ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Bean
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
LORD JUSTICE RICHARDS
LORD JUSTICE KITCHIN
| The Queen (on the application of LE (Jamaica))
|- and -
|Secretary of State for the Home Department
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Lisa Busch (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 19 April 2012
Crown Copyright ©
Lord Justice Richards :
The legal and policy framework
"38.10 Persons considered unsuitable for detention
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated IS detention accommodation or elsewhere:
- unaccompanied children and persons under the age of 18 …;
- the elderly, especially when supervision is required;
- pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this …;
- those suffering from serious medical conditions or the mentally ill;
- those where there is independent evidence that they have been tortured;
- people with serious disabilities."
The reasons for the appellant's detention
"I was well aware that Chapter 38 notes that in general terms, in all cases, detention should be used sparingly and for the shortest period necessary and that 38.3 sets out a number of factors which are relevant to the decision to detain. I took into account these factors. In general terms, however, the policy was that detention would normally be justified in circumstances where removal from the United Kingdom was imminent. In the case of [the appellant] his appeal against deportation had been dismissed, he had been issued with a signed deportation order, an application for an Emergency Travel Document had been agreed by the Jamaican High Commission in February 2006 and it was expected that removal would be effected within a reasonable time scale. Removal directions had been set for 21 April 2006. I therefore took the view that detention following the release from prison was justified as I considered that removal was at that time imminent."
"In reaching a decision I accepted that [the appellant] suffered from schizophrenia, I also considered that his condition was controlled by medication and that he was detained in a prison and not a secure unit, and while serving his custodial sentence [the appellant] had had only one adjudication in 2004.
I understood that if [the appellant] was considered in need of treatment in a mental health secure unit, this would have been arranged under the Mental Health Act but had not been. The fact that this had not happened led me to believe that while a relevant factor, this meant that he was currently mentally stable and could therefore be detained under immigration detention given the other factors involved."
"Ultimately, I took the view that because removal was imminent, and because his mental health was being adequately controlled by medication (added to the other factors I have mentioned), detention in his case was appropriate.
I also considered alternatives to detention, such as temporary release or bail with or without electronic monitoring. However, given his background and the prospect of his imminent removal – I was aware that removal directions were in place for 21 April 2006 – my view was that [the appellant] could be detained for a reasonable period to effect his deportation. Taking into account all the facts of the case known to me I decided that [the appellant] should be detained under the Act to effect his deportation to Jamaica. I authorised detention on 15 February 2006."
"It has been decided that you should be detained because:
You are likely to abscond if given temporary admission or release.
Your removal from the United Kingdom can be effected within a reasonable time scale.
The decision to detain you has been reached on the basis of the following factors:
It is noted that you are married to a British Citizen and have 3 children who are currently resident in the United Kingdom. Your marriage is no longer subsisting however you have maintained contact with your children whilst you have been in custody. You have failed to provide a suitable release address and evidence that the owner/occupier of that address would be willing and able to accommodate you.
You have previously failed or refused to leave the United Kingdom when required to do so. You entered the United Kingdom on 16 January 1989 and were granted leave to remain as a visitor for 6 months. You overstayed your leave and failed to embark from the United Kingdom. Nothing further was heard from you until March 1992 when you made an application to the Home Office for leave to remain as a spouse of a British Citizen."
Neither the minute of decision nor the decision letter contained any explicit reference to the policy, though the factors listed in the minute of decision reflected many of those set out in paragraph 38.3 of the policy as factors to be taken into account when considering the need for detention.
"14. Despite the inept wording of Mr Lambert's statement, I accept the submission of [counsel] on behalf of the Defendant that the decision maker had in mind both the risk of failure to comply with any conditions attached to the grant of temporary admission or release (that is to say of absconding) and what was thought to be the imminence of removal.
15. Mr Hugh Southey, for the Claimant, submits that there was no strong evidence of a risk of absconding, since the Claimant had been released from his sentence of imprisonment; it was therefore clear, counsel submits, that the Secretary of State accepted that the Claimant could be trusted to comply with the conditions of his licence. But I do not regard the notional release from the sentence of imprisonment as incompatible with a view that the Claimant was likely to disappear if given temporary admission or release from immigration detention as well. The decision set out in the letter of 15 February 2006 was in my judgment a rational one, even on the basis of the history enumerated in the letter. If the decision maker had addressed his mind to the full facts of the Claimant's history, including the incident of obtaining a passport by deception and trying to leave the country with a false passport, the basis for a conclusion that the Claimant was likely to abscond or disappear would have become even stronger."
i) It is common ground that the construction of the policy is a matter for the court rather than being subject to a Wednesbury test (see, for example, R (MD (Angola)) v Secretary of State for the Home Department  EWCA Civ 1238 at ). But on this aspect of the case, unlike the issue considered next concerning the application of the policy to those with a mental illness, no question arises as to the construction of the policy: it is not contended here that the decision-maker misunderstood the meaning of the policy.
ii) It is also common ground that the power to detain is limited by the Hardial Singh principles, in particular that detention is lawful only if it is for a reasonable period, and that it is for the court itself to determine whether a reasonable period has been exceeded. This was spelled out in R (A) v Secretary of State for the Home Department  EWCA Civ 804, most clearly by Keene LJ at -. Although Mr Southey placed considerable weight on that authority, it does not appear to me to be directly in point since the reasonableness of the period of detention and the application of the Hardial Singh principles are not in issue here.
iii) Subject to the limits imposed by the Hardial Singh principles, the power to detain is discretionary and the decision whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. That discretion is vested by the 1971 Act in the Secretary of State, not in the court. The role of the court is supervisory, not that of a primary decision-maker: the court is required to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision-maker has acted within the limits of the discretionary power conferred on him by the statute.
iv) That accords with the approach taken in R (OM) v Secretary of State for the Home Department  EWCA Civ 909. In that case the detention was held to be unlawful for failure to take into account the paragraph of the then current policy relating to mental illness, but the court held that if due consideration had been given to the policy the appellant could and would lawfully have been detained and that she was entitled only to nominal damages. In my judgment, with which Ward LJ and Hughes LJ agreed, I said at  that the question whether the appellant could lawfully have been detained was a matter of legal assessment which had two separate strands to it:"The first, concerning the policy itself, depends on normal Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case? The second requires the lawfulness of continued detention to be assessed by reference to Hardial Singh principles."Although that analysis was applied in a context where detention had already been found to be unlawful and the issue was one of damages, I can see no basis for adopting a different approach when determining whether the initial decision to detain was itself a lawful one. Mr Southey was not able to point to any sensible point of distinction.
v) I accept that there are observations in the judgment of Black LJ in Anam v Secretary of State for the Home Department  EWCA Civ 1140 (a case considered further below in relation to the issue of mental illness) that run counter to the views I have expressed. In particular, at , Black LJ took a broader view of what was said in R (A) v Secretary of State for the Home Department, treating it as "binding authority that the court must assume the role of primary decision maker when considering the lawfulness of detention rather than simply reviewing the decision of the Secretary of State along traditional public law lines", and she went on to indicate that this involved the court "attaching appropriate weight in its deliberation to matters such as government policies, risk assessments, and the evidence as to likely time-scales for the deportation of the individual". All this arose in the context of deciding on the correct approach of the court to determining the lawfulness of detention in circumstances where the decision-maker had failed to have regard to the published policy. The other members of the court (Longmore LJ and Maurice Kay LJ) agreed with Black LJ's conclusion that the appeal should be dismissed but gave reasons of their own for that conclusion. In any event, the decision pre-dated the decisions of the Supreme Court in Lumba and Kambadzi, and it appears from R (Moussaoui) v Secretary of State for the Home Department  EWHC 126 (Admin) at  that the appeal in Anam was re-opened following those decisions and that the appeal was then allowed. Although that may not directly undermine what Black LJ said in Anam about the role of the court as primary decision-maker, it does suggest the need to approach the case with a degree of caution.
vi) Our attention has also been drawn by counsel to the judgment of the Court of Appeal in R (AM) v Secretary of State for the Home Department  EWCA Civ 521, handed down after the hearing of the present appeal. The case related to the appellant's detention in alleged breach of the policy in paragraph 55.10 of the Enforcement Instructions and Guidance (considered below in the context of mental illness). Applying the principles in Lumba and Kambadzi, the court held that the detention had been contrary to the policy and unlawful, in that there was independent evidence that the appellant had been tortured and there were no very exceptional circumstances why detention should have been maintained. It was common ground between the parties that the decision on such questions was for the court itself and did not depend on the application of Wednesbury principles: see  and . The authorities referred to for that proposition were R (A) v Secretary of State for the Home Department at  per Keene LJ, and Anam v Secretary of State for the Home Department, at  (mistakenly attributed to Maurice Kay LJ). I have considered both those authorities above. R (AM) v Secretary of State for the Home Department does not take the matter any further, since the court proceeded in it on the basis agreed between the parties and did not engage in any reasoned consideration of the point.
vii) Accordingly, I see nothing in the decided cases to cause or require me to depart from the views expressed above or in R (OM) v Secretary of State for the Home Department.
viii) In summary, it seems to me that in submitting that it is for the court to determine as primary decision-maker whether detention was in accordance with the policy, Mr Southey has elided the question whether the decision-maker directed himself correctly as to the meaning of the policy (a matter on which the court is the ultimate decision-maker) and the question whether, if so, the decision-maker acted within the limits of his discretion when applying the policy to the facts of the case (a matter in relation to which a Wednesbury test applies).
ix) Whilst I have thought it right to set out at some length where I stand on this issue, a decision on it is not necessary for the purposes of the present case. That is because it makes no difference on the particular facts whether the court adopts a Wednesbury test or makes its own independent assessment of the justification for detention. I think it plain that, had Bean J thought it necessary to decide for himself whether the appellant's detention was justified in the light of the policy, he would have found that it was: a strong pointer in that direction is given by his observation that the full facts of the appellant's history provided an even stronger basis for finding a risk of absconding than the considerations actually addressed by the decision-maker. For my part, I not only agree with the judge that the decision was rational but would also have no difficulty in concluding, if necessary, that the detention was justified.
"51. Paragraph 55.10 provides that those mentally ill are normally considered suitable for detention in only 'very exceptional circumstances'. To my mind the existence of very exceptional circumstances demands both a quantitative and qualitative judgment. Were this provision to stand in isolation in the policy the power to detain the mentally ill could only be used infrequently, and the circumstances would have to have a quality about them which distinguished them from the circumstances where the power is frequently used. Otherwise effect would not be given to the requirement that the circumstances not simply be exceptional but very exceptional.
52. There are two points to be made. The first is that in my view mental health issues only fall to be considered under Chapter 55 where there is available objective medical evidence establishing that a detainee is, at the material time, suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. [Thus] consideration must be given to the nature and severity of any mental health problem and to the impact of continuing detention on it.
53. Secondly, the provision that the mentally ill be detained only in very exceptional circumstances does not stand in isolation. The opening part of paragraph 55.10 provides that for Criminal Casework Directorate cases 'the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention' ….
55. The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy …."
"… there is no reason why a person whose diabetes or epilepsy is well controlled by medication but who constitutes a significant absconding risk should not be detained for an anticipated short period during which detention is unlikely to have a significant effect on his condition and there are facilities for its satisfactory management".
" I agree with Beatson J that there is a level of seriousness required to engage the policy for mental illness as well as for physical conditions. Otherwise there would be insoluble problems of definition. Some people describe as mental illness what others would simply call depression. I also consider it a highly relevant factor that a condition is satisfactorily controlled by medication, as was the position here. … Moreover in the present case, unlike the MMH case, the decision maker did properly engage with the policy."
Lord Justice Kitchin :
Lord Justice Maurice Kay :