QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Ruhul Anam
|- and -
|Secretary of the State for the Home Department
Alan Payne (instructed by Treasury Solicitors) for the Defendant
Hearing date: 19 August 2009
Crown Copyright ©
Mr Justice Cranston:
"[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.
The claimant's mental state
"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".
"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."
"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."
"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."
"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  EWHC 1884 (QB), ; R (on the application of A) v Secretary of State for the Home Department  EWCA Civ 804, , .
The Hardial Singh authorities
"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).
" … 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:
(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).
Non-compliance with policy
"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" .
As a matter of legal analysis the principle was linked with the doctrine of legitimate expectation.
"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."
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."
"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."
"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."
"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: .
"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  EWCA Civ 1357
"[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": .
"… 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."
(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
"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.
"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 18.104.22.168, 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.
"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?"
"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 22.214.171.124 because of the seriousness of violent, sexual, drug-related and similar offences.
"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
" … 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. "
The meaning of the policy
THE CLAIMANT'S GROUNDS
Ground 1: failure to engage with policy
Ground 2: no "very exceptional circumstances"
Ground 3: Hardial Singh
CONCLUSIONS ON MAIN CLAIM
Ground 1: failure to engage with the policy
Ground 2: no "very exceptional circumstances"
Ground 3: Hardial Singh
THE OTHER CLAIMS
The deportation notice
Family member of EEA National