S v Secretary of State for the Home Department [2012] EWHC 1939 (QB)

Case No CO/10777/2010[2012] EWHC 1939 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16/07/2012
Before
THE HONOURABLE MRS JUSTICE LANG DBE
Between
SClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
David Jones (instructed by Wilsons Solicitors LLP) for ClaimantLisa Busch (instructed by the Treasury Solicitor) for DefendantHearing Hearing dates: 22 May 2012
JudgmentMrs Justice Lang :
[1]The Claimant applies for judicial review of his detention pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971, pending his removal to Togo, following notice of a deportation order. The Claimant was detained in immigration detention on 21 November 2008 and was released from detention on 4 February 2011, when bail was granted. He was granted discretionary leave to remain on 20 April 2012. The Claimant contended that his detention was unlawful because: a) the Defendant failed to apply her policy in relation to the detention of the mentally ill, as set out in ‘Enforcement Instructions and Guidance’, paragraph 55.10; b) the length of the detention was unreasonable, in particular: i) once it was apparent that there was no realistic prospect of removal, because of non-co-operation by the Togolese authorities; ii) once the Claimant applied to revoke the deportation order, on 1 November 2010; c) following R (on the application of HA (Nigeria) v Secretary of State for the Home Department [2012] EWHC 979 (Admin), the Defendant failed to comply with the statutory equality duty upon re-formulation of the policy in paragraph 55.10 of the EIG, in August 2010. History[2]The Claimant, who is a national of Togo, was born in Togo on 13 December 1962. He is now aged 49.[3]The Claimant’s account was that he became involved in politics in Togo, and in 1998 the party he supported, the Union Force Changement (“UFC”), won the presidential elections. The Government refused to hand over power, and he took part in demonstrations against the Government. He was imprisoned for two years. During that time he was subjected to forced labour; tortured by being kicked, punched and hit with sticks; and malnourished. He managed to escape and fled to the UK.[4]He arrived in the UK on 17 August 2000 and claimed asylum. He was provided with National Asylum Seekers Accommodation. He entered into a relationship with a woman called Francoise Kadarho, from the Democratic Republic of Congo, and their son was born in April 2002.[5]The Defendant refused his application for asylum on 17 December 2000. His appeal against this decision was dismissed on 19 July 2002. The Adjudicator found that his evidence of events in Togo was not credible, was flawed and defied belief. Permission to appeal was refused, and his appeal rights were exhausted by 28 August 2002.[6]He was detained in July 2002. Removal directions were set for 20 October 2002, but removal was cancelled when the Claimant became disruptive. A further removal scheduled for 15 December 2002 was cancelled when the carrier refused to allow the Claimant to travel. Removal directions were again set for 1 January 2003, but were deferred pending the filing by the Claimant of a claim for judicial review. Permission was refused on the papers on 11 March 2003. The Claimant renewed his application but then withdrew it on 15 April 2003.[7]On 22 May 2003 the Defendant refused the Claimant’s application for indefinite leave to remain in the UK on human rights grounds, reiterating this refusal on 10 June 2003. Removal directions were set for 24 June 2003 but were again cancelled in light of the fact that the Claimant threatened to claim judicial review.[8]On 28 July 2003, the Defendant withdrew her refusal of indefinite leave to remain and agreed to reconsider the matter. She then refused indefinite leave to remain for a third time on 3 September 2003. The Claimant appealed against that decision, and his appeal was dismissed on 2 June 2004. Permission to appeal was refused on 17November 2004.[9]The Claimant was granted bail on 28 July 2003. On 21 January 2005 the Claimant failed to report on one occasion, because he was ill. No action was taken in respect of this failure. He was re-detained in May 2005, but released from detention on 27 May 2005.[10]On 2 August 2005 the Claimant was granted Indefinite Leave to Remain under the Family Exercise based on his relationship with Ms Kadorho, who gave birth to their second son in December 2004. The Claimant’s relationship with Ms Kadarho broke down during the course of 2005.[11]On 22 November 2006 the Claimant was convicted by Liverpool Crown Court of the offence of sexual assault on a female by digital penetration and sentenced to four years’ imprisonment. This was his first offence. The pre-sentence report described him as a medium risk of re-offending and harm. The sentencing Judge said he had injured her by the violence of his act, and traumatised her. He had tried to minimise his culpability and showed little remorse. He was not recommended for deportation.[12]On 14 February 2007 the Claimant claimed that he had appealed against his conviction, but there is no record of an appeal.[13]On the expiration of the Claimant’s custodial sentence, on 21 November 2008, he was transferred to immigration detention but remained in prison.[14]On 19 December 2008 a deportation order was made with respect to the Claimant.[15]The Claimant appealed against the making of the deportation order and that appeal was dismissed on 9 March 2009. In reaching its decision to dismiss the Claimant’s appeal, the Tribunal noted (para 39) that the conclusion that had been reached in previous Determinations made with respect to him was that his account of the matters that had caused him to leave Togo was not credible, and that he would not be at risk of serious harm or persecution upon return, and the Tribunal endorsed that conclusion (para 49). Further, a witness before the Tribunal gave evidence to the effect that the Claimant’s former partner, Ms Kadorho, was unwilling to provide him with a letter of support, and that the Claimant, who had contended that she and he were attempting a reconciliation, was not telling the truth. In the Tribunal’s view, rather, he was attempting to mislead it so far as this part of his case was concerned in an attempt to bolster his claim under Article 8 (para 68).[16]The Claimant applied for a High Court review of the Tribunal’s decision on 18 March 2009, but permission was refused on 16 April 2009. The Claimant again applied for a High Court review on 15 May 2009, but this was refused on 8 July 2009.[17]On 14 August 2009 the Claimant was transferred from HM Prison Liverpool to Colnbrook Immigration Removal Centre.[18]The Claimant filed his claim for judicial review on 14 October 2010.[19]The Claimant was refused bail on 20 October 2010 on the basis of the risk that he would reoffend and/or abscond if released.[20]On 19 November 2010 the Claimant made an application for the revocation of the Deportation Order.[21]The Claimant was granted conditional bail on 31 January and released from detention on 1 February 2011.[22]On 3 June 2011, the Defendant refused the Claimant’s application, made on 19 November 2010, for the revocation of the Deportation Order.[23]On 3 October 2011, the First Tier Tribunal (Immigration and Asylum Chamber) promulgated a Determination allowing his appeal against the refusal to revoke the deportation order to the extent that they granted him leave to remain in the UK for a sufficient period to cover the time required for contact proceedings in respect of his children to be completed.[24]The Defendant’s application for permission to appeal against the above decision was refused on 25 October 2011.[25]The Defendant granted him discretionary leave to remain on 20 April 2012. Statutory framework[26]Under section 3(5)(a) of the Immigration Act 1971 (“IA 1971”), a person who is not a British citizen is liable to deportation from the UK if the Secretary of State deems his deportation to be conducive to the public good.[27]By section 3(6), without prejudice to the operation of section 3(5), a person who is not a British citizen shall also be liable to deportation from the UK if, after he has attained the age of 17, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a Court empowered by the IA 1971 to do so.[28]By section 5(1) IA 1971, where a person is liable to deportation under section 3(5) or 3(6), the Secretary of State may make a deportation order against him: “that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given before the order is made or while it is in force”, subject to the provisions of the IA 1971.[29]Section 5(2) provides that a deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.[30]Schedule 3 to the 1971 Act provides, so far as is material: (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”[31]By virtue of the Human Rights Act 1998, s.6(1), it is unlawful for the Defendant to act in a way which is incompatible with a Convention right. Article 5 ECHR provides that everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the circumstances specified in Article 5(1)(a) – (f) and in accordance with a procedure prescribed by law.[32]Article 5(1)(f) states that a person may be arrested or detained to prevent his effecting an unauthorised entry into the country, or where action is being taken against them with a view to deportation or extradition. In Saadi v United Kingdom (2008) 47 EHRR 17, the ECHR held:
“67. It is well-established in the Court’s case-law under the sub-paragraphs of Article 5(1) that any deprivation of liberty must, in addition to falling within one of the exceptions set out in sub-paragraphs (a) – (f) be lawful. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article 5(1) requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness...”
The Defendant’s detention policy[33]Chapter 55 of the ‘Enforcement Instructions and Guidance’ (“EIG”) sets out the Defendant’s policy with regard to ‘Detention and Temporary Release’. Two versions of Chapter 55 have been in force during the course of the Claimant’s detention, as it was updated with effect from 21 August 2010.[34]In the current version, paragraph55.1.1 sets out a general presumption in favour of temporary admission or release rather than detention. Paragraph55.1.2 provides that cases concerning foreign national prisoners were subject to the general policy in 55.1.1 and that the starting point in such cases "remains that the person should be released on temporary admission or release unless the circumstances of the case require the use of detention".[35]However, paragraph 55.1.2 goes on to say that the nature of foreign national prisoner cases means that special attention must be paid to their individual circumstances and provides that in any case in which the criteria for considering deportation action are met:
"the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding."
[36]At paragraph 55.1.3 it states:
"Substantial weight must be given to the risk of further offending or harm to the public indicated by the subject's criminality. Both the likelihood of the person re-offending and the seriousness of the harm if the person does re-offend must be considered. Where the offence which has triggered deportation is included in the list at 55.3.2.1, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public."
[37]Paragraph 55.3.2.1 refers to a list entitled "Crimes where release from immigration detention or at the end of custody would be unlikely". The list includes sexual offences.[38]Paragraph 55.3.A includes the following passage related to "more serious offences":
"More serious offences A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result, the high risk of public harm carries particularly substantial weightwhen assessing if continuing detention is reasonably necessary and proportionate. So, in practice, it is likely that a conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate. Caseworkers must balance against the increased risk, including the particular risk to the public from re-offending and the risk of absconding in the individual case, the types of factors normally considered in non-FNP detention cases, for example, if the detainee is mentally ill or if there is a possibly disproportionate impact on any dependent child under the age of 18 from continued detention. Caseworkers are reminded that what constitutes a "reasonable period" for these purposes may last longer than in non-criminal cases, or in less serious criminal cases, particularly given the need to protect the public from serious criminals due for deportation."
[39]Paragraph 55.3.2 provides further guidance on deciding whether to detain someone convicted of a serious criminal offence:
"In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling because of the significant risk of harm to the public posed by those convicted of violent, sexual, drug-related and other serious offences. In practice, release is likely to be appropriate only in exceptional cases."
[40]Paragraph 55.10 addresses the issue of detention of the mentally ill. “Persons 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. In CCD [Criminal Casework Directorate Cases], the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention. The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons: ...... those suffering serious mental illness which cannot be satisfactorily managed within detention ...” ......[41]The wording of 55.10 was revised with effect from 21 August 2010. The earlier version read as follows: “Persons considered unsuitable for detention Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Other are unsuitable for immigration detention accommodation because their detention requires particular security, care and control. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or elsewhere: ...... those suffering serious medical conditions or the mentally ill ..” ...... Case law[42]The burden is on the Defendant to justify the legality of the detention (R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, per Lord Dyson at [44]).[43]The power to detain is subject to the limitations set out in R (Hardial Singh) v Governor of Durham Prison [1983] EWHC 1 (QB), [1984] 1 WLR 704, where Woolf J said:
“7. Although the power which is given to the Secretary of State in paragraph 2 [of Schedule 3 to the 1971 Act] to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being implicitly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention …. 8. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time …”
[44]In R(i) (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196, Dyson LJ described the Hardial Singh principles in the following terms: “46. There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in re Hardial Singh [1984] 1 WLR 704, 706D in the passage quoted by Simon Brown LJ at paragraph 9 above. This statement was approved by Lord Browne-Wilkinson in Tan Le Tam v Tai A Chau Detention Centre [1997] AC 97, 111A-D … . In my judgment, Mr Robb correctly submitted that the following four principles emerge: i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) The deportee may only be detained for a period that is reasonable in all the circumstances; iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal. 47. Principles(ii) and(iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person ‘pending removal’ for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired. 48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation, the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences”.[45]In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, Lord Dyson said, at [22] and [24]:
“22. It is common ground that my statement in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 correctly encapsulates the principles as follows: i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; ii) the deportee may only be detained for a period that is reasonable in all the circumstances; iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; iv) the Secretary of State should act with the reasonable diligence and expedition to effect removal. 24. As to the second principle, in my view this too is properly derived from Hardial Singh. Woolf J. said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases when it is apparent that deportation will not be possible “within a reasonable period”
. It is clear at least from (iii) that Woolf J. was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation.”[46]In R (Khadir) v Secretary of State for the Home Department [2006] 1 A.C. 207, Lord Brown helpfully reviewed the detention cases at [21] – [24]: “21. It is time to come to a line of cases which have considered the exercise of the power of detention, not in fact in the context of removing those refused leave to enter under Schedule 2 but rather in relation to those whom it is intended to deport under Schedule 3. The first of these cases was R v Governor of Durham Prison, Ex p. Hardial Singh [1984] 1 WLE 704 where, following a two-year prison sentence for burglary, the applicant was served with a deportation order and detained for five months under paragraph 2(3) of Schedule 3 to the 1971 Act whilst the Home Office attempted to obtain for him a travel document from the Indian High Commission.....[Lord Brown then sets out the passage from Hardial Singh which is cited above]22. That approach was followed by Laws J in In re Mahmod (Wasfi Suleman) [1995] Imm AR 311 and by the Court of Appeal in R (I) v Secretary of State for the Home Department [2003] INLR 196, both similarly concerned with applicants who had been detained for long periods under paragraph 2(3) of Schedule 2. Laws J in Mahmod said this, at p 314: "While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has [ten months] while nothing but fruitless negotiations have been carried on." Laws J expressed himself "entirely satisfied" that whatever would have been "a reasonable period for this man's continued detention ... has certainly now been exceeded" and ordered his immediate release.23. In I, giving my reasons (as part of the majority of the Court of Appeal) for having released the applicant from detention at the hearing of the appeal the previous month, I said this, at p 206, paras 37-38: "Given ... that the appellant had by then been in administrative detention for nearly 16 months and that the Secretary of State could establish no more than a hope of being able to remove him forcibly by the summer, substantially more in the way of a risk of re-offending (and not merely a risk of absconding) than exists here would in my judgment be necessary to have justified continuing his detention for an indeterminate further period ... In short, I came to the clear conclusion that ... it was simply not justifiable to detain the appellant a day longer; the legal limits of the power had by then been exhausted."24. There is one other case which applied the Hardial Singh principles to which I must briefly refer, the decision of the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97. The applicants there were Vietnamese boat people who were refused refugee status and detained in Hong Kong for periods of up to 44 months under the Immigration Ordinance of Hong Kong ( c 115). The question arising was whether that detention was lawful pursuant to section 13D of the Ordinance (as inserted by section 7 of the Immigration (Amendment) Ordinance 1982 (No 42 of 1982)) which provided for detention "pending his removal from Hong Kong". Giving the judgment of the Board, Lord Browne-Wilkinson said this, at p 113: "The issue ... in the present case is whether the determination of the facts relevant to the question whether the applicants were being detained 'pending removal' goes to the jurisdiction of the director to detain or to the exercise of the discretion to detain. In their Lordships' view the facts are prima facie jurisdictional. If removal is not pending, within the meaning of section 13D, the director has no power at all." He later, at p 116, stated the Board's conclusion as follows: "In all the circumstances their Lordships can see no sufficient reason to overturn the finding of the judge that it is the policy of the Vietnamese Government not to accept repatriation of non-Vietnamese nationals. In these circumstances, it is not contended that these applicants are being detained 'pending removal.' Accordingly, the decision of Keith J to order their release was correct." "While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In this case I regard it as entirely unacceptable that this man should have been detained for the length of time he has [ten months] while nothing but fruitless negotiations have been carried on." "Given ... that the appellant had by then been in administrative detention for nearly 16 months and that the Secretary of State could establish no more than a hope of being able to remove him forcibly by the summer, substantially more in the way of a risk of re-offending (and not merely a risk of absconding) than exists here would in my judgment be necessary to have justified continuing his detention for an indeterminate further period ... In short, I came to the clear conclusion that ... it was simply not justifiable to detain the appellant a day longer; the legal limits of the power had by then been exhausted." "The issue ... in the present case is whether the determination of the facts relevant to the question whether the applicants were being detained 'pending removal' goes to the jurisdiction of the director to detain or to the exercise of the discretion to detain. In their Lordships' view the facts are prima facie jurisdictional. If removal is not pending, within the meaning of section 13D, the director has no power at all." "In all the circumstances their Lordships can see no sufficient reason to overturn the finding of the judge that it is the policy of the Vietnamese Government not to accept repatriation of non-Vietnamese nationals. In these circumstances, it is not contended that these applicants are being detained 'pending removal.' Accordingly, the decision of Keith J to order their release was correct."[47]In R (A) v Secretary of State for the Home Department[2007] EWCA Civ 804, Toulson LJ said: “43. There is no dispute that the word ‘pending’ in schedule 3, paragraph 2(2) (‘… pending the making of a deportation order’) and paragraph 2(3) (‘… pending his removal or departure from the United Kingdom’) simply means ‘until’ … . However, the Home Secretary’s exercise of the statutory power to detain a prospective deportee until the making of the deportation order or until his removal or departure is not unfettered. It is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists. Secondly, it may be exercised only during such period as is reasonably necessary for that purpose. The period which is necessary will depend on the circumstances of the case.”44. Those principles were first established by Woolf J in his judgment in Hardial Singh (at 706), which has been cited with approval in subsequent cases including Tam Te Lam and I. After stating those principles, Woolf J continued: ‘What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided for in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention’.45. In some later judgments that sentence has been treated as a third principle. It seems to me that it is really a facet or consequence of the first and second. Be that as it may, a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle”.[48]Toulson LJ went on to state as follows:
“54. I accept the submission on behalf of the Home Secretary that where there is a risk of absconding and a refusal to accept voluntary repatriation, these are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person’s detention, provided that deportation is the genuine purpose of the detention. The risk of absconding is important because it threatens to defeat the purpose for which the deportation order was made. The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual’s continued detention is a product of his own making. 55. A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”
[49]Toulson LJ considered the role of the court at [62]:
“It must be for the court to decide the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary’s views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction).”
[50]In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, the Supreme Court held, by a majority, that breach of a public law duty on the part of a person authorising detention is capable of rendering that detention unlawful and the fact that the detainee would have been detained lawfully in any event did not affect the Secretary of State’s liability for false imprisonment. The fact that the detainee would have been lawfully detained was relevant to damages rather than liability; and, since the appellants in that case had suffered no loss, they were entitled to no more than nominal damages of £1.[51]In Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, the Supreme Court held that the Claimant had been unlawfully detained during periods in which no detention reviews were carried out, which gave rise to a claim in tort for false imprisonment. The Court confirmed that a material public law error will render administrative detention unlawful. The damages recoverable in respect of such a breach would be nominal, however, if detention was otherwise demonstrably reasonable.[52]Lord Hope said at [41] and [42] “.41. .... a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful. I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise.” 42. …. Applying the test proposed by Lord Dyson in Lumba, it was an error which bore on and was relevant to the decision to detain throughout the period when the reviews should have been carried out.”[53]Lady Hale said at [69]:
“While accepting that not every failure to comply with a published policy will render the detention unlawful, I remain of the view that the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result- which is not the same as saying that the result would have been different had there been no breach’ (see the Lumba case para 207).”
Case law on mental health issues[54]In R (Anam) v Secretary of State for the Home Department [2009] EWHC 2496 Admin Cranston J considered paragraph 55.10 (before the August 2010 amendment) and held:
“52. There are two points to be made. The first is that in my view mental health issues only fall to be considered under Chapter 55 where there is available objective medical evidence establishing that a detainee is, at the material time, suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. This consideration must be given to the nature and severity of any mental health problem and to the impact of continuing detention on it. 53. Secondly, the provision that the mentally ill be detained in only very exceptional circumstances does not stand in isolation. The opening part of paragraph 55.10 provides that for Criminal Casework Directorate cases ‘the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention’. Paragraph 55.13 indicates, as would be expected, that that demands a consideration of the likelihood of the person reoffending and the seriousness of the harm if the reoffending occurred. With an offence like robbery, the paragraph specifically requires substantial weight to be given to the risk of further offending and harm. 55. The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy ….”
[55]Cranston J’s analysis in Anam was approved on appeal (see [2010] EWCA Civ 1140, per Black LJ at [81]), and also by the Court of Appeal in R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909, per Richards LJ at [12]. It was also approved by the Court of Appeal in R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597, where Richards LJ confirmed that the “seriousness threshold” applied equally to the revised policy introduced in August 2010, saying, at [41]:
“It is difficult to see why special provision requiring detention to be justified by very exceptional circumstances should have been made for those with a mental illness that could be satisfactorily managed in detention so that illness was not significantly affected by detention and did not make detention significantly more burdensome.... I am not impressed by Mr Southey’s argument based on the uncertainty involved in the application of a seriousness threshold: a threshold of that kind had to be applied in any event under the original policy in relation to serious medical conditions, and has to be applied to mental illness as well as to medical conditions under the August 2010 amendment to the policy. Although the approach in Anan involves reading in a substantial qualification which is not expressed in the original policy, I am satisfied that such a qualification was implicit and gives effect to the true meaning of the policy.”
[56]In LE (Jamaica) Richards LJ distinguished between the court’s role when considering the legality of detention on Hardial Singh principles and when considering a challenge to the Secretary of State’s application of her policy towards the mentally ill. He said, at [29]:
“ii) It is also common ground that the power to detain is limited by the Hardial Singh principles, in particular that detention is lawful only if it is for a reasonable period, and that it is for the court itself to determine whether a reasonable period has been exceeded. This was spelled out in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, most clearly by Keene LJ at [71]-[75]. Although Mr Southey placed considerable weight on that authority, it does not appear to me to be directly in point since the reasonableness of the period of detention and the application of the Hardial Singh principles are not in issue here. iii) Subject to the limits imposed by the Hardial Singh principles, the power to detain is discretionary and the decision whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. That discretion is vested by the 1971 Act in the Secretary of State, not in the court. The role of the court is supervisory, not that of a primary decision-maker: the court is required to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision-maker has acted within the limits of the discretionary power conferred on him by the statute.”
Grounds[57]It is convenient to consider the legality of the detention in two periods: a) in prison, from 21 November 2008 to 14 August 2009; b) at Colnbrook Immigration Removal Centre, from 14 August 2009 to 4 February 2011.[58]With regard to both periods, the Claimant submitted that the Defendant acted unlawfully in detaining the Claimant since he was a person suffering from serious mental health problems who was not fit to be detained. She acted incompatibly with her own policy, in section 55.10 of the EIG, both before and after the revised version was issued in August 2010.[59]The Claimant also submitted that the length of detention in the second period was unreasonable, applying the principles in Hardial Singh,(1) once it was apparent that there was no realistic prospect of removal, because of non-co-operation by the Togolese authorities, and(2) once the Claimant applied to revoke the deportation order, on 1 November 2010.[60]The Defendant submitted that she had applied her policy lawfully in the Claimant’s case. In relation to his mental health, whilst it was accepted that he had mental health problems, there was conflicting medical opinion at the time as to their nature and extent. The Defendant was entitled to conclude that his condition could be satisfactorily managed in detention, by medication, and he was constantly under psychiatric supervision. The court was bound by the Court of Appeal’s interpretation of EIG paragraph 55.10 in LE (Jamaica) and also its conclusion that the Defendant’s decision pursuant to paragraph 55.10 could only be challenged on conventional public law grounds.[61]As a foreign national who had been convicted of a serious sex offence, the risk of harm to the public and the risk of absconding justified continued detention pending his deportation.[62]As to the reasonableness of the length of detention, the Defendant submitted that she was making continuing efforts to deport the Claimant to Togo. The application to revoke the deportation order did not render the detention unreasonable. Detention in prison from 21 November 2008 to 14 August 2009[63]On the expiration of the Claimant’s custodial sentence, on 21 November 2008, he was transferred to immigration detention but he remained in prison because of lack of space in dedicated immigration detention facilities.[64]Mr Jones for the Claimant submitted, and I accepted, that the Defendant was on notice at the commencement of immigration detention that the Claimant had a history of mental health problems.[65]The Defendant’s own records revealed: a) Two incidents of suicide/self harm in 2002-2003 whilst detained by the Defendant; b) Prison medical records from 2006 onwards make repeated references to mental health issues, e.g.: i) Mental Health Crisis Intervention Nurse notes suicidal ideation and hallucinations (13.12.06); ii) Prescription and administration record chart prescribes Zispin for ‘depression with psychotic overlay’ (17.1.07) iii) The Claimant deliberately cut his mouth and feet, refused all medical treatment, placed on 15 minute observations (21.11.08) iv) Mental Health Crisis Intervention Nurse notes commenced anti-depressants (Zispin); dramatic acts of deliberate self harm by cutting when in the reception area at HMP Wymott; dirty protest at HMP Liverpool (6.12.08); v) “Admitted onto healthcare to monitor mental health after his mental health had deteriorated whilst he was on the wing” (17.12.08); vi) Took an overdose of paracetamol and ibuprofen (17.12.08); vii) Felt low, depressed, difficulty sleeping, increased dose of anti-depressants and gave medication to aid sleep (11.7.09); viii) records show he was being prescribed anti-depressants and remained on healthcare, being monitored daily, throughout the period of administrative detention in prison.[66]The Defendant had been served with psychiatric reports in March 2003 which diagnosed the Claimant as suffering from both depression and post traumatic stress disorder, assessing him to be a high suicide risk.[67]At the request of the Claimant’s solicitors, Dr Peter Pierzchniak, Consultant Forensic Psychiatrist at South London and Maudsley NHS Trust, examined the Claimant in detention in March 2003. He diagnosed a depressive illness, characterised by low mood, anxiety, poor sleep and appetite, lack of motivation, poor concentration, feelings of hopelessness and suicidal ideations. He described the Claimant’s unsuccessful suicide attempts whilst in detention.[68]Dr Pierzchniak also diagnosed post-traumatic stress disorder, characterised by intrusive memories of imprisonment and torture. The Claimant told Dr Pierzchniak that he was afraid of men in uniforms and his attempted removals involving immigration officials and policemen had precipitated memories of detention and torture. He feared imprisonment and death if he returned to Togo. Dr Pierzchniak referred to the Claimant’s genuine distress at being separated from his partner and child[69]In two addendum reports, in May and June 2003, Dr Pierzchniak concluded that detention would increase the risk of suicide.[70]The three reports by Dr Pierzchniak were served on the Defendant. They formed part of the evidence in the last three of the Claimant’s four appeals, including the 2003 human rights appeal.[71]Despite the clear indicators of mental illness in the evidence available to her, there is no evidence that the Defendant considered the lawfulness of the Claimant’s detention by reference to her policy on the detention of the mentally ill in EIG 55.10. Ms Busch was unable to point to any evidence suggesting that she had done so.[72]On 16 December 2008, a Detention Review set out his past history and concluded that the Claimant was considered to be a high risk of harm to the public and a high risk of re-offending. He was described as “disruptive” whilst in HMP Wymott and at HMP Liverpool, and as a result was placed in the segregation unit. The author stated “Mr S has stated that he has medical problems but has refused to substantiate these claims.”[73]The Detention Review dated 10 February 2009 was in the same terms, and also noted that he was a “dirty protester”. Authority to maintain detention was given on the basis that he had been convicted of a serious offence and therefore continued detention was proportionate to his removal.[74]The Detention Review dated 14 April 2009 was in the same terms as before. Detention was authorised on the basis of the risk of further offending, and the harm this may cause, as well as the likelihood /risk of his absconding. The Detention Reviews dated 5 May 2009, 2 June 2009, and 3 July 2009 were in similar terms.[75]The Detention Review dated 28 July 2009 included a pro forma which required the author to record a history or threat of various adverse events and whether they indicated a potential risk. In the Claimant’s case, the report recorded a history of or a threat of disruptive behaviour; self harm/attempted suicide/food refusal/fluid refusal; medical problems/concerns; abuse of women, all of which were believed to indicate a potential risk. A history or a threat of psychiatric disorder was also recorded but this was thought not to indicate a potential risk. The author added, by way of comment:
“Whilst in custody he had 5 adjudications made against him ... On the 14/10/02 at Lindholme IRC he climbed a tree and threatened to hang himself with a blanket. On the 14/06/03 he was found in a distressed state with a razor. On the 10/04/03 diagnosed as suffering from post traumatic stress disorder and depressive illness. He has also been diagnosed with hepatitis B. He also disrupted 3 removal appointments.”
Detention was authorised on the basis of the risk of re-offending and the risk of absconding.[76]In my judgment, the Defendant was required to consider, under section 55.10, whether the Claimant was “mentally ill” and if so, whether there were “very exceptional circumstances” rendering him suitable for detention. As he had been convicted of a serious criminal offence, “the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention”. There is no evidence that the Defendant applied its mind to these questions when authorising detention. Only the final Detention Review, dated 23 July 2009, even acknowledged the existence of his mental health history. Even that Review failed to apply paragraph 55.10 when deciding whether or not detention should be authorised.[77]In Kambadzi v Secretary of State for the Home Department [2011] UKSC 23, the Supreme Court held that a material public law error will render administrative detention unlawful. In my judgment, this case comes within the class of public law error described by Lord Hope at [41] and [42]:
“.41. .... a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful. I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise.” 42. …. Applying the test proposed by Lord Dyson in Lumba, it was an error which bore on and was relevant to the decision to detain throughout the period when the reviews should have been carried out.”
[78]However, I also consider, having carefully analysed the evidence that this is a case in which, if the policy had been considered and applied, it is very probable that the Defendant would have reasonably concluded that: a) the Claimant’s mental health conditions were being satisfactorily managed by the administration of anti-depressants and close supervision by qualified staff on the healthcare wing. There are daily observations, many of which show that the Claimant was responding well to medication and he was not exhibiting signs of mental illness; b) he had been convicted of a serious sexual offence; c) the risk of re-offending and absconding pending deportation outweighed the adverse effects of detention on the Claimant’s mental health.[79]The GCID Case Record Sheet dated 11 November 2008 also records a further consideration in his case:
“In light of his previous immigration history, when he became disruptive and his removal was cancelled it is thought that it would be advisable to detain him whilst we arrange for his removal to Togo.”
[80]Therefore, in my judgment, the damages recoverable in respect of this period of unlawful detention would be nominal only. Detention at Colnbrook Immigration Removal Centre, from 14 August 2009 to 4 February 2011[81]The Claimant was transferred to Colnbrook Immigration Removal Centre on 14 August 2009. Medical evidence[82]The Claimant relied on the evidence which was available to the Defendant during the Claimant’s detention in prison, which I have summarised above.[83]The Claimant continued to be medicated with anti-depressants upon his transfer to Colnbrook.[84]On or about 20 August 2009 the results of an initial mental health screening tool were recorded, setting out the problems identified by the Claimant. He described his past treatment in Togo. He said he was not sleeping. In a pro forma box he was identified as “over talkative”; “occasional thoughts of self harm” but he was “orientated in time and place” and had “insight into his situation”.[85]On 22 August 2009, the “mental health records” recorded as follows:
“upset, anxious and depressed. Not sleeping. Worried about his immigration status. The beatings he received in prison. Has occasionally eaten his faeces and drunk his urine as feels this is a punishment and makes him feel better. Does not mind if he is deported, just wishes to know. Has appeal in High Court. Plan – to ask GP to prescribe Zopiclone. Promethopame 25 mgs not effective. ... Refer to psych. No thoughts self harm. No hallucinations.”
[86]He attempted self harm on 22 August 2009, according to an email dated 2 September 2009.[87]On 24 August 2009, he was assessed as fit to be detained by Dr Vera. The record states that he had “no medical issues”; he “found it difficult in detention”; “he was on psychiatric medication and was awaiting psychiatric revew”.[88]At the end of August 2009, his medication was stopped which caused him to deteriorate. On 31 August 2009, he was seeking mental health services, saying he was “very stress traumatise during night no good sleep” .[89]On 2 September 2009, he was seen by the nurse who recorded “insomnia” and “difficulty in resting due to disturbing thoughts from time in prison”. Zopiclone (used in the treatment of insomnia) was reinstated.[90]On 12 September 2009, the nurse’s notes state that he was taken off Mirtazine 30 mg (an anti-depressant) on 8 September, that he was low in mood and requesting to be prescribed Mirtazine again. He said he had no thoughts of self-harm or suicide.[91]On 12 September, Dr Vara advised that he should be referred to the psychiatrist.[92]In September 2009, he was seen three times by Dr J. Balakrishna, visiting Consultant Forensic Psychiatrist at Colnbrook. Only a few lines of notes have been made available. However, Mr Lomax, subsequently appointed visiting Consultant Psychiatrist at Colnbrook, recorded the following summary in his report (undated but disclosed on 21 January 2011):
“At initial interview with Dr Balakrishna, Mr S is recorded as considering that he did not have mental health problems and it was arranged for Mr S to have counselling. This commenced in October 2009 and continued until December 2009. The counselling notes indicate that a number of issues were explored including past experiences and current relationships. At follow-up review in February 2010 and April 2010 he was noted to be “calm, coping well day-to-day” and “still coping”.”
[93]From October 2009 onwards, there are prescription records with a diagnosis of “depression” and medication of Mirtazine 30 mg each night.[94]On 12 August 2010, Dr Wilkinson, a duty GP at Colnbrook, wrote saying:
“From the medical notes I can find no reason why this gentleman is not fit for detention. However I have not reviewed the gentleman in person and would recommend that this be done.”
[95]On 13 August 2010, Dr Nandi, a duty GP at Colnbrook, noted that the Claimant had “no active suicide ideation” and was “fit for detention”.[96]On 8 September 2010 Colnbrook Healthcare informed the Defendant that they had been unable to give the Claimant his anti-depressant medication since 3September, since they had been unable to locate his drug chart, but that they had re-allocated his medication on that day.[97]On 5 October 2010 the Claimant’s solicitors sent the Defendant a copy of a psychiatric report by Professor Katona, Consultant Psychiatrist and Emeritus Professor of Psychiatry at both the University of Kent and University College London. He saw the Claimant on 30 September 2010. Professor Katona diagnosed post-traumatic stress disorder on the presence of the following clinical features, which fulfil the criteria of the Diagnostic and Statistical Manual of Mental Disorders (DSM IV): a) He has experienced extreme trauma in the form of imprisonment and torture in Togo. He appears to have experienced his imprisonment and detention in the UK as a re-traumatisation; b) He re-experiences his trauma in Togo in the form of intrusive thoughts and nightmares; c) He tries to avoid thinking about his traumatic experiences in Togo; d) He thinks his life will end prematurely; e) He has great difficulty sleeping; f) He has episodes of intense anger and irritability; g) He is constantly on his guard and feels he is being watched.[98]He also has a cluster of other trauma-related symptoms (self-destructive and impulsive behaviour, feeling constantly threatened, feelings of ineffectiveness) which are markers of “complex PTSD”.[99]Professor Katona also diagnosed “Major Depressive Episode” on the presence of the following clinical features, which fulfil the criteria of DSM IV: a) He feels consistently depressed most of the time; b) His sleep is very disturbed; c) He feels worthless; d) He has frequent suicidal thoughts.[100]Professor Katona advised that psychological treatments were the recommended “first-line” treatment and anti-depressants were second-line treatment for these conditions. He considered that the Claimant had gained some benefit from his anti-depressant mirtazapine, but he would benefit from an increased dose or a change.[101]Professor Katona assessed the effect of detention on the Clamant as extremely distressing, and aggravating his PTSD symptoms. He considered that there was a substantial risk of self-harm, which was likely to escalate in seriousness, possibly with fatal consequences. He concluded that the harmful effects of detention on his mental health would increase the longer the detention continued.[102]On 13 October 2010, Dr Nandi assessed the Claimant as fit to be detained.[103]On 15 October 2010, Dr Wilkinson assessed the Claimant as fit to be detained.[104]On 19 October 2010 the Claimant was seen by Dr J. Burren, visiting Consultant Psychiatrist at Colnbrook, who also assessed him as fit to be detained. His report stated:
“S is a 47 year old man originally from Togo who is suffering from possible post-traumatic stress disorder and mild depression. He has shown a good clinical response to his current medication as well as counselling leading to a significant improvement in his mood and post-trauma related symptoms. He is currently eating and sleeping normally and enjoys helping new detainees. When I saw him on 19/10/10 he denied experiencing any feelings of self-harm or harm to others at the moment. He expressed his frustration for being detained for the past three years despite he said having agreed to go back voluntarily to Togo. He said that the uncertainty of his current detention period makes him feel very stressed and that he would certainly benefit from joining his family and friends back in Togo. He told me that his trauma related symptoms are no longer intense and that they only occur occasionally … He is currently fit to be detained but would benefit by joining his family in Togo.”
[105]In an Addendum report dated 29 October 2010, Professor Katona took issue with Dr Burren’s assessment, suggesting that it had been too brief and unstructured, and thus missed the presence of clinically significant symptoms.[106]According to Dr Lomax, in his report of January 2011, Dr Burren saw him on three occasions in September and October 2010, although I have not been able to identify the notes in respect of all these consultations.[107]On 1 November 2010, a petition was sent to UKBA, signed by 17 detainees at Colnbrook, complaining about the standard of mental health care, in particular from Dr Burren.[108]In November 2010, the Claimant did not receive his anti-depressants and sleeping tablets from the Health Centre. He attempted to self-harm with a plastic knife and the GCID Case Record Sheet records concern about his condition, and the need to put him on a self-harm watch. On 11 November 2010, the Claimant’s solicitors wrote complaining that he had not received his anti-depressant medication since 4 November 2010.[109]In October 2010, the Claimant filed a judicial review claim challenging the legality of his detention. This prompted the Defendant to commission a medical examination and report. There was evidence that the Claimant failed to attend initial appointments in December 2010.[110]On 7 January 2011 the Claimant’s medication was reviewed, and the dosage of his anti-depressant was increased on a trial basis.[111]On 20 January 2011, Steven R. Lomax, Consultant Psychiatrist MHIT, provided a report, having interviewed and assessed the Claimant on behalf of UKBA. His conclusions were as follows:
“ I note that Professor Katona (in keeping with the conclusions of Dr Pierzchniak in a report I have not seen) considers that S fulfils the diagnostic criteria both for Post-Traumatic Stress Disorder (PTSD) and for Major Depressive Episode (MDE). I would agree that S’s presentation over time is in accord with these diagnoses. Within the context of the detention centre S is receiving or has received through counselling, appropriate treatment for PTSD in the form of anti-depressants. Other psychological therapies are not available within the centre. … ..what is the effect on S’s mental health of continued immigration detention? Undoubtedly continued detention has an adverse impact on many detainees’ mental health and in this S is no exception. He remains depressed and appropriate treatment for PTSD is not currently available. I would not however agree that he presents a serious risk to himself at this time although clearly an early resolution to his immigration difficulties would be wished by all.”
[112]In an addendum report dated 6 September 2011, based on a further interview and assessment, Professor Katona found that the Claimant continued to fulfil the criteria for depressive illness and complex post traumatic stress disorder. He required long term specialist relational psychotherapy. The Claimant’s evidence on his mental health[113]In his witness statement dated 9 September 2011, the Claimant said that he had been on anti-depressants and sleeping tablets for some time. There had been times when his mental health had deteriorated or improved, but his condition remained unstable. It had worsened due to his prolonged detention, and was exacerbated by interrupted supplies of medication. He explained that the medical centre in the detention centre sometimes failed to re-order as required and did not have his prescription on time, meaning that he was left for days without medication. He said, at paragraphs 24 and 25:
“My time in detention was not easy and my mental health suffered a lot. I have a history of self harm and I cut myself as it makes [me] feel better. It was very difficult not to know what is going to happen from one day to the next. I was living in limbo and this made me constantly depressed. With a criminal sentence to you know there is an end, however in detention you feel that you could be there for eternity which exacerbates the feeling of hopelessness. Since I have been released from detention my mental health has improved....”
Since I have been released from detention my mental health has improved....” Risk of re-offending[114]On 2 June 2009, the Defendant’s officers received a telephone call from Kensington Domestic Abuse Unit, in which they were informed that the Claimant’s ex-partner had told them that any statements which she had formerly made in support of him had been made under duress, and that she feared for her life if he was released. At around the same time it was reported that the Claimant had written threatening letters and made threatening telephone calls to his ex-partner whilst he had been in prison.[115]On 28 September 2009, the GCID record sheet recorded that the Claimant had been making abusive/threatening telephone calls to the Kensington Domestic Abuse Service, in connection with a dispute with his ex-partner.[116]On 20 August 2010, Immigration Judge Barton refused bail on the basis inter alia that there was a danger he would re-offend. The judge referred to his conviction, and the fact that he was placed on the sex offenders’ register; his unreliability, as evidenced by his clandestine entry into the UK; his non-cooperation and disruptive behaviour that had frustrated removal; his lack of established ties in the UK which might incentivise him to comply with his bail conditions; and the lack of a surety or recognisance[117]In his report dated 5 October 2010, Professor Katona made a formal assessment of the risk of future violence using a standardised rating instrument – the HCR-20 Violence Risk Assessment Scheme. The scores indicated that there was a “very low” risk he would repeat his offending behaviour. In Dr Katona’s opinion, he did not represent a genuine, present and serious threat to people if he remained in the UK.[118]On 21 October 2010, a “Request for Offender Management Information” form was completed. It referred to the psychiatric report recently prepared by Professor Katona who had assessed the Claimant’s risk of future violence as “very low”. The Claimant also presented as a “low risk” of re-offending on an OASYS assessment. However, the probation officer’s view was that OASYS was not a reliable guide to sex offending, and the report concluded that he presented a high risk of harm to females; a view based upon his continued denial of the offence and the consequent failure to complete any focused work to address his offending. The Report also referred to concerns about domestic violence arising out of threatening telephone calls by the Claimant to his former partner, Ms Kadarho.[119]In an addendum report dated 28 October 2010, Professor Katona took issue with the UKBA’s assertion, in its letter dated 20 October 2010, that his assessment of risk was merely a personal opinion, pointing out that it was based on a lengthy interview, perusal of substantial documentation and a validated risk assessment.[120]Dr Lomax, in his report prepared (it is believed) in January 2011, reached the following conclusions on the risk of re-offending:
“Professor Katona offers a view of future risk of violence in S’s case based on a standardised rating instrument – the HCR-20 Violence Risk Assessment Scheme. I administered this test and would broadly agree with his ratings although I consider that his score on the Risk subscale is somewhat higher than that given by Professor Katona. Nonetheless I agree that S’s future risk as predicted by this test is low and he would not present a serious risk to others if released from detention and allowed to remain in the UK.”
[121]In an Addendum Report, dated 6 September 2011 and based on an interview on 30 August 2011, Professor Katona observed that he, Dr Lomax and the Offender Manager were previously in agreement that he presented a low risk of re-offending on the basis of an OASYS assessment. Professor Katona re-assessed his risk of future violence and the score remained very low.[122]The Claimant relied upon the fact that he had not re-offended since release on bail in February 2011. Risk of absconding[123]The Claimant was granted temporary release, and was reporting twice a week from 28 July 2003 until May 2005 when he was re-arrested and detained, for a few days because of intended removal from the UK. During this period he missed one reporting event, on 21 January 2005, out of approximately 200. The Claimant was too ill to attend that day and reported the following Monday, 24 January 2005, instead. No action was taken against him in respect of this failure. This was confirmed by the “CID Calendar Events” which refers to the Claimant not reporting because he had flu symptoms. He continued to be on temporary release and the reason for his subsequent brief detention was unrelated to the failure to report. The Defendant accepted these facts at the hearing before me.[124]However, on 20 August 2010, Immigration Judge Barton refused bail on the basis inter alia that there was a danger he would abscond. The Judge referred to the fact that whilst bailed in 2005 he failed to report as required and was located and re-detained 4 months later. On closer investigation it now appears that the Immigration Judge was misinformed on this point.[125]The Detention Reviews also repeated the same error.[126]Immigration Judge Barton also referred to his unreliability, as evidenced by his clandestine entry into the UK, his non co-operation and disruptive behaviour that had frustrated removal; his lack of established ties in the UK and his precarious immigration status, making it more likely he would abscond; and the lack of a surety or recognisance.[127]The Claimant pointed out that he was on bail for nearly a year for his criminal offence and complied with a monthly reporting condition. Since his release on bail in February 2011, he has continued to report regularly. Deportation to Togo[128]The Defendant had made unsuccessful attempts to remove the Claimant to Togo between July 2002 and May 2005, which were thwarted by the Claimant’s legal challenges and, on at least two occasions, by disruptive behaviour on the part of the Claimant which prevented removal at the last minute. The Claimant explained this behaviour on the basis of his post-traumatic stress disorder - the forcible removal by uniformed officials had triggered an extreme anxiety and panic attack.[129]However, the Claimant was granted Indefinite Leave to Remain in August 2005, on the basis of his family relationship with his then partner, and so events prior to August 2005 had no bearing on the delay in deporting him at a later date on different grounds. The Defendant relied on the past history of disruption as a risk indicator when considering whether or not he should be detained pending deportation.[130]Following his conviction, the Defendant’s attempts to deport him to Togo were delayed in part by the Claimant’s legal challenges, summarised in the ‘History’ above. The process was also obstructed by his lack of co-operation in providing information. For example, the records showed: a) on 28 November 2007 the Claimant refused to complete a bio-data form; b) on 4 December 2008, he was interviewed on 4 December 2008, but he refused to answer any questions concerning his home country or origins; c) on 13 and 28 August 2009 he refused to complete a bio-data form;[131]However, the major cause of delay was the lack of co-operation on the part of the Togolese authorities. Surprisingly, there was no witness statement from anyone acting on behalf of the Defendant to explain what occurred, but the story can be pieced together from the Detention Review and other documents.[132]At the time of the earlier attempts to remove the Claimant, the Togolese authorities were willing to accept removal on the basis of an EU letter. The Detention Reviews up to July 2009 assumed that this procedure was still available. However, on 31 July 2009, the Detention Review explained that “the previous felicity to remove to Togo on EU letters has been withdrawn” and that an application would have to be made instead for an Emergency Travel Document (“ETD”). The Detention Review dated 28 August 2009, stated:
“A trial process has been set up with the Togo authorities to issue ETD’s however RGDU advise that none have yet been issued. Original or copy supporting evidence is required for the ETD together with bio-data.”
[133]In September 2009 the Defendant instructed the Returns Group Documentation Unit (“RGDU”) to obtain an ETD for the Claimant, notwithstanding his refusal to comply with the process, and on 11 September an application was sent to the Togolese authorities, but without supporting evidence.[134]On 19 October 2009 the Claimant provided the Defendant with some information regarding his family for the purposes of his bio-data form and permitted his photograph to be taken. This information was sent to the Togolese Embassy on 27 October 2010.[135]By January 2010, no response had been received from the Togolese authorities and in the Detention Review dated 15 January 2010, it was acknowledged that “The process for obtaining ETDs from the Togolese has become difficult”. In February 2010, the Detention Review noted that the Togolese Embassy had not answered any telephone calls or emails.[136]On 28 October 2009 the Claimant refused to attend a Facilitated Return Scheme surgery at Colnbrook.[137]On 12 March 2010 the Defendant was informed that the Togolese Embassy had failed to respond over a four month period to requests to arrange a meeting with respect to the Claimant.[138]On 27 April 2010 the Togolese authorities responded to a letter from the Claimant’s then legal representatives, stating that in order to investigate his nationality they would require his birth certificate and nationality certificate.[139]On 4 June 2010 the Defendant was informed that no response had been received to any applications for ETDs for others that had been sent to the Togolese Embassy and that one of her officers was due to attend a meeting with the French authorities on that same day to see if they could offer any guidance or exert any pressure on the Togolese authorities.[140]On 8 June 2010 the officer in question informed the Defendant that the French authorities had given her the telephone number of an Immigration Officer based in Paris, who might be in a position to exert pressure on the Togolese.[141]On 9 June 2010, the Claimant informed the Defendant that he himself had spoken to the Togolese Embassy in Paris, and that they had told him that they would not issue an ETD without supporting evidence, which he could not provide. He also informed the Defendant that he wanted to return to Togo.[142]On 24 June 2010 the Defendant’s officer conducted an assertive nationality interview of the Claimant and concluded that he was a Togolese national.[143]On 21 June 2010 the Claimant spoke to a friend on the telephone in the presence of an Officer, and also spoke to his brother in New York, with a view to obtaining documentation to support his application for an ETD. He described this in paragraph 3 of his witness statement, dated 22 September 2010:
“My birth was never registered as I was born in 1962 before it became compulsory in Togo. I contacted my friend, Yaya Kondo, who lives in Lome, the capital of Togo. My brother in New York had to send him money for him to take a taxi to my home town of Aneho, Togo. It is a 45 minute drive from the capital. While he was there he approached the Town Hall to try and obtain my Birth Certificate. I am aware of the fact that in order to get a Birth Certificate in Togo you have to be physically present before the Judge. This application is known as a Judgment Supplement. I am therefore unable to obtain a Birth Certificate while I am in detention in the UK.”
[144]A letter from Mr Kondo explained that the Town Hall in his home town said that his birth was not declared in their Centre d’Etat Civil. This was confirmed by a certificate from the Town Hall authorities.[145]On 8 July 2010, the Defendant wrote to the Claimant, in response to a letter from Refugee and Migrant Justice, reporting on the efforts being made to arrange the Claimant’s return to Togo. She said:
“Following a visit to the Embassy in Paris on 18th May 2009, UKBA officials agreed a documentation process with the Consul General whereby applications could be submitted to their Embassy from the UK via email. An application for an Emergency Travel Document (ETD) was submitted by the UK Border Agency (UKBA) on behalf of your client according to this agreed process on 22nd September 2009. Further biographical data was sent in support of this application in a separate email on 27h October 2009. Since then UKBA representatives have tried to obtain an update on your ... application from the Togolese Embassy on several occasions but without success and I can confirm that no correspondence has as yet been received from them regarding your [application]. UKBA and Foreign and Commonwealth Office (FCO) officials based in Paris have nonetheless offered to assist in this matter and liaise locally with the Togolese Embassy. It may also be helpful if, as suggested in [the] letter of 20 April, [you] contact the Togolese Embassy [yourself], as a similar approach from another Togolese national to the Embassy in Paris in January 2010 did result in a travel document being issued.”
[146]On 9 July 2010, the Defendant wrote to the Claimant’s representatives, refusing their request that he be released from detention. The reasons given were his conviction for a serious offence and the risk of absconding to avoid deportation. She said that UKBA would continue “to liaise with the Togolese authorities to secure a travel document so removal may take place within a reasonable period”.[147]On 19 July 2010 an officer from RLU advised (Detention Review 28 July 2010):
“ that we have “..nothing to incentivise [the Togo authorities] and so they basically don’t respond to our phone calls, letters or messages. We have no representative in Togo and, even if we did, the government is in a constant state of flux so whoever may have influence one day doesn’t have it the next””
[148]In August 2010 the Togolese Embassy wrote to the Claimant’s representatives informing them that there was “no trace of evidence” certifying that the Claimant was Togolese in their archives and therefore the Embassy could not issue any travel document to him.[149]On 13 October 2010 a Country of Origin request was made asking if it was necessary for the Claimant to attend court in Togo in person to have his birth registered.[150]The Detention Review dated 18 November 2010 referred to an email dated 14 October 2010 from RLU stating that “documentary evidence of nationality was not a condition of an ETD application in the documentation process agreed with the Consul-general, Mr Madjoulba, in May last year.”[151]The Detention Review dated 21 October 2010 recorded an email dated 14 October 2010 from an officer who informed the Defendant that:
“Kevin Chaplin, UKBA’s liaison officer based in Paris with the PAF, was trying to contact the Togolese Embassy throughout September to arrange a meeting but without success. He has consulted with the PAF who advise they themselves have not been able to document anyone via their Embassy in Paris since April 2010 and the matter has been escalated to the French Foreign Ministry to intervene. They cite the main obstacle in documentation at present as being Mr Madjoulba’s continuing unavailability.”
[152]The Detention Review dated 21 October 2010 stated:
“RUL stated on 14 October 2010 that the Migration Delivery Officer in Accra has escalated the issue to the British High Commissioner there who is writing to his Togolese counterpart in Accra with the intention of bringing it to the attention of the Togolese authorities.”
[153]The Detention Review dated 18 November 2010 recorded that a note had been sent to the Togolese Ambassador in Accra, Ghana requesting a meeting to discuss the Claimant’s case. The Detention Review dated 14 December 2010 recorded an email from RDU dated 30 November 2010 which stated:
“ the Migration Delivery Officer in Accra went to Togo on 23 November and met with the Director of Protocol at the Togolese Ministry of Foreign Affairs and the Director of Migration. The Director of Migration advised that returns for Togolese nationals with supporting docs should not be a problem. However, those without papers were more problematic – there had been a few cases of people turning up on return who subsequently turned out not to be Togolese…. The Director of Migration also showed [the officer] his entire database of Togolese citizens – that is everyone who had been issued with a national ID card (not compulsory) and passport. S was not there, however this doesn’t mean he isn’t Togolese and we can’t still progress with the return. The Togolese would cooperate on an undocumented return, provided we accepted that if it turned out the returnee was not Togolese, we would have to take them back. [The officer] is trying to seek more clarity on this and whether he could be present at any interview with a returnee on arrival. Following on from these discussions, [the officer] has sent a note verbale to the Togolese Embassy in Accra asking for their cooperation in S’s return and is waiting to hear back from the Director of Migration in Togo.”
[154]The final Detention Review dated 12 January 2011 showed that the Togolese authorities had not responded. It referred to a suggestion that an EU letter should be prepared to see if the Togolese authorities would accept the Claimant on that basis, on condition that he would be taken back if found not to be a Togolese national. However, this option was not pursued because of “outstanding further submissions and an ongoing JR”.[155]On 11 January 2011, Professor Lawrence of the Rochester Institute of Technology, New York, USA provided an expert report on Togolese citizenship, registration of birth and entry to Togo. Professor Lawrence is a Professor of International Studies and an expert on the contemporary legal and political conditions in West Africa, specifically Togo.[156]Professor Lawrence concluded: a) the Claimant was eligible for Togolese citizenship, but because his birth was not registered, and he has no records of his parents, any request for citizenship is likely to be contested; b) the issue has to be determined by a judge of the civil tribunal; c) he has to enter Togo legally in order to apply for a resolution of the issue; d) he cannot enter Togo legally without proof of citizenship; e) he is effectively stateless.[157]Professor Lawrence suggested that it might be possible for his citizenship to be resolved in his absence if a state procurer represented him officially before a magistrate’s court or by means of a direct appeal to the Minister of Justice but concluded “I am, however, in no position to speculate about the likely interest of the Togolese government in this matter.”[158]The Claimant’s solicitors sent this report to the Defendant on 20 January 2011, requesting temporary admission on the basis of the report as well as the report from Dr Lomax which they had just received.[159]On 7 July 2011, the relevant court in Togo dismissed the Claimant’s application for a judgment confirming his birth in Togo, on the ground that the Claimant was not present. Mr Kondo, who made the application on the Claimant’s behalf, gave further details in an accompanying letter. Application to revoke deportation order[160]The Claimant applied to revoke the deportation order on 1 November 2010, by a solicitor’s letter, relying on fresh evidence as to the risk of re-offending and his mental illness, as set out in the report of Professor Katona. The letter stated that there was an in-country right of appeal from a refusal, under s.82(2)(k) Nationality and Immigration Act 2002.[161]The application was duly refused on 3 June 2011. The appeal was allowed on 3 October 2011 on the limited basis that the Claimant should be permitted to remain in the UK until the proceedings concerning contact with his children were concluded. The decision to detain the Claimant[162]Having reviewed the evidence, I turn to consider whether the Defendant acted lawfully in detaining the Claimant over this period, applying the principles set out in the relevant case law, which I have summarised above.[163]From his arrival at Colnbrook, in August 2009, the Claimant was sent monthly progress reports setting out the following reasons given for detaining him: a) to effect removal from the UK; b) the risk of absconding; c) previous failure to comply with conditions of temporary release or bail; d) the risk of re-offending.[164]The evidence relied upon was, in summary: a) his failure to co-operate with obtaining Emergency Travel Documentation for removal to Togo by not giving biographical details, when interviewed; b) his previous disruptive behaviour when removal was attempted; c) his failure to report as required by the conditions of his temporary release on 21 January 2005, and his re-detention as a result in May 2005; d) his conviction for a serious sex offence; the risk of harm to the public and the significant risk of re-offending.[165]By October 2009, UKBA acknowledged that he had co-operated with the efforts to remove him by providing some biographical information to assist in obtaining a travel document. By July 2010, UKBA acknowledged that he had made efforts to obtain a copy of his birth certificate and to contact the Togolese authorities to try to facilitate his return to Togo.[166]The UKBA wrote to the Claimant’s solicitors on 17 August 2010 giving a detailed explanation of the reasons for his detention, and its application of EIG paragraph 55.10 to his case.[167]Detention Reviews have been disclosed by the Defendant in the litigation. The first Review on arrival at Colnbrook, dated 28 August 2009, referred in some detail to his history of mental health problems and the diagnosis by Dr Pierzchniak. Colnbrook had confirmed that he was on medication; that a GP had confirmed he was fit for detention; and that he was awaiting a psychiatric review. The Review referred to the policy in EIG 55.10, weighed up the factors in favour of detention, and concluded that it was an exceptional case which warranted continued detention. Subsequent Reviews justified detention on the same grounds.[168]In my judgment, the Reviews show that the Defendant did accept the existence of the Claimant’s mental illness and that she applied the policy as set out in EIG paragraph 55.10. The Claimant was receiving ongoing psychiatric medication and supervision and there was medical advice that he was fit to be detained. His condition was being satisfactorily managed in detention. Although his mental health was a factor in favour of release, it was outweighed by the other factors in favour of detention. I do consider that the Defendant was mistaken in referring to a history of absconding, but even without that error, there were other reasonable grounds for concern about the risk of absconding, namely, the lack of ties and the incentive to abscond to avoid deportation.[169]The refusal of bail by a Judge on 20 August 2010, on a number of different grounds, lends support to the reasonableness of the Defendant’s decision to detain,[170]The first report from Professor Katona, received in October 2010, was important new evidence about the Claimant’s mental health and the impact of detention upon him, and the risk of re-offending. The Defendant responded appropriately by seeking an assessment of the Claimant’s fitness for detention in the light of the report, and also an assessment of the risk of re-offending.[171]The Detention Review dated 17 November 2010 demonstrated a genuine re-consideration of the decision to detain at this stage, in the light of the new evidence and the policy. Also, UKBA looked more closely at the evidence relating to the January 2005 failure to report and concluded that he did not have a history of absconding, as had previously been suggested. A recommendation for release on conditions was made in the Detention Review. However, it was not accepted by the Assistant Director who considered that detention was justified in the light of the psychiatric evidence indicating that he was fit for detention; the progress towards deportation and the risk of harm presented by the Claimant. That view was maintained at subsequent Detention Reviews.[172]In my judgment, the Defendant was entitled, in the exercise of her discretion, not to accept Professor Katona’s conclusions in so far as they conflicted with those of the psychiatrist/s acting on behalf of the Defendant. The evidence from the visiting psychiatrist at Colnbrook, Dr Burren, did not support Dr Katona’s assessment. Although Professor Katona’s report was much more comprehensive and structured, Dr Burren had the significant advantage of being able to assess the Claimant on more than one occasion, and he had the benefit of the assessments and observations by the other psychiatrists, GPs and nursing staff at Colnbrook, carried out over a period of time.[173]The Defendant was also entitled to take issue with the premise of Professor Katona’s assessment on post traumatic stress disorder which was that the Claimant had experienced extreme trauma in the form of imprisonment and torture in Togo, which he was ‘re-living’ during his detention in the UK. The only evidence of events in Togo available to Professor Katona was the Claimant’s own account. However, persecution in Togo was the basis of the Claimant’s asylum claim which had been comprehensively rejected by the Adjudicator on 19 July 2002, and his appeal dismissed. The Adjudicator hearing the Claimant’s appeal on 7 May 2004 said that “[n]othing has emerged in the evidence before me to cause me to come to a different conclusion” from the previous Adjudicator. It was reasonable for the Defendant to place reliance upon the findings of the Adjudicators, in preference to the views of Professor Katona.[174]On receipt of Professor Katona’s report, the Defendant also obtained an assessment of the re-offending risk from the probation service. The Claimant presented as a “low risk” of re-offending on an OASYS assessment. However, the probation officer’s view was that OASYS was not a reliable guide to sex offending, and the report concluded that he presented a high risk of harm to females; a view based upon his continued denial of the offence and the consequent failure to complete any focused work to address his offending. In his opinion “due to the lack of offence focused work completed, his attitudes and distorted thinking in relation to his offence, S’s risk levels can be seen as being increased when in a relationship or at the beginning of a relationship with a female and if released I would assess his risk of reoffending as raised.”[175]The Report also referred to concerns about domestic violence arising out of threatening telephone calls by the Claimant to his former partner, Ms Kadarho.[176]Before me, the Claimant’s counsel was extremely critical of the analysis in this report, arguing that there was no proper basis for departing from the finding of low risk in the OASYS report. He also submitted that the author of the report, and hence the Defendant, had failed properly to distinguish between the risk of reoffending and the degree of harm if re-offending did occur, which were distinct concepts. I consider that there was force in his criticisms. However, in my judgment, the report was not so flawed as to preclude any reliance upon it; moreover the Defendant had a wide area of discretionary judgment in assessing the weight of the evidence. Provided she properly took into account all the relevant evidence, she was entitled to rely on this report to counter Professor Katona’s conclusions.[177]Dr Lomax’s report on 20 January 2011 marked a significant shift in the medical evidence on the Claimant’s mental health since Dr Lomax expressly agreed with Professor Katona’s diagnosis. He concluded that the Claimant was suffering from post-traumatic stress disorder and major depressive episode. Although he was receiving anti-depressants and had some counselling, the appropriate treatment for his PTSD (psychological therapy) was not available in the detention centre. He agreed that detention was having an adverse impact on his mental health but not that he was a serious risk to himself.[178]In my judgment, this report contradicted and undermined the earlier psychiatric evidence upon which the Defendant had relied. It advised the Defendant that the Claimant was seriously mentally ill; that the treatment he needed was not available in detention; and that detention was having an adverse impact on his mental health. It was highly significant that Dr Lomax was the visiting psychiatrist at Colnbrook and so would have had the benefit of seeing all the notes of the previous visiting psychiatric consultants who had seen the Claimant, as well as all the nursing and GP notes. His evidence could not be discounted as the evidence of a “claimant’s expert”. Although he was an independent practitioner, he was authorised to assess and treat detainees on behalf of the Defendant. It followed that he would have had experience of other detainees, and developed some expertise in distinguishing between genuine and manufactured complaints of mental illness. His report appeared cogent, well-researched and included standardised testing. On its face it appeared to be a more professional report than Dr Burren’s report which had previously been relied upon.[179]Dr Lomax also agreed with Professor Katona’s analysis of the risk of further violent offending finding that “S’s future risk as predicted by this test is low and he would not present a serious risk to others if released from detention and allowed to remain in the UK.” In my judgment, this significantly altered the balance of the evidence available to the Defendant on the risk of harm to the public if the Claimant was released.[180]It is pertinent that, since November 2010, the Defendant had realised that this Claimant did not have any history of failing to comply with reporting conditions. The earlier reliance on this factor had been mistaken.[181]Coincidentally, it was at about the same time, in January 2011, when it should have been apparent to the Defendant that there was no reasonable prospect of removal of the Claimant to Togo within a reasonable time.[182]The application for his ETD had been made as long ago as September 2009. The Claimant had made constructive efforts to obtain a birth certificate and he had applied directly to the Togolese Embassy for travel documents, to no avail, as there was no record of his birth or citizenship. The Togolese authorities were equally, if not more, unco-operative with the British authorities, refusing to respond to emails, letters, visits and telephone calls. Similar problems had been experienced with other persons attempting to secure ETD to Togo.[183]The Claimant argued that, by October 2010, it had become apparent that there was no reasonable prospect of deportation within a reasonable time. Although initially I was minded to accept this submission, I was persuaded by submissions sent by the Defendant, after the hearing, that active steps were being taken post October 2010, relying upon the newly disclosed Detention Reviews containing information about negotiations via the mission in Ghana in November 2010. But even these last-ditch efforts to negotiate a special arrangement for his conditional return had not progressed by January 2011. The Togolese authorities were not responding to the requests made by the UK Government, in keeping with their previous policy of non co-operation. In any event, in the light of Professor Lawrence’s analysis, an attempt to return him on a conditional basis would probably have resulted in him being sent back to the UK because he did not have the evidence to establish citizenship.[184]The final suggestion that the Togolese would revert to accepting an EU letter seemed fanciful given that the Togolese had just abandoned the use of EU letters in 2009, and the UK authorities had been forced to apply for ETD instead. If an EU letter was still acceptable, it seems reasonable to assume this would have been asked for or offered by the Togolese authorities at some time during 2010.[185]The problems which the Claimant faced under Togolese law, in establishing his citizenship, and thus his right to return to Togo, were lucidly expressed by Professor Lawrence in his expert’s report, and it should have been apparent to the Defendant upon reading this report that there were significant obstacles in the way of a successful deportation to Togo. The report also explained the legal basis for the stance taken by the authorities in Togo.[186]On 20 January 2011, the Claimant’s solicitors wrote to the Defendant, seeking temporary admission at the earliest possible opportunity, in the light of Dr Lomax’s report and Professor Lawrence’s report.[187]The Defendant responded in a letter dated 28 January 2011, refusing to release him, on the basis that: a) Dr Lomax’s report did not state he was not fit for detention; b) the probation report dated 8 October 2011 stated that he represented a high risk of harm to females; c) the current barriers to his removal to Togo were the need to obtain an ETD or an EU letter.[188]The Defendant opposed the Claimant’s application for bail, but it was granted at the hearing on 31 January 2011 and he was released on 1 February 2011.[189]In my judgment, the Defendant’s continued detention of the Claimant from 28 January 2011 was unlawful, on public law principles, and Hardial Singh principles. I have selected this date because, by then, the Defendant had had a fair opportunity to consider the new evidence, and make a fresh decision.[190]I consider that the Defendant failed to have proper regard to the evidence of Dr Lomax, in relation to the Claimant’s mental health. This evidence required a genuine re-evaluation of the earlier decision to detain, by reference to her EIG policy, in particular under paragraph 55.10. The overwhelming weight of the medical evidence was now that the Claimant was seriously mentally ill; that the treatment he needed was not available in detention; and that detention was having an adverse impact on his mental health.[191]The Defendant was, of course, required to take into account the risk of re-offending but, in doing so, she failed to have proper regard to Dr Lomax’s findings in relation to the low risk of harm which the Claimant represented to the public if released. The view of the probation officer in the report of 8 October 2010 should have been re-evaluated in the light of the apparently conflicting evidence from two experienced psychiatrists, based on standardised testing, and also confirmed by the OASYS report.[192]The likelihood of deportation in the near future was an important factor to weigh in the balance, and by January 2011 it should have been apparent to the Defendant that there was no prospect of deportation in the near future, because of the unco-operative attitude of the Togolese authorities, and the Claimant’s inability to prove his citizenship under Togolese law, as explained by Professor Lawrence in his report.[193]Applying conventional public law principles of review, I consider that the Defendant failed to have regard to relevant considerations, namely, the new evidence. She also failed to apply her policy conscientiously to the Claimant’s case, taking into account the changes in the evidence, which significantly altered the balance of the factors for and against detention.[194]Finally, applying the principles established in Hardial Singh, as considered in I, Khadir and A, I have concluded that the continued detention of the Claimant was unreasonable because, despite the best efforts of the Claimant and the Defendant, there was no reasonable prospect of a successful deportation to Togo in the foreseeable future. By 28 January 2011, he had spent 26 months in detention awaiting deportation. Continued detention was excessive and unreasonable in all the circumstances. Although the Claimant had been convicted of a serious offence, he had served his custodial sentence and the licence period had expired. The other factors, to be weighed in the balance, were his mental illness, the assessed low risk of re-offending, and his previous compliance with bail conditions.[195]I do not accept the Claimant’s submission that the application to revoke the deportation order made in November 2010 rendered the detention unlawful, on the basis that the Claimant had a right of appeal against refusal, and so could not be deported imminently. The application was only one of the many factors for the Defendant to weigh up when deciding whether detention was justified. It did not automatically mean that detention was no longer justified. For the reasons I have set out above, the Defendant’s detention of the Claimant prior to January 2011 was not unlawful. In this case the Defendant considered that the basis of the application, namely Professor Katona’s report was unmeritorious and she subsequently refused the application. The Claimant succeeded on appeal, but on different grounds. Statutory equality duty[196]In a supplementary skeleton argument, the Claimant submitted that this court should find that the detention after August 2010 was unlawful on the basis of the recent decision in R (on the application of HA (Nigeria) v Secretary of State for the Home Department [2012] EWHC 979 (Admin). The argument was not developed any further, either in writing or in oral submissions.[197]In HA, Singh J. held that the re-formulation of the policy in Ch. 55.10 of the EIG, in August 2010, was a change which triggered the statutory equality duties in section 71 Race Relations Act 1976 and section 49A of the Disability Discrimination Act 2005, both of which have been replaced by the Equality Act 2010, section 49A. In HA, the Secretary of State for the Home Office denied that there was a change in policy which triggered the duties, but having failed on that point, conceded that the equality duty had not been complied with. The revised policy was held to be unlawful, and the detention pursuant to the policy was quashed.[198]I decline to make any ruling on the basis of HA for the following reasons: a) HA (Nigeria) was not referred to by the Court of Appeal in LE (Jamaica), presumably because the judgment was handed down only shortly before the hearing. It is uncertain whether Singh J’s conclusion that there was a policy change triggering the statutory equality duty can be reconciled with Richard LJ’s conclusion that the reference in the August 2010 policy to mental illness which could “be satisfactorily managed in detention” was ‘implicit’ in the policy which preceded it. b) HA is under appeal to the Court of Appeal and any conflict between HA and LE is more appropriately resolved by the appellate court than by a court of first instance. c) A ruling that the post August 2010 policy is unlawful has wide implications for other cases and so should not be given without having had the benefit of full argument. I am not bound by HA and neither party has provided me with the material I require in order to decide this issue independently of HA i.e. the relevant statutory material and case law on the statutory equality duty; legal submissions in writing and orally; evidence from the Secretary of State on the intended purpose of the August 2010 revision.

Conclusions

[199]My conclusions are that the Claimant was unlawfully detained: a) from 21 November 2008 to 14 August 2009; and b) from 28 January to 1 February 2011. To that extent, the Claimant’s application for judicial review is allowed.[200]My finding that the detention was unlawful under UK domestic law means that he was unlawfully deprived of his liberty under Article 5 ECHR. It follows that the Defendant acted in breach of s.6(1) Human Rights Act 1998, by detaining the Claimant during the periods set out above.

Cited in 2 later judgments