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Cite as: [2009] EWHC 2496 (Admin)

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		Neutral Citation Number: [2009] EWHC 2496 (Admin)
		Case Nos: CO/12/2009, CO/2023/2009, CO/3250/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

13/10/2009

B e f o r e :

MR JUSTICE CRANSTON
____________________

Between:

	Ruhul Anam	Claimant
	- and -
	Secretary of the State for the Home Department	Defendant

____________________

Alex Goodman (instructed by Leigh Day & Co) for the Claimant
Alan Payne (instructed by Treasury Solicitors) for the Defendant
Hearing date: 19 August 2009
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Cranston:

INTRODUCTION

The main claim before me raises the issue of the nature and extent of the limitations on the statutory powers of detention of the Secretary of State for the Home Department ("the Secretary of State") contained in paragraph 2(3) of schedule 3 to the Immigration Act 1971. In particular the claimant contends that irrespective of its duration his detention has been unlawful because it is at odds with the Secretary of State's policy not to detain mentally ill persons pending deportation, save in "very exceptional circumstances". In other words, the limitations derived from the judgment of Woolf J (as he then was) in Hardial Singh [1984] 1 WLR 704 are not the only ones imposed by law on the duration of detention.

In addition to the main claim the claimant has two other claims for judicial review. Both challenge in part the legality of his detention, but each raises the additional issues of the deportation notice and his family membership. Mr Goodman, who has acted for the claimant in the main claim, has advanced arguments in relation to these two ancillary claims on a pro bono basis. Because of time constraints – all claims were listed with a two hour time estimate – I have dealt with these by means of written submissions, and return to them at the end of this judgment.

In the main claim, which was issued by the claimant in person, the remedies sought are a declaration that his detention is unlawful, an award of damages due to breach of his Article 5 rights under the European Convention on Human Rights, and a grant of temporary admission. The grounds of the claim have now been amended and while they continue to seek those remedies there are as well claims for damages for false imprisonment, for aggravated and exemplary damages and for a series of declarations. Permission was granted by Beatson J on the main claim when no explanation had been given by the Secretary of State as to why the claimant had been detained.

BACKGROUND

In 1984 the claimant, a national of Bangladesh, arrived in the United Kingdom with his family. He was then aged 13 and was given indefinite leave to enter. The Asylum and Immigration Tribunal has found that the claimant has returned to Bangladesh on a number of occasions, soon after arriving in this country when he went to Bangladesh and lived with an uncle and aunt for a year, and around the age of 21 when he returned for a period of some one and a half years. The claimant disputes this. The claimant later married and had children. Apparently he last saw his children in 2000, although he has expressed a clear wish to have access to them and to see them. It appears that he has twice been refused contact with his children by the County Court. The claimant has family both in this country and in Bangladesh.

Offending History

Relevant to the present claim is the claimant's offending history. That began in 1991, at the age of 21, when the claimant was given a two year conditional discharge for assault occasioning actual bodily harm and a further twelve month conditional discharge for going equipped for theft. In early 1995 the claimant was sentenced to four months imprisonment for various dishonesty offences, and later that year he was sentenced to seven and a half months imprisonment for perverting the course of justice and assault occasioning actual bodily harm. Offences of shoplifting, making off without paying and obstructing the police led to short sentences of imprisonment in the late 1990s. Then in January 2000 he was convicted at the Magistrates' Court of dishonesty offences, failing to surrender to bail and two counts of failing to surrender to custody, as a result of which he was placed on a twelve month probation order and given two community service orders of eighty hours each. In the middle of that year there were further convictions at the Magistrates' Court including one of assault with intention to resist arrest. At the Crown Court in December of that year he was sentenced to eighteen months imprisonment for dishonesty offences. There were convictions in the following years for a number of dishonesty offences. Associated with these were five offences of failing to surrender to custody and two of failing to surrender to bail. Some of these offences led to short custodial sentences.

In January 2007 the claimant was convicted by a jury of one count of robbery and two counts of theft and was sentenced to four years imprisonment, four years on the robbery and three years on each of the theft charges concurrent. In sentencing the claimant, His Honour Judge Martineau said that he understood that the claimant had a very serious mental illness, but it was being properly treated in prison:

"[N]onetheless you decided to part company with your defence team and you tried to pretend that you were ill when I was quite satisfied that you were not ill."

The learned judge noted that the robbery had caused great distress to the young woman who had been attacked and hit in the stomach. Leave to appeal against sentence was refused. The claimant has now made a late application for leave to appeal against conviction. In all, the claimant has some forty offences involving twenty-six convictions. He has used some twenty aliases.

Immigration history

As a result of the claimant's offending history the Secretary of State invited him to advance reasons why he should not be deported at the end of the custodial sentence for robbery. No response having been received from the claimant, the Secretary of State notified him in October 2007 that, given his criminal record, a decision had been made to deport him. The claimant did not seek to exercise his right to appeal against the deportation order at that point. The deportation order was signed and served on the claimant in February 2008 and in April of that year directions were set for his removal. Although the claimant had not completed his custodial sentence he had been approved for release under the early release scheme. The claimant then made submissions against his removal. The Secretary of State addressed these. Removal in April 2008 had to be cancelled because the claimant became disruptive. Removal directions were reset for early May 2008 but they were cancelled, this time as a result of the claimant applying for asylum. The claimant was granted leave to pursue an out of time appeal against the decision to deport him.

The claimant went into immigration detention pending his deportation. Immigration detention continued after the expiry of his criminal sentence and has continued to the present. In July 2008 the claimant's representatives submitted written representations raising Article 8 issues linked to the claimant's medical conditions and enclosing a medical report by Dr Katona (of which more below).

In early August 2008 the claimant's appeal against a deportation order was heard by the Asylum and Immigration Tribunal, which dismissed it. In the course of the determination the Tribunal addressed the suggestion that the drug, Risperidone, with which the appellant was being treated, was not available in Bangladesh. The Tribunal noted that that part of Dr Katona's report was not particularly helpful because it did not express clearly how important Risperidone was to the claimant's care and whether there were other drugs which would have been effective in treating his condition. The Tribunal also noted that Risperidone was not available in other countries such as Australia, Belgium and France. The Tribunal also noted that the claimant had returned to Bangladesh on a number of occasions, summarised the position with regard to his children and also noted his admission to long misuse of cannabis and cocaine "which may have contributed to his present mental condition". In the result the Tribunal concluded that medical treatment would be available for the claimant in Bangladesh and that, having regard to his long and escalating history of offending, any interference with his rights under Article 8 was proportionate. The claimant's application for reconsideration of this decision was refused by a Senior Immigration Judge in August 2008. Meanwhile the claimant had made an application for asylum. He was interviewed in relation to this application in June 2008. In September of that year the application was refused.

In November 2008 the claimant was transferred to Colnbrook Immigration Removal Centre but refused to share a room, resulting in his being relocated to a vulnerable persons unit. His complaint about not being allocated a single room on arrival at Colnbrook was ultimately upheld by the Prisons and Probation Ombudsman in July of 2009.

On the 23^rd December 2008 directions were set for the claimant's removal on the 5^th January of the new year, but the claimant submitted a fresh claim for asylum and lodged the first of the ancillary claims for judicial review now before me. Accordingly, removal directions were cancelled. Early in February 2009 the Secretary of State refused the claimant's further representations. That month the claimant made three unsuccessful applications to the Asylum and Immigration Tribunal for bail. He also issued the main judicial review application before me, challenging the lawfulness of his detention. In March 2009 the claimant was refused bail by the tribunal on a further three occasions. His application was withdrawn on one occasion when he refused to attend the hearing. The claimant's Bangladeshi passport would have expired in January 2009 and he was requested to provide bio data documents to enable travel documents to be obtained. In April, May and June the claimant was refused by bail by the tribunal on a further four occasions. In June 2009 the Secretary of State, while maintaining the earlier decision not to recognise that the claimant had made a fresh claim, agreed to grant him a right of appeal against the decision not to revoke his deportation order.

The claimant's mental state

Both sides accept that the claimant's mental health has fluctuated. The earliest reference to the claimant's mental state in evidence is to a report of Dr Gandhi in 1991. His diagnosis is mentioned in a later report dated the 18^th October 2000 by Dr Joseph. Dr Joseph's report was prepared in relation to the care proceedings involving the claimant's children. In it Dr Joseph agreed with Dr Gandhi's diagnosis that the claimant suffered from paranoid psychosis.

In September 2008 Dr Patel prepared a report in relation to the Crown Court proceedings for the robbery. In Dr Patel's opinion the claimant was suffering from a paranoid psychotic illness consistent with a diagnosis of paranoid schizophrenia. He had displayed intermittent psychotic symptoms since 1991. It was likely that the claimant had not received a definitive diagnosis of paranoid schizophrenia earlier as a consequence of comorbid psycho active substance misuse, a lack of sustained engagement with mental health services and impaired compliance with prescribed medication. Dr Patel recorded that the claimant had been treated with anti-psychotic medication in prison following Dr Patel's initial assessment of him, and this had resulted in an improvement in his psychotic symptoms and general presentation. Dr Patel did not believe at that time that the claimant's mental illness was of a nature or degree to warrant transfer to hospital for further assessment and treatment. Following release into the community, the claimant would need follow up treatment by a community mental health team to monitor his mental state, compliance with prescribed medication and abstention from the use of illicit substances. Were his mental health to deteriorate, and his risks to become unmanageable, or if the claimant were to become non-compliant with medication, consideration would need to be given to his transfer to hospital.

Dr Katona's report of the 19^th July 2008 was prepared for the purposes of the hearing before the Asylum and Immigration Tribunal. Dr Katona agreed with Dr Patel's diagnosis that the claimant was suffering from paranoid schizophrenia. His condition was likely to have deteriorated in recent times – he had been in immigration detention for some 2 to 3 months – because of his reluctance to take anti-psychotic medication. The claimant informed Dr Katona that he was prepared to restart on the medication although he had some concerns that it might make him feel "lumbified". Dr Katona opined that the claimant's condition was most likely to improve if he restarted medication and was placed in a supportive environment, with close mental health monitoring. This could initially be in a psychiatric inpatient setting, but it might also be possible to provide sufficient monitoring in the community if he also had the benefit of family support. It was unlikely that his mental health needs would be met on return to Bangladesh.

A year later Dr Katona prepared a second report, dated the 22^nd July 2009, for the current proceedings. He confirmed his previous diagnosis of paranoid schizophrenia. The main differences between the claimant's presentation then and his presentation the previous year was that his delusional beliefs were less prominent, presumably as a result of the anti-psychotic medication he was then taking, and that by July 2009 he had quite prominent depressive symptoms, a reaction to his prolonged detention. That depression did not alter the primary diagnosis of schizophrenia. He was now on regular anti-psychotic medication, Risperidone, but was not receiving any psychological treatment and was not in a rehabilitative environment, both of which were key components of treatment in care of people with schizophrenia. Dr Katona reiterated his recommendation for a supportive environment, and noted that family members had now expressed a willingness to provide such support. In Dr Katona's view continued immigration detention was causing the claimant considerable stress, which was likely to worsen his psychotic and his depressive symptoms.

There is reference in the claimant's detention records to his mental state. The earliest prison report in relation to mental health is on his reception in March 2007, where there is a reference to his clearly documented paranoid schizophrenia and post traumatic stress disorder, although it is noted that he is stable on Risperidone. A mental health review in May 2007, by Tony Adams, a community psychiatric nurse, recorded the claimant's poor mental health owing to his move to the prison. Later that month Tony Adams noted that the claimant did not feel well and wanted to stop his medication. Mental health reviews in June 2007 recorded that on one occasion the claimant appeared more relaxed, but a few days later he said he was not progressing well, although he was not specific with his description of symptoms.

An entry on the 21^st June 2007 records that Dr Birmingham was scheduled to see the claimant at a psychiatric outpatient clinic but that the claimant declined to attend. Tony Adams reported in early July that he saw the claimant in the cells after reports of bizarre behaviour and that the claimant declined to restart his Risperidone. Tony Adams reported in October 2007 that there were no significant relapse symptoms evident and in early November that his mental health was stable with no symptoms of illness present. The claimant continued to present without the symptoms in late November. That was also the case in early December when there was a mental health review by Tony Adams, along with Dr Birmingham. The claimant continued to refuse treatment.

In mid December 2007 a mental health review by Tony Adams found that the claimant did not appear distracted or thought disordered, although his demeanour changed when Mr Adams attempted to discuss whether his presenting symptoms had changed since his admission in 2005. There was no evidence of thought disorder or hallucinations the following day but there was possible evidence of delusive thinking. A mental health review in late January 2008 found the claimant in a good mood and reporting no concerns about his mental health. Mr Adams and Dr Birmingham saw the claimant on the 20^th March 2008 for a routine psychiatric review. The claimant did not want to take any psychotic medicines.

There are fewer medical records in the evidence from the immigration detention centres. A nursing assessment at the time of his arrival at a detention centre on the 25^th April 2008 briefly reports that he was in touch with a psychiatric hospital and that he appeared paranoid. Sharing a room made him feel stressed. There was a medical health needs assessment on the 1^st of May 2008 by a community psychiatric nurse which recorded that the claimant was not complaining of any psychiatric condition and had refused to offer details of his past involvement with or treatment by psychiatric services. Dr Patel's report was available, as were the short reports from Tony Adams. The report writer was not able to perform the full medical health assessment because of the claimant's reluctance to engage. Consequently he was unsure whether the claimant was suffering with a mental health problem. During the session the report writer could not detect any significant levels of emotional disturbance other than being angry at his present situation and facing the possibility of being returned to Bangladesh. The claimant did not complain of any psychiatric condition. There was some uncertainty about his diagnosis. On the 2^nd November 2008 an assessment recorded his past psychiatric history and that he was suffering from paranoid psychotic illness and possible post traumatic stress disorder. On the 18^th November 2008 the previous diagnosis of paranoid psychosis is recorded. A report on the 24^th November 2008 found the claimant reporting himself more paranoid but he appeared more relaxed, cooperative and coherent.

Detention reviews

There are a series of immigration detention reviews when continuation of detention was authorised. These were completed by members of the Criminal Casework Directorate (CCD). The review of 13 May 2008 noted under change in circumstances that the claimant feared for his life if he returned to Bangladesh and that he stated he had mental health problems. It was countersigned by a senior executive officer, although no comments were added. There was no mention of mental health issues in the review of 12 June, nor in that of 21 July. The 26 August 2008 review noted the immigration history in greater detail, including the fact that the claimant's removal did not take place in April because he was disruptive and that he "has thwarted 2 removal attempts". The entry continued:

"Given his extensive criminal history and the nature of his offence it is considered that he has no incentive to comply with any reporting restrictions placed upon him."

That report was countersigned, but this time the senior officer added the following comment when giving his authority to maintain detention:

"Agreed. This man presents a very high risk of re-offending and non-compliance with restrictions if we were to release him. The subject has an extensive criminal history with 41 offences resulting in 26 convictions. He has made a late claim for asylum once removal directions had been set which suggests it is solely an attempt to prevent removal. The subject has been served with a deportation order and has already thwarted two removal attempts. There is therefore little likelihood of him abiding by any restrictions and he poses a high absconder risk. Continued detention remains appropriate and in line with current detention criteria".

The November 2008 review noted that the claimant had received a full response to his July representations. In countersigning the review the senior officer anticipated a further attempt at removal. The claimant's passport was only valid until January 2009 so there was a need for urgency as escorts would be required and the claimant would inevitably do whatever he could to prevent his return to Bangladesh.

"He has committed over 40 offences here, which have resulted in almost 30 convictions. It is clear that he treats our laws with contempt and would not comply with any restrictions. Detention is clearly justified in this case and is proportionate to risk."

The January 2009 review maintained detention. The March 2009 review noted that the claimant "continues to abuse the bail application system and withdrew another application for bail on the day of the hearing … he then reapplied the following day." The recommending officer commented that the claimant posed a high risk of absconding if released. That strongly outweighed the presumption in favour of release. The proposal for continued detention was countersigned: "I agree to maintain detention which is clearly in the public interest given the level of offending and the risk of absconding".

The twelve-monthly detention review went first to an assistant director, who said that she had reviewed detention in line with current policy, balancing the presumption to release with the risk of re-offending – given the previous offences – and the risk of absconding. The matter then went to the Director, who commented:

"Based on the presumption to release, I have considered whether the continued detention is lawful. In light of their risk of further offending and harm that this may cause, as well as the likelihood of absconding, I consider these additional factors outweigh the presumption to release, I therefore authorise their detention for a further 28 days."

The June review mentioned the judicial reviews and the claimant's mental health in that context. The senior officer authorised continued detention based on the clear risk of harm and re-offending. In the July review the recommending officer raised the offences and use of aliases as a basis for her conclusion that the claimant "clearly has a propensity to deceive and cannot be relied upon to comply with any reporting."

The August 2009 review went to the Director, who repeated his May conclusion. This review addressed the claimant's mental health. It will be recalled that Dr Katona's second report was in July. The recommending officer reported that he had contacted the nursing manager at the detention centre, who confirmed that the claimant had been assessed on arrival and had been in contact with the unit on an almost daily basis since then. All his health needs were being appropriately met and he was fit for detention. This report also noted his history of deception and that, since he had never been lawfully employed, it was probable that he would return to criminality to support himself.

"In light of our policy to only detain those with mental health issues under "exceptional circumstances" I have weighed the presumption of release generally and in light of his mental illness against the number, and serious nature, of his offences. I have also considered his prior use of deception and his propensity to abscond.

Under the circumstances, I am of the view that Mr Anam is a very exceptional case and in accordance with our policy, his detention should be continued. In particular, he poses a high absconder risk and is clearly capable of avoiding Police and Immigration Authorities for long periods."

The report had then proceeded to a more senior official – before being forwarded to the Director – who wrote:

"We have considered Mr Anam's ongoing mental health issues and we are satisfied that risks of harm, re-offending and absconding posed by him are sufficient to make this an exceptional case which warrants continued detention."

LEGAL FRAMEWORK

The Secretary of State's powers to detain in respect of those for whom a deportation order is in force is conferred by paragraph 2(3) of Schedule 3 to the Immigration Act 1971. That reads that once the deportation order is in force against such a 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 … when the order is made, shall continue to be detained) unless he is released on bail or the Secretary of State directs otherwise."

Because the common law zealously guards liberty, it has evolved a number of principles relevant to the operation of immigration detention. In applying these the court assesses the legality of continued detention on an objective basis; review is not restricted to a review of the Secretary of State's decision on Wednesbury grounds: Youssef v The Home Office [2004] EWHC 1884 (QB), [62]; R (on the application of A) v Secretary of State for the Home Department [2007] EWCA Civ 804, [62], [72].

The Hardial Singh authorities

The seminal case is R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. There an Indian national had entered the United Kingdom lawfully in 1977 and was given indefinite leave to remain. He was imprisoned as a result of being convicted on charges of burglary in 1982. In 1983 an order was made for his deportation. He had, meanwhile, become distressed and absconded from prison, but was later detained. He could have been released on parole in the middle of 1983, but he was detained after that date pursuant to paragraph 2(3). He had lost his passport and there was a delay by the Indian High Commission in issuing alternative travel documents. The matter was heard on 13th December, some 4½ months after his potential parole period had begun. He was willing to return to India. Woolf J (as he then was) referred to the power contained in paragraph 2(3) and said:

"I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.

In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time" (page 706 letters D-G).

The Court of Appeal approved Hardial Singh in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] 1 INLR 196. The appellant, an Afghan asylum seeker, had been convicted of indecent assault and sentenced to 3 years' imprisonment with a recommendation for deportation. After he was due for release on licence, he had been detained pending removal. He had been in administrative detention for about 16 months. Apparently he did not want to return to Afghanistan and had claimed asylum, although that situation seemed to have changed on the eve of the hearing. The Court of Appeal, over the dissent of Mummery LJ, held that it was not justifiable to detain him any longer. Simon Brown LJ said that the risk of his absconding and re-offending was relevant. So, too, was his refusal to accept voluntary repatriation. Nonetheless, Simon Brown LJ said:

"[37] … Given, as stated, that the appellant had by then been in administrative detention for nearly 16 months and that the Secretary of State could establish no more than a hope of being able to remove him forcibly by the Summer, substantially more in the way of a risk of re-offending (and not merely a risk of absconding) than exists here would in my judgement be necessary to have justified continuing his detention for an indeterminate further period."

In the course of his judgment Dyson LJ drew out four principles which emerged from the authorities:

"46 …

(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv) The Secretary of State should act with the [sic] reasonable diligence and expedition to effect removal.

47. Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person "pending removal" for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired."

Dyson LJ said that it was not possible or desirable to list all the circumstances that may be relevant to the issue of how long it was reasonable for the Secretary of State to detain a person pending deportation. However, in his view, they included at least: the length of the period of detention; the nature of the obstacles standing in the path of the Secretary of State preventing deportation; the diligence, speed and effectiveness of the steps the Secretary of State had taken to surmount the obstacles; the conditions in which the detained person had been kept; the effect of detention on him and his family; the risk that if released he would abscond; and the danger that if released he would commit criminal offences. The absconding risk, in Dyson LJ's view, should not be overstated and was not a trump card (paragraph 53).

In R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, the cross-appeal by the appellant against his continued detention was dismissed. He was a Somali national who had been granted exceptional leave to remain in the United Kingdom. During his time in this country, he had been convicted of rape and sentenced to 8 years' imprisonment. The Secretary of State decided to deport him, but he refused to co-operate with arrangements made for his removal. Between late 2004 and the middle of 2006 the Secretary of State was unable to enforce the deportation order because at that point, given the civil war in Somalia, no carrier was willing to take enforced returnees to that country. However, the situation changed in July 2006. Toulson LJ said that where there was a risk of absconding and a refusal to accept voluntary repatriation, those were very important, often decisive, factors in determining the reasonableness of the person's detention. The risk of absconding was important because it threatened to defeat the purpose for which the deportation order was made: [54]. The refusal of voluntary repatriation was important, not only as evidence of the risk of absconding, but also because there was a big difference between administrative detention in circumstances where there was no immediate prospect of removal and detention in circumstances where he could return there at once: [54]. The risk of offending if the person was not detained was an additional relevant factor, the strength of which depended on the magnitude of the risk: [55]. In that case Toulson LJ said that there was a high risk, both of absconding and further offending. Keene LJ agreed as to the importance to be attached to the risk of absconding, emphasising that "the risk of absconding in any given case [is] a matter of the greatest importance, since if the person were to abscond … the whole purpose of the deportation order would be frustrated" [77]. He specifically disagreed with Dyson LJ's view in R (I). Keene LJ held that the relevance of a refusal to accept voluntary repatriation lay primarily "in the evidence it provides of a likelihood of the individual absconding if released" [79].

Non-compliance with policy

The law requires adherence to the clearly expressed policy of a public authority absent compelling reasons for departure from it. A clear justification of the principle is contained in the judgement of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363, a case where the claimant appealed a decision of the Secretary of State that he fell outside the third country family links policy and sought to quash the refusal to consider his asylum claim in the United Kingdom.

"Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public" [68].

As a matter of legal analysis the principle was linked with the doctrine of legitimate expectation.

In D v Secretary of State for the Home Department [2006] 1 WLR 003, a detention case, Brooke LJ approached the need to follow policy as one of a failure to take into account a relevant consideration, which meant that the official had no power to authorise detention and was acting ultra vires: at [111], [132].

R (on the application Nadarajah) v Secretary of State for the Home Department [2003] EWCA Civ 1768; [2004] INLR 139 involved appeals against decisions that the detention of two asylum seekers under the Immigration Act 1971, schedule 2 was unlawful. They were both detained on the ground that their removal was imminent. Nadarajah's detention was held to be unlawful because it conflicted with the Secretary of State's policy as regards the institution of judicial review proceedings leading to a suspension of removal. (When considering whether removal was imminent, there was a policy not to have regard to mere intimations of intention to bring proceedings challenging removal but this policy was not widely known). Stanley Burnton J (as he then was) held that "if the [published] policy had been applied he would not have been detained": [68]. The Court of Appeal dismissed the appeals and held that the detention of both claimants had been correctly determined as unlawful.

Giving the judgment of the court, Lord Phillips MR (as he then was) said that if the finding of Stanley Burnton J was not reversed, the appellant was entitled to an award of damages in respect of his detention: [15]. He read Stanley Burnton J's decision as meaning that because of our domestic public law the decision to detain was unlawful because it conflicted with the published policy of not detaining once a second set of judicial review proceedings was commenced: [36]-[37]. There was nothing unlawful about that policy. That was both as a matter of domestic law and Article 5.

"Thus the relevance of Article 5 is that the domestic law must not provide for, or permit, detention for reasons that are arbitrary. Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of State's published policy, which, under principles of public law, he is obliged to follow."

In answering the question whether Nadarajah's detention was unlawful, Lord Phillips MR held that "When the claimant was detained his removal was not imminent. He was in a position to bring arguable claims for judicial review of the Secretary of State's decisions and his solicitors had given notice of an intention to seek judicial review.

"68. …

The only basis upon which the Immigration Service could treat his removal as imminent was by applying that aspect of the Secretary of State's policy which had not been made public, namely that no regard would be paid to an imitation that judicial review proceedings would be instituted. The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public."

Lord Phillips MR returned to the issue of policy when considering the other respondent in the case. In this regard the court held that since he had informed the immigration service of his intention to appeal, on human rights grounds, the reason for detaining him, namely to assist in procuring the documentation necessary for removal, did not fall within the Secretary of State's policy as published. Thus his detention had been unlawful.

"72 Had the Secretary of State included in his policy, as a reason for detention, 'to facilitate documentation needed for removal' we do not believe that any objection could have been made under Article 5. Equally, had he published his policy to disregard an intimation that proceedings would be initiated, for the purposes of deciding when removal is imminent, he would have been in a position lawfully to detain A for that reason and the additional reason that detention was necessary for documentation purposes. In the event, however, the detention was unlawful for the same reason that N's detention was unlawful. It was at odds with the Secretary of State's policy, as made public."

Subsequent decisions of this court have adopted the Nadarajah approach, that immigration detention can be unlawful if in conflict with the Secretary of State's policy. Thus in R (on the application of MMH) v SSHD [2007] EWHC 2134 (Admin) two foreign national prisoners were detained pending deportation. Beatson J held that the reasons given for detention were justified on Hardial Singh [1984] 1 WLR 704 grounds because there was a significant risk of their absconding given that they had no family or community ties and that there was no incentive for them to remain in touch with the authorities. However, a medical report had been submitted in respect of one of them. Substantially the same policy as that contained in the Enforcement Instructions and Guidance was then contained at paragraph 38.10 of the previous policy document: the "Operations Enforcement Manual". The medical report in that case indicated that one claimant suffered from "post traumatic stress disorder." The Secretary of State had not, in his review and consideration of this claimant's detention, considered the applicability of that policy. Whilst his detention was justified until the receipt by the Secretary of State of a psychiatric report once the issue of his mental health had been squarely raised it had to be addressed.

"49. I conclude that, once the issue of the claimant's mental health was squarely raised and evidence of the diagnosis was submitted and brought to the defendant's attention, the failure to apply the policy in paragraph 38.10 is a flaw susceptible to judicial review. Accordingly, I conclude that from 4 June, when the decision was made, until 3 July when he was released, the second claimant's detention was not lawful. … Subject to any submissions that either party may wish to make, I propose to make a declaration that the detention after 4 June was unlawful."

Similarly, in S v Secretary of State of the Home Department [2007] EWHC 1654 (Admin) a mother and her children sought declarations that their detention in immigration removal centres was unlawful. Wyn Williams J held that initially detention under the fast-track procedure accorded with the relevant policy and the policy itself was lawful. After a period, however, the detention became unlawful and he granted a declaration in favour of the claimants. That was because it was difficult to conclude that there was a likelihood of absconding if the claimants were released: [59]. The policy required strong grounds for believing that a person would not comply with conditions of temporary admission or release for detention to be justified. The detention of young children was involved and thus the policy had to be applied with rigour: [61]. That had not been done. No strong grounds existed for believing that the mother would not comply with conditions of temporary admission or temporary release and all the reasonable alternatives to detention were not properly considered: [62].

"In my judgment, therefore, the defendant failed to comply with his own policy upon detention when the decision was taken to detain the claimants on the 15th August 2005. That means that the decision to detain was unlawful and the detention itself was unlawful and an infringement of Article 5 ECHR."

Wyn Williams J also held that the detention was unlawful under Hardial Singh principles: [65].

Non-compliance with the Secretary of State's policy does not ipso facto lead to detention being unlawful. It must be shown that, but for the breach, had a person's detention been properly assessed they would not have been detained. In R (D); R (K) v Secretary of State for the Home Department [2006] EWHC 980 (Admin) Davis J held that in the detention of the claimants there had been a breach of the Detention Centre rules because the claimants were denied medical examination within 24 hours of their admission to detention. However, that did not mean they were wrongly detained.

"108 It is common ground that the fact that D and K were wrongfully denied a medical examination within 24 hours of admission contrary to Rule 34 does not of itself mean that they were wrongfully detained. It is common ground that it is for each of D and K to show that had they received (as they should) such examination within 24 hours then they would have been released at an earlier time than in fact they were. It is common ground that this issue of causation is to be assessed on the balance of probabilities: these are not "loss of chance" cases."

In the result Davis J held that D's detention was partly attributable to the absence of a medical examination. Compensation was payable. The decision was appealed, but affirmed by the Court of Appeal in HK (Turkey) v SSHD [2007] EWCA Civ 1357

In Abdi v Secretary of State for the Home Department [2008] EWHC 3166 (Admin), after a careful canvassing of the authorities, Davis J restated the importance of causation. He had held that a presumptive policy of detention of foreign national prisoners was not lawfully open to the Secretary of State as being in breach of paragraph 2 of Schedule 3 of the Immigration Act 1971, running counter to the published policy and insufficiently accessible. Davis J held, however:

"[I]nquiry has to be made as to whether the introduction of the unlawful and unpublished policy in fact caused each claimant unjustifiably and unlawfully to be detained": [147].

Before me Mr Payne for the Secretary of State submitted in effect that this line of authority had been brought up short by the Court of Appeal decision in R (SK) (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 1204. The claimant, who had come from Zimbabwe as a visitor, and was allowed to remain as a student, overstayed. He was subsequently imprisoned for sexual and common assault. The Secretary of State decided to make a deportation order on his release from prison, and he was detained under the powers in paragraph 2 of Schedule 3 of the Immigration Act 1971. He was not the first person in this position to make a false claim for asylum. He also appealed the deportation order. Bail was refused. Eventually appeals against the asylum refusal, deportation, and the denial of bail were refused and a deportation order was made. He then sought judicial review on the basis that his detention was unlawful because there had been a failure to conduct regular reviews of his detention as required in the Detention Centre Rules 2001, 2001 SI No 238 ("the 2001 Rules") – subordinate legislation under the Immigration Act 1971 – and chapter 38 of the Operations Enforcement Manual. Munby J held that compliance with the 2001 Rules and the Operations Enforcement Manual was a pre-condition of lawful detention: [2008] EWHC 98 (Admin), [68]. Thus he granted a declaration that the complainant had been unlawfully detained and was entitled to damages. Munby J did not order release because he was satisfied that subsequently a valid decision had been made authorising detention.

In the Court of Appeal Laws LJ said that the issue was the true construction of para 2(2): as well as the limitations imposed by Ex parte Hardial Singh [1984] 1 WLR 704, was it subject to compliance with the Rules and the manual as Munby J had held? Laws LJ distinguished Roberts v Chief Constable of the Cheshire Constabulary [1991] 1 WLR 662, on the ground that the periodic reviews required of a suspect held by the police was expressly mandated by the Police and Criminal Evidence Act 1984 (PACE). There was no equivalent statutory authorisation to be found in paragraph 2(2).

"… There is no reference in the sub-paragraph, express or implied, to the Rules or the manual, or to any Rules that might be made under powers in the Immigration Act or to any manual, or instructions, that might be issued by the Secretary of State. I cannot see how compliance with the letter of the Rules or manual could be said to be a sine qua non of a lawful exercise of the power to detain unless paragraph 2(2) (or other main legislation) made it so. But it does not. Munby J was in my judgment wrong to hold, as I understand him to have done at para 68 of his judgment, that such compliance was "a necessary prerequisite to the continuing legality of the detention". Breach of the Rules or manual might attract other remedies in public law: indeed on the judge's findings I should have thought that the claimant would be entitled to a declaration that the Secretary of State had unlawfully failed to comply with both. However, that has not been sought, and even if it had been its availability would not of itself turn a paragraph 2(2) detention into a false imprisonment."

Laws LJ then considered whether compliance with the 2001 Rules and the Operations Enforcement Manual was necessary for the power of detention not to be exercised arbitrarily, contrary to common law and Article 5 of the European Convention on Human Rights. After consideration of the authorities, including the passage at paragraph 54 of Nadarajah quoted earlier in this judgment, Laws LJ concluded that fulfilment of the Hardial Singh principles was sufficient to save detention from the vice of arbitrariness.

It seems to me that there may be no conflict between the approach of Lord Phillips MR in Nadarajah [2003] EWCA Civ 1768 and that of Laws LJ in R (SK) (Zimbabwe) [2008] EWCA Civ 1204. 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).

SECRETARY OF STATE'S POLICY: MENTAL HEALTH

The Secretary of State's policy currently in force relevant to the immigration detention in this case is contained within Chapter 55 of the Enforcement Instructions and Guidance. It is to detain persons suffering from mental illness under immigration powers in only "very exceptional circumstances". That policy derives from the Government White Paper, Fairer, Faster and Firmer, Cm. 4018, 1998. The White Paper stated in Chapter 12 that it was regrettable that detention was necessary to ensure the integrity of immigration control. Whilst there was a presumption in favour of temporary admission or release, detention was normally justified where there was a reasonable belief that the individual would fail to keep the terms of temporary admission or temporary release; initially, to clarify a person's identity and the basis of their claim; or where removal was imminent. In particular, where there was a systematic attempt to breach immigration control, detention was justified wherever one or more of these criteria was satisfied. Paragraph 12.4 read:

"12.4 The Government also recognises the need to exercise particular care in the consideration of physical and mental health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual's asylum claim is being considered. "

The following paragraphs explained that the detention of families and children was particularly regrettable, and that unaccompanied minors should never be detained other than in the most exceptional circumstances.

That White Paper evolved into what was Part 38.10 of the Operations Enforcement Manual. Part 38.10 was in force for the first three months of the claimant's immigration detention. From July 2008 the manual was replaced with the Enforcement Instructions and Guidance. That was revised in September 2008 and January 2009.

The policy

Chapter 55 of the Enforcement Instructions and Guidance, entitled "Detention and Temporary Release", refers at the outset to the 1998 White Paper as containing the general policy applicable in the area. Paragraph 55.1.2 refers to cases concerning foreign national prisoners ("FNP"), dealt with by the Criminal Casework Directorate ("CCD"), which are subject to the general policy, including the presumption in favour of temporary admission or release. In such cases, if detention is indicated, because of the higher likelihood of the risk of absconding and harm to the public on release, paragraph 55.1.3, on the use of detention, provides that it is normally appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. If detention is appropriate, a foreign national prisoner is detained until either deportation occurs, the foreign national prisoner wins an appeal against deportation, bail is granted or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful.

"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 re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is included in the list at 55.3.2.1, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences" (emphasis in original).

Robbery is a serious offence listed in an annex to Chapter 55. Detention in such cases must be authorised by a senior official in the Criminal Casework Directorate.

Decisions to detain in CCD cases are addressed specifically in paragraph 55.3.A. For more serious offences that paragraph provides:

"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 what period of detention is reasonably necessary. 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. Caseworkers are reminded that what constitutes a "reasonable period" for these purposes will generally be longer than in non-criminal cases, or in less serious criminal cases, particularly because the ex-FNP has committed a serious crime or crimes" (emphasis in original).

Among the factors listed influencing the decision to detain are whether the person has mental ill health: paragraph 55.3.1.

"55.3.1 Factors influencing a decision to detain

All relevant factors must be taken into account when considering the need for initial or continued detention, including:

What is the likelihood of the person being removed and, if so, after what timescale?

Is there any evidence of previous absconding?

Is there any evidence of a previous failure to comply with conditions of temporary release or bail?

Has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry)

Is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave etc)

What are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? Does the person have a settled address/employment?

What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?

Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?

Is the subject under 18?

Does the subject have a history of torture?

Does the subject have a history of physical or mental illness?"

Further guidance on detention in CCD cases where a person has completed a custodial sentence is given in paragraph 55.3.2. The paragraph is to be read in conjunction with 55.3.1, with substantial weight being given to the risk of further offending and the risk of harm to the public. With serious offences the exceptional nature of release is reiterated:

"Where a time served foreign national prisoner has a conviction for an offence in the list below, particularly substantial weight should be given to the public protection criterion in 55.3.1 above when considering whether release on restrictions is appropriate. 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. This does not mean, however, that individuals convicted of offences on the list can be detained indefinitely. All relevant factors (see 55.3.1) must be considered when assessing whether there is a realistic prospect of removal within a reasonable timescale."

Release as exceptional is underlined in paragraph 55.3.2.11 because of the seriousness of violent, sexual, drug-related and similar offences.

The critical paragraph relied on by the claimant is 55.10, which provides that mentally ill persons should normally be considered suitable for detention only in very exceptional circumstances.

"55.10 Persons considered unsuitable for detention

Certain persons are normally considered 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:

unaccompanied children and young persons under the age of 18 (but see 55.9.3 above);

the elderly, especially where 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 (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl's Wood);

those suffering from serious medical conditions or the mentally ill - in CCD cases, please contact the specialist Mentally Disordered Offender Team;

those where there is independent evidence that they have been tortured;

people with serious disabilities;

persons identified by the Competent Authorities as victims of trafficking (as set out in Chapter 9)."

Paragraph 55.15 deals with detention in national security cases.

Determining the meaning of the policy

The meaning of a policy such as that contained in the Enforcement Instructions and Guidance is an objective matter: R (on the application of Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72. In that case the Court of Appeal considered how such schemes should be interpreted and referred to Lord Steyn's speech in In re McFarland [2004] UKHL 17; [2004] 1 WLR 1289. Lord Steyn's speech also goes to the point that persons are entitled to rely on the language of a policy statement.

"[24] … In my view, however, in respect of the many kinds of "soft laws" with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision-making unless there is good reason to depart from it. It is an integral part of the working of a mature process of public administration. Such policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the Minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The decision-maker, here a minister, may depart from the policy but until he has done so, the citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy. "