-girlfriends were indeed made out. In relation to two accusations of rape, however, his conclusion was that the evidence before him did not disclose that the offence had been committed. In relation to matters going to Article 8, the claimant relied before the Upper Tribunal, as he had relied before the First-tier Tribunal, on a relationship with a new girlfriend. Judge Allen said that the claimed family life with her and her children was “relatively tenuous”: he decided that the relationship between them could not properly be described as being family life: his relationship with her and her children was merely part of his private life.[10]The claimant sought permission to appeal to the Court of Appeal against that determination. Permission to appeal was refused by Judge Allen. The application was renewed to the Court on 25 March 2014. According to Mr Sandell’s skeleton argument, that application “was served on, and acknowledged by, the Treasury Solicitor on 28 March 2014, five days before the Home Secretary detained Mr De Silva”. That assertion does play a part in the present claim, and so I need to examine it. It is very difficult to see that it is right. What is before me is a letter dated 4 April 2014, acknowledging a letter of 28 March enclosing the application for permission to appeal to the Court of Appeal. I do not see any evidence that the Treasury Solicitor had the application on 28 March, which was a Friday. If the claimant’s solicitors waited until Friday to send the application to the Secretary of State, as appears to be the case, it cannot be assumed that it would be delivered, and receive any attention, before Monday 31 March at the earliest. Certainly the assertion that it was acknowledged on 28 March appears to be wrong. (Indeed, one of the witness statements to which I refer in paragraph 66 below says that service on the Secretary of State was on 3 April.)[11]By the end of March 2014 there had been a number of other relevant incidents. It appears that on more than one occasion the claimant broke the terms of his curfew (imposed as a condition of his bail) and stayed the night with his girlfriend. At the end of the month he damaged or destroyed part of the electronic tagging device. He was also at some stage warned in relation to the possession and use of cannabis.[12]On the night of 31 March, a man was seen on a local CCTV camera apparently harassing women in the street. The man resembled the claimant. The claimant was indeed out on the street late that night: he was twice intercepted by police, found to be drunk and smelling of cannabis, and was told to go home; no further action was taken at that stage. The following day a police officer with knowledge of the claimant’s case contacted the Home Office. Mr Burgess, a Home Office official with responsibility for the claimant’s case, directed the claimant’s detention on his next reporting, which was the following day, 2 April. The claimant was accordingly detained. I deal below with the reasons given for the detention. The initial detention was at Lunar House, where he reported. He was transferred to Brook House Immigration Removal Centre. The claimant’s legal representatives made their first challenge to the detention, by letter to the Secretary of State, on 3 April. On the same day, the claimant was examined by Dr. Mohammed El Hassan El Gaddal, a consultant psychiatrist. His opinion I examine below, together with other evidence relating to the claimant’s mental condition. Following a number of letters from the claimant’s solicitors to the Secretary of State, the present proceedings, challenging the claimant’s detention, were issued on 17 April. There was a hearing before Ouseley J on 24 April. The learned judge made no findings on the assertion relating to his medication, but expressed concern “that the claimant may not be receiving his regular medication” and considered it “very desirable” for the claimant’s medication to be reviewed. There was an order requiring the claimant’s transfer to a suitable hospital, or his release, by 30 April 2014. On 30 April 2014 the claimant was transferred to Langley Green Hospital, a psychiatric hospital. At that hospital he remained in immigration detention.[13]At the end of the “rolled up” hearing on 10 April, I granted permission, and, bearing in mind that, as expressed in Mr Sandell’s skeleton argument, the claimant’s “immediate practical concern” was that if he did not require hospitalisation he should not be returned to an immigration removal centre, made an order intended to enable those representing the claimant to be notified if any such thing was to happen, so that they could make representations to the Secretary of State. Judgment was reserved. On 24 or 25 June 2014, the claimant’s solicitor became aware that there was a proposal to discharge the claimant from hospital and return him to an immigration removal centre. An application for interim relief was made, and came before Collins J on 1 July, the date envisaged for his return there. I have not seen a full transcript of his comments, but it does not appear that the defendant disputes the note made by Mr Sandell, which indicates that the learned judge made strongly adverse comments about the Secretary of State’s conduct, particularly in relation to the order I had made. The application for interim relief was granted; Collins J ordered the claimant’s immediate release from immigration detention to the supervised accommodation where he had been prior to his detention, and awarded costs of the application against the Secretary of State on an indemnity basis.[14]It took a considerable time before I was aware of Collins J’s remarks in detail. Following the long vacation, I sought comments from the parties on what they thought the position now was, and at a brief hearing on 9 October 2014 was informed that a further issue had arisen. That was that the Secretary of State had conceded the appeal to the Court of Appeal. In Mr Sandell’s submission that threw doubt on the candour of the Secretary of State’s position at the hearing before me, or possibly even on the accuracy of what I had been told. It was unfortunately not possible to resolve the matter fully then, partly because the Secretary of State was represented by Ms Busch, who, having conduct of the case before the Court of Appeal, knew all about it, but was not in a position to indicate what Miss Harris knew or ought to have known on 10 June. I directed further submissions in writing, with a timetable. It appears that submissions were duly made in accordance with that timetable, but they do not appear to have been brought to my attention until 9 March 2015.

The claimant’s mental illness

[15]According to Mr Sandell’s skeleton argument, “[the claimant’s] immigration case is all about his mental health problems and risk of suicide”. It is convenient to collect the relevant parts of the history of the claimant’s mental illness together, and I set them out here. This has to be more than a simple narrative, because of the way in which it was presented in the course of the present case. There are a number of points at which I do not accept the description or comment applied by Mr Sandell, and other points at which it appears to me that the presentation adopted by him runs counter to the picture given by the evidence taken as a whole.[16]Having said that, it is perfectly clear that the claimant has been subject to the attention of psychiatrists and assistants from mental health authorities for a very long time. I have already referred to the report of Dr Steadman made available at his asylum appeal in 2003. I do not think I have seen that report, but experience suggests that it will have said that he was suffering from Post Traumatic Stress Disorder. By 2005 the claimant was seriously ill. He was admitted compulsorily to psychiatric hospital under the Mental Health Act. When not detained in prison, in immigration detention or in hospital, he has been maintained in the community with psychiatric medication, substantial support from a psychiatrist-led mental health team, and specialist accommodation with 24-hour residential support staff. He suffers from flashbacks and depression.[17]The most recent full report is that from Professor Cornelius Katona dated 22 November 2011. When Professor Katona examined the claimant a couple of weeks before that report, he concluded that he had “very moderate depressive symptoms” (italics in original) and that his symptoms had improved considerably since his release from prison. The claimant also suffered from complex Post Traumatic Stress Disorder, significantly compromising his social functional ability. At that time Professor Katona’s opinion was that the claimant needed individually tailored relational psychotherapy which might need to continue for a number of years; together with a continuation of his medication. The claimant was not actively suicidal, but in Professor Katona’s opinion there was a real and significant risk that he would attempt suicide with potentially fatal consequences if he lost all hope of being allowed to remain in the United Kingdom.[18]When the claimant’s appeal was before the Upper Tribunal, there was an addendum to that report, dated 18 February 2012. That addendum is not the subject of specific reference in these proceedings, but is summarised by Judge Allen in his determination. The claimant’s mood and behaviour would fluctuate; he would be more agitated and distressed and would have less ability to engage with an interview process when his stress levels were highest. His mental health problems might lead to inconsistencies in his evidence. The diagnosis of a complex Post-traumatic Stress Disorder was reaffirmed. Judge Allen remarked that it was rather surprising that by the time the matter came before him on 5 September 2013 there was no more recent report, and there was therefore no indication of whether and to what extent the claimant had been able to respond to the treatment lasting two to three years proposed by Professor Katona some two years earlier. By the time the matter came before me, there was still no recent full medical report.[19]I do not need to refer in detail to the reports pre-dating that of Professor Katona. He noted, however, that there had been a clear improvement in the claimant’s mental health since the previous report by Dr Chao on 18 August 2010, supplemented by a letter of 1 March 2011. Professor Katona’s opinion was that the improvement “suggests that [the claimant’s] depressive symptoms have improved considerably since his release from prison”. It is not clear from the report how Professor Katona reached the view that the improvement had taken place wholly in the six weeks between the claimant’s release from prison on 21 September 2011 and his interview with Professor Katona on 7 November 2011, rather than in the whole of the period since the earlier report.[20]Both Professor Katona and Mr Sandell make reference at a number of points to the claimant having made numerous suicide attempts. Professor Katona notes and regrets that the evidence of the suicide attempts was “rejected in [the claimant’s] recent deportation decision”. It is in my judgement important to note that the evidence was not merely rejected in the deportation decision. It was rejected by the First-tier Tribunal. At paras 84 and 85 the Tribunal clearly rejected the evidence of the appellant’s claimed suicide attempts and observed that medical opinions indicating a risk of suicide might have been influenced by acceptance of the appellant’s story rejected by the Tribunal.[21]There is no doubt that the claimant made a suicide attempt in detention on 6 November 2012. He had been recalled to prison for breach of the terms of his licence, a matter which he now attempts through Mr Sandell to minimise as a “victimless breach of a bail condition”. The position is that he breached a term of his licence, and he was returned to custody on 29 October 2012. On 6 November he was found unconscious on the floor of his cell with a jumper around his shoulders. He was breathing and became responsive after about five to ten minutes. He complained at being woken up. That evening he was interviewed by a doctor. He apparently refused to go to hospital; for about the next two or three weeks however, he received in-patient care and was under constant observation. I do not seek for a moment to minimise that incident, but it has to be seen in context. On admission to prison he had a medical examination which recorded that he had “no current thoughts of self-harm or suicide”, which is in line with what Professor Katona had said a year previously. In the period after 6 November there were a number of incidents of pathological behaviour, but, reading the medical reports from November as a whole, they appear to have considerably diminished. In addition, there were a considerable number of nights when the claimant slept all through: at the time of Professor Katona’s report he was able to sleep only three or four hours a night. The claimant was released from inpatient care at the end of November. He remained in custody until released on bail by the Upper Tribunal on 23 September 2013. It does not appear that there was any other suicide attempt, and I do not find it at all easy to see that there was any basis for saying that his needs were not being properly managed and catered for in detention at that time.[22]On the claimant’s behalf, Mr Sandell does not mention the lack of difficulties for the whole of the period of the claimant’s detention save for the single serious incident. The truth of the matter is that the appellant had been returned to custody for breach of his licence conditions; those are exactly the circumstances in which anybody might feel that they have behaved very foolishly and regret the consequences. The assertion that his suicide attempt was a result of his being returned to custody has to be speculative, but I am prepared to adopt that speculation. That it arose also from his mental illness is also speculative, but I am also prepared to accept that speculation. Mr Sandell asserts that the claimant was “lucky” to be resuscitated and to survive. There is no evidence that his discovery and treatment was anything other than routine and I reject Mr Sandell’s characterisation of it. I also reject the suggestion that the single incident on 6 November 2012, which appears to have been properly managed by those having custody of the claimant, gives any reason to suppose that his mental illness, as it was then, could not be satisfactorily managed in detention. The evidence to which I have referred seems to point in the opposite direction; and, in general, the claimant’s record in detention does not appear to support his case on this point.[23]On his release on bail, the claimant returned to the supportive environment which I have already mentioned.[24]On his detention on 2 April 2014, he was subject to assessment by Dr El Gaddal, and Dr Geraint Thomas. Both completed reports under s.48 of the Mental Health Act 1983 indicating that the claimant required detention in hospital. Dr El Gaddal’s note is in the following terms:
“I saw this patient this morning in his room. He is responding to unseen stimuli and has admitted hearing voices telling him to join his mother who is “with Jesus”
. His mother died years ago. He hinted to his acceptance to joining his mother in heavens. He was whispering to himself and suddenly became distressed and tearful. Patient is refusing to eat without giving a reason. This patient is acutely psychotic and A HIGH RISK OF SUICIDE. He needs to be in hospital TODAY.” Dr Thomas’ report does not dissent.[25]The doctors making those assessments clearly took the view that the claimant required compulsory admission to and detention in hospital. As I have already indicated, he was not in fact moved to hospital until 30 April. On 8 April his representatives had a meeting with him at which he appeared seriously unwell, and he lost consciousness shortly afterwards. He was admitted to hospital for two days and discharged back to the immigration removal centre. On 10 April he was assessed by Dr Ali from a forensic psychiatry team who recommended his transfer to a psychiatric intensive care unit. The claimant was apparently under 24 hour supervision. He was still exhibiting refusal to eat or drink from time to time, but it is fair to say that there were no other specific events.[26]During this period those having custody of the claimant asserted that they could not transfer the claimant to hospital in pursuance of the s.48 reports without an order from the Ministry of Justice. The claimant’s representatives were asserting that the process under s.48 was not applicable to the claimant.[27]The evidence before me shows that on 17 April a bed became available at a suitable hospital. The claimant was, however, not transferred there, because there was still no warrant from the Ministry of Justice and, bearing in mind the Easter Holiday, there would not be a warrant before 22 April. On 24 April Ouseley J made the order to which I have already referred and on 30 April the claimant was transferred to hospital, without any order from the Ministry of Justice.[28]He remained in hospital until the end of June. Because of the proceedings before Collins J to which I have referred he has not subsequently been detained in an immigration removal centre: at the end of his hospital treatment on 1 July he was granted temporary admission. The Law The power to detain and detention in hospitals

The Law

[29]Paragraph 2(3) of Schedule 3 to the Immigration Act 1971 is the source of the Secretary of State’s power to detain a person subject to a deportation[30]In the present case the claimant’s liability to deportation arose under s.32(5) of the UK Borders Act 2007. Section 36 of that Act reads as follows: “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 (detention pending removal) unless in the circumstances the Secretary of State thinks it inappropriate.(3) A court determining an appeal against conviction or sentence may direct release from detention under subsection (1) or (2).(4) Provisions of the Immigration Act 1971 which apply to detention under paragraph 2(3) of Schedule 3 to that Act shall apply to detention under subsection (1) (including provisions about bail).(5) Paragraph 2(5) of Schedule 3 to that Act (residence, occupation and reporting restrictions) applies to a person who is liable to be detained under subsection (1). (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.[31]Before the deportation order is made, there may be detention under subsection (1). After the deportation order has been made, the authority to detain is that under the 1971 Act, but the Secretary of State’s discretion is circumscribed by the wording of section 36(2). Thus, in subsection (3) there is a reference to detention under subsection (2), because subsection (3) gives the Court, in essence, power to override the presumption of detention imposed by subsection (2). As the remaining subsections make clear, however, the detention itself is that authorised by the 1971 Act: that is why there is no need in section 36 to extend provisions of the 1971 Act to detention following the making of a deportation order.[32]The places in which the Secretary of State may maintain immigration detention are set out in Directions. At the relevant times the Direction was the Immigration (Places of Detention) Direction 2014, before its revision on 28 July 2014. Paragraph 3(1)(e) permits detention at (any hospital): and “hospital” is defined as having the same meaning as in the Mental Health Act 1983.[33]The Secretary of State has power to make a “transfer direction” under section 47 of the 1983 Act if a person serving a sentence of imprisonment needs to be transferred to a hospital for treatment because he is suffering from a mental disorder.

(c) appropriate medical treatment is available for him;

[34]Subsection 2 sets out the persons to whom the section applies, one category of which is, at paragraph (d) “Persons detained under the Immigration Act 1971”. In R (HA) (Nigeria) v SSHD [2012] EWHC 979 (Admin) Singh J held (at [126]-[127]) that section 48 “simply does not apply” to detention under the 2007 Act. Section 36(1) of the 2007 Act “confers an additional, and distinct, power of detention”: it is not merely an aspect of detention under the 1971 Act. He pointed out however, that other powers under the 1983 Act would enable compulsory detention of a detainee; and noted, and apparently accepted, the possibility of directing detention in a hospital independently of section 48: see [167] and [169].

Restrictions on the power to detain

[35]The criteria set out by Woolf J (as he then was) in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1WLR 704 have been restated a number of times, most recently and authoritatively by Lord Dyson in Lumba v SSHD [2011] UKSC 12 at [22], confirming his own statement in R(I) v SSHD [2012] EWCA Civ 888, that the principles were as follows: “(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal”.[36]In order for any particular detention decision to be lawful, there is no requirement that removal be immediate or imminent, or even “reasonably imminent”: so long as the Secretary of State intends to remove the person, and that there is a prospect of doing so within a reasonable period, the principles are not breached: Khadir v SSHD [2005] UKHL 39. In deciding whether to detain, or whether to maintain detention, the Secretary of State is entitled to give particular weight to the protection to the public by the prevention of the commission of further offences, because that is an aspect of the basic reason for the deportation order which the Secretary of State seeks to carry out. As Toulson LJ explained in R(A) v SSHD [2007] EWCA Civ 804 at [55] “a risk of absconding also carries considerable weight, because it threatens to defeat the purpose for which the deportation order was made”: ibid at [54]; Lumba at [121].[37]Within the limits imposed by the Hardial Singh principles, the question whether to exercise the power of detention is in general terms a matter for the discretion of the Secretary of State. The exercise of that discretion is subject to challenge on general public law grounds. The position was analysed by Richards LJ in R(LE) (Jamaica) v SSHD [2012] EWCA Civ 597 at [29]. Where there is in force a deportation order made under s.32(5) of the UK Borders Act 2007 the position is, as I have indicated, slightly different from other cases, for s.36(2) replaces the general discretion under the 1971 Act with a duty to exercise the power of detention “unless in the circumstances the Secretary of State thinks it inappropriate”. The decision-making process under that provision, however, must be equally subject to challenge on public law grounds.[38]It is for the court to determine whether detention met the requirements of the Hardial Singh principles; the burden of establishing the legality of the detention falls on the Secretary of State.

Policy on immigration detention

[39]There is also published policy on the use of immigration detention. The claim that the Secretary of State failed to comply with the policy may form, and in this case does form, part of a challenge to the detention on general public law principles. On such matters the court’s jurisdiction is merely supervisory and it is for the claimant to establish his case.[40]The policy is contained in chapter 55 of the Secretary of State’s Enforcement and Instructions Guidance (“EIG”). That chapter begins by setting out the purposes for which detention is appropriate, including a reference to the presumption against detention and the use of detention where there is reason to believe that the person in question will fail to comply with conditions if released. The next two sections assert that when a decision on detention is being made, the possibility of a convicted criminal absconding or committing further offences needs to be weighed against the presumption against detention. That weight is “particularly substantial” where the offence triggering deportation is amongst those listed further on in the Guidance, in such a case “a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling”.[41]However, major reservations appear in paragraph 55. 10:
“The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: … Those suffering serious mental illness which cannot be satisfactorily managed within detention… Those where there is independent evidence that they have been tortured. …”
.

Those suffering serious mental illness which cannot be satisfactorily managed within detention…

[42]So far as the reference to mental illness is concerned, there are a number of authorities. The decision of the Court of Appeal in R(Das) v SSHD [2014] EWCA Civ 45 is authority for the proposition that the phrase “suffering from a serious mental illness which cannot be satisfactorily managed within detention” is to be read as a whole. The question is not one related to diagnosis but one related to the practicability of management. Where the question arises, the Secretary of State has a duty of investigation: see para [66]. Mr Sandell also cites the decision of Singh J in HA, and that of HHJ Thornton QC in R(S) v SSHD [2014] EWHC 50 at [251] which summarises and applies it, as authority requiring the Secretary of State to work through the concepts of the policy one by one and be satisfied that they are not applicable; but, with the greatest respect, it appears to me that the value of those authorities is greatly diminished by the decision of the Court of Appeal in Das, which post-dates them. The question the Secretary of State has to answer is whether the proposed detainee has a serious mental illness which cannot be satisfactorily managed within detention.[43]Obviously a person may become mentally ill after detention has begun; or it may be after detention has begun that the need for a modification of the regime becomes apparent. In HA Singh J was invited to apply by analogy the obligations in relation to prisoners set out by Stanley Burnton J (as he then was) in R(D) v SSHD [2005] 1MHLR 17. Singh J accepted the claimant’s submissions. Once those responsible for immigration detention have reasonable grounds to believe that a detainee requires treatment in a mental hospital in which he may be detained, therefore, the authorities have a duty expeditiously to take reasonable steps to obtain appropriate medical advice, and if the advice confirms the need for transfer to a hospital, to take reasonable steps within a reasonable time to effect that transfer. “This will be particularly important in the context of a person … whose transfer is recommended by a psychiatrist as a matter of urgency”. At [171] the learned

Judge continued:

“[171] In my judgement, as from the time when Dr Spoto made the recommendation that he did on 21 January 2010, the defendant had a duty to take reasonable steps to secure the claimant’s transfer to a hospital for appropriate assessment and treatment and to do so reasonably expeditiously. Although such arrangements cannot necessarily be made overnight, or even within a few days, on any view, the delay of over five months in this case was manifestly unreasonable. [172] I do not regard it as unreasonable that the defendant initially sought to liaise with the Newcastle PCT with a view to the claimant’s transfer. As the defendant points out, the claimant had given an indication that he had been settled in the Newcastle area. However, even if the delay in agreeing an assessment of the claimant by the Newcastle PCT until 15 March 2010 was reasonable, and although the reason why the assessment did not take place on that date was not, it would seem, due to the fact, that the claimant had been moved from Brook House to Harmondsworth IRC in early March, there was then an undue delay, in my view, before the local PCT for Harmondsworth, Hillingdon, was goaded into action in June 2010 no active steps appeared to have been taken after the initial referral to Hillingdon on 29 March 2010 until 19 June 2010 it is noteworthy that, when active steps were taken in late June and early July 2010, it was possible to secure the claimant’s transfer within a few weeks. Clearly the particular timescale of an individual case cannot be translated into duties in another case without more. But the observations of Singh J, to which I was particularly referred by the claimant, give some indication of what is, and what is not, acceptable in the context of a duty to take reasonable steps within a reasonable time. ”
[44]In contrast, the part of the policy relating to cases where there is independent evidence of torture raises no difficult question of interpretation. The policy speaks clearly for itself. I consider its application to the present case below.

The claimant’s detention

[45]Having set out this extensive background I can now turn to the detention of the claimant. It is convenient to begin with the statutory ground for his detention. The notice of a decision to detain, dated 1 April 2014, indicates that the claimant “is liable for detention under section 36(1)” of the 2007 Act. That, as is apparent from what I have set out above, was incorrect. Section 36(1) applies only to those who have not yet been made the subject of a deportation order under s.32(5) of the 2007 Act. Nevertheless, the detention appears to have been begun on the misapprehension that s.36(1) applied to the claimant. No question appears to have been raised about this until I raised it at the hearing. Miss Harris then pointed out that within a matter of days the error was corrected, and pointed to the first detention review, dated 7 April 2011 (apparently a mistake for 2014) recording detention under paragraph 2(3) of Schedule 3 to the 1971 Immigration Act. The provisions of that Act did, as I have explained, apply to the claimant.[46]I am entirely satisfied that the mistake as to the power did not prejudice the claimant in any way. Indeed, in a sense, it gave him an advantage in that the presumption of detention imposed by s.36(2) was not applied in his case. Nevertheless the position is that for the period from 2 April to 7 April the claimant appears to have been purportedly detained under a statutory provision which did not apply to him. In those circumstances, as Miss Harris appeared to accept at the hearing, the detention for that period necessarily amounted to false imprisonment on Lumba principles; damages will, however, be only nominal if the claimant would have been detained under appropriate statutory provisions in any event.[47]The Secretary of State’s invocation of s.36(1) appears seriously to have misled the claimant’s legal representatives. I have to say that I find it somewhat remarkable that they occupied so much time and energy both in communication with Brook House Immigration Removal Centre and in preparation for the present proceedings, in drawing attention to the decision of Singh J that the s.48 process (including the Ministry of Justice warrant) was inapplicable to the appellant. As the claimant’s representatives, including Mr Sandell, who had represented him in his deportation appeal obviously knew, there was a deportation order in force. They therefore also knew (or ought to have known) that s.36(1) provided no authority for the claimant’s detention. They did not raise any issue about that: on the contrary, they proceeded as though the claimant was a person in respect of whom the Secretary of State was still considering whether to make a deportation order. So far from it being the case that the process under s.48 did not apply to the claimant, the position was that either the claimant’s detention was wholly unlawful because the statutory provision invoked by the Secretary of State did not apply to him, or the detention was under the provisions in Schedule 3 to the 1971 Act, in which case the s.48 procedure did apply.[48]The position is that s.36(2) applied to the claimant. He was to be detained under the powers in Schedule 3 to the 1971 Act “unless in the circumstances the Secretary of State thinks it inappropriate”. The reasons for the claimant’s initial detention.[49]I need to set out the reasons for detention given in the letter of 1 April 2014:
“The Secretary of State, having carefully considered the particulars of your case, is satisfied that your detention is justified and lawful. It has been decided that you should be detained because: To effect removal from the United Kingdom. You are likely to abscond if given temporary admission or release. You have previously failed to comply with conditions of your temporary release or bail. Your release carries a high risk of public harm. There is a risk or further reoffending. The decision to detain you has been reached on the basis of the following factors: There are no barriers to your removal and you can safely be returned to Angola. You have previously failed to comply with conditions placed upon you by the police or the Courts. You have previously failed to comply with conditions of your stay, temporary admission or release. You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place. You have exhausted all your rights of appeal and your removal from the United Kingdom is pending. of respect for United Kingdom law [sic] as evidence by your convictions for serious crimes, namely trespass with intent to commit a relevant sexual offence, sexual assault, burglary and theft. You have been assessed as posing a serious risk of harm to the public because you have committed a sexual offence. You are believed to have committed a number of sexual offences since you have been in the United Kingdom and there is a significant risk that you will reoffend. The Secretary of State is not satisfied that your relationships in the United Kingdom are of sufficient proximity to give rise to family life for the purposes of Article 8. In reaching this decision the Secretary of State has balanced your rights against the wider rights and freedom of others and the general public interest. The Secretary of State has weighed up the extent of your possible private/family life against your criminal convictions. She considers that her actions are proportional to a social need being fulfilled and does not accept that the decision to maintain your detention would breach Article 8. It is considered that your detention is justified for the reasons stated in this letter. Your detention will be reviewed on a regular basis meanwhile your representations will be considered without any unavoidable delay.”
It has been decided that you should be detained because:

The decision to detain you has been reached on the basis of the following factors:

[50]Mr Sandell summarises those reasons and his challenge to them as follows:
“The decision to detain him was made because, inter alia: (a) he was likely to abscond. (b) there were no barriers to his removal. (c) he could safely be returned to Angola. (d) he did not have enough close ties (e.g. family or friends) to make it likely that he would stay in one place. (e) he had exhausted all his rights of appeal. None of those assertions was true, as those responsible for his case well knew, or should have known.”
[51]Mr Sandell further argues that so far as Hardial Singh is concerned, the Secretary of State needed to consider how soon the claimant would be removed, and, on the assumption that the detention would continue until then, whether the period of detention would be reasonable, bearing in mind in particular the risk of the claimant’s absconding, and the risk or harm to the public. Further, in view of the published policy, she needed to consider whether the claimant had a serious mental illness that could not be managed within detention (and, if he did, whether detention was nevertheless justified by very exceptional circumstances), and whether there was independent evidence that he had been tortured (with the same consideration, if there was).[52]It seems to me that the position on the date the claimant was detained is as follows. First, he had been found out at night, in breach of the conditions of his bail. This was very far from the first time that such a breach had occurred: there was a history of breaches of curfew, and the claimant had been returned to prison for a similar breach of licence. In my judgment it is not open to Mr Sandell to suggest that these breaches were of no importance. Even if the claimant was reporting regularly (as also required by his bail) as I accept he was, it was not for the claimant to decide which elements of the conditions upon which he was released he would choose to comply with. In addition, he had, within the previous twenty four hours or so, seriously damaged the device whose purpose was to monitor his curfew electronically. I should say that, despite Mr Sandell’s submissions, I am unpersuaded that there is any medical or other evidence that that act was prompted by either his illness or any news relating to his deportation appeal. It seems to me that nobody looking at the circumstances as a whole could take the view that, at the time in question, the claimant was likely to keep the terms of bail or temporary admission.[53]Secondly, the claimant was a person who had been convicted of serious sexual offences. Those convictions, which are the reason for deportation decision, have to carry considerable weight. He was then under suspicion (I put it no higher than that) of making approaches to women whilst he was out on the streets in breach of his curfew. His earlier offence appears to have begun not with acts of violence but with his following a woman home, and his account of the offences was that he had struck up a friendship with her. In these circumstances I cannot see that any responsible person can be criticised for taking the view that there was a risk of conduct similar to the offences of which he had been convicted. The fact that on this occasion nobody suggests that the claimant’s conduct had amounted to an offence against any female is beside the point. But it seems clear that, as well as his breach of his bail conditions, the claimant had committed an offence that very night: he was under the influence of cannabis.[54]The assertion that the appellant’s appeal rights were exhausted was undoubtedly incorrect in April 2014. He had applied on 25 March to the Court of Appeal for permission to appeal against the decision of the Upper Tribunal. As is apparent from the correspondence, his representatives had waited until the Friday of that week before notifying the Home Office of their application. There is no evidence that a check of the file on 1 or 2 April would have revealed that notification, because it was not acknowledged until 4 April. It appears that, but for the application, the appellant’s appeal rights would have been exhausted on 31 March. There is no reason to suppose that the assertion as to the exhaustion of appeal rights was other than a mistake of fact. However, the position is that on 1 April the most recent full decision was that of the Upper Tribunal dismissing the claimant’s appeal. The mere fact that an application for permission to appeal against that decision had been lodged did not of itself displace the decision. The most recent judicial decision was an extensive examination of the evidence concluding that the claimant can be returned to Angola. Even if an application for permission to appeal had been lodged, it is difficult to see that there was any particular reason to suppose that the claimant’s removal to Angola would not take place within a reasonable time and, indeed, in pursuance of the Upper Tribunal decision.[55]Indeed, as the detention reviews show, the claimant was regarded as removable within a reasonable time even when it was appreciated that he had an application pending for permission to appeal. I return to this point below; but at the time of his original detention it seems to me, for the reasons I have given, that whether or not he had a pending appeal was not material to the decision to detain.[56]So far as the claimant’s family life is concerned, the Tribunal’s decision specifically was that his partner and her children did not constitute family life for the claimant. They formed merely part of his private life. Further, his record of breaches of bail conditions, and, in particular, the most recent incident in relation to the electronic tagging advice, showed that the claimant’s partner was not able to secure his compliance with bail conditions or to make it likely that he would stay in one place.[57]It appears from Mr Sandell’s note of the remarks of Collins J on 1 July that the latter thought that the incident on the night of 31 March - 1 April was insufficient to justify the claimant’s detention. I do not know what analysis of the whole of the evidence in this case was offered to Collins J. I think it is unlikely that in a short hearing for an emergency order he was able to see as much of the evidence relating to the claimant’s entire course of conduct as I have been able to. On the basis of that evidence it appears to me that it was almost inevitable that, following the destruction of the tagging device and the claimant’s detection in breach of bail, smelling of cannabis and under suspicion of approaching women, on the very night that his appeal rights appeared to have been exhausted, but in any event after an adverse decision by the Upper Tribunal, the claimant’s detention with a view to his deportation would be very seriously considered. The Upper Tribunal decision and the passage of time since it, apparently without any application for permission to appeal, rendered his almost immediate removal likely; and his recent conduct tended to show both a risk to the public and a risk of absconding. For the reasons I have given I do not consider that the mistake as to whether appeal rights were exhausted prevents the Secretary of State from establishing that Hardial Singh principles were indeed complied with. The Secretary of State was entitled to consider that removal would take place within a reasonable time and was entitled also, on the material before her, to consider that detention was necessary and proportionate. So far as the Hardial Singh principles are concerned, therefore, in my judgment the Secretary of State has established her case. Mental Illness[58]The claimant’s case is that the Secretary of State’s policy on the detention of those with serious mental illness required her to enquire into the claimant’s condition, and, if those enquiries had been made, would have led her to conclude that the claimant was not suitable for detention. I reject that argument in full. Although there was evidence of the claimant’s mental illness, it does not appear to be to me that there was, at the time of the decision to detain, any evidence at all that the claimant had a serious mental illness that could not be managed in detention. He had been in detention for two considerable periods of time. There had been one serious incident, which occurred shortly after his return to prison for breach of his licence conditions. There had been no serious incidents whilst he was in immigration detention, as he had been on two previous occasions. None of the clinical reports suggested that he had a mental illness which could not be managed in detention. Following the incident on 6 November 2012 his condition apparently had been properly managed in detention.[59]Although the Court needs to take very seriously the obligation to provide proper medical facilities for those that need them, and therefore to make appropriate enquiries, it does not follow that there is a breach of a public law duty in a case in which the result of the enquiries would not have assisted the claimant. It is true to say that if the result of the enquiries had produced only the observations set out by Mr Sandell, there would have been real cause for concern. But no proper enquiry into the claimant’s history could have given any reason to suppose that the claimant’s mental illness could not be properly managed in detention.

Torture

[60]The claimant had previously been in immigration detention, and had not previously suggested that he had a history as a victim of torture which made him unsuitable for detention. In those circumstances it is not surprising if the person authorising his detention thought that this particular reservation did not apply. In fact, however, the reservation does not apply in any event. There is no independent evidence of torture. Although various psychiatric reports have alluded to the claimant’s experiences in Angola as contributing to his present mental condition, none of them purports to make an independent assessment of whether he has been tortured. He asserted torture as part of his history in his asylum claim, and the adjudicator accepted the credibility of what he said, but made no assessment of whether the ill-treatment he described did in truth amount to torture. Indeed, the First-tier Tribunal’s judgment in his deportation appeal specifically decided that the adjudicator had not made a finding on torture, and that element of the decision has not been challenged. Not only is there no independent evidence of torture; there is no finding that the claimant’s own claim of torture is correct. However intensive an investigation had been made into this issue before the claimant’s detention on 2 April, it could not have led to a conclusion that the claimant’s detention was inhibited by this element of the Secretary of State’s policy.[61]In my judgment the decision to detain is not shown to have been made in breach of the Secretary of State’s public law duties to apply her published policy.[62]It follows that the initial decision to detain was lawful. Subsequent detention: 3 April – 1 July.[63]As I have set out above, it rapidly became clear that the appellant had a serious mental illness which could not be managed at the Brook House Immigration Removal Centre. The psychiatrist and GP who gave their opinion on 3 April did not suggest that the claimant should not be detained. On the contrary, they both indicated that the appropriate way forward was his detention under the Mental Health Act. There was no significant delay in obtaining their opinion. After they had given their reports under s.48 there was the unfortunate period that I have already described, in which those with custody of the claimant thought that they needed an order from the Ministry of Justice and the claimant’s representatives thought that the s.48 process, including the possibility of an order from the Ministry of Justice, was inapplicable. Both were wrong. The claimant’s representatives were wrong for the reasons I have already given. The Secretary of State was wrong because although the s.48 process was applicable, there were other means of enabling the claimant’s move to a secure hospital, in particular by maintaining immigration detention within a hospital, as permitted by the Immigration (Places of Detention) Direction. The Secretary of State was wrong to consider that the claimant could not be moved until there was an order from the Ministry of Justice. Her eventual decision to move the claimant without such an order does not, in fact, prove that she was wrong, because, as I have explained, even at that stage everybody seems to have thought that the detention was under s.36(1), despite the fact that it could not have been, and that the Secretary of State had realised that by 7 April at the latest. But the position is that the Secretary of State had open to her, from the beginning, a process by which on her own authority she could move the claimant to a suitable hospital when a bed was available.[64]A bed became available on 17 April. So far as I can understand it from the evidence, the only reason why the claimant was not considered for occupation of that bed was that the Secretary of State thought that an order from the Ministry of Justice was necessary. As such an order was not necessary, and as a fortnight previously doctors had advised that the claimant needed to be immediately removed to a secure hospital, it seems to me that from that date, 17 April 2014, the detention became unlawful. It became unlawful not because of its status as detention, but because of the Secretary of State’s maintenance of the detention in unsuitable conditions, when suitable conditions were available. Having been told on 3 April that the claimant needed transfer to a secure psychiatric hospital, she needed to take reasonable steps within a reasonable time to secure that. I do not regard the period of two weeks as beyond what would be reasonable. I do regard the extension of the claimant’s detention in the Immigration Removal Centre beyond the date at which he could be removed to hospital as an extension beyond a reasonable time. His continued detention in the immigration removal centre beyond that date, that is to say, for the period 18 - 30 April 2014 was a breach of the duty identified in D, extended to immigration detention by the decision of Singh J in HA, and renders his detention for that period unlawful.[65]From 30 April 2014 until his temporary admission on 1 July 2014 the claimant remained in immigration detention, but in hospital. There is no evidence that his mental illness could not be satisfactorily managed in that way: on the contrary, it was what medical opinion suggested. There were regular detention reviews, on each occasion maintaining detention. It became clear that the Secretary of State proposed to return the claimant to an immigration removal centre as soon as he was released from hospital. It would not be difficult to offer criticism of the reviews. In particular, they contain a feature to which I have already alluded, that the claimant had “committed several rapes”. That does not appear to be born out by either the evidence or the decision of the Upper Tribunal. But the claimant was in hospital because he needed to be. If he had not been in immigration detention he would have been detained under s.3 of the Mental Health Act. So far as the period he spent in hospital is concerned, therefore, it does not appear to me that he has any real ground for complaint. His conditions in hospital as an immigration detainee are not said to have been different from the conditions under which he would have been treated under the Mental Health Act; and, as it happened, on the conclusion of that hospitalisation he was released from detention.[66]I must now return to the question of whether the claimant was properly perceived as a person who would be removed from the United Kingdom within a reasonable time, and, in particular, to history of his appeal to the Court of Appeal. The letter of 4 April 2014, acknowledging service of the application for permission, indicated that the Treasury Solicitor was not to be regarded as instructed until either there was a communication from the claimant or the Court about permission, or the Court insisted or directed the Secretary of State to attend. By the time the matter came before me on 10 June, however, the Treasury Solicitor was involved. Miss Harris’ position was, as she told me, that the Secretary of State regarded the appeal as without merit, and was seeking expedition from the Court of Appeal to secure a decision to that effect, putting an end to the claimant’s appeal. Subsequently, however, after the hearing, the Secretary of State had the advice of solicitors and counsel, on the application for permission, which was amended and supplemented by the claimant on 16 May 2014 and 15 July 2014, and on 19 August decided to concede the appeal to the Court of Appeal. The decision of the Upper Tribunal was set aside, and a fresh hearing was directed. These events were the subject of the fresh hearing on 9 October and subsequent written submissions, including witness statements.[67]The first question that arises is the extent to which it is right to allow further evidence, specifically of events after the hearing, to be adduced. It is all too easy, but wrong, to apply a retrospective eye to issues of the legality of detention. The question for the court is always what was the permissible view at the time, not what view would have been permissible if the decision-maker had been able to see into the future. Where, however, it is said that subsequent events cast a light on earlier circumstances, evidence is clearly relevant, and is admissible in principle, subject to general considerations of justice and provided that it comes to hand before the court’s order is drawn up.[68]The Secretary of State sets out the terms of the letter of 4 April; she records that after the hearing a view was taken that the proceedings before the Court of Appeal should be expedited in order to deal with any barrier to the claimant’s removal. When advice was taken, it was decided that the pragmatic solution would be to allow the matter to be determined by the Upper Tribunal anew. No concession was made as to the substantive merits of that appeal. The Secretary of State submits that her approach was a reasonable one at each stage.[69]Mr Sandell submits that the new material shows first that the Secretary of State had not properly considered the merits of the appeal at the time she purported to have the view that removal would take place within a reasonable time; secondly that in asserting at the hearing that there would be an application to the Court of Appeal for proceedings to be expedited, she misled the court because at that stage there had been no decision to that effect; and that other errors in her submissions show that she has never treated the claimant’s case with the attention it deserves. He submits that “the Home Secretary’s decision-making in this case has (to put it at its most charitable) been a shambles” from beginning to end; that she should have known that the appeal had good prospects of success, and raises the possibility of exemplary damages.[70]It is clear that there are errors of fact in the Secretary of State’s submissions but I do not consider that the “further error” identified by Mr Sandell (mistakenly reciting failure before the First-tier Tribunal rather than success) deserves the castigation Mr Sandell piles upon it. After all, there have been some factual errors in the way the claimant’s case has been presented, too. The assertion at the hearing that the appeal was to be the subject of an expedition request, whereas no decision to that effect was taken until some time later is at first sight troubling, but I do not doubt that the possibility of such a request would form part of the Secretary of State’s general consideration long before any contact was made with the Court of Appeal. The real question is whether the subsequent history of the appeal gives any reason to suppose that, while the claimant was in immigration detention, the Secretary of State knew that removal within a reasonable time was not possible.[71]In my judgment it does not. The eventual advice was that the appeal should be conceded, but even when the relevant Home Office official formally sought to instruct the Treasury Solicitor, it does not look from the evidence as though anybody thought that the appeal had any prospect of success. Even the claimant’s representatives did not, so far as I can see, say that the appeal would succeed: they relied, in letters of 3 April and 9 April, merely on the fact of the application for permission, and, even in the grounds of claim, not on any merit in the appeal, but simply that his application “prevents his removal and is unlikely to be determined for many months”. Faced with a clear statement, in the letter of 4 April, that the Secretary of State would not take immediate steps to instruct solicitors on the application, the claimant did not respond by suggesting that the matter should be resolved quickly because the appeal had merit, but chose instead to rely solely on an assumption that it could not be resolved quickly and were silent as to any merit. Indeed, there are no submissions before me explaining the necessity for, and the impact of the claimant’s amendments to his application for permission, or justifying the implicit submission that even without them the appeal would succeed.[72]In these circumstances my judgment is that the subsequent events do not undermine the position taken initially by the Secretary of State. She was entitled to take the view that the Tribunal’s decision would be endorsed by the Court of Appeal, and that it would be worth obtaining such a decision expeditiously. The material before me does not show either that she did not take that view during the period of detention, nor even that she was invited not to take that view.[73]In point of fact, however, the crucial period, in relation to anything other than a nominal remedy, is that before 17 April. There is nothing before me to suggest that by that date the Secretary of State should have taken the view expressed in the consent order made after the claimant’s two modifications to his application for permission.[74]One final point on this issue is that in his submissions Mr Sandell referred to another obstacle to removal: the need to obtain a travel document. There is, however, no evidence, that that would have caused any noticeable delay,[75]I am, therefore, not persuaded that anything that occurred between 2 April and 1 July ought to have led the Secretary of State to consider that the claimant would not be removed from the United Kingdom within a reasonable time. Although the Secretary of State became aware that the claimant’s appeal rights were not exhausted, the position while the claimant was in detention was that the appeal was being resisted. But even if it was shown that there was some date at which the Secretary of State should have appreciated that the third Hardial Singh principle had come into play, so that the claimant’s immigration detention was no longer lawful, the claimant’s medical condition would in any event have required his continued detention, in the conditions in which he was indeed being detained. It follows that even if it was shown that the Secretary of State was not entitled to maintain immigration detention for part of the period, there could be only nominal damages because the claimant would still have been detained in hospital.

Human Rights

[76]In his written skeleton, Mr Sandell invoked Articles 3 and 8 of the European Convention on Human Rights. In view of the conclusion I have reached about the claimant’s detention in the Immigration Removal Centre after 17 April, it seems to me that arguments based on the Convention add nothing material to the claimant’s case. The position is that, following the claimant’s initial (substantively lawful) detention, the period before that date was one which is not long enough to breach the Secretary of State’s duty to act promptly to secure proper conditions of detention, whether that duty is seen as imposed by national law or the Convention. After that date, until the claimant’s removal to hospital, similarly, the same consequences follow whether based on a breach of national law or of Article 3 or Article 8.[77]Summary of conclusions i) The claimant’s initial detention on 2 April 2014 was unlawful because the Secretary of State purported to exercise a detention power under s.36(1) of the 2007 Act, which was not applicable to the claimant. ii) If the Secretary of State had exercised the power under Schedule 3 to the 1971 Act, as she avowedly did from 7 April, the claimant would have been detained anyway, and (looking at the substantive decision rather than the statutory authority) there was no breach either of Hardial Singh principles or of general public law duties in the decision to detain him. iii) The claimant is therefore entitled to nominal damages for his detention in the period 2 - 6 April 2014. iv) The claimant’s detention in the period 7 - 16 April 2014 was wholly lawful. v) His continued detention in the immigration removal centre was unlawful from 17 - 30 April 2014 because he could and should have been removed to the hospital that his clinical condition necessitated. vi) His immigration detention in the hospital from 30 April – 1 July 2014 was lawful. vii) He would have spent that period as a patient in a secure hospital in any event.[78]I will hear counsel on the appropriate form of order and on the procedure for the assessment of damages.

order

“2(3) where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom ….”

Cited in 1 later judgment