AXD v The Home Office [2016] EWHC 1133 (QB)

Case No HQ15X01987[2016] EWHC 1133 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/05/2016
Before
MR JUSTICE JAY
Between
AXDClaimantTHE HOME OFFICEDefendant
Victoria Laughton (instructed by Wilsons Solicitors LLP) for ClaimantClaire van Overdijk (instructed by Government Legal Department) for DefendantHearing Hearing dates: 27 th– 29 th April 2016
Judgment

INTRODUCTION

[1]This is the trial of the claim for damages by AXD (“the Claimant”), a Somali refugee, for unlawful immigration detention, based on the common law tort of false imprisonment and the statutory tort under section 8 of the Human Rights Act 1998 in respect of alleged breaches of Articles 3 and/or 8 of the ECHR.[2]The case has a lengthy and convoluted factual background and procedural history. The latter I bear in mind but do not propose to set out in this judgment. Before I investigate the evidence, I should summarise the position as briefly as I may, as follows.[3]The Claimant, who has been anonymised for the purposes of these proceedings, came to the UK from Somalia in April 1997, and claimed asylum on arrival. According to his original asylum claim, he is from Mogadishu, the capital of that country. The Claimant has a lengthy criminal record which started in March 2006 and to which I will turn later. His asylum claim was refused but the Claimant was granted ELR, and subsequently ILR on 12th January 2007. On account of his criminal record, a deportation order was signed by the Defendant on 22nd December 2008, and on 30th December he was detained under immigration powers. The Claimant made representations on 8th January 2009 which were treated as a new asylum claim (the witness statement of Mrs Todd gives the date as 11th February 2009, but nothing turns on this). On 18th May 2009 the Claimant was released on bail. He does not contend that the period of his detention between December 2008 and May 2009 was unlawful, but does say that it is relevant to the overall reasonableness of his detention.[4]On 27th August 2009 the Claimant was detained pursuant to section 36(1) of the UK Borders Act 2007 following the completion of a sentence of imprisonment for unlawful wounding. On 14th June 2010 the Defendant decided to initiate deportation action against the Claimant pursuant to section 32(5) of the 2007 Act. On 28th June 2010 his asylum application was refused, and two days later he was served with the reasons for the deportation notice, which included the refusal of asylum, and a copy of the deportation order. Removal directions were set for 21st July, but were suspended following the Claimant’s application to the ECtHR on 20th July and that court’s issuance of interim measures under rule 39.[5]On 8th October 2010 the Claimant submitted an application to revoke the deportation order on the ground that he could not safely be removed to Mogadishu. On 29th October the Tribunal refused bail. On 17th May 2011 the Claimant was granted bail by the Tribunal, subject to reporting conditions, and he was released.[6]Thus, the first period of detention relevant to this claim covers 27th August 2009 to 17th May 2011, a period of 20 months and 21 days.[7]The Claimant was re-detained on 27th November 2011 on the completion of another custodial sentence, on this occasion pursuant to powers under paragraph 2(3) of Schedule 3 to the Immigration Act 1971. On 29th June 2012 the Claimant submitted further representations and evidence, arguing that he would face persecution on account of his sexual orientation and his conversion from Islam to Christianity, and on Article 15(c) grounds. Concerns were also raised about his mental health. The Defendant treated these representations as a fresh claim, and the Claimant was interviewed on three occasions, the last being on 21st February 2013. On 22nd April 2013 the Claimant signed a form applying to return to Somalia under the Facilitated Return Scheme, but on 2nd May his representatives indicated that he no longer wanted to pursue this course. On 13th May the Defendant served a decision refusing to revoke the deportation order. This was withdrawn in August.[8]On 11th July 2013 the Claimant’s solicitors sent a letter, under cover of which was an email from Dr Maloney diagnosing him as suffering from paranoid schizophrenia. A full report from Dr Maloney was provided to the Defendant on 8th October 2013. On 9th October 2014 the Claimant was assessed by a psychiatrist instructed by the Defendant, Dr Robert Cornish, and he confirmed the diagnosis of schizophrenia in a report dated 27th October. The Claimant was unconditionally released by the Defendant on 5th December 2014. On 17th December he was granted leave to remain, and then he was granted refugee status on 19th August 2015.[9]Thus, the second period of detention relevant to this claim covers 27th November 2011 to 5th December 2014, a period of 36 months and 8 days.[10]I should make clear that the claim under section 8 of the Human Rights Act 1998 is brought only in relation to the second period of detention.

THE KEY ISSUES ARISING

[11]As regards the common law claim, the issue may be shortly expressed in these terms: was the Claimant unlawfully detained by reference to well-known Hardial Singh principles? On analysis, this sub-divides into three sub-issues, namely:(i) did detention become unreasonable at any stage before the Claimant’s release?(ii) was there at any stage before the Claimant’s release no sufficient prospect of removal within a reasonable time? and(iii) did at any stage the Defendant fail to act with reasonable diligence and expedition? It should be clear that in formulating the issues in this manner, the court is required to adopt both a macro and a micro approach: moving its scope between, on the one hand, an overarching assessment (in particular, in relation to the overall reasonableness of the Claimant’s detention); and, on the other hand, a more granular evaluation, scrutinising at all material times the Defendant’s justifications for maintaining the incarceration of the Claimant.[12]As regards the statutory claim under section 8 of the Human Rights Act 1998, read in conjunction with Articles 3 and/or 8 of the Convention, the issues are as follows. First, did the detention of the Claimant breach his Article 3 and/or 8 rights? (Here, a number of sub-issues arise relating to the Claimant’s diagnosis, the treatment he received, and whether in the circumstances the Defendant’s positive and negative obligations were breached). Secondly, did the manner and circumstances of the Claimant’s release breach his Article 3 and/or 8 rights? Thirdly, did the Defendant’s detention of the Claimant cause psychiatric harm and, if so, what is its nature and extent?[13]In relation to both the common law and statutory claims, issues of quantum arise, subject always to liability, in the context of general, aggravated and exemplary damages (as regards the common law claim) and of just satisfaction (as regards the statutory claim, per section 8(4) of the Human Rights Act 1998). The parties have agreed that issues of quantum should be adjourned, as necessary, to another hearing.[14]I will be setting out and explaining the legal principles relevant to these issues at a later stage in this judgment.

THE COURSE OF THE TRIAL

[15]I heard oral evidence from the Claimant, Mrs Lesley Todd (the Defendant’s lay witness), Dr Chris Maloney (the Claimant’s psychiatrist) and Dr Gavin McKay (the Defendant’s psychiatrist). I also received a short witness statement from the Claimant’s solicitor, Ms Jennine Walker.[16]I will be setting out the essential parts of the oral evidence, and my findings of fact in that regard, later in this judgment, but in tune with the granular approach that I have indicated must in part be applied to the Claimant’s detention I now propose to review in greater detail the documentary evidence bearing on the Defendant’s reasons for detaining the Claimant.

FACTUAL NARRATIVE

[17]What follows is an amalgam of the documentary record, the witness statement of Mrs Todd, the Claimant’s chronology, and the key events highlighted in the Defendant’s skeleton argument.[18]Mrs Todd has no personal knowledge of the Claimant’s case before 5th December 2014. I raised a point with Ms Claire van Overdijk as to whether she could give opinion evidence about the reasonableness or otherwise of the Defendant’s decision-making processes as they related specifically to the Claimant. Mrs Todd has vast experience in the Defendant generally, and is currently a Senior Executive Officer managing a team of officials dealing with Foreign National Offender cases. It was my clear view that Mrs Todd could not, since she could not purport to give expert opinion evidence on this sort of matter, falling as it does within the province of judicial assessment; and, in any event, she was scarcely an independent witness, having not complied with CPR Part 35. I believe that Ms van Overdijk agreed with my analysis, but I am approaching this issue not on the basis of any concession. In my judgment, Mrs Todd could give admissible evidence about the Defendant’s practices, policies and procedures, and could deal with the statistical evidence relating to the number of successful returns to Somalia.[19]As regards the Defendant’s practices, policies and procedures, I asked Mrs Todd to give me a general idea of the amount of work that goes into the preparation of a decision letter in a reasonably complex asylum, Article 3 and Article 15(c) case such as the Claimant’s. She gave very helpful evidence about this. The Case Owner must examine the entire file and try to pull out the relevant points. The first draft of the decision letter could well take 2-3 days to prepare. Once this is done, it is sent to a Senior Case Worker for review and critical comment, in order to ensure in particular that all relevant matters have been addressed. The Senior Case Worker’s additions and revisions could well take one day’s further work. If necessary, the second draft may be sent back to the Senior Case Worker for further comment.

Historical and Background Matters

[20]The Claimant arrived in the UK on 21st April 1997 and claimed asylum immediately. According to his asylum application, he was born in Mogadishu on 13th August 1974. Subsequently, the Defendant granted him ELR. The asylum claim was refused in October 2000, but further grants of ELR, and the grant of ILR on 12th January 2007, rendered this somewhat academic.[21]The Claimant’s history of criminal offending started when he was convicted on 8th March 2006 of an offence of criminal damage. He has a number of relatively minor convictions between 2006 and 2008, but on 11th August 2008 he was convicted of an offence of unlawful wounding contrary to section 20 of the Offences against the Person Act 1861, for which he received a sentence of 16 months’ imprisonment. The circumstances of this offence were that the Claimant slashed his victim’s face with a broken mirror. This sentence triggered the automatic deportation provisions of the 2007 Act. In 2009, and then on three occasions in 2011, the Claimant received further periods of imprisonment, the maximum being for 3 months. On 6th February 2015, which was after the Claimant was released from detention and given leave to remain, he was convicted of an offence of sexual assault on a child under 13, and received a sentence of 21 months’ imprisonment. The Claimant is still serving that sentence, having been recalled to prison following his release on licence.

The First Period of Detention

[22]On 27th August 2009 the Claimant was detained pursuant to section 36(1) of the UK Borders Act 2007 following the completion of his custodial sentence. It should be mentioned that in July 2009 the Claimant had also received a sentence of 3 months’ imprisonment for criminal damage.[23]Thereafter, the Claimant’s detention was reviewed by the Defendant’s officials on a monthly basis. It was recommended that the Claimant’s detention be maintained to effect removal, as he was unlikely to comply with any restrictions, had no lawful basis to remain in the UK, and constituted a high risk of reoffending, absconding, and to the public. It was also noted that the Claimant faced a risk if returned to Somalia, and that this risk warranted further consideration. It should be added, as Mrs Todd accepted in cross-examination, that not all the detention review documents are available, and that where they are not reliance should not be placed on her summaries in her witness statement.[24]On 14th December 2009 the Claimant was given a full asylum interview in relation to the fresh claim which the Defendant had accepted to be such in March 2009. On that occasion, as had also been the case at the Claimant’s screening interview in November, the Claimant gave his last address in Somalia as Mogadishu.[25]On 19th January 2010 the Claimant’s then advisers submitted further representations and a short witness statement from the Claimant dealing with his mother’s situation in Somalia. These representations referred to rule 339C of the Immigration Rules, which was relevant to Article 15(c) humanitarian protection. Mrs Todd asserted that these representations would have delayed the decision making, but I doubt to any significant extent. The Article 15(c) point had already been raised, the Claimant’s evidence amounted to very little, and there is no evidence that any decision letter had been prepared, even in initial draft, by January 2010.[26]On 15th February 2010 the Claimant underwent a “country and language analysis” in order to satisfy the Defendant that he was indeed from Somalia.[27]On 3rd March 2010 the Claimant indicated that he wished to return to Somalia under the Facilitated Return Scheme. He withdrew his interest on 5th March.[28]On 24th May 2010 the Claimant made a bail application which was refused by the Immigration Judge on 4th June.[29]On 14th June 2010 the Defendant prepared an internal minute stating that it intended to initiate deportation action against the Claimant pursuant to section 32(5) of the 2007 Act.[30]On 28th June the Claimant’s asylum application was refused, and on 30th June he was served with the reasons for the deportation notice, which included the refusal of asylum, as well as a copy of his deportation order. The Claimant’s appeal rights were not exercised.[31]On 4th July 2010 removal directions were set to remove the Claimant to Mogadishu on 21st July.[32]On 20th July 2010 the Claimant made a last-minute application to the ECtHR that his removal should be stayed pending the decision of that court in Hussain v UK (Application Number 7028/07). The ECtHR granted a rule 39 application which prevented the Claimant’s removal. At that stage, the Defendant believed that the de facto stay under rule 39 would remain in place until Hussain was decided; but in the event the ECtHR continued its rule 39 request to the UK pending the outcome of other Somali cases. The rule 39 interim measures did not in fact lapse until June 2012. Although it is far from clear whether, and if so when, the Defendant was informed of the non-abrogation of the rule 39 measures, its internal documentation contains references to the these remaining in place in 2011 and 2012 because two other cases were before the ECtHR (see paragraph 111 below). Thus, at the very least the Defendant believed that the request remained in place, and was correct in that belief.[33]On 8th October 2010 the Claimant made an application to revoke his deportation order on the grounds of general in-country evidence, recent case law that he could not safely be removed to Mogadishu, and that the internal relocation option was not reasonably available. The Claimant’s case is that this application was consistent with stance he had taken on previous occasions, for example in relation to his earlier application to revoke the deportation order made on 8th January 2009. Thereafter, rightly or wrongly, the Defendant treated this application as a fresh claim.[34]On 25th October 2010 the Claimant made a further application for bail, which was refused by the Immigration Judge on 29th October owing to the unsuitability of the surety’s funds.[35]On 14th December 2010 the ECtHR struck out the main application in Hussain v UK, but (as I have said) the rule 39 measures remained in place.[36]On 9th May 2011 the Claimant made a further application for bail, which was granted by the Immigration Judge on 17th May, subject to reporting restrictions.

The Second Period of Detention

[37]As with the first period of detention, the Claimant’s case was reviewed monthly by the Defendant’s officials. Their reasons for consistently maintaining the Claimant’s detention were essentially the same as those applicable to the first period. In particular, the Claimant was assessed as being at a high risk of absconding.[38]On 17th November 2011 the Defendant notified the Claimant of his liability to deportation under the Immigration Act 1971 and section 32(5) of the UK Borders Act 2007.[39]On 27th November 2011, upon the completion of his sentence of imprisonment for, I believe, three separate offences (as I have said, the longest sentence imposed was one of 3 months’ imprisonment), the Claimant was detained pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971, on the basis that he was liable to be deported from the UK.[40]On 21st December 2011 a Senior Case Worker reviewed the Claimant’s case in the light of recent Country Guidance from the Tribunal and concluded that, whereas he was not at risk of Article 3 harm, he would be likely to face a real risk of Article 15(c) harm from indiscriminate violence on return to Somalia. This was because:
“… he has been abroad for a significant period of time and the HOF does not indicate that he has been in Somalia recently. Based on his personal information he does not appear to be connected with powerful actors or belong to a middle class or professional persons therefore there remains a general risk of Article 15(c) harm on return because he will be returning after a significant period of time abroad.”
When the Claimant’s detention was next reviewed, on 22nd December, a Senior Case Worker concluded that the Claimant “is likely to face a real risk of harm on return to Somalia” and, subject to the outcome of the rule 39 application, consideration should be given to conceding the case.[41]Further documents in January 2012 are somewhat difficult to interpret owing to their intrinsic formatting, and the manner in which they have been copied and the trial bundle prepared. At places, there are discrepancies between Counsels’ interpretation and Mrs Todd’s. With Counsels’ assistance in oral argument, I have done the best I can to set out what I believe to be the true position.[42]On 18th January 2012 an Assistant Director authorised the Claimant’s detention for 7 days only. She referred to the difficulties in this case in relation to the Claimant’s rule 39 application, that a referral for release should be prepared if deemed appropriate, and that further discussions should take place internally to see what progress could be made.[43]On 25th January 2012 the Defendant sought details from HMP Woodhill of the Claimant’s contact with relatives in Somalia. A detention review of the Claimant’s case by an Executive Officer on the same date indicated that the action plan for the next review period was to “await the outcome of the rule 39 application” and subject to this the Claimant’s application to revoke the deportation order should be considered. Detention was maintained on the same basis as previously. The Executive Officer also concluded that the Article 15(c) issue should not prevent removal as the Claimant had maintained contact with his mother in Mogadishu, notwithstanding his claims to the contrary.[44]On 27th January 2012 the Case Owner recommended that the Claimant should not be released because the presumption in favour of temporary admission or release was outweighed by the risk to the public of harm from re-offending and absconding. It was concluded that the Claimant’s rule 39 application “can be seen as a deliberate and calculating way of thwarting the deportation/removal process”. Even so, this file note did not address the Case Owner’s view of whether deportation in the foreseeable future was within realistic prospect, save to note the Senior Case Worker’s evaluation in these terms:
“SCW has advised that although [the Claimant] has some ties to Somalia and DO can still be pursued, it is unlikely that it will be successful at present. I have therefore proposed release for [the Claimant].”
The “I” referred to in this last sentence must be a reference to the Senior Case Worker and not to the Case Owner. It is unclear when this proposal was made, assuming that it was not on 22nd December 2011.[45]The file was considered by the Assistant Director, and on 27th January she authorised detention for one week only “to consider whether we will proceed to deportation action or whether we should seek a release referral from the Strategic Director”. She also expressed concerns about some of the language used in the detention review as regards the perceived Article 15(c) risk, but the nature of those concerns was not elucidated.[46]On 3rd April 2012 a detailed note completed by the Case Owner concluded that returning the Claimant to Somalia would not breach his rights under Articles 2 and 3 of the ECHR. Mrs Todd’s explanation for this change of view was that a new policy was brought in. This was not specifically identified. It has not been referred to in any of the documents I have read, nor does it appear to correlate in time with the publication or internal consideration of any Country Guidance or ECtHR case. In my view, Mrs Todd’s explanation should be discounted.[47]On 26th April 2012 a further detailed note was completed by a Senior Case Worker setting out the Defendant’s opinion that there would not be a breach of Claimant’s Article 2, 3 (ECHR) or 15(c) (Qualification Directive) rights on return to Somalia. This view is expressed with reference to the decision in AMM & Others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) promulgated on25th November 2011, as follows:
“[AMM] states that there remains a general risk of Article 15(c) harm for the majority of those returning to the city. Only those people connected with powerful actors or belonging to a category of middle class or professional persons can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply … it is clear that [the Claimant] has connections to Mogadishu which can sustain him on his return and which would allow him to live in a way which he would not run the risk of an Article 15(c) level of harm as those who are returning from overseas with no connections, as stated in AMM. Furthermore, he has not indicated that he suffers from ill heath which would render him unable to work and earn a living on his return. Please return the file to the CCD case owner so that deportation action can be progressed.”
[48]On 26th May 2012 a minute prepared by a Senior Case Worker indicated that a draft decision letter proposing refusal of the application to revoke the deportation order had been reviewed, and made a number of recommendations. The minute states:
“This is a very important case to get right as there are very few Somalis that can be returned given the guidance from AMM. As it is established that [the Claimant] is from the majority Habr Gadir (Hawiye) clan and has family links to Somalia we have to make the most compelling case possible … pass it back to me to check/refine. I will then circulate it to the SCWs for input due to the importance of getting all our arguments right before an IJ as on the face of it this is a deportable Somali. It will be a great achievement if that is the outcome.”
Although I am not placing the good faith of the author in question, the internal logic of this, and the previous, minute is not readily fathomable. If “very few Somalis can be returned”, the fact that the Claimant is a member of the majority clan could not – without more – be a sound basis for returning him; nor, in my view, would the fact that he retains family links to Somalia, because so would most majority clan members. Additionally, I fail to understand how and why an aged mother, and a grandmother of venerable age (assuming that she is still alive), could be efficacious protection against indiscriminate violence, regardless of any contact the Claimant may have had with the former.[49]On 12th June 2012 a Case Officer expressed concern that it was taking considerable time to conclude this case. The proposal (by another official, a Senior Executive Officer), was to maintain the Claimant’s detention for 28 days, for the same reasons as before.[50]On 20th June 2012 a further minute prepared by a Senior Case Worker set out detailed and specific instructions for the drafting of a decision letter refusing to revoke the deportation order, and reiterated the bold assessment of the merits that had been made the previous month.[51]On 25th June 2012 a draft decision letter refusing the application to revoke the deportation order was completed. It concluded that it would not be appropriate to revoke the deportation order as there would not be a risk on return to Somalia. Although it would be fair to say that the draft decision letter is a lengthy, well-researched and detailed document, the Claimant points out that it does not fully engage with the test in AMM but concludes on a broader basis that he should not be at risk of Article 3 or Article 15(c) harm owing to his clan membership and his family connections. I will be examining the decision letter at a later stage in this judgment.[52]However, this decision letter was not served as, very shortly after, on 29th June 2012, further representations were received from the Claimant’s representatives raising for the first time that Claimant was at risk on return because he is a sexually active homosexual and had converted to Christianity. As a result of these representations the draft decision letter that had been prepared was not served and enquiries were initiated.[53]On 26th July 2012 an asylum interview commenced but was not concluded until 17th August owing to interpreting difficulties. Unfortunately, no questions were asked of the Claimant about his conversion to Christianity.[54]In effect, nothing then happened until 21st February 2013, when the Claimant underwent a further asylum interview whose purpose was to probe into his religious affiliations. No evidence was adduced by the Defendant as to why it took so long to organise this interview. It is to be noted that the only element of urgency that is reflected in the documentation relates to a detention review dated 21st January 2013, in which it is stated, “a decision on the asylum claim must be made within the next 28 days detention”. In the event, that timetable was not fulfilled.[55]On 21st February 2013 the further asylum interview took place. The Claimant was asked a number of searching questions about his Christian beliefs. His answers may have been of uneven accuracy, but the overall picture (at least to my eyes) is not that he was blatantly putting this forward as a spurious and factitious reason for avoiding deportation.[56]On 8th March 2013 the Claimant’s solicitors sent further representations to the Defendant addressing his homosexuality and conversion to Christianity in the context of return to Somalia. Mrs Todd asserted that further representations of this sort would have a “big impact” on the decision-making process. However, given that there is no evidence that the Defendant had started to prepare a decision letter, and the substance of what was being put forward, I consider that this must be an exaggeration.[57]On 30th March 2013 a staff nurse saw the Claimant who was complaining of being bullied (this was not a new complaint) and of feeling scared. It was suggested that he had “possible paranoia”. However, on 20th April 2013 it was noted that the Claimant had been seen by two mental health nurses by that stage, and they did not appear to have any mental health concerns.[58]On 22nd April 2013 the Claimant applied under the Facilitated Return Scheme to go back to Somalia. This application was retracted on 2nd May.[59]On 1st May 2013 the Claimant refused to see the mental health team. On 15th May 2013 a community mental health nurse stated that there were “no obvious signs/symptoms of mental health issues”.[60]On 13th May 2013 the Defendant served a decision letter refusing to revoke the deportation order as well as the asylum application.[61]On 17th May 2013 the Claimant lodged an appeal against these decisions and a hearing was scheduled for 8th August.[62]On 4th July 2013 the same CPN who had seen the Claimant in May stated that “there was no evidence of mental illness during our conversation”. On 11th July 2013 the Claimant’s solicitors sent the Defendant a copy email from Dr Maloney (dated 9th July) which indicated that the Claimant was suffering from paranoid schizophrenia and needed urgent medical assessment. A copy of the email is no longer available, but it has been quoted verbatim in Dr Maloney’s written evidence. It is common ground that, although the Claimant’s solicitors may previously sought a psychiatric assessment of him (the Defendant in fact has no record of having received a letter from the Claimant’s solicitors, which is on their file, written in April 2012), this was the first occasion on which direct evidence of mental health difficulties had been raised. Mrs Todd explained, and I accept, that this new material would require careful consideration by the Defendant. In particular, it would need to be ascertained whether mental health issues had been raised before, what Healthcare at the prison felt about this, and whether an independent professional opinion should be sought. Mrs Todd also said that the Defendant tended to rely on “people who see him on a day-to-day basis”, i.e. the CPNs on the ground.[63]On 25th July 2013 the Claimant was assessed by a visiting psychiatrist, Dr Thirumalai. According to the Claimant’s continuous medical records, Dr Thirumalai recorded that the reason for this assessment was that “[an] independent psychiatrist [who must be Dr Maloney] has requested an assessment of his MH. No other details were available to me”.[64]Dr Thirumalai examined the Claimant and the relevant part of the medical record includes the following:
“Denied any significant medical hx of note … never been prescribed psychotropic medications in the past. Never known to CMHT/MH in the community. Never been in psychiatric hospitals. Denied any contact with mental health in Somalia. … ? stated that it was due to his excessive alcohol intake and chewing “khat”
. He stated that he was hearing voices of people and he described as hearing real people’s voices, but they were directed towards him. He stated that they were telling things like “fuck off … he is going to be deported.”[65]Dr Thirumalai’s impression was that there were three possibilities within the differential diagnosis: a low grade paranoid psychosis exacerbated by the stress of being deported; malingering or feigning mental illness to avoid deportation; or, long standing paranoid schizophrenia. The Claimant agreed to take a trial of the antipsychotic medication olanzapine (5mg daily) for a trial period of 28 days. Dr Thirumalai’s plan included, “to wait to see the independent psychiatrist’s reasons for the request”. It seems clear that Dr Thirumalai was not provided with even the gist of Dr Maloney’s email. I draw the inference that had Dr Thirumalai been aware of it, and in particular had he been provided with a copy of Dr Maloney’s report in October 2013, he would probably have recommended an independent psychiatric assessment. As I have said, paranoid schizophrenia did fall within Dr Thirumalai’s differential diagnosis.[66]On 31st July 2013 Dr Nnadi recorded that the Claimant was “still hearing voices”. On 1st August 2013 the Claimant refused to answer Ms Prince’s inquiry relating to voices or hallucinations, and demanded tobacco.[67]On 8th August 2013, which was the day the Claimant’s appeal was due to be heard, the Defendant withdrew the decision dated 13th May 2013 in the light of Dr Maloney’s email. Four days later the decision to refuse to revoke the deportation order was withdrawn for the same reason.[68]On my understanding, Dr Thirumalai’s provisional findings were not communicated to relevant decision-makers within the Defendant until 28th August.[69]On 28th August 2013 Jo Rance within the mental health team at HMP Woodhill informed the Defendant that the Claimant was assessed by a psychiatrist on 25th July 2013 (this was Dr Thirumalai) but “no overall conclusion was drawn”, and that the Claimant “generally presents no psychotic symptoms when interacting with the nurses, but this changes when he appears in court.”[70]On 4th October 2013 the Assistant Director stated that officials should ensure that the reconsideration of the Claimant’s asylum claim be expedited and served within the next 28 days.[71]On 7th October 2013 the mental health team at HMP Woodhill confirmed that the Claimant was fit to be interviewed. Given that no further interview was required, this confirmation appears to have been supererogatory.[72]On 8th October 2013 the Claimant submitted further representations formally advancing a new reason why he should not be deported, namely that removal would be a breach of his Article 3 rights owing to his mental health, and enclosing a full psychiatric report from Dr Maloney (dated 25th July 2013) which had not previously been disclosed. The Claimant’s delay in submitting Dr Maloney’s full report has not been explained.[73]On 30th October 2013 the Defendant was informed that “according to Matron” there was no reason for the Claimant to be re-assessed. The Defendant decided that if the Claimant were to challenge the decision not to reassess (which, it seems to me, must have been inevitable), an independent mental health assessment should be carried out to avoid future delays.[74]On 20th December 2013 a Criminal Caseworker drafted a submission “[t]o note that deportation cannot be pursued against a Somali national sentenced to 16 months imprisonment for wounding/inflicting grievous bodily harm”. The submission recommended that the Claimant “cannot be deported as to do so would be a breach of Article 3”. It was passed to a more senior official to “amend/approve”. The basis for recommending revocation of the deportation order was not because the Claimant was irremovable due to matters raised in Somali country guidance case law but rather owing to the Claimant’s individual circumstances, namely his mental health which it was considered would render him vulnerable to Article 3 breach if returned. In the event, the submission was sent to a Senior Executive Officer for approval.[75]On 17th February 2014 – that is to say, some 8 weeks later - a Senior Executive Officer rejected the submission to concede the deportation and release the Claimant, relying on information received from Healthcare at the prison that the Claimant was not in fact suffering from mental health issues.[76]On 3rd March 2014 Criminal Casework telephoned the Matron, Mental Health team at the prison. She said that “their visiting psychiatrist” (whom I assume must be Dr Thirumulai) could be asked to reassess the Claimant, but this would probably not occur for 2-3 months, because he was not a priority case. Given the length of time for which the Claimant had already been detained, this was a surprising observation to make. I must assume, I hope not naively, that the point was not being made that the Claimant’s circumstances were far from exceptional in this respect.[77]On 6th March 2014 Criminal Casework submitted a formal request to HMP Woodhill for the Claimant to be assessed by an in-house psychiatrist in order to determine whether he was suffering with any mental illness, the degree, severity and prognosis of such illness, and whether it could be adequately managed in Somalia. The file note records:
“X [redacted] added that if the subject does not clinically indicate and does not need to be referred to secondary care, a psychiatric report will have to be commissioned. This will involve a fee and the report will take a number of days to compile. If he is clinically indicated then they will refer themselves.”
On any view, therefore, a report from an independent psychiatrist would be necessary if the Defendant was not going to concede the case.[78]On 18th March 2014 the Claimant was seen by a mental health nurse at the prison who reported that there were no concerns about the Claimant’s mental state as there was no evidence of any problems during interview; no signs of distress; no concerns about self-harm or suicidal ideation; and, “open body language, smiling and laughing”. The Claimant also denied any mental health problems and requested not to see mental health workers again. As a result the Claimant was discharged from the mental health team because there was no clinical indication that warranted referral to a psychiatrist at that time.[79]On 30th April 2014 Criminal Casework noted that “a well-respected doctor” (Dr Maloney) had stated that the Claimant has mental health problems, but a nurse at the prison considered that he was “fine”. It was decided to ascertain the cost of a NHS assessment of the Claimant before approval was sought from an Assistant Director.[80]On 14th May 2014 the Claimant was transferred to IRC The Verne. On arrival, he was seen by the practice nurse and told her that he had not drunk alcohol for two years. He also said that he was currently on olanzapine, 5 mgs daily. He appeared to be “settled”.[81]On 15th May 2014 the Claimant was seen by Dr Fowler. He told Dr Fowler that he hears voices “all the time”, and that this symptom has been on-going for 18 months. He said that nothing caused the voices to stop. The Claimant said that he had been on olanzapine for 8-9 months (I would interpolate that this would bring the start date back to around July 2013, which is known to be correct). The diagnosis was noted to be unclear, and the view of an independent psychiatrist was awaited.[82]On 29th May 2014 the Claimant told Caroline Kinsella, whom I understand to be a psychiatric nurse, that since he had been imprisoned he had been hearing derogatory voices “telling him he is no good”. The Claimant also told Ms Kinsella that the voices used to be worse, but no longer occur at night, only during the day. The Claimant’s explanation for this was his drug regime. It was decided to increase the Claimant’s olanzapine.[83]On 9th June 2014 the Claimant was seen by a psychiatrist, Dr Rossiter, and told him that “the voices are OK”. On 11th June Dr Rossiter noted that the voices he heard were always in the third person, never in the second person. The Claimant confirmed that the voices had lessened since his treatment was started. The dose of olanzapine was increased.[84]It is not clear exactly when the decision was made by Criminal Casework to commission a report from an independent psychiatrist. In my view, this was probably on or about 9th June 2014 (see the file note dated 2nd July 2014), but it may have been later. The information received internally was that once the expert was in receipt of the Claimant’s medical records, the report could be ready within four weeks.[85]On 11th June 2014 the Claimant’s detention was reviewed. An Assistant Director, considering all the available material, made these observations:
“I am very concerned about the amount of time it is taking to consider the asylum decision and whether to commission a medical report into [the Claimant’s] mental health. Considering Healthcare appear to have no concerns, and the representatives have submitted a report to the contrary I would have thought that a [sic] independent report would be sensible in order to support any decision we make with regard to the asylum claim. This must be urgently resolved as [the Claimant] has been detained for 35 months [in fact, it was only 30 months] and the asylum claim appears to have been outstanding for a considerable period of time, particularly as the original decision was withdrawn to what appears to have been a complaint by the representatives. I am also concerned that [the Claimant] appears to have offered to sign a disclaimer and withdraw his asylum claim in order to enable his deportation, it is not clear whether anyone has actually spoken to him about this and whether he is still willing to sign the disclaimer. His representatives are adamant he will appeal any such decision.”
I note that it is not quite right to say that the original decision was withdrawn in the light of a complaint by the Claimant’s representatives. It was withdrawn on 8th August 2013 in the light of Dr Maloney’s email. Little, if anything, turns on this.[86]Notwithstanding the foregoing, on 10th July 2014 an immigration officer approached the Claimant to find out if he was willing to withdraw his asylum claim and sign a disclaimer to enable his deportation, but the Claimant refused to do so. In my view, this should not have happened, but it is not relevant to this claim.[87]On 10th July 2014 a Director reviewed the Claimant’s detention, and commented as follows:
“I am extremely concerned that this case is drifting. It is nearly a year since the original decision was withdrawn and we have an FNO who has a history of mental health issues yet we have still not decided whether or not to commission an independent mental health report [NB. cf. paragraph 84 above], nor do we appear to have any real impetus behind dealing with the asylum claim. The DR is too passive, stating that the action for the next month is to “consider the responses from Criminal Casework asylum team regarding commissioning an independent mental health report on [the Claimant].”
I would like a clear action plan for resolving this issue by 15th July, and would be happy to discuss the case with the team if it would assist. That said, [the Claimant] has been convicted of a serious offence and is considered to pose a high risk of harm to the public. He is also considered to pose a risk of absconding. At this time, he is considered fit to be detained. I therefore agree to maintain detention, on the presumption that the case will move swiftly on from here on in.”[88]On 15th July 2014 the Defendant sent a letter to Healthcare at IRC The Verne asking them to note the Director’s comments. They were also asked to provide Criminal Casework with copies of the Claimant’s past medical records.[89]On 31st July 2014 Dr Koski, a consultant psychiatrist, noted:
“Prominent second and third-person auditory hallucinations as well as bizarre persecutory beliefs. Confident diagnosis of paranoid schizophrenia and alcohol misuse.”
[90]Many of the subsequent medical records are difficult to interpret, but the better explanation may well be that when the Claimant was taking his olanzapine reasonably diligently, he felt “well within himself”, but when he did not he was “generally hypervigilant and paranoid”.[91]On 1st September 2014 the Claimant was assessed by the Prison Community Mental Health Service as being a low risk of harm to others but would require a referral to a Community Mental Health Team if released.[92]On 26th September 2014 Dr Koski noted that the Claimant was able to work within the IRC but was troubled by “continuous second and third-person voices”. The impression reached was that he was still unwell.[93]On 9th October 2014 the Claimant was seen by Dr Robert Cornish, Consultant Forensic Psychiatrist. This was the report commissioned by the Defendant’s Criminal Casework Team in or about June 2014, or possibly later – in other words, he was the “independent psychiatrist” referred to in the documents. It is wholly unclear why Dr Cornish’s visit took so long to organise once the decision had been taken to instruct him. Dr Cornish examined the Claimant for one hour without the benefit of an interpreter. He said that the Claimant’s speech was quite difficult to understand at times, owing to problems with dentition and possible learning difficulties. The Claimant came across to him as a somewhat vague historian. Dr Cornish noted the following:
“In terms of his thought content he described paranoid beliefs, although these possibly appeared rooted in reality and the opinion of others about his sexuality and religion. … [The Claimant] described hearing voices with derogatory content. … he experienced these as if hearing a real voice. They would often refer to him by the name of “Ray”, although would not generally call him by name. They were difficult to locate in space, although sometimes came from the landing outside his cell. … In terms of insight he did not believe that he suffered from a serious mental illness and was unfamiliar with the concept of schizophrenia as a mental disorder. He felt that his mental health problems were caused by people criticising him.”
[94]Dr Cornish diagnosed paranoid schizophrenia under ICD 10 code F20.0. He observed that the Claimant had been seen by four psychiatrists previously, and that all had agreed to some degree that the Claimant suffered from a severe and enduring mental illness. I should add that before concluding his report on 27th October 2014, Dr Cornish spoke to Dr Koski who confirmed to him that the Claimant was being treated for schizophrenia.[95]On 30th October 2014 a submission to concede deportation was prepared, and it was passed to a more senior official for approval on 5th November 2014.[96]On 4th November 2014 the Claimant’s solicitors wrote to the Defendant enclosing a copy of the local authority’s community care assessment, and stating:
“There is clear evidence that our client is a vulnerable individual. In our submission our client’s past offending history was connected to his abuse of alcohol, mental health problems that were not treated adequately at the time and lack of adequate support in relation to living independently. In our submission, if adequate arrangements are put in place for our client’s support on release, these will minimise the risk of re-offending.”
[97]On 26th November 2014 the Claimant was seen by a member of the substance abuse team. He told her that he had been drinking illegal “hooch” in the wings since he had arrived in prison (in November 2011) and the IRC (in May 2014). His alcohol audit score was noted to be very high. The Claimant also told her that he was “okay” on the olanzapine, but felt tired and slow.[98]On 27th November 2014 the Claimant told a psychiatric nurse that he refused to drink alcohol because he was afraid that would get him into trouble. The previous day, of course, his account had been somewhat different.[99]The Defendant’s final submission dated 3rd December 2014 recommended concession of deportation on the basis that the Claimant had been assessed by two psychiatrists (Dr Maloney and Dr Cornish) as suffering from paranoid schizophrenia, and also because both medical reports indicated that during the Claimant’s time in custody he had demonstrated behaviours that vouched his claimed sexual orientation, including promiscuity involving other male prisoners, and his conversion to Christianity. The submission further stated that the Claimant would be vulnerable to societal discrimination in Somalia which, taken together with his claim to be homosexual, meant that he was considered to be at real risk of treatment contrary to Article 3 on return.[100]On 4th December 2014 the Director of Crime and Intelligence accepted on behalf of Criminal Casework that the Claimant faced a real risk of persecution in Somalia, and that he should be released.[101]On 5th December Criminal Casework wrote to IRC The Verne informing them of the decision to take no further deportation action. The letter stated that it would be left to The Verne to decide when the Claimant should be released and under what conditions.[102]On 5th December 2014 the Claimant was released unconditionally, and on 17th December he was granted ELR. On that very day, the Claimant was arrested for the sexual offence for which he was to be sentenced in February 2015.[103]It is unnecessary, in my view, to set out the post-detention medical history at this stage, save to note that in December 2014, just before his release from detention, the Claimant was prescribed a different anti-psychotic drug, aripiprazole. The exact date on which the Claimant started to take this drug is unclear. Later, he reported an improvement in his symptoms. The experts in this case have interpreted the available evidence as generally supporting the viewpoint that any improvement in the Claimant’s symptoms with olanzapine was modest, at best.

THE CLAIMANT’S EVIDENCE

[104]The Claimant, who is currently at HMP Woodhill, gave brief oral evidence. Making allowances for difficulties in interpretation, he was a poor witness. He denied that he was faking psychiatric symptoms to gain an advantage. The following entry by Vickie Prince (a member of the mental health team at HMP Woodhill), dated 28th December 2012, was put to him:
“… states he has no mental health issues, he stated he was using mental health to have a single cell as he is gay and was scared of sharing a cell in prison … stated that now he is on 4B he is happy and wish [sic] to share a cell with fellow inmates, no hx of mental health issues. Sleep pattern normal, no suicidal thoughts … discharge from clinic [the Claimant] was informed if he request to see the mental health team in the future this will be accommodated.”
The Claimant agreed that the note was accurate in all respects save as regards his mental health history and the reference to using mental health to attain a single cell. He told me that his mental health problems started in 2002, but if that is right, and it plainly contradicts assertions made by the Claimant at other times, there is no medical note to that effect. His explanation for making an admission apparently damaging to his case was that on this particular day he was tired, “they were talking about me on the TV”, and he wanted to be safe. However, this answer did not properly address what appears in Vickie Prince’s note.[105]The Claimant gave slightly confusing evidence about whether he has, or had, been abusing alcohol in prison. In re-examination he said that he did not drink alcohol in HMP Woodhill but that he did so at IRC The Verne. In November 2014 1.5 litres of “hooch” were discovered in the Claimant’s cell. The Claimant’s rising liver enzyme levels in 2014 are also consistent with alcohol intake over that period. The Claimant freely admitted to me that he regularly took a substance called “spice”, which is a so-called “legal high”. His evidence was that he started taking it in 2007. However, he told Dr McKay that he first started using “spice” in November 2015 whilst in a hostel (this must have been after his release on licence and before his recall to prison), and that he did not really like doing so because it caused paranoid symptoms.[106]Having said that the Claimant was a poor witness, I recognise that considerable judicial caution is required. Aside from the obvious cultural issues, and the language barriers, the Claimant is not in my view a very bright man, has (at best) low educational attainments (noting as I do his inconsistent evidence about these), has an unhealthy lifestyle in terms of the substances he takes, and might well be suffering from mental health difficulties. Just as the correct psychiatric diagnosis has proved to be something of a challenge for some of the mental health professionals, so has been the correct judicial response to his brief evidence.

RETURNS TO SOMALIA

[107]Ms Victoria Laughton invited me to consider the background situation in Somalia. For the purposes of this judgment, it is unnecessary to set out any lengthy historical and geographical disquisition, but by way of overview it was accepted by Mrs Todd that for some years now a distinction falls to be drawn between Somalia (including, of course, its capital Mogadishu), Puntland (to the north of the country) and Somaliland (an autonomous region also to the north).[108]On my understanding of Mrs Todd’s evidence, returns to Somalia are always to Mogadishu, and direct flights are available from London. Returns to Somaliland (specifically, to Hargeisa) are via Turkey.[109]I have already mentioned the case of AMM, but also of relevance is AM & AM (armed conflict: risk categories) Somalia CG [2008] UKAIT 00091. In this Country Guidance case the Tribunal said:
“There is now an internal armed conflict within the meaning of international humanitarian law and Article 15(c) of the Refugee Qualification Directive throughout central and southern Somalia, not just in and around Mogadishu. The armed conflict taking place in Mogadishu currently amounts to indiscriminate violence at such a level of severity as to place the great majority of the population at risk of a consistent pattern of indiscriminate violence. On the present evidence Mogadishu is no longer safe as a place to live in for the great majority of returnees whose home area is Mogadishu. … As regards internal relocation, whether those whose home area is Mogadishu (or any other part of central and southern Somalia) will be able to relocate in safety and without undue hardship will depend on the evidence as to the general circumstances in the relevant parts of central and southern Somalia and the personal circumstances of the applicant. Whether or not it is likely that relocation will mean that they have to live for a substantial period in an IDP camp, will be an important but not necessarily a decisive factor.”
I should add that the Qualification Directive here being referred to is Council Directive 2004/83/EC. Article 15(c) provides that serious harm consists in “serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”. Although it falls short of Article 3 ECHR harm, its existence is sufficient to warrant the grant of humanitarian protection and discretionary leave.[110]AMM gave more concrete expression to the attributes of the minority of returnees who would not suffer an Article 15(c) risk:
“Despite the withdrawal in early August 2011 of Al-Shabaab forces from at least most of Mogadishu, there remains in general a real risk of Article 15(c) harm for the majority of those returning to that city after a significant period of time abroad. Such a risk does not arise in the case of a person connected with powerful actors or belonging to a category of middle class or professional persons, who can live to a reasonable standard in circumstances where the Article 15(c) risk, which exists for the great majority of the population, does not apply. The significance of this category should not, however, be overstated and, in particular, is not automatically to be assumed to exist, merely because a person has told lies.”
[111]Two days after the domestic tribunal was providing Country Guidance in Somali cases, the ECtHR promulgated its judgment in Sufi & Elmi v UK (Application Numbers: 8319/07 and 11449/07). For obvious reasons, the ECtHR could only address Article 3 of the ECHR and not Article 15 of the Qualification Directive. I note, however, that subject to the internal flight alternative, the ECtHR held that the violence in Mogadishu was of such an intensity that anyone in the city, except possibly those who were exceptionally well-connected to “powerful actors”, would be at risk of proscribed treatment.[112]The Court of Appeal has explained that it requires “very strong grounds supported by cogent evidence” to justify a departure from Country Guidance: see SG (Iraq) v SSHD [2012] EWCA Civ 940. It is unclear whether the Defendant was aware of this case.[113]On 7th October 2014 the Tribunal revised its Somali Country Guidance to this extent. AMM continues to have effect save that a person who is an “ordinary civilian” returning to Mogadishu after a period of absence will generally face no risk of Article 15(c) harm: see MOJ and others (Return to Mogadishu) (CG) 2014 UKUT 442 (IAC). As will be apparent from my findings in this case, this decision arrived rather too late on the scene to avail the Defendant. (A similar point may be made in relation to SSHD v Said [2016] EWCA Civ 442, 6th May 2016, which post-dated the oral argument in this case, and which I mention only for completeness).[114]According to the published figures, in 2009 there were 22 enforced removals to Somalia. The figures for subsequent years are as follows: 2010 (13); 2011 (12); 2012 (7); 2013 (8) and 2014 (35). This last figure may not be sound inasmuch as paragraph 71(f) of Mrs Todd’s witness statement contains an obvious omission.[115]By way of further breakdown, the figures in relation to failed asylum seekers are even lower. The Claimant naturally falls within this category, or would have so fallen had he been removed. The published figures do not contain any carve-out for foreign national offenders, but I doubt whether the characteristics of this sub-group are especially material for present purposes. The Claimant was/is a foreign national offender and at the material time was also a failed asylum seeker.[116]Mrs Todd explained that about 90% of all Somali foreign criminals claim asylum.[117]On 23rd March 2016 the Defendant furnished further information pursuant to the Claimant’s Part 18 requests. The requests related to returns to Mogadishu, as opposed to anywhere else. The further information, backed by a signed statement of truth, stated that the published statistics do not differentiate between returns to Mogadishu and those to Hargeisa. However, there is “locally held management information for failed asylum seeker returns to Mogadishu” which show that in 2013 no one was returned there, and in 2014 only two individuals. The corresponding figures for 2009-2012 aggregate six. I doubt whether data of this nature has been made available in other Somali cases: I have seen no reference to it in any of the authorities collected in the bundle.[118]Mrs Todd pointed out the following form of disclaimer on the further information provided:
“Please note that these figures are based on internal management information which has not been quality assured under national statistics protocols, and should therefore be treated as provisional and subject to change.”
She said under cross-examination that these figures were unreliable, and that the published statistics should be preferred. In any event, she added, these figures relate to failed asylum seekers, not foreign national offenders. However, on this last point 90% of foreign national offenders claim asylum. It does not automatically follow that 90% of removed foreign national offenders are also failed asylum seekers, but as a matter of common sense it must be easier for the Defendant to remove a foreign national offender who has not claimed asylum. To my mind, the unofficial statistics are certainly capable of being relevant to the Claimant qua failed asylum seeker.[119]Logically, it seems to me that the possibilities are as follows. First, that the internal management information may simply be incorrect. Secondly, that this information may be correct and reconcilable with the published statistics, on the basis that the vast majority of removals to Somalia are in fact to Hargeisa in Somaliland.[120]I am not prepared to hold that this management information cannot be relied on. I appreciate that it may be “subject to change”, but the overall pattern over the years is consistent. Mrs Todd was in no position to seek to disown the management information in the way in which she did: she does not know the true position, and her attempt to undermine this information, supported as it was by a signed statement of truth, was unappealing. The better inference is that the vast majority of removals of failed asylum seekers (a category which must also include failed Article 3 and Article 15(c) claimants) to Somalia have been to Hargeisa in Somaliland and not to Mogadishu.[121]None of this means that there were insuperable barriers to the removal of the Claimant at the material time. It is possible that many Somalis whom the Defendant has sought to remove have put up barriers to their deportation which are cynical and self-serving, therefore impermissibly distorting the outcome. Without more comprehensive evidence, it is impossible to discern the true picture. Even so, the legal test is not “insuperability” but whether there was a realistic prospect of removal within a reasonable time (see further below), and there would appear to have been a minuscule number of removals to Mogadishu between 2009 and 2014. Thus, it would be difficult to disagree with the official’s view that removal of the Claimant would, in his particular circumstances, be a “great achievement”. THE PSYCHIATRIC EVIDENCE The Evidence of Dr Chris Maloney, FRCGP MRCPsych

THE PSYCHIATRIC EVIDENCE

[122]Dr Maloney has worked as a Consultant Psychiatrist (between 1993 and 1999) and then as a General Practitioner in Hackney. He was a sound and careful witness whom I thought was appropriately caring and reasonably objective.[123]Dr Maloney was only able to assess the Claimant on one occasion, which as I have already said was on 9th July 2013 at HMP Woodhill. The interview lasted 75 minutes and was conducted with the benefit of an interpreter. Dr Maloney told me that on this occasion the Claimant was thin, unkempt and in a poor state. (The Claimant’s physical appearance has changed considerably). On the very day Dr Maloney was travelling by train in order to conduct a further assessment of the Claimant, the latter was transferred without notice to another institution. Thereafter, funding for a further assessment was not granted.[124]Dr Maloney appears to have conducted a thorough assessment of the Claimant. He noted the following:
“He was preoccupied and repetitive throughout the interview continually reiterating a small number of themes. These were essentially that he hears other people talking about him, saying that he is a paedophile; and that he is discussed on the television to the same effect [this chimes with part of the Claimant’s oral evidence]; and that he had broken a television and was going to break one again. … He accompanied his complaints by waving his arms around, or wriggling within his seat. At times he clicked his fingers repeatedly as he spoke. On the few occasions when his agitation and insistence did subside, he slumped on his chair, looking rather forlorn. At one point he put his finger in his mouth, sucked on it, and conveyed an impression of deep, childlike sadness.”
[125]The Claimant told Dr Maloney that at night he could not sleep “because someone is touching my body … I wake up and become violent”.[126]The Claimant explained to Dr Maloney that he was gay and had been promiscuous since the age of 12, when he was in a residential school for “orphans” in Somalia. (The Claimant did not hide from Dr Maloney that his mother was still alive). The Claimant denied taking alcohol in prison over the past 20 months, save for small amounts of ceremonial wine at Communion – he said that he had been a Christian for “a year or something”. Dr Maloney’s review of the Claimant’s “contact log” demonstrated that the Claimant had been observed to be acting in an inappropriate sexual manner, making unwanted advances to other prisoners (e.g. the entries for 12th September 2012, 31st December 2012 and 3rd February 2013).[127]Dr Maloney’s diagnosis of the Claimant under DSM-IV(R) (he preferred this to the recently published DSM-V) was of paranoid schizophrenia. The key clinical features supporting the diagnosis were:(i) preoccupation with accusatory delusions;(ii) fixated belief that people were talking about him in the context of paedophilia and killing children;(iii) command and somatic hallucinations;(iv) disorganised speech and behaviours; and(v) flat affect.[128]Given that in Dr Maloney’s view there was no evidence of recent substance abuse in detention, substance-related psychosis could in his opinion be ruled out.[129]In his second report dated 15th June 2015, Dr Maloney addressed the Defendant’s care of the Claimant at all material times. By way of summary:(i) the Claimant’s schizophrenia is likely to have been present on or shortly after his admission to HMP Woodhill in November 2011;(ii) the Claimant’s mental illness should have been regularly reviewed, and anti-psychotic drugs prescribed.(iii) “when I met [the Claimant] in July 2013 his presentation was typical of schizophrenia. He had multiple diagnostic features. It simply required a standard psychiatric interview to elicit them”.(iv) between December 2012 and July 2013 there is no evidence of any mental health professional within the prison carrying out an appropriately in-depth assessment of the Claimant.(v) Dr Thirumalai’s assessment of the Claimant was inadequate, “in that he raised paranoid schizophrenia as a diagnostic possibility, but took no documented further steps to clarify the diagnosis”. Further, no action was taken within the prison on Dr Maloney’s report.(vi) malingering could effectively be discounted as a possibility within the differential diagnosis: “if this were the case, [the Claimant] had conducted a protracted and sustained simulation, in addition to displaying a detailed and accurate knowledge of schizophrenia in order to simulate the state so effectively over a long period of time”.(vii) from May 2014 onwards, the Claimant received adequate care at IRC The Verne.(viii) it is probable that had the Claimant been treated at an earlier stage his prognosis and response to medication would have been better, and it would substantially have reduced his subjective distress arising from paranoid persecutory experience.(ix) the Claimant should not have been released into the community in December 2014 without appropriate arrangements in place, as recommended.(x) once released into the community, the Claimant started drinking heavily and may at some point have discontinued his medication. “This will have negatively impacted on all aspects of his mental state and behaviour”.[130]In his oral evidence, Dr Maloney explained that there is no widely accepted diagnostic tool in relation to malingering, that the DSM-V criteria are no more (and no less) than criteria for suspecting malingering; that a broad clinical judgment has to be made, having regard to all the available evidence; and, that he did consider the possibility that the Claimant was malingering because this is his standard practice. In terms of the clinical judgment which falls to be exercised, the questions are:
“is this a consistent history and presentation?” “does this add up?”
[131]Dr Maloney did not accept that the DSM-V criteria are particularly good discriminators of malingering. They are merely screening instruments, capable of setting up a series of “red flags”.[132]In cross-examination, Dr Maloney was taken by Ms van Overdijk through the DSM-V malingering criteria as applied and analysed in depth by Dr McKay, and was also referred to the list of “recognised features that are more common in simulated than genuine psychiatric illness” as set out by two American academic writers, Professor Resnick (a psychiatrist) and Professor Rogers (a psychologist). During the course of Ms van Overdijk’s cross-examination it became plain that the experts were in disagreement both in terms of the Claimant’s actual presentations at all material times and the inferences to be drawn from them. For example, Dr McKay’s clinical judgment was that the Claimant at the start of his interview described his symptoms in the same manner as a person with psychosis might, but towards the end he was describing voices as symptoms. Dr McKay’s point was that towards the end of the interview the Claimant was unable to maintain the pretence. Dr Maloney did not share this experience, but he did agree as a general observation that the Claimant was quite inconsistent in the manner of his presentation over the years.[133]I asked Dr Maloney to explain the difference between second and third person symptoms as mentioned in the Claimant’s clinical notes at IRC The Verne. Dr Maloney explained that traditionally a third person hallucination is regarded as “first rank”, that most psychiatrists today would adhere to that view, but there is a school of thought that the difference between apparent second and third person symptoms is less important.[134]Dr Maloney agreed that he considered, and discounted, the possibility of substance-induced psychosis on the premise that the Claimant, on his account, had not been drinking alcohol for 20 months.[135]When asked about the Claimant’s apparent admission of feigning to Ms Prince on 28th December 2012, Dr Maloney said that it was possible that the Claimant was paranoid, lacking in insight, and refusing to admit this because he was incapable of doing so.[136]Towards the end of Dr Maloney’s cross-examination, it became clearer where the essential fault-line between his and Dr McKay’s views lay:
“As the soft factors [in the DSM] become less clearly defined, the question of applying them becomes more problematic. We are suspicious [of individuals in a medico-legal context] in any event. In the absence of clear evidence that he was not telling the truth, or that the presentation is clearly out of keeping with what one might expect, those soft factors do not tell me enough about a key issue about a person.”

The Evidence of Dr Gavin McKay, MSc MRCP

[137]Dr McKay has been a substantive Consultant Psychiatrist in the NHS, working full-time in that capacity, since 2012. He has less clinical experience overall than Dr Maloney, but greater recent clinical experience in psychiatry. It is apparent from his cv that he has a number of academic interests. In my view, Dr McKay has provided the court with an immensely thorough, well-crafted and extremely detailed report. He was able to examine the Claimant for 2 hours, and (like Dr Maloney but unlike Dr Cornish) had the benefit of an interpreter. My assessment was that Dr McKay gave his oral evidence in a reflective, careful and slightly studious manner. He had a complete mastery of the material, and had obviously done a lot of work on this case overall.[138]According to Dr McKay, the Claimant appeared less restless after being encouraged to relax. The account he gave Dr McKay was that his voices started in 2011, but then the Claimant said that he “used to drink to forget”. The voices were reportedly particularly bad for a period of three months in 2011. The Claimant then explained that he was taken to “another place” (we know that this was IRC The Verne, to where the Claimant was in fact moved in May 2014), and he then felt a little better. In my judgment, it is quite clear that the Claimant is incapable of giving a reliable history to any clinician.[139]On examination, the Claimant told Dr McKay that he experienced auditory hallucinations in the second and third person, but there were no visual hallucinations and, at the time of examination, no thought echo – a first rank symptom of schizophrenia. There was no evidence of thought disorder (c.f. Dr Maloney).[140]In Dr McKay’s opinion, if the Claimant’s symptoms are to be taken at their face value, the two main possibilities are substance-induced psychosis and schizophrenia. A diagnosis of the latter illness should not be made until the Claimant has been free of substances for approximately one month, and “the Claimant has an extensive history of misuse of various substances that have been linked to psychotic illness, such as khat, cannabis, spice and alcohol”.[141]For Dr McKay, an important issue is whether there is evidence of simulation and symptom magnification in the Claimant’s case. According to DSM-V, malingering should be strongly suspected if any of the combination of the following is noted:(i) a medico-legal context;(ii) marked discrepancy between the person’s claimed stress and disability, and objective findings;(iii) lack of co-operation during the diagnostic evaluation and non-compliance with the prescribed treatment regime; and(iv) the presence of anti-social personality disorder. In Dr McKay’s opinion, items (i), (ii) and (iv) are clearly satisfied in the instant case. In relation to item (ii), Dr McKay points out that there is no evidence of the Claimant responding to auditory hallucinations, which is an atypical presentation. In relation to item (iv), Dr McKay points out that deceit and malingering are associated with anti-social personality disorder. In the light of these matters, Dr McKay stated that “the case needs careful scrutiny”. His position was not that the DSM-V criteria should be applied algorithmically, but rather that they are guides to the sound exercise of clinical judgment.[142]The next stage in Dr McKay’s analysis was to consider the Resnick/Rogers features or criteria to which I have already referred. There are 16 of these, and Dr McKay has carefully considered all of them. It is unnecessary to examine all the salient matters in this judgment, but Dr McKay placed particular emphasis on the fact that the Claimant “thrusted forward” his symptoms both to him and Dr Maloney (said by Dr McKay to be an atypical presentation, because genuine psychotics tend to hide their symptoms), that he has given inconsistent accounts throughout, that he has exaggerated his symptoms, and that his responses to medication (or their absence) are difficult to reconcile with the known course of paranoid schizophrenia. On this last point, Dr McKay accepted in cross-examination that he had been mistaken about the absence of medication in 2015 – the Claimant was taking aripiprazole since his arrest and detention in December 2014.[143]There is clear evidence in the Claimant’s medical history that even before July 2013 and the receipt by HMP Woodhill of Dr Maloney’s email, nurses were recording that he was “paranoid” about people talking about him as gay as a Christian. Dr McKay did not agree that this contradicted his diagnosis. His point was that this might well have been a non-pathological reaction by the Claimant to the fact that his fellow inmates were indeed talking about him in this regard. On this approach, “paranoid” bears its non-psychiatric meaning.[144]Dr McKay also noted the views of the mental health nurse at HMP Woodhill that the Claimant only claimed to experience symptoms when a court case or bail hearing was on the horizon. The relationship between stress and symptomatology clearly needs to be considered. In Dr McKay’s opinion, stress affects neurotic conditions (here, he was perhaps moving away from the terminology of DSM-V) more than psychosis. On my understanding of his evidence, he was not ruling out a possible association.[145]For obvious reasons, the Claimant’s putative ability to contrive symptoms about which he might be expected to be unfamiliar must be called into question. Dr McKay’s opinion about this was as follows:
“There were no blatant signs of simulation such as claiming absurd visual hallucinations or severe cognitive impairment but it has been observed that the most successful simulators will simulate only one or two symptoms and avoid obviously bizarre complaints.”
In his oral evidence, Dr McKay said that the Claimant’s intellectual level was not known. However, “we see patients of a low intellectual level who are simulating psychosis”.[146]Overall, therefore:
“… my conclusion is that, on the balance of probabilities, simulation or symptom magnification explains a large part of the Claimant’s presentation. I am reluctant to say that it explains it all at all times. In the context of substance misuse psychotic symptoms are very common so it is highly plausible that at times the Claimant has experienced transient psychotic symptoms such as paranoia and auditory hallucinations. If he has personal experience of such symptoms then this would explain the typical features of the hallucinations described above.”
[147]Further, in Dr McKay’s estimation the management of the Claimant’s mental health was reasonable, although he was critical of the absence of psychiatric review between July 2013 and March 2014 following receipt by the Defendant of Dr Maloney’s report. Further:
“Whether it was inadequate and caused harm depends on whether the Claimant actually needed any treatment or not. I do not consider that on the balance of probabilities he did. He did have a short term supply of a sleeping tablet and sleep advice on 10th August 2013 by one of the GPs and was seen daily by them until 24th August 2013 … There should have been a follow up review as in the documented plan or an entry to justify not offering one. Having said that the Claimant spent the rest of his time at HMP Woodhill without any further serious behavioural disturbance or complaints of mental health problems.”
[148]This opinion is predicated on there being no need for treatment at all material times. Under cross-examination, Dr McKay said that if the Claimant was in fact receiving olanzapine between July 2013 and March 2014, even at 5 mgs, that would have contained his symptoms. In re-examination he added that the records betray no obvious signs of behavioural disturbance between those dates.[149]Dr McKay was asked in cross-examination to explain the number of convergent diagnoses of schizophrenia made by those who saw the Claimant in a detention setting since 2013 (I have counted 5, possibly 6). His answer was that treating doctors will generally believe their patients.[150]Asked about the Prince entry for 28th December 2012 and the possible confession of symptom manufacture for secondary gain, Dr McKay accepted that it was possible that the Claimant might have been lacking in insight about his mental health difficulties.

The Joint Report

[151]Dr Maloney and Dr McKay prepared a joint statement on 15th March 2016 following a fifty minute discussion on the telephone.[152]On that occasion, Dr Maloney addressed the question of malingering in these terms:
“In July 2013 Dr Maloney did not consider that the evidence was that [the Claimant’s] presentation was primarily symptom manufacture or exaggeration, nor did he consider that the picture was one of psychotic symptoms arising as a direct consequence of substance abuse, due to the protracted and consistent nature of the presentation as documented in the records he cited, and due to restrictions upon [the Claimant’s] substance usage inherent in his imprisonment.”
[153]The experts were not in agreement as to whether, if the Claimant did have schizophrenia, the period when he was untreated would on the balance of probabilities have made any difference to his long-term prognosis. In Dr McKay’s view, it would not have done, owing to the lack of any real response to treatment. Dr Maloney, on the other hand, whilst recognising the academic debate on the issue, believed that it is probable that earlier treatment would have led to a better response to medication and an enhanced prognosis. In any event, earlier treatment would have substantially reduced his subjective distress.[154]In terms of the Claimant’s release from detention on 5th December 2014:
“We agree that [the Claimant] was considered to be suffering from schizophrenia at the time of release, and that if suffering from schizophrenia, he would have been particularly vulnerable at this point due to being in the process of changing his medication, It would therefore have been at the worst time at which to have a lack of supervision, considering his risk factors of substance abuse and anti-social behaviour.”

THE CLAIM UNDER SECTION 8 OF THE HUMAN RIGHTS ACT 1998

[155]It is convenient to address this claim first, only because it is less elaborate than the common law claim and turns, in the main, on my assessment of the expert evidence.[156]I did not understand Ms Laughton to be advancing a free-standing Article 8 claim on behalf of the Claimant. The claim has been put forward on the basis of Article 3 and/or Article 8, but nowhere in her submissions could I find any development of a separate case under Article 8, or at least a case which was not wholly parasitic on the Article 3 claim. In my view, in the circumstances of this case the destiny of the Article 8 claim is wholly contingent on the Article 3 claim.[157]Before the Defendant’s positive and negative obligations under Article 3 are put in issue, the following logically prior question arises, namely: was the Claimant in fact suffering from paranoid schizophrenia at any stage during the first and second period of detention?[158]This issue does not fall to be resolved on the standard probabilistic basis familiar to civil proceedings in a common law context. In Ireland v UK(5310/71) [1978] ECHR 1, the ECtHR said, at paragraph 161:
“The Court agrees with the Commission’s approach regarding the evidence on which to base the decision whether there has been a violation of Article 3. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account.”
Ms Laughton accepted that this is the approach I should be adopting.[159]Ms Laughton advanced clear and spirited submissions seeking to persuade me that the standard of proof for an Article 3 breach had been discharged in the instant case. She submitted that Dr Maloney’s evidence was very strong, and that he was the only professional who had prepared a report when the Claimant was under no medication. Dr Maloney’s diagnosis was supported by the convergent opinions of five psychiatrists, including Dr Hillman (in January 2015) and Dr Fazell (in June 2015). None has concluded that the Claimant was malingering, notwithstanding that this issue would clearly arise in any prison context. Dr McKay, who had on Ms Laughton’s submission a tendency to advocate a point of view, saw the Claimant at a time when he was being successfully medicated. Further, it is implausible that the Claimant could have had the guile to manufacture these symptoms, including an ability to dissemble an absence of improvement of symptoms from one drug (olanzapine) but an improvement from another (aripiprazole). If the court accepts Dr Maloney’s evidence as to the Claimant’s presentation on 9th July 2013, others within the prison should have assessed him in the same way.[160]Ms van Overdijk invited me to accept Dr McKay’s evidence and in particular to note that he has been the only psychiatrist who has been prepared properly to engage with the issue of malingering. Dr Maloney, for example, really only addressed this issue for the first time in the joint report, although it had been mentioned in passing, and then solely in the context of Dr Thirumulai’s evidence, in Dr Maloney’s second report.[161]In my judgment, although the diagnosis is probably sound, I cannot be satisfied beyond reasonable doubt, making findings of primary fact and drawing inferences where appropriate, that the Claimant has or has had paranoid schizophrenia.[162]Ms Laughton’s strongest point was that at least five psychiatrists within the prison service have made a diagnosis of paranoid schizophrenia, and it seems improbable that the issue of possible deception and secondary gain has escaped all of their minds. Even so, Dr Thirumulai clearly considered this possibility (I do not place any particular weight on his ordering of possible diagnoses within the differential diagnosis), as did those who knew the Claimant well within HMP Woodhill. My task is hampered by the fact that I have only heard evidence from two psychiatrists, and the quality and robustness of clinical opinion elsewhere cannot be reliably evaluated. However, the standard of proof is a high one, and the possibility that those at HMP Woodhill were appropriately sceptical whereas those at other institutions were inappropriately gullible cannot be discounted. On this same theme, it is slightly surprising that the Claimant should have presented in such an extreme and florid manner to Dr Maloney on 9th July 2013, but not apparently to an experienced mental health nurse just a few days beforehand. If I were deciding this issue on the ordinary civil standard of proof, I would be concluding, having regard to all the evidence, that these nurses were probably negligent. Yet, on Article 3 standard of proof I simply cannot make such a finding.[163]Serious issues arise as to(i) the Claimant’s alcohol consumption in detention,(ii) his drug regime after July 2013, and(iii) whether he improved or not. I cannot resolve those issues beyond reasonable doubt, although I would be prepared to hold that (i) the Claimant probably was consuming substantial quantities of illegal alcohol at IRC The Verne in addition to his intake of “legal highs” at both establishments, (ii) the Claimant probably was taking olanzapine for 8-9 months at HMP Woodhill, and (iii) there is little evidence of marked, significant or florid psychiatric presentation between July 2013 and May 2014. Item (i) clearly brings into play the issue of substance-induced psychosis, which in my view has been undervalued by Dr Maloney. In my judgment, the Claimant probably did appear to improve once he was transferred to IRC The Verne, but that may have been the result of less bullying and a more generally supportive regime, possibly leading to a reduction in his anti-social behaviour disorder.[164]The fact that a number of psychiatrists have shared Dr Maloney’s evaluation of this case only takes the Claimant a certain distance. As regards all save Dr Cornish, the quality of their reasoning is unclear. Dr Cornish only examined the Claimant for one hour, without the benefit of an interpreter. It could be argued that he has not penetrated below the surface of this complex case.[165]I also consider that there is some merit in Ms van Overdijk’s submission that Dr Maloney has come late to any proper consideration of the issue of malingering, and that Dr McKay is the only psychiatrist who has investigated this issue with proper and detailed care. It may well be said that Dr McKay has investigated this issue with considerable vigour and enthusiasm, and may slightly have lost his objectivity along the way. On the other hand, in my judgment Dr McKay has been able to amass a reasonably convincing series of reasons in support of the contention that this Claimant is malingering, and he has also been able to address the point that the Claimant lacks the guile to do this. As he has said, people of low intellect have demonstrated a capacity to manufacture symptoms, the Claimant clearly receives a diagnosis of anti-social personality disorder (with a concomitant propensity to lie), and (I would add) prisons and immigration detention centres must have a number of inmates with psychotic signs and symptoms - the Claimant would have been able to learn from these.[166]I should emphasise that I should not be understood as holding that malingering, symptom exaggeration and an element of substance induced psychotic symptomatology is my preferred explanation for the present case. Rather, I cannot properly exclude it as a reasonable possibility on all the available evidence. It is supported to some extent by the Claimant’s admission to Ms Prince on 28th December 2012, a consideration which in my view cannot be wholly brushed aside.[167]It follows that the Claimant’s primary case based on a breach of Article 3 and/or 8 of the ECHR must fail.[168]Ms Laughton’s subsidiary case was that I should hold that the Claimant’s Article 3 rights were violated upon his release from detention on 5th December 2014, until his re-arrest on 17th December.[169]In this context, the Claimant’s unchallenged evidence was as follows:
“One day an officer came to see me while I was working in the Verne. He asked me if I had an address. He said that if I did they would let me out that day, and if I didn’t it would take longer. I gave the address of a friend of mine, A [redacted] …. In Northampton I went to A’s house but he did not live there anymore. After that I lived on the street. I was sleeping in the street outside a theatre. I was given some blankets by a day centre that helps homeless people but I was still very cold. I did not feel safe. I was scared of being attacked. Anything can happen when you are on the street. I was begging for money and drinking a lot. I felt very bad and confused.”
[170]I have referred to the documentary materials which indicate that the Defendant considered that the Claimant was vulnerable and needed to be released into the community in a structured and measured fashion. I am not satisfied that this happened. However, for the purposes of his Article 3 claim the Claimant must satisfy me not merely that he was believed to have schizophrenia, but that there is no reasonable doubt about this being the correct diagnosis. If one proceeds on the premise that schizophrenia might not have been the correct diagnosis, the position becomes much more difficult from the Claimant’s perspective. I would not be prepared to hold that it was a breach of the Claimant’s Article 3 rights to release him into the community on the basis of the Defendant not being satisfied that he had an address to which to go. In any event, in my judgment there is insufficient evidence to support the proposition that in these circumstances the Article 3 threshold of destitution was met by the Claimant having to sleep rough for 12 days whilst the day centre was helping him with his application for benefits (see, for example, Lord Bingham in R(oao Limbuela) v SSHD [2006] 1 AC 396 (at paragraph 7)).[171]Overall, and for the reasons I have given, the claim under section 8 of the Human Rights Act 1998 fails. THE CLAIM FOR UNLAWFUL DETENTION AT COMMON LAW The Relevant Legal Framework

THE CLAIM FOR UNLAWFUL DETENTION AT COMMON LAW

[172]There was a broad measure of consensus between Counsel as to the legal principles governing the claim at common law.[173]It is not in dispute that at all material times the Claimant was an individual liable to be deported, and therefore liable to be detained. As a foreign national criminal, the public interest in favour of deportation was strong, unless the Claimant could bring himself within one of the exceptions, including of course asylum, Article 3 and/or Article 15(c).[174]The locus classicus remains R(oao Lumba) v SSHD [2012] 1 AC 245. Three of the principles capable of being distilled out of the judgment of Lord Dyson, supported by a majority in the Supreme Court, are as follows:(i) the deportee may only be detained for a period that is reasonable in all the circumstances (“Hardial Singh (ii)”);(ii) if, before the expiry of the reasonable period, it becomes apparent that the Defendant will not be able to effect deportation within a reasonable time, she should not seek to exercise the power of detention (“Hardial Singh (iii)”);(iii) the Defendant should act with reasonable diligence and expedition to effect removal (“Hardial Singh (iv)”).[175]In R(oao Krasniqi) v SSHD [2011] EWCA Civ 1549 Carnwath LJ explained that these principles are not statutory rules, and that sight must not be lost of the underlying propositions of law, namely that the paragraph 2(3) Schedule 3 power within the Immigration Act 1971 (I would add, modified as appropriate to reflect the UK Borders Act 2007) should not be exercised perversely or in a manner inimical to its policies and objects (here, I am paraphrasing). Carnwath LJ added that there is a dividing-line between administrative failings on the one hand and unreasonableness amounting to illegality on the other, and that it is incumbent on a claimant to prove causation. As the Court of Appeal explained in R(JS (Sudan) v SSHD [2013] EWCA Civ 1378, the concept of a burden of proof is inapt to govern the overall assessment of what is reasonable.[176]In unlawful detention cases, the court does not conduct a Wednesbury review but assumes the role of primary decision maker: see R(A) v SSHD [2007] EWCA Civ 804, per Toulson LJ at paragraph 90. The court can take into account any facts that were known to the Defendant at the time, even if they did not feature in the reasons for detention that were furnished: see R(MS) v SSHD [2011] EWCA Civ 938. Hindsight is no part of the exercise: see R(Fardous) v SSHD [2015] EWCA Civ 931. The weight to be given to the Defendant’s view is a matter for the court, although certain issues are more within the expertise of the executive than the judiciary, for example the progress of diplomatic negotiations and the attitude of other countries to accepting returnees. I would add that in my judgment the Defendant knows more than judges sitting in this jurisdiction about the absconding risk of immigration detainees.[177]Hardial Singh (ii) has been given further content in R(I) v SSHD [2003] INLR 196 and in Lumba. The evaluation of a reasonable period of time includes an assessment of the length of the period of detention, the nature of the obstacles which stand in the path of the Defendant preventing deportation, the diligence, speed and effectiveness of the steps taken by the Defendant 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 he will abscond, and the danger that, if released, he will commit criminal offences.[178]At paragraph 121 of Lumba, Lord Dyson added:
“The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he pursuing a hopeless one.”
[179]The Defendant need not show certainty of removal within a specific timeframe to establish lawful detention, but there must be a sufficient prospect of removal, having regard to all the circumstances of the case including the absconding risk: see R(A) v SSHD [2007] EWCA Civ 804 (Toulson LJ, paragraph 45), R(MH) v SSHD [2010] EWCA Civ 1112 (Richards LJ, paragraph 64), and R(Muqtaar) v SSHD [2012] EWCA Civ 1270. In the latter case, the Court of Appeal held that the detention was not unlawful when the Defendant decided not to release an immigration detainee upon receipt of a rule 39 application from the ECtHR requiring that the detainee should not be deported until it had determined a related lead case.[180]At this stage, it is convenient to consider the saliency of the absconding and reoffending risk, because it has generated differences of emphasis at Court of Appeal level. If there is simply no prospect of removal within a reasonable time, it seems to me that these risks are irrelevant. However, many cases occupy a grey area, and to my mind the concept of “sufficient prospect” must to some extent be a flexible one, accommodating all the circumstances of the case, including the absconding risk. Thus, in R(A) v SSHD [2007] EWCA Civ 804, Toulson LJ held in terms that the risk of absconding is bound to be a “very important factor, and likely often to be decisive” (see paragraph 54 of his judgment). In R(I) v SSHD [2003] INLR 196, Dyson LJ took a broader view. I am content to follow Toulson LJ’s guidance, tempering it to the extent I have already mentioned. Yet, these cases are all heavily fact-sensitive, and in due course it will be necessary to quantify the risks and to weigh them in the balance against everything else.[181]The absconding risk is important because a former detainee who absconds will be frustrating the public interest in favour of his deportation. The risk of reoffending is relevant but it must be less important, because the purpose of immigration detention is not to provide indirect facilitation to the separate policies and objects of the criminal law.[182]I agree with Ms Laughton that the decision of the Court of Appeal in JS (Sudan) (loc.cit.) is particularly useful for present purposes. The following guidance emerges. First, that there is a strong policy and statutory impetus favouring the deportation of foreign national criminals, and the determination of whether such a person should exceptionally be given leave to remain “is a serious matter requiring proper and careful evaluation which, of necessity, will occupy a period of time”. Secondly, past offending cannot be any justification for implementing or extending time in immigration detention. Thirdly, the detainee will have no statutory right to challenge the Defendant’s decision to proceed to deportation until that decision has been made. Fourthly, the question of whether the Defendant is acting reasonably where she has not started the process of evaluating the claim for asylum (or for humanitarian protection) before the period of criminal custody has ended will turn on the specific facts of each case, and form part of the court’s overall assessment of reasonableness.[183]Further, the approach of Macfarlane LJ to the facts of the case before him is illuminating:
“On the face of the papers this administrative delay [12 months] is unaccounted for. Its existence requires explanation and it was to be expected that the Secretary of State would have filed a witness statement explaining in sufficient detail what has occurred. No such statement was filed. The only statement provided by the Secretary of State was from the senior caseworker. That statement simply describes the decisions that were taken without reference to the timescale at all. In submissions, Miss Anderson … accepted that if there is a period during the detention which self-evidently requires explanation, then the Secretary of State must provide evidence by way of explanation. The witness statement filed in these proceedings by the senior caseworker is wholly inadequate for the purpose of explaining the periods of unaccounted for delay that I have identified. The lack of any explanation makes it difficult to hold that the period of detention was reasonable. In making that this observation I am keen to stress that the evaluation is focused upon what is, or is not, “reasonable”
. There is no requirement upon the Secretary of State to account every day or every single week. These cases are very fact specific but, where, as here, a significant proportion of the total period of detention is marked by an apparent absence of any administrative activity, and no explanation for that state of affairs is proffered, then a court, standing back and looking at all of the circumstances, is entitled to come to the view that a proportion of the total period was unreasonable and therefore unlawful. ”[184]Finally, Macfarlane LJ observed that the dividing line between administrative failings and unreasonableness amount to illegality is inevitably an exercise in judgment rather than mathematics.[185]There is an issue between the parties as to whether, and if so in what circumstances, an intervening period of liberty should be regarded as sufficient to amount to an effective break in the continuity of a period of detention for the purpose of assessing the reasonableness of its duration. I confess that I have not found paragraphs 33-37 of the decision of the Court of Appeal in R(MC (Algeria)) v SSHD [2010] EWCA Civ 347 to be wholly clear, and I note Warby J’s approach to paragraphs 34 and 37 in Abdi v SSHD [2014] EWHC 2641 (Admin) (see his paragraphs 44(i) and 49). One feature of that case was that the claimant was out of time to challenge the lawfulness of an earlier period of detention. The Court of Appeal stated that there was a break in continuity because the claimant was released on bail, committed further offences and was imprisoned for them, and then re-detained on the expiry of that sentence. The identical circumstances apply to this Claimant before he was re-detained in November 2011. On the other hand, the Court of Appeal observed that it did not follow that the circumstances of the lawful detention were irrelevant for the purposes of considering the reasonableness of the second period of detention, because there was evidence of mental illness in the first period. That evidence was capable of being relevant to the second decision to detain. In my judgment, however, there was nothing in the Claimant’s first period of detention which was capable of bearing on the later decision to detain. There is nothing in the records to indicate that he was suffering from mental illness. Properly analysed, therefore, I consider that this is a discontinuity of detention case. Although I would not disregard the first period of detention altogether for the purposes of evaluating the reasonableness of the second period of detention, I propose to place little weight on it.[186]Hardial Singh (iii) was considered by the Court of Appeal in R(ZA (Iraq) v SSHD [2015] EWCA Civ 168. The court found detention to be unlawful after 16 months, on the basis that there was no longer any reasonable prospect of removal. The assessment of what is a reasonable future period will depend partly on the length of time a detainee has already spent in detention:
“What is a “reasonable period” for effecting return in any particular case will depend on all the circumstances, but one of the factors which will be highly relevant will be the length of time that the detainee has already spent in detention, A belief that it may be possible to effect removal within a reasonable time of someone who has just been detained may be justified even if it is based on little more than hope that the security situation in the receiving country may improve (as appears to have been the basis for the Secretary of State’s view in Mahmoud), but it does not follow that the position will be the same if the person whose removal must be effected within a “reasonable time” has already been in detention for a long time: see paragraph 52 of MI and AO. By 4th May 2008 when Mr Mahmoud was detained the Appellant in the present case had been detained for ten months.”
[187]Plainly, there is an element of overlap between the Hardial Singh principles, and a concomitant degree of artificiality in seeking to apply an independent evaluation to each of them.[188]I have mentioned Krasniqi and the need to prove causation in a false imprisonment case. In my view, the issue requires a greater weight and depth of analysis than was attempted by Counsel. Approaching the issue as one of first principle, it seems clear that the issue of causation plays out differently depending upon which Hardial Singh principle is under scrutiny. If a claimant is being detained beyond a period that is reasonable in all the circumstances, I consider that causation of loss will flow as a matter of course. The same analysis applies in a case where it becomes apparent that the Defendant will not be able to effect deportation within a reasonable time – the power to detain should in such circumstances not be exercised at all. If, however, the Defendant fails to act with reasonable diligence and expedition, it seems to me that consideration must then be given to the issue of what would have happened had the Defendant in fact discharged its obligations under Hardial Singh (iv).[189]The issue is covered by Lord Dyson (for the majority) in Lumba, at paragraph 95:
“The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied …, it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They receive no more than nominal damages.”
The question in Lumba was whether the Defendant, had it not acted unlawfully, could have exercised a power to detain (at the same time) pursuant to lawful policies. The question here is what would have happened (at a different time) had the Defendant not acted unlawfully. I do not consider, however, that there is any difference in principle and approach between these two situations. I would add this brief qualification. Whereas it was inevitable on the facts of Lumba that the appellants would have been detained, I do not understand Lord Dyson to be expressing the legal test of causation (against the Defendant) in those stringent terms. In my judgment, it would be sufficient for a claimant’s purposes to prove the case on causation on the balance of probabilities. This appears to have been the approach followed by the Supreme Court in an admittedly different statutory context in R(O) v SSHD [2016], UKSC 19.[190]This exercise did not fall to be undertaken on the facts of JS (Sudan) because the Claimant in that case received a grant of exceptional leave at the end of the period sought to be impugned as unreasonable. Ex hypothesi, he would have been granted such leave at the end of any reasonable period.[191]Ms van Overdijk drew my attention to her client’s policies on detention and temporary release, as set out in Chapter 55 of the Enforcement Instructions and Guidance (“the EIG”). Plainly, the EIG has to be read in the light of the applicable jurisprudence which I have already set out. I do not understand there to be any conflict or tension between the two. The Guidance recognises that there is a presumption in favour of temporary admission or release. I will have regard to the whole of this document, but for present purposes can set out just one paragraph:
“… substantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality. Both the likelihood of the person reoffending, and the seriousness of the harm of the person does reoffend, must be considered. Where the offence which has triggered deportation is included in the list here [the list includes section 20 wounding], 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.”

The Claimant’s Case

[192]In a robust albeit moderate submission, Ms Laughton chose to deal first of all with Hardial Singh (iv), namely the issue of reasonable diligence and expedition. She submitted that the delay of more than four years between 8th October 2010 and 5th December 2014 was prima facie evidence of a breach of the Defendant’s duty to act with reasonable diligence and expedition. In the alternative, the 17 month period between 8th January 2009 and 30th June 2010 which the Defendant took to decide whether the Claimant was entitled to asylum or humanitarian protection displayed a lack of diligence, and could not begin to be justified by the Claimant’s further representations made on 19th January 2010. In the further alternative, Ms Laughton submitted that the Defendant failed to act with reasonable diligence and expedition between 8th October 2010 (when the application to revoke the deportation order was made) and 29th June 2012, when the Claimant raised his sexual orientation and conversion to Christianity. In the yet further alternative, there was unreasonable delay between 29th June 2012 and 13th May 2013 whilst the Claimant’s new case was being considered. No proper explanation, for example, has been given for failing to re-interview the Claimant after August 2012. Finally, Ms Laughton submitted that the Defendant failed to act with reasonable diligence and expedition between 12th August 2013 (when it withdrew its decision of May 2013) and 5th December 2014, by abstaining to make prompt arrangements for an independent psychiatric examination of the Claimant.[193]Secondly, Ms Laughton submitted that there was no prospect of removal within a reasonable time, and a breach of Hardial Singh (ii). The Claimant’s offending fell at the lower end of the scale, and he was at relatively low risk of harm to others. A risk assessment was carried out by a psychiatric nurse on 1st September 2014 and evaluated the Claimant’s risk as being low. In any event, the Claimant’s case was always “extremely strong” in the light of the Country Guidance decisions, the Defendant’s own assessments of the prospects of successfully effecting deportation action, and the number of enforced removals to Somalia over the whole of the relevant period. As before, Ms Laughton made a number of submissions in the alternative based on salient dates in the narrative.[194]Finally, Ms Laughton invited me to take a holistic view in line with the authorities on Hardial Singh (ii), and to conclude that the Claimant’s detention overall was manifestly unreasonable.

The Defendant’s Case

[195]Ms van Overdijk’s submissions were equally helpful and robust. At no stage did she lose her fluency and poise notwithstanding a measure of judicial interruption and scepticism.[196]Her approach was to invite me to consider the Hardial Singh principles both in the round and in the light of a granular, atomistic review of the chronology. She also invited me to consider each period of detention separately.[197]As regards the first period of detention, Ms van Overdijk submitted that the Claimant was interviewed twice within two months, and then on 18th January 2010 submitted further representations. On 15th February 2010 a language and contrary analysis test was performed, to check that the Claimant was from Somalia as he claimed. When the rule 39 indication was sought from the ECtHR in July 2010 the Defendant reasonably believed that it was contingent on the outcome in Hussein, and not on any other cases. On 8th October 2010 the Claimant submitted further representations which warranted detailed consideration. Thereafter, there were no unreasonable delays.[198]As regards the second period of detention, it fell to be sub-divided into three periods: first, from 27th November 2011 to 25th June 2012; secondly, from 29th June 2012 to 13th May 2013; and, thirdly, from 9th July 2013 to 5th December 2014. In relation to the first period, Ms Van Overdijk submitted that the Defendant clearly gave anxious scrutiny to the Country Guidance cases, and that I should be slow to second-guess her decision making. It is clear from the June 2012 decision letter that there was an entirely proper basis for resisting the Claimant’s Article 15(c) claim, and by parity of reasoning an appropriate case to be defended on appeal. Further, the statistical evidence is of very limited utility in assessing the prospects of removal in any given case.[199]In relation to Ms van Overdijk’s second period, she accepted on my understanding that there was delay between August 2012 and February 2013 (the hiatus between the two interviews) but submitted that this fell into the category of administrative failings rather than illegality.[200]In relation to the third period, Ms van Overdijk’s point was that the issue should not be seen through the prism of hindsight, and that it is apparent from the documents that the reason for the delay in instructing an independent psychiatrist was an understandable difference in opinion between Criminal Casework and HMP Woodhill in particular as to whether the Claimant was genuinely suffering from psychiatric illness. When the chronology is examined with condign care, the court should be slow to conclude that at any stage the Defendant acted unreasonably or without due diligence and expedition.

Discussion

[201]I begin with a series of miscellaneous points.[202]First, the Defendant has consistently taken the view that the Claimant posed a high risk of reoffending (with corollary risks to the public) and of absconding. I reject Ms Laughton’s submission that I should attach little weight to the Defendant’s assessments because these amount to no more than assertions rather than proper evaluations of the risk supported by structured assessments from the probation service and/or NOMS. In my judgment, the detention reviews have convincingly explained why the relevant risk posed by the Claimant was deemed to be high in the circumstances of his case, and I accept those assessments. The Claimant’s offending, which started quite late in the day (in 2006) was escalating in seriousness, culminating in an offence of section 20 wounding where the Claimant slashed a man’s face with cut glass. Further, the Claimant had no known ties in the community, was far from being a model detainee, and was a clear absconding risk.[203]Even so, I do not consider that the Claimant fell within the highest category of risk. I would hold that his criminal record fell within the middle of the range. As against that, his risk of absconding was probably medium to high, because he exhibited what the psychiatrists would no doubt call the standard traits of anti-social personality disorder, and there were no family or personal ties which might motivate him to adhere to the conditions of bail or temporary admission.[204]Secondly, both periods of detention in this case have been substantial, and there is a plethora of internal documentation relating to the second period expressing concerns about the delays, culminating in a Director’s observation given on 10th July 2014 that “this case is drifting”. I am critical of the Defendant for failing to call admissible, relevant evidence addressing the periods of apparent delay. Instead, the Defendant chose to adduce evidence from a Senior Executive Officer who had no personal knowledge of the case during the Claimant’s detention. In my judgment, the present case shares uncomfortable parallels (from the Defendant’s perspective) with JS (Sudan). What should have happened, in my view, is that the Defendant should have called a series of witnesses who were in a position from their own knowledge to deal with salient periods of apparent delay, and if they could to provide reasons and explanations for them. The Defendant’s expectation, or hope, is that I should be prepared to draw inferences which somehow place its delays within the category of administrative failings rather than illegality, but I have to say that there is no proper, tenable basis on which these benevolent deductions could be drawn.[205]Thirdly, and as a related point, the detention reviews provide clear and detailed reasons for concluding that the Claimant constitutes a risk of reoffending and absconding, but – save to express concerns from time to time, and/or demand a decision from more junior officials within the next 7 or 28 days – conspicuously fail to stand back from the here and now, and address the Hardial Singh principles properly. No one in the appropriately self-critical way has asked, for example, whether the department has in fact acted with reasonable diligence and expedition in this case; and, if not, what the consequences should be. No one has sought to evaluate whether, in the Claimant’s circumstances, there was a real prospect of removing him to Somalia within a reasonable time, as opposed to some vague and unquantified hope that this might happen. In my judgment, there is an overwhelming sense of the Defendant reacting to events and hoping for the best, rather than acting proactively and taking a realistic view of the probabilities.[206]Finally, the Defendant appears in my view to have adopted an unnecessarily restrictive, binary approach: either deportation action should be abrogated, or the Claimant’s detention should be maintained, in the light in particular of the absconding risk. In my judgment, unless the absconding risk is always to be treated as a trump card, which it is not, a more balanced, intermediate approach could and should have been adopted – once, that is, the Claimant’s detention had become lengthy. The Defendant appears to have excluded from account the identification of a state of affairs which would have resulted in deportation action being maintained and the Claimant being released for the time being, because it was no longer lawful to detain him.

The First Period of Detention

[207]There is no evidence that the Claimant’s asylum and humanitarian protection application, which was made on 8th January 2009, was considered by the Defendant before he was detained pursuant to immigration powers on 27th August 2009. For the whole of that period he was in prison, and on any view the Claimant was irremovable before he completed his terms of imprisonment. In the circumstances of this case, I am not prepared to hold that the Defendant should have investigated the Claimant’s asylum claim whilst he was in prison.[208]I agree with Ms van Overdijk that the Claimant’s asylum interviews were conducted with reasonable expedition. I disagree with her that the further representations submitted on 19th January 2010 could have delayed the decision-making process to any significant extent. These did not materially add to what had already been provided and, in any event, there is no evidence that anyone within the Defendant had started to write a decision letter by that point. Further, I do not accept that the Claimant’s indication that he wished to join the Facilitated Return Scheme could have made other than minimal difference to the timescales, because he withdrew his indication on 5th March.[209]I accept that it was reasonable to subject the Claimant to a “country and language analysis”, and that this was done within a reasonable time.[210]Thereafter, it took the Defendant about four months to prepare her decision letter – it was promulgated to the Claimant on 28th June 2010. I do not dismiss out of hand the submission that this was too long a period, and requires an explanation which has not been forthcoming. On the other hand, the present case clearly merited anxious care and scrutiny, and I accept that Somali cases of this type are scarcely free from complexity. Although I was not taken expressly to the decision letter during the course of the trial, I have taken the opportunity of reviewing it carefully. The Defendant referred to AM & AM, and concluded that there was an internal relocation option available to the Claimant. Further, the Defendant placed reliance on the decision of the ECJ in Elgafaji (17th February 2009) in which it was held, with different emphasis on the risk than that placed in the domestic Country Guidance jurisprudence, that the threat would have to be “exceptional” before the Article 15(c) threshold might be met.[211]In my judgment, the four month period under current scrutiny is on the borderline of illegality, but ultimately I conclude that it cannot be said in all the circumstances that the Defendant’s decision came unacceptably late or that there was not a realistic prospect of removal within a reasonable time after it was promulgated. Indeed, those prospects were considerably enhanced when the Claimant failed to appeal that decision.[212]The Defendant would have removed the Claimant on 21st July 2010 were it not for the rule 39 measures granted by the ECtHR in his case. At that stage, the Defendant reasonably believed that the rule 39 application was tethered to the decision of the court in Hussain, and in my judgment it was therefore appropriate to conclude that the Claimant could still be removed within a reasonable time.[213]On 8th October 2010 the Claimant made an application to revoke his deportation order on further grounds which in my view added little to the case he had previously advanced, and which had been rejected. However, the Defendant appears to have accepted this application as a fresh claim, and in my judgment it was incumbent on her to process it with reasonable diligence and expedition. Instead, there is no evidence of anything happening at all. On 14th December 2010 the ECtHR struck out the main application in Hussain, but the rule 39 indication remained in place. It was the Defendant’s belief that this was so, although there is no evidence that it took steps to ascertain the true position. In truth, however, this does not materially impact on my analysis. The real point here, in my judgment, is that for whatever reason the Defendant took no steps to consider the Claimant’s case between October 2010 and May 2011, when the Claimant was released on immigration bail.[214]What should have happened here is that within a reasonable time after 8th October 2010 the Defendant should have prepared a further decision letter addressing the Claimant’s further representations in the light of contemporary conditions in Somalia. No interview was required (no interview was conducted before the Defendant rejected these further representations in June 2012), merely analysis of all the material known to the Defendant, and which it had no doubt deployed in other Somali cases.[215]In my judgment, a decision on the Claimant’s further representations should have been provided to him by 31st December 2010.[216]However, this finding is not dispositive of the issue of unlawful detention, for these reasons. First, my holding is limited to Hardial Singh (iv) – the Defendant has failed to act with reasonable diligence and expedition. I do not find that there was no real prospect of effecting deportation within a reasonable time or that the overall period of detention had ceased to be reasonable in all the circumstances. The fact that the rule 39 indication remained in place does not mean that there was an insufficient prospect of removal: see Muqtaar. Secondly, it is clear from the last sentence of paragraph 12 of Carnwath LJ’s judgment in Krasniqi, and my earlier analysis, that the Claimant must prove causation. In my view, this means that I must decide on the balance of probabilities what would have happened had a timeous decision been made, namely a decision by 31st December 2010.[217]In the present case, I believe that it is reasonable to infer on the balance of probabilities that any decision given on 31st December 2010 would have been both unfavourable to the Claimant and reasonably defensible (c.f. the June 2010 decision, which I have found to be defensible). Accordingly, the Claimant would not have been released after any hypothetical timeous decision would have been made.[218]I have not received any evidence about appellate timescales (save to note that in relation to the May 2013 decision an appeal date was set for 8th August), but I doubt whether any appeal in the Claimant’s case would have been determined, let alone successfully determined, before the date of his actual release in May 2011. I am not discounting the possibility, but the Claimant must prove his case on the balance of probabilities.[219]Overall, the Claimant has failed to satisfy me that the Defendant’s breach of Hardial Singh (iv) was causative of any loss in relation to the first period of detention. Ms Laughton did not ask me to award nominal damages to her client in respect of any non-causative breach, and I would decline to do so. Accordingly, this part of his claim fails.

The Second Period of Detention

[220]There is no evidence that the Defendant devoted any attention to the Claimant’s case between the date of his release (17th May 2011) and the date that the second relevant period of immigration detention commenced on 27th November 2011. For part of that period the Claimant was serving a sentence of imprisonment. With a modicum of hesitation, I conclude (as I did in relation to the first period of detention) that the Defendant was not remiss in failing to progress the Claimant’s case between these dates.[221]Reasonably early attention was given to the Claimant’s case on 21st December 2011, when the Senior Case Worker reviewed his case and concluded that he would be likely to face a risk of Article 15(c) harm on return to Somalia, given recent Country Guidance. For reasons which I find opaque, the Senior Case Worker concluded that consideration should be given to conceding the case subject to the outcome of the rule 39 application. To my mind, the outcome of the rule 39 application could have no logical bearing on an early decision to concede the case. In late January 2012 an Executive Officer came to a different conclusion on the merits. When an Assistant Director considered the file on 27th January, detention was authorised for one week only, with concerns being expressed about some of the language used in the detention review as regards the perceived Article 15(c) risk.[222]I refer to my review of the contemporaneous documentation at paragraphs 42 to 51 above for the full picture. It is clear, in my judgment, that senior officials within the Defendant were astute to the need for expedition. This was because the Defendant’s reasons for continuing to maintain deportation action against the Claimant were seen as being much weaker in the light of recent Country Guidance. Indeed, the Defendant itself was well aware of the difficulties: see, for example, the negative views expressed in December 2011 and January 2012, and the minute prepared by a Senior Case Worker on 26th May 2012 with the reference to “a great achievement”.[223]In the result, it was not until 25th June 2012 that a draft decision letter was prepared. In my judgment, this was far too long in the context of a case which was understood to raise particular challenges for the Defendant in terms of upholding the merits of the decision to deport (or, more precisely, the merits of the decision to deny to the Claimant the application of a relevant exception to automatic deportation under the 2007 Act). If the Defendant had been acting with reasonable diligence and expedition, I find that the draft decision letter should have been prepared, and if necessary served, by the end of April 2012. Here, I am making due allowances for the fact that the decision letter, when it was eventually put together, was an extremely detailed and complex document, and that it was important for the Defendant “to get this case right”.[224]I have little doubt that the Defendant’s decision letter would have reached the same conclusion regardless of when it was sent – that is to say, once the decision was made to maintain deportation action rather than to concede the case. The issue naturally arises as to whether the case ought to have been conceded on the ground that it was hopeless (Ms Laughton’s preferred formulation) or weak (her alternative formulation). Here, as before, I must reach my own conclusion on the issue rather than perform a second-level review of the Defendant’s premises and reasoning. I bear in mind Ms van Overdijk’s submission, advanced with reference to the Defendant’s decision letter and the Country Guidance in AMM, that her client had a very respectable case which might well have succeeded on appeal, and that I should defer to the Defendant’s expertise on the issue.[225]I have not overlooked Ms van Overdijk’s submission that it was only in her skeleton argument that Ms Laughton clearly made the point that the June 2012 decision letter, which was never served, cannot be sustained. My reading of the Particulars of Claim is that the Claimant was always relying on a breach of Hardial Singh (iii), in the context of both the practical and the legal difficulties of removal to Somalia. The point might have been made more clearly, but it was there.[226]My starting-point is that the Country Guidance in AMM is set out in the headnote and paragraphs 594-596 of the Tribunal’s judgment. Applying this Country Guidance without any qualification or nuance, it seems clear that the Claimant, despite his majority clan membership, does not fall within the minority of Somalis (sc. powerful actors and members of the middle-class) who would not suffer from Article 15(c) harm. I have already observed that the internal logic underpinning the April and May 2012 minutes is problematic: see paragraphs 47 and 48 above. Accordingly, a mechanistic application of the Country Guidance would have been fatal to the Defendant’s resistance to this claim. I should add that on my understanding of the decision letter, internal relocation was no longer being pursued as an option.[227]However, the decision letter raises two further matters which were overlooked in Counsel’s submissions. First, paragraph 30 of the decision letter states that the security situation in Mogadishu has improved and half a million people have returned there. On the face of things, this might be a factor which avails the Defendant to some extent. Delving more deeply, I note that in AMM this issue was expressly addressed in the context of Al-Shabaab retreating from Mogadishu in August 2011, but I would add that by November 2011 (when AMM was published) the number of returnees to Mogadishu would surely have been less than 500,000. Accordingly, this probably fell short of being a cogent reason for not applying the Country Guidance in AMM, but it could reasonably be factored into the assessment. Secondly, the Defendant also relies in the decision letter on the fact that the Claimant’s criminal record means that he should be excluded from Humanitarian Protection under paragraph 339D. Under the Defendant’s internal policy, a 16 month sentence for unlawful wounding and grievous bodily harm would place the Claimant within sub-paragraph (i) of paragraph 339D. This provision applies where “there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes”. I can certainly envisage strong arguments along the lines that the sort of crime for which the Claimant was convicted (section 20) does not fall within paragraph 339D(i), notwithstanding its broad reference to “any other serious crime”.[228]Taking all these matters together, the question arises whether there was any realistic prospect of deporting the Claimant either at the end of April 2012 (when I have found the decision ought to have been made) or the end of June 2012 (when it was fact made). The April date is relevant both to the issue of causation on Hardial Singh (iv) and liability on Hardial Singh (iii). In this latter regard I am holding that it could not have become apparent to the Defendant that there was no realistic prospect of deportation within a reasonable time until full and proper consideration was given to the Claimant’s particular circumstances in the light of the overall situation. In other words, I am allowing the Defendant a notional reasonable period for these matters to have become apparent.[229]I confess that my initial view was that the Defendant could not possibly demonstrate that there was a realistic prospect of deporting the Claimant within a reasonable time. However, upon further deliberation I can see that the point is more complex and nuanced. Ultimately, I have come to the conclusion that(i) the Defendant’s arguments would probably have failed on appeal, but(ii) there was a realistic prospect of deporting the Claimant within a reasonable time. I reach that conclusion notwithstanding the Defendant’s failure to call explanatory evidence.[230]Clearly, after the promulgation of the Country Guidance in AMM, removal of the Claimant either within a reasonable time or at all was always going to be a real challenge for the Defendant, a fact confirmed by the precious few numbers of failed asylum seekers who were returned to Mogadishu between 2009 and 2014. Even so, I cannot hold that the Defendant’s prospects of defending an appeal were “slim” (to adopt Ms Laughton’s alternative formulation); they were respectable.[231]I take into account that the rule 39 measures remained in place, and there is no evidence before me that the Defendant had any idea when it would or might lapse. This is a consideration which tells slightly against the Defendant, but they are far from weighing heavily.[232]The issue also arises as to whether it was reasonable for the Defendant to delay for a period of time in order that the situation in Somalia might improve: see paragraph 186 above. There is no evidence that this was in fact the Defendant’s thought-process, and the point did not feature in Ms van Overdijk’s submissions. Having said that, there is some limited evidence that the situation was improving after Al-Shabaab’s retreat from Mogadishu in August 2011, and my current focus is on the spring of 2012, at which stage the Claimant had been detained for less than 6 months – not particularly long. This is a factor which tells slightly in the Defendant’s favour.[233]I have dealt with the issue of returns to Somalia at paragraphs 107 to 121 above. The practical difficulties were considerable, and the Defendant cannot finesse this issue by asserting the unreliability of its own information. However, the raw data, without more, cannot prove that there was not a realistic prospect of removal.[234]Taking all these matters into account, fusing the legal as well as the practical difficulties from the Defendant’s perspective, giving appropriate weight to the absconding risk, and notionally posing the question in late April 2012 – was there a realistic prospect of deporting the Claimant within a reasonable time? – the answer is “yes”. It follows that the Defendant’s breach of Hardial Singh (iv) was not, at least at this stage, causative.[235]I move on to consider the next notional phase of the Claimant’s detention. The June 2012 decision letter was never served because on 29th June 2012 the Claimant advanced a new case based on his sexual orientation and religious affiliations. For present purposes, it is quite artificial to hold that, had the Defendant served its decision letter at the end of April 2012, rather than not serve it at all, the Claimant would not have advanced this new case. I find that the Claimant would, on advice, have done so, probably in June 2012 and before any appeal would have been heard. On this hypothesis, events would have ensued in exactly the same way.[236]As it has turned out, the Claimant’s new case had substance, but I am able to draw the inference that the Defendant, whilst keeping an open mind, was sceptical about these new claims, given their apparently tardy advent and the frequency with which assertions of this nature are made. It follows that in my view the Defendant was not required to consider releasing the Claimant immediately on receipt of the new claims, notwithstanding the fact that by then he had already been detained for over 7 months. If the new claims were true, then the Claimant obviously could not be deported to Somalia; but if they were not then, subject always to the Article 15(c) point, he could be. Accordingly the credibility or otherwise of these claims was central to the whole exercise.[237]I find that the Defendant’s initial consideration of these new claims was reasonably diligent inasmuch as interviews were conducted on 26th July and 17th August 2012. However, the Defendant failed to instruct the interviewer to ask the Claimant questions about his conversion to Christianity. On the available material, I have no means of ascertaining whether this omission was attributable to administrative error or illegality, and the Defendant has adduced no evidence to assist me. My attention has not been drawn to any documentation containing the Defendant’s instructions to the interviewing officer. On balance, but only just, I am prepared to infer that there must have been some sort of breakdown in communication which could reasonably be ascribed to mere administrative error.[238]However, as soon as it was appreciated that such an error had been made, it was incumbent on the Defendant to seek to progress matters swiftly. In the event, nothing happened until February 2013, in the face of a number of detention reviews requiring the making of a decision within 28 days. This was unacceptable delay. Once the Claimant’s further interview had taken place, no decision letter was promulgated to him until 13th May 2013 – that is to say, there was a further delay of nearly three months. In my view, that was far too long in these circumstances, and cannot begin to be justified by the Claimant’s further representations sent in March 2013 which did not add much to the overall picture.[239]In my judgment, the Defendant acting with due diligence and expedition ought to have re-interviewed the Claimant by the end of September 2012, and to have reached a substantive decision on the new claims by the end of November 2012. A breach of Hardial Singh (iv) occurred as from 1st December 2012.[240]Had this breach not occurred, what then would have happened? In my view, the Defendant would probably have rejected the new claim because at that stage Dr Maloney’s supportive evidence would not have been available. The Claimant would have appealed to the First-tier Tribunal. At such an appeal the entirety of the case would have been considered, including the Article 15(c) issue and the safety of return to Somalia generally.[241]Focusing solely on the merits of the new claim, the Claimant’s case – evaluated without Dr Maloney’s evidence – was not strong, and naturally depended on his credibility. His account at interview that he was/is gay was on the face of it not particularly convincing, and at that stage lacked any corroboration. His answers to his Christianity interview were somewhat of the metaphorical Curate’s egg. Allowances would have to be made for the fact that the Claimant converted quite recently (a point which cuts both ways) and his probable lack of educational attainment. He claimed to have read two of the Gospels and the Acts, but it is unclear in what language. Overall, had the new claim been the only issue on an appeal, the Claimant would probably have failed.[242]Even so, I accept Ms Laughton’s submission that the Claimant would probably have won his appeal, which is sufficient for her client’s purposes on the issue of causation. I have already found that the Claimant had a better than evens chance of winning in the Article 15(c) issue. Doing the best I can, I conclude that the outcome of the Claimant’s appeal would have been known by the end of March 2013 (I am allowing time for a reserved judgment), at which point the Claimant would or should have been released.[243]It follows from the above that on this limb of the Claimant’s case the Defendant was, from the end of March 2013, in causative breach of Hardial Singh (iv). I have not found a breach of Hardial Singh (iii).[244]I now proceed to consider the Claimant’s alternative case that, once Dr Maloney’s email was provided on 11th July 2013, the Defendant should have had the Claimant assessed by an independent psychiatrist. Such an assessment would, on the balance of probabilities, have led to his release.[245]I did not understand Ms Laughton to be submitting that, irrespective of Dr Maloney’s opinion, the Defendant should independently have concluded before July 2013 that the Claimant was suffering from mental illness and should therefore be released. However, given that this is probably Dr Maloney’s view, I should address the issue, if only to dismiss it. Under paragraph 55.10 of the EIG, an individual with mental illness should be detained only in “very exceptional circumstances”. I have found as a fact that the Claimant probably did suffer from paranoid schizophrenia, although thus far I have not given a start date. In my judgment, the Claimant was probably suffering from mental illness before he was seen by Dr Maloney, and it is reasonable to infer that this did not begin overnight. Concerns about their client were evinced by the Claimant’s solicitors in April 2012, albeit these may well not have been received by the Defendant. I shall assume that they were not. But, even on all these factual premises I am not prepared to hold that a diagnosis of paranoid schizophrenia should have been made before July 2013. This, it seems to me, raises a Bolam issue, and I am not satisfied on all the available evidence that it was sub-standard practice to fail to diagnose mental illness and/or not to refer the Claimant to formal psychiatric opinion.[246]In my judgment, once in particular the Defendant was provided with a copy of Dr Maloney’s report in October 2013, and the view was taken (as it was) that he is a reputable and well-respected psychiatrist, the Defendant should either have accepted it, and released the Claimant forthwith, or commissioned its own report from an independent psychiatrist. Instead, the issue seems to have been batted back and forth between the Criminal Casework team and HMP Woodhill, with the former being far too slow in making up its mind as to how to proceed, no doubt somewhat troubled by the potential cost implications, and the latter insisting that there was nothing wrong with the Claimant. As I have already pointed out at paragraph 73 above, the Defendant was appearing to accept on 31st October 2013 that, in the event that the Claimant’s representatives challenged the issue, an assessment by an independent psychiatrist would be required. As I have already said, it was inevitable that the Claimant’s solicitors would take that line. Further, and as observed at paragraph 77 above, on 6th March 2014 Criminal Casework said that regardless of the conclusion of the in-house assessment to be carried out on 18th March, a report from an independent psychiatrist would be required. In my view, this rather obvious conclusion should have been reached in October 2013, and the matter expedited thereafter. If Dr Maloney were right, then the Defendant was continuing to detain a man with paranoid schizophrenia in circumstances where removal to Somalia could well amount to a breach of his Article 3 rights, as the Defendant itself concluded once Dr Cornish’s report was available. Further, as Ms Laughton submitted, Dr Maloney’s report lent support for the proposition that the claims of sexual disinhibition and religious affiliation were correct.[247]In my judgment, the Defendant ought to have obtained an independent psychiatrist’s report by the end of November 2013, at the latest. If that had occurred, regardless of whether that psychiatrist would have been Dr Cornish, it is probable that a diagnosis of paranoid schizophrenia would have been made (I have found as a fact that this was the probable diagnosis), and that the Claimant would have been released.[248]Dr Cornish’s report is dated 27th October 2014 and the Claimant was released on 5th December. I appreciate that the issue required high-level input, but in my view nearly 7 weeks was too long. This should have been achieved in 4 weeks, including some allowance being made for post-release arrangements. Such arrangements were desirable, although they did not in fact bear on the 7 weeks it took the Defendant to reach a decision, because they were not made.[249]It follows from the above that on this alternative premise the Defendant was, from 1st January 2014, in breach of Hardial Singh (iv).[250]Thus far, I have not addressed Hardial Singh (ii) and the reasonableness of the Claimant’s detention assessed holistically and in the round.[251]In my judgment, it is unnecessary to proffer a series of alternative conclusions on various permutations and combinations of the facts. I must approach the case on my primary, not alternative, findings of fact. I do not conclude that a breach of Hardial Singh (iii) and/or (iv) must lead inevitably to a breach of Hardial Singh (ii). This issue must be addressed by applying the congeries of factors listed by Lord Dyson in Lumba.[252]Reading the Defendant’s minutes and file notes with care, it is difficult to avoid two headline conclusions, and these apply to almost the entirety of the Claimant’s second period of detention – although they do not ineluctably lead to the conclusion that almost the entirety of the Claimant’s detention was unlawful. First, that no one was really prepared to take personal responsibility for any decision to abrogate deportation action and/or release the Claimant. Secondly, that what really drove the decision-making process was the Defendant’s belief, no doubt justified, that the Claimant posed a high risk of reoffending and of absconding. But no one was prepared to proceed along a path of reasoning which looked much further or deeper than this, and which properly engaged the Hardial Singh principles. These are criticisms which do not just apply to Hardial Singh (ii): they apply equally to Hardial Singh (iv).[253]In reaching my conclusion on this issue, I continue to bear in mind the approach of the Court of Appeal to Hardial Singh (ii), in particular R(MH) v SSHD [2010] EWCA Civ 1112 where it was held, upholding Sales J, that a period of 38 months’ detention, although very long, did not exceed a reasonable period. In that case consideration was being given to the circumstances in Somalia some years before this case. The evidence considered by the court on that occasion was very different from the material under present scrutiny.[254]For the avoidance of doubt, my conclusions on Hardial Singh (ii) are predicated on the specific evaluations I have made on Hardial Singh (iii) and (iv). They are not free-standing.[255]Highly relevant to the broad Hardial Singh (ii) assessment of reasonableness are, in my judgment, the psychiatric report of Dr Maloney which – in addition to its diagnosis of mental illness - supported the Claimant’s case as to his sexual orientation and his religious affiliations, the dwindling strength of the Defendant’s case in the light of all salient matters, the fact that the absconding risk was medium to high, but not of at the highest level, and the Defendant’s delays.[256]Standing back from this case, I conclude that by the end of October 2013 the Claimant had been detained far too long in circumstances where he was not obviously “playing the system” and his deportation to Somalia could best be described as speculative. The case had begun to drift, as one senior official put it, long before the summer of 2014. The risk to the public, and of absconding, was not so great that continued incarceration was the only real option. In my judgment, the Claimant’s case cried out to be grabbed by the metaphorical scruff of the neck, and clear and firm decisions made. It is simply not acceptable that the Claimant was detained for so long, in such circumstances. I hold that the Defendant was in breach of Hardial Singh (ii) by the end of July 2013. In this respect, I should reiterate that I am excluding from account previous periods of detention. If it should transpire that I should have taken either or both of them into account, the date must be advanced accordingly; but in the circumstances and in the light of my other findings, I doubt whether this really matters.

CONCLUSION

[257]The Claimant was not unlawfully detained between 27th August 2009 and 17th May 2011.[258]The Claimant was unlawfully detained from 1st April 2013 to 5th December 2014 (20 months and 5 days); alternatively, from 1st November 2013 (13 months and 5 days); in the further alternative from 1st January 2014 (11 months and 5 days). I have found various breaches of the Hardial Singh principles, all as specified in detail in this judgment.[259]I said during the course of the hearing words to the effect that the Claimant is not a particularly worthy, likeable or sympathetic individual, and that there must be at least a risk that any award of damages would not be put to good use. I do not withdraw those observations. Another way of looking at this case, however, is to point out that the Claimant is vulnerable, that he probably suffers from paranoid schizophrenia, and that only those obligated to an adherence to the rule of law would be likely to vindicate his rights. This alternative viewpoint is based not on any subjective preferences but on the loyal discharge of the judicial function.[260]Damages are likely to be substantial in this case. If quantum cannot be agreed, the matter should be listed for hearing as soon as possible to deal with their assessment, as well as any other consequential matters.

Cited in 15 later judgments

and 6 more of the most senior