COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE CRANSTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LONGMORE
LADY JUSTICE BLACK
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Mr John-Paul Waite (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 26th July
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Lady Justice Black :
"68. In my judgment, however, given the way the "very exceptional circumstances" test must be interpreted, the claimant has not demonstrated that his detention is in breach of the policy. The policy means that there is a strong presumption in favour of his release because of his mental illness, and that the balance of other factors has to be substantial indeed for detention to be justified. There needs to be a qualitative judgment of these various factors. In the balance will be the factors which typically operate in detention cases, absconding and re-offending risk, because the object of immigration detention is removal, detention not being an end in itself. Of course there needs to be an elevated risk of absconding and re-offending to counter the strong presumption in favour of release.
69. Here the claimant has a history from 1991 of prolific offending, some forty offences involving twenty-six convictions. The offending culminated in the robbery conviction, serious enough to warrant a four year sentence. I have quoted what the trial judge said about the impact of the robbery on the young woman victim. Apart from the escalating seriousness of the claimant's pattern of offending and the risk posed as a result of that, there is also the very high risk of absconding. That is evident in the considerable number of offences relating to bail and failing to surrender to custody. Closely associated with that is the disruptive behaviour to frustrate removal, and the claimant's failure to co-operate in an attempt to document him on the expiry of his Bangladesh passport. There are also the unmeritorious applications he has made for asylum and judicial review and the frequent and unsuccessful applications he has made for bail. Given all these factors, the balance is against release."
The focus of the appeal
The relevant statutory provision and policy considerations
"Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
"Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere. Others are unsuitable for Immigration detention accommodation because their detention requires particular security, care and control. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere:
- those suffering from serious medical conditions or the mentally ill - in CCD cases, please contact the specialist Mentally Disordered Offender Team; …."
"CCD" is an abbreviation for Criminal Casework Directorate Cases which include cases, such as this one, concerning foreign national prisoners.
"the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding."
"[s]ubstantial weight must be given to the risk of further offending or harm to the public indicated by the subject's criminality. Both the likelihood of the person re-offending and the seriousness of the harm if the person does re-offend must be considered. Where the offence which has triggered deportation is included in the list at 184.108.40.206, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public."
No list to speak of can be found at 220.127.116.11 but there is a list elsewhere in the Guidance entitled "Crimes where release from immigration detention or at the end of custody would be unlikely" and there can be little doubt that it is to this list that 55.1.3 refers. The list includes robbery.
"More serious offences
A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result, the high risk of public harm carries particularly substantial weight when assessing if continuing detention is reasonably necessary and proportionate. So, in practice, it is likely that a conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate. Caseworkers must balance against the increased risk, including the particular risk to the public from re-offending and the risk of absconding in the individual case, the types of factors normally considered in non-FNP detention cases, for example, if the detainee is mentally ill or if there is a possibly disproportionate impact on any dependent child under the age of 18 from continued detention. Caseworkers are reminded that what constitutes a "reasonable period" for these purposes may last longer than in non-criminal cases, or in less serious criminal cases, particularly given the need to protect the public from serious criminals due for deportation."
"In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling because of the significant risk of harm to the public posed by those convicted of violent, sexual, drug-related and other serious offences. In practice, release is likely to be appropriate only in exceptional cases."
The judge's approach
"In my judgment the following principles apply when judicial review is sought of a decision to detain, on the basis of the non-application or a breach of the Secretary of State's policy:
i) at the outset there must be a non-application or a breach of the policy. To determine whether there has been a breach of policy, the policy is to be construed in the ordinary way;
ii) any non-application or breach of the policy must have caused the detention. Of itself the non-application or breach of policy cannot lead to a conclusion that detention is unlawful without an additional inquiry into whether this in fact led to the detention. That turns partly on the nature of the policy in issue: for example, there is a difference between a policy requiring the medical examination of detainees and the one at issue in this case which limits the detention of those with mental health issues to very exceptional circumstances.
iii) the non-application or a breach of policy causing the detention may give rise to ordinary public law remedies such as a declaration. Ordinarily damages are not available in judicial review, but may be awarded if the court is satisfied that they would be awarded on private law principles (in this case, the tort of false imprisonment) or as a result of the Human Rights Act 1998 (in this case, just satisfaction for breach of Article 5)."
"that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy. The phrase needs to be construed in the context of the policy providing guidance for the detention of all those liable to removal, not just foreign national prisoners. It seems to me that there is a general spectrum which near one end has those with mental illness who should be detained only in "very exceptional circumstances" along it – the average asylum seeker with a presumption of release – and near the other end has high risk terrorists who are detained on national security grounds. To be factored in, in individual cases, are matters such as the risk of further offending or public harm and the risk of absconding. When the person has been convicted of a serious offence substantial weight must be given to these factors. In effect paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified."
"The detention reviews clearly focus on other issues and hardly touch on his mental health up until the point when the current hearing was imminent."
"However, the failure of the Secretary of State to engage with the claimant's mental health, and its relevance to detention under the policy, is not the end of the matter. The authorities make clear that a court must be satisfied that a failure to apply or breach of the policy has in fact caused the claimant prejudice. In other words the claimant needs to satisfy me that even if the Secretary of State had engaged with the policy, his continued detention would not have been justified under it."
R (SK (Zimbabwe) v SSHD  EWCA Div 1204
"Here the "rules" are the Hardial Singh principles. Their fulfilment in any given case saves a detention from the vice of arbitrariness. A system of regular monitoring is, no doubt, a highly desirable means of seeing that the principles are indeed fulfilled. But it is not itself one of those principles".
"34. It is important to notice that if this approach is wrong, it means that a detention will be unlawful in the absence of (or failure to fulfil) a system of internal monitoring even though it can be shown on the particular facts that the detention, far from being arbitrary, is wholly justified. Such a position, however, is at odds with authority in this jurisdiction which tends to show that a failure of a published procedure which a detainee is entitled to have applied to him will not of itself invalidate his detention".
He then quoted R(D); R(K) v Secretary of State for the Home Department (see above, no medical examination within 24 hours of detention does not of itself mean the detention was wrongful) and R (Saadi) v SSHD  1 WLR 3131 (forms given to detainees setting out the reasons for their detention gave wrong or inappropriate reasons but this did not affect the legality of the detention).
R(WL) and others v SSHD  EWCA Civ 111 (WL)
"….It is necessary, therefore, in every case in which it is relevant to do so, to ascertain whether detention was authorised by reference to the blanket practice or policy or by consideration of a presumption or, indeed, without reference to any administrative practice or presumption."
They concluded that on the facts of two of the cases before them, "materiality" was not established.
"Indeed, we may have arrived at the point where it is possible to extract from the cases a substantive legal rule that a public body must adhere to its published policy unless there is some good reason not to do so."
"89. The position is different when the decision to detain is made under sub-paragraph (2) or (3). In these cases, there is no lawful authority to detain unless a lawful decision is made by the Secretary of State. The mere existence of an internal, unpublished policy or practice at variance with, and more disadvantageous to the FNP than, the published policy will not render a decision to detain unlawful. It must be shown that the unpublished policy was applied to him. Even then, it must be shown that the application of the policy was material to the decision. If the decision to detain him was inevitable, the application of the policy is immaterial, and the decision is not liable to be set aside as unlawful. Once again, however, once a decision to detain has lawfully been made, a review of detention that is unlawful on Wednesbury principles will not necessarily lead to his continued detention being unlawful."
"96. If we had to decide the matter, we would not necessarily regard ourselves as precluded by Roberts from considering, for the purposes of assessing damages, whether an unlawful detention had in practice caused any real loss. If, on the evidence it was clear that, even assuming a lawful consideration, there was no realistic possibility of a different decision having been reached, and no realistic possibility of earlier release, then we do not see why that should not be reflected in an award of nominal damages only. However, on the view we have taken of the issue of causation, such a set of facts in the present context would mean that there was no liability at all, so that the issue of damages would not arise. It follows that the determination of the appeals depends on the facts of the individual cases…." [my emphasis]
"90. For completeness, we would add that the test of materiality may not be precisely the same as in the context of an application for a quashing order in judicial review. In that context, a court, faced with a judicial review claim made promptly following the original decision, would be likely to quash a decision, and require it to be retaken, even if the evidence showed only a risk that it might have been affected by the illegality. However, in the context of a common law claim in tort, which is concerned not with prospective risk, but actual consequences, we think it would be entitled, if necessary, to look at the question of causation more broadly, and ask whether the illegality was the effective cause of the detention (see e.g. Galoo Ltd v Bright Grahame Murray  1WLR1360, 1374; and the the discussion of "Causation in Law" in Clerk & Lindsell Torts 19th Ed, paras 2-69-71)."
I confess to finding this paragraph somewhat difficult. However, Mr Macdonald did not advance any argument as to why its contents should alter my conclusion about the meaning and reach of paragraph 89 and I cannot find any myself.
R(MC (Algeria)) v SSHD  EWCA Civ 347
"44……In the Detailed Grounds of Defence it was submitted that even if the Defendant erred in failing to consider the policy of detaining the mentally ill only in exceptional circumstances, the Court could be satisfied on the balance of probabilities that this Claimant would have been detained even if the policy had been taken into account. In view of the Claimant's high risk of absconding and re-offending, and the ability to adequately treat his mental condition while in detention, there were very exceptional circumstances which justified his detention."
"50. [Counsel for the claimant] relying on paragraph 89 of the Court's judgment in WL submitted that it was necessary for the Defendant to demonstrate not merely that the Claimant would have been detained, but that his detention was "inevitable" if the policy relating to the detention of the mentally ill had been applied in his case. [Counsel for the Secretary of State] submitted that detention would have been inevitable in any event.
51. In view of the unusual circumstances of this case, it is unnecessary to resolve the question raised in paragraphs 90 and 96 of the Court's judgment in WL….. "
"In these circumstances, and bearing in mind the fact that the length of the Claimant's detention has been due, at least in part, to his non-co-operation, I am not persuaded that his continued detention is unlawful. However, the Defendant should not be complacent. Despite the Claimant's poor criminal record and propensity to abscond, this is a finely balanced case. The Claimant has been in immigration detention for 30 months. The Defendant could, and should, have acted with greater diligence during that period."
OM (Algeria) v SSHD  EWHCA 65 (Admin)
"I intend no disrespect by not going into the refinements of Mr Giffin's argument but dealing with the matter on a broader basis. Where the court is concerned with the legality of administrative detention, I do not consider that the scope of its responsibility should be determined by or involve subtle distinctions. It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's views as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction)." [my emphasis]
"71. It is to my mind a remarkable proposition that the courts should have only a limited role where the liberty of the individual is being curtailed by administrative detention. Classically the courts of this country have intervened by means of habeas corpus and other remedies to ensure that the detention of a person is lawful, and where such detention is only lawful when it endures for a reasonable period, it must be for the court itself to determine whether such a reasonable period has been exceeded. That has been the approach adopted in practice in the domestic cases to which we have been referred: Hardial Singh, R (I) v Secretary of State for the Home Department and, to my mind, Khadir. In addition, this issue fell to be considered explicitly in the case of Youssef v The Home Office  EWHC 1884, where Field J held that the court was the primary decision-maker as to the reasonableness of the length of detention: see paragraph 62.
"72. The Privy Council seems to have adopted a similar approach in Tan Te Lam, finding that the facts which had to be found for the power to detain to exist were jurisdictional facts and hence for the court to determine. Mr Giffin has pointed out that the decision went to the existence of the power rather than to its exercise, which is true, but the reasoning in that decision seems to be of broader significance……"
"74…..Nonetheless, this court is still required by s 6(1) [of the Human Rights Act 1998] to decide whether or not the detention of this individual is compatible or not with his rights under Article 5, because only by so doing can the court ensure that it is acting lawfully. It cannot do that merely by asking whether it was open to the Home Secretary to decide that the length of detention was reasonable, as opposed to whether it was actually reasonable in the eyes of the court….." [my emphasis]
"…the ultimate decision is, in my judgment, for the court. I therefore would reject the Secretary of State's submission as to the limited role of the court in cases such as this."
Lord Justice Longmore:
"In seeking to formulate the issue before us I posed the question, what is the reach of the power conferred by paragraph 2(2) of Schedule 3 to the Immigration Act 1971, and characterised it as a question of statutory construction. In light of all the matters I have canvassed I would summarise my conclusions on this issue as follows. (i) Compliance with the Rules and manual as such is not a condition precedent to a lawful detention pursuant to paragraph 2(2). Statute does not make it so (contrast section 34(1) of PACE, and the Roberts case  1 WLR 662). Nor does the common law, or the law of the Convention. (ii) Avoidance of the vice of arbitrary detention by use of the power conferred by paragraph 2(2) requires that in every case the Hardial Singh principles should be complied with. (iii) It is elementary that the power's exercise, being an act of the executive, is subject to the control of the courts, principally by way of judicial review. So much is also required by Convention article 5(4). The focus of judicial supervision in the particular context is upon the vindication of the Hardial Singh principles. (iv) In the event of a legal challenge in any particular case the Secretary of State must be in a position to demonstrate by evidence that those principles have been and are being fulfilled. However the law does not prescribe the form of such evidence. Compliance with the Rules and the manual would be effective and practical means of doing so. It is anyway the Secretary of State's duty so to comply. It is firmly to be expected that hereafter that will be conscientiously done."
In other words, on the question of the lawfulness of the detention, the court should apply the Hardial Singh principles and that should be that.
"It is important to notice that if this approach is wrong (namely if the Hardial Singh principles are not enough to determine the lawfulness of the detention and it is relevant to consider whether there has been an error in application of Home Office policy in relation to monitoring) it means that a detention will be unlawful in the absence of (or failure to fulfil) a system of internal monitoring even though it can be shown on the particular facts that the detention, far from being arbitrary, is wholly justified."
In other words, even if it was inevitable that on proper application of the relevant policy detention would have been ordered, detention made on a misapplication of the policy would be unlawful.
"where the unlawful policy was of no causative effect (because detention would still have been lawfully directed irrespective of the new policy) then the detention is not to be styled as unlawful detention at all."
It was this submission that this court accepted in para 89 of its judgment despite the opposition of Mr Raza Husain for the appellants.
Lord Justice Maurice Kay: