England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		13 May 2014

MR ALEXANDER NISSEN QC:

INTRODUCTION

1. In these proceedings, instituted on 1 August 2012, the Claimant, Mr Joseph Waryoba, seeks declaratory relief that the Defendant has falsely imprisoned him and he claims damages in respect thereof. As originally instituted, the proceedings also sought a mandatory order for his release and associated interim relief but this remedy is no longer necessary because the Claimant was released from detention in September 2012.
2. It was common ground between the parties that the trial of this matter should proceed on the basis that I would decide the question of entitlement to declaratory relief and to substantive, as opposed to nominal, damages. If I conclude that the Claimant is entitled to substantive damages then it is agreed that the assessment of those damages should be determined subsequently.
3. In outline, the Claimant was detained in immigration detention from 22^[1] June 2010 until 26 September 2012. He contends that there came a point at which that detention became unlawful and, in consequence, that he became entitled to damages. Although, as I shall shortly explain, the Defendant has made limited admissions in respect of specific periods of unlawful detention, the Defendant's over-arching position is that the Claimant is not entitled to the relief sought.

LEGAL BACKGROUND

4. It is not in dispute that the immigration detention of the Claimant was lawful at its inception. His period of immigration detention immediately followed a custodial term of imprisonment for conspiracy to defraud and for a bail offence for which he received consecutive sentences of twelve and six months respectively. The effect of these sentences was that the Claimant was subject to deportation by reason of the automatic deportation provision in s.32(5) of the UK Borders Act 2007. Section 36 provides a power of detention whilst a deportation decision pursuant to s.32(5) is under consideration and pending the making of a deportation order. Section 36(2) provides that, where a deportation order is made under s. 32(5), the Secretary of State shall exercise the power of detention under paragraph 2(3) of Schedule 3 of the Immigration Act 1971 unless the Secretary of State considers it inappropriate to do so. Paragraph 2(3) of Schedule 3 provides that, where a deportation order is in force against a person, that person may be detained under the Authority of the Secretary of State pending his removal or departure from the UK.
5. The authority to detain a person in this manner is subject to constraint. There are now well established principles first identified in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 which have subsequently been refined by the Supreme Court in R (Lumba and Mighty) v Home Secretary [2012] 1 AC 245, endorsing what Dyson LJ (as he then was) had said in R(I) v Secretary of State for the Home Department [2003] INLR 196, para 46. The principles which must be followed are:

"(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 a reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal."

6. It is important to recognise, and was common ground before me, that principles (ii) and (iii) are conceptually distinct for the reasons explained by Dyson LJ in R(I) v Secretary of State for the Home Department [2003] INLR 196, para 47. Accordingly, in a given case, it is necessary to consider the lawfulness of the detention by reference to each principle separately.

THE SCOPE OF THESE PROCEEDINGS

7. In the form of these proceedings as originally instituted, the Claimant's basis for contending that his immigration detention was unlawful was based on two grounds. First, it was said that the decision to detain was unlawful because the Defendant had failed to apply her own policy. Second, it was said that the duration of the detention was unlawful pursuant to the Hardial Singh principles. On 14 November 2012 permission to seek judicial review was refused on paper in respect of both grounds. The Claimant did not seek to renew the application for permission in respect of the first ground^[2] but pressed his application in respect of the second ground. Permission was granted in respect of the second ground on 11 March 2013. Directions for trial were given. It is an unfortunate feature of this case that those directions were not complied with in a number of respects. The result was that the Court only received the bundle of authorities and skeleton arguments in their final form at the trial itself.
8. As ultimately pursued at the hearing, the challenge to the duration of the detention on Hardial Singh grounds was further refined and explained in three ways:

(a) Whereas the proceedings originally contended that the whole of the period of detention was unlawful, the Claimant narrowed his case on duration to the period from 9 February 2012 onwards. It was submitted that beyond this date the duration of detention had become unreasonable based on principle (ii) contained in the passage of Dyson LJ cited above. Alternative dates of 10 and 12 March 2012 are contended for.

(b) The Claimant's further and alternative case, pursuant to principle (iii) contained in the passage of Dyson LJ cited above, was that by 16 July 2012 it should have become apparent to the Defendant that she would not be able to effect deportation within a reasonable period so, from that moment on, his continued detention became unlawful on that ground also.

(c) The Claimant's final case was that, pursuant to principle (iv) contained in the passage of Dyson LJ cited above, the Defendant had failed to act with reasonable diligence and expedition to effect removal. However, by the end of the hearing, it was conceded that no separate case was being advanced in respect of principle (iv) and, accordingly, I need consider it no further.

9. As I have already explained, within the Detailed Grounds of Defence filed on 19 March 2014, the Defendant accepted that in certain respects she had failed to follow her own policy to conduct regular reviews of the detention every 28 days. The policy is contained in Chapter 55.8 of her Enforcement Instructions and Guidance. The relevant periods when it is accepted that there was such a failure are as follows:

(a) A first review was due on 19 July 2010 but took place on 2 August 2010, a delay of 14 days.

(b) A review due on 5 November 2010 was completed on 11 November 2010, a delay of 6 days.

(c) A review due by 26 January 2011 was completed on 3 February 2011, a delay of 7 days.

(d) A review due by 3 March 2011 was completed on 10 March 2011, a delay of 7 days.

(e) A review due by 21 June 2011 was completed on 22 June 2011, a delay of 1 day.

(f) A review due by 20 July 2011 was completed on 21 July 2011, a delay of 1 day.

(g) A review due by 14 September 2011 was completed on 15 September 2011, a delay of 1 day.

(h) A review due by 13 October 2011 was completed on 14 October 2011, a delay of 1 day.

(i) A review due by 11 November 2011 was completed on 21 November 2011, a delay of 10 days.

(j) A review due by 16 January 2012 was completed on 20 January 2012, a delay of 4 days.

(k) A review due by 9 March 2012 was completed on 12 March 2012, a delay of 3 days.

(l) A review due by 30 April 2012 was completed on 4 May 2012, a delay of 4 days.

(m) A review due by 1 June 2012 was completed on 4 June 2012, a delay of 3 days.

(n) A review due by 2 June 2012 was completed on 5 July 2012, a delay of 3 days.

(o) A review due by 24 August 2012 was completed on 27 August 2012, a delay of 3 days.

10. In two respects it is necessary to address the question of how those admissions sit with the Claimant's claim as ultimately pursued. This was not addressed in the Claimant's skeleton argument but, in oral argument, it was submitted that when determining the reasonableness of the duration of the detention, I should take into account the admitted durations of unlawful detention in the period after February 2012 which is the period in respect of which the Claimant pursues his claim. The Defendant's admissions also fall to be taken into account when determining the form of relief (if any) which is appropriate. Whether or not he succeeds in his claim for damages the Claimant invited me to declare that his detention was unlawful on the basis of each of these admitted failures even if they do not sound in damages. The Defendant submitted that the discretionary remedy of a declaration was unnecessary in such circumstances. I will deal with that issue later in this judgment.

THE FACTS

11. In these proceedings the Claimant accepts that he is a Tanzanian national. He was born on 5 March 1971.
12. The circumstances in which the Claimant claimed to have come to the UK are set out in the findings of fact made by the First Tier Tribunal ("FTT") in its decision dated 12 March 2012. The Claimant does not invite me to depart from those findings save in one respect regarding the date of a report from Professor Katona.
13. The date upon which the Claimant entered the UK is not known.
14. The Claimant was arrested for conspiracy to defraud in July 2004. On 26 January 2005 he was convicted at Leicester Magistrates Court for handling stolen goods, a number of counts of obtaining property by deception and of failing to surrender to custody on time. In respect of these matters he received a community punishment and a curfew. It is apparent from his certificate of conviction that the Claimant deployed a series of alias names in the course of his criminal activities.
15. On 23 May 2005 the Claimant was arrested and interviewed about his immigration status. At that time he said he was a Tanzanian and denied using any other name than Waryoba Joe Joseph. He said he entered the UK in 1998 (initially he had stated 1989) on a 2 year visa which he had extended to 3 years. He said he applied for and had been granted Indefinite Leave to Remain in 2004 but that he had lost his passport and his immigration paperwork on a train. UKBA had no trace of any paperwork reflecting this history. The Claimant was therefore served with illegal entry papers. The only potential match which the Defendant had was of a landing card for one Joseph Enock Warioba, born on 5 March 1966, described as a Tanzanian national who entered the country on 19 July 2001.
16. On 26 September 2005 the Claimant was convicted at Leicester Magistrates Court of criminal damage for which he received a small fine.
17. On 19 April 2006, following an admission on his part, he was convicted at Leicester Crown Court of the count of conspiracy to defraud with which he had earlier been charged. An important feature of the present case is that, prior to sentence in respect of that conviction, the Claimant absconded. He was at large until 21 September 2009, a period of three years and five months, whereupon he was remanded into custody and admitted the bail offence. He was finally sentenced for both the conspiracy to defraud and the admitted bail offence on 19 October 2009. In his sentencing remarks, the Judge said:

"You were at the centre of a well organised fraud. I say you were at the centre because on the evidence I have heard and seen from the papers you were the one who was involved in organising the obtaining of these credit cards. You were the one who organised others to go around various shops obtaining goods and you played a large part in obtaining goods yourself.

You played a far more important part than others who were involved in this conspiracy. I have come to that conclusion because of the paperwork that was found at your home address at the time of your arrest: the scripts that were found at your home address that were for use by the foot soldiers, if one can describe them as such, who went around shops obtaining money; and the paperwork that dealt with the obtaining of the cards for use by you and others.

Not content with being at the centre of this fraud, when released on bail by police, you went on to commit further offences. As a result of this conspiracy, goods to the value of £30,000 were obtained and money paid into the bank appears to have amounted to £30,000 making a total loss of £70,000.

After pleading guilty, you then disappeared and I have to deal with you for a bail offence."

18. The Judge passed a sentence of twelve months for conspiracy to defraud and a consecutive sentence of six months for the bail offence. As such, the Claimant would, but for the immigration issues, have been due for release on licence some nine months later in June 2010.
19. In the meantime, on 13 May 2010, the Claimant was notified by the Defendant of his liability to automatic deportation. He was provided with a questionnaire to complete. The Claimant completed it by stating that he was a British citizen. A letter from his then solicitors dated 27 May 2010 to UKBA made the same claim. The letter also claimed that his British passport was seized by the police when the Claimant was detained at Marylebone Police Station in March 2005. In accepting in these proceedings that he is a Tanzanian national the Claimant is inevitably accepting that these assertions were false. A letter was also written by the Claimant to the Defendant herself on 28 May 2010 asserting that he had British nationality.
20. On 10 June 2010 investigations revealed that there was no record of the Claimant ever having had a British passport or of it having been held at Marylebone Police Station. The Claimant's solicitors were told that a deportation decision would shortly be made in the absence of any further information.
21. On or about 22 June 2010 the Claimant's immigration detention pursuant to the Defendant's powers had commenced.
22. On 23 July 2010 the Claimant was interviewed by UKBA. The record of the interview, signed by the Claimant, shows that the Claimant was maintaining a case that he was of British nationality having been born in Reading on 5 March 1971. He said he was married but had now separated from his wife. He said he had one child who was in the care of his wife. He maintained that he arrived in the UK in 1998 from Tanzania with a passport. He said that the police held his passport.
23. Requests for extensions of time to respond to the deportation notice were made by the Claimant's solicitors and acceded to by UKBA. An extension was given until 1 August 2010.
24. The first detention review took place on 28 July 2010 but the authority to maintain detention was not signed until 2 August 2010. The proposal to maintain detention for a further 28 day period was accepted in light of the perceived risks of re-offending and absconding and the delays to the deportation decision which the Claimant himself was causing by seeking extensions of time.
25. On 30 July 2010 the Claimant wrote to UKBA re-asserting that he was British but stating that he was at risk of being killed by a gangland "godfather" if he were to be returned to Tanzania. He said his two brothers had been killed and he anticipated a similar fate for himself if required to return. He explained he had applied for contact with his daughter.
26. On 2 August 2010 the Claimant was asked whether he was applying for asylum. On 5 August 2010 the Claimant responded that he was not intending to apply for asylum because he was British.
27. On 6 August 2010 the Claimant returned the questionnaire with which he had been earlier provided.
28. On 23 September 2010 the Claimant signed a Bio Data Information Form but he refused to have his photographs taken. He also refused to complete an application for Emergency Travel Document ("ETD") for travel to Tanzania. In the application form he maintained having been born in Reading, UK.
29. On 4 October 2010 the UKBA was sent a letter from the Claimant's new solicitors stating that the Claimant had no documentation of the type requested but that they were seeking to obtain a birth certificate.
30. On 1 November 2010 the Claimant was informed of the UKBA's decision to deport him. Of course, he was notified of his right of appeal in respect of that decision.
31. On 16 November 2010 the Claimant exercised his right of appeal against the deportation decision. The appeal was due to be heard on 20 December 2010 but was adjourned until 17 January 2011. At that hearing the Claimant accepted that he was not a British national and stated that he now wished to claim asylum. It seems that the hearing must have been adjourned.
32. On 24 February 2011 there was a further hearing of the appeal. On that occasion the Claimant attended with a Rule 35 report dated 23 February 2011. In that document the Claimant stated that he had been the subject of torture, rape and indecent assault and referred to evidence of scars as a result of having been held hostage for 40 days in Tanzania. At the hearing the Claimant indicated that he was requesting asylum. He confirmed that he was a national of Tanzania. The hearing was adjourned.
33. The Rule 35 report was received and considered by the Defendant. It was accepted that the Claimant had evidence of injuries but it was not accepted that these injuries had been sustained as a result of torture.
34. On 29 March 2011 the Claimant's asylum screening interview took place. In the notes of interview which the Claimant signed, the Claimant admitted to having used the alias of Joe Delicoso Josef. He maintained he had British nationality. He said that he was born in Reading, UK, then left for Japan aged 9 months until, aged 4, he left for Tanzania. He said he had given his passport to the police in Marylebone in January or February 2005. The notes also record the Claimant saying he was taking medication, including anti depressants, for mental health issues. The only child referred to was the Claimant's daughter.
35. On 14 April 2011 the Claimant's full asylum interview took place. There had been some delay in arranging this because the Claimant's solicitors had required the interview to be tape recorded. In the interview, the notes of which are signed by the Claimant, he admitted to having used an alias because he was afraid to be brought to justice. The Claimant said he wanted the screening interview to be re-conducted because he was unhappy with the person who conducted it. In interview he said he was applying for asylum as he had a genuine fear of returning to Tanzania because of persecution. He described his mental health problems and said they had been diagnosed since 1998 which is when he started on medication. In his accompanying formal statement, the Claimant provided additional grounds which alleged personal injuries due to the torture and rape incident which had caused a post traumatic stress disorder ("PTSD"). He said he was receiving counselling from the detention centre in respect of his depression. Other notable features of the additional grounds are: that the Claimant, for the first time, mentioned another child, a son; that the Claimant said he had come to realise that he was not a British citizen and that he was trying to obtain ETD from Tanzania but that he had been told that there was no record of his nationality there.
36. The hearing of the Claimant's appeal, which had been re-arranged for 26 April 2011, was again adjourned in light of the recent full asylum interview. It was adjourned again on 21 June 2011 because no decision had yet been made in respect of the application. At a further hearing on 5 July 2011 the FTT decided that the hearing would go ahead six weeks thereafter. In the meantime, arrangements were being made for the Claimant to be assessed by the Medical Foundation. The hearing was again adjourned on 15 August 2011 to allow for the medical assessment prior to the asylum decision being made.
37. On 3 August 2011 there was a Family Court hearing at the Reading Family Court. A Contact Order had previously been in place in 2009 (although my copy of the Order is not dated). Proceedings had been initiated by the Claimant who was seeking contact with his daughter. An order permitting indirect contact (telephone and email) had previously been granted in February 2011. At that time Reading Borough Council had expressed concerns about contact between the Claimant and his daughter. No order was granted at the hearing in August 2011 but, following it, UKBA was provided with a letter from Reading Borough Council dated 13 September 2011 which contained material suggesting that the Claimant had been domestically violent towards his wife on a frequent basis citing, amongst other things, kicking, hair pulling, demands for sex and threats to kill. Concerns were expressed in the letter about the impact of that history if contact with the Claimant's daughter was permitted. Other concerns as to the safety and welfare of his daughter were also expressed in the event that contact was permitted. The letter concluded by saying that a further assessment would be required if the Claimant was released and pursued his application for a contact order. On 21 September 2011, Reading Family Court adjourned the application for contact generally, with liberty to restore as and when the result of the applicant's immigration proceedings was known.
38. On 12 October 2011 the Claimant was examined by Dr Toon at the request of Medical Justice. Dr Toon had been asked to prepare an independent medical report of the Claimant's injuries in respect of his asylum claim. Amongst the material available to Dr Toon was a letter purporting to be from Muhinbili National Hospital. Dr Toon prepared a report dated 17 October 2011. He concluded that the injuries and scarring were consistent with the Claimant's history as described although he said they could also have been the result of a wide variety of injuries sustained at any time. He suggested a psychiatric report might be useful.
39. The Claimant's appeal hearing was adjourned on 31 October 2011 in light of the recent medical report and the pending asylum decision.
40. On 10 November 2011, the Defendant rejected the Claimant's claim for asylum. At some point an appeal against this decision was included alongside the Claimant's appeal in respect of the deportation order dated 1 November 2010.
41. On 6 December 2011, the Claimant's appeal was adjourned again.
42. On 26 January 2012 the Claimant was interviewed for the purposes of arranging an ETD through the Tanzanian High Commission. He had previously been interviewed on 23 September 2010. The second interview was described as having turned out to be somewhat complex. The notes record that the Claimant supplied some information but that he was refusing to provide details of his place of birth. The notes recorded that the ETD application would certainly be rejected if submitted in its incomplete state. During the interview the Claimant described having spent some of his early years in Japan and said that members of his family had obtained citizenship in Japan. He claimed that he would be entitled to live and work there and that, if his asylum claim failed, he would pursue that route.
43. On 27 January 2012 the Claimant's appeal hearing to the FTT was adjourned again.
44. Following Dr Toon's suggestion that the Claimant could be seen by a psychiatrist, the Claimant was interviewed by Professor Katona, a consultant psychiatrist, on 16 January 2012. The interview lasted approximately two hours. Professor Katona is an experienced psychiatrist. He prepared a report dated 9 February 2012 which is expressed as CPR Part 35 compliant.
45. In view of the significance attached to the report in the present application, I should record some of its key findings.

"Mr Waryoba's account of his experiences in prison and in immigration detention

5.4 Mr Waryoba was in frequent contact with the mental health in-reach team in prison. Since he has been in immigration detention, he has had weekly sessions with Michelle, a mental health nurse. These sessions have included courses of cognitive-behavioural therapy (CBT) and eye movement desensitisation and reprocessing (EMDR).

5.5 Mr. Waryoba has recently contacted 'UK Survivor' – a charity that provides support for male rape victims. He receives twice-weekly telephone counselling from them.

5.6 Mr. Waryoba is currently taking propranolol (a beta-blocker used to treat physical symptoms of anxiety), promethazine (an antihistamine sedative), and sumatriptan (treatment for migraine). He has been treated with a variety of antidepressants and is currently on paroxetine, the dose of which has recently been increased."

"Mr Waryoba's current mental state

8.19 I rated the severity of Mr. Waryoba's depressive systems using a standard, well-validated, interview-based psychiatric rating scale, the Montgomery Asberg Depression Rating Scale (Montgomery and Asberg 1979). His score of 39 (out of a possible maximum of 60) indicates (in keeping with my clinical impression) that he has severe depressive. (sic)

8.20 I rated the severity of Mr. Waryoba's trauma-related psychological symptoms using the impact of Events Scale (Horowitz et al 1979). His score of 55 (out of a possible 75) indicates (again in keeping with my clinical impression) that he has severe trauma related symptoms. He scored much higher for intrusive thoughts (33/35) than for avoidant behaviours (22/40). In my experience this pattern of scores often occurs in victims of" interpersonal" trauma such as rape and torture."

46. Essentially Professor Katona diagnosed PTSD and depression. He concluded that the PTSD followed the severe trauma of being detained, severely tortured and raped. At paragraph 9.1 he said:

"I base my diagnosis on my objective clinical observations and not merely on the symptoms Mr Waryoba has described to me."

47. In respect of "Treatment and Prognosis" Professor Katona said this:

"10.1 Though antidepressants are effective in the treatment of both PTSD and major depression, psychological treatments, particularly eye movement, desensitisation and reprocessing (EMDR) and trauma-focused cognitive behavioural therapy, are crucial components of a comprehensive individual treatment package for PTSD (National Institute of Clinical Excellence 2005). The National Institute of Clinical Excellence emphasizes that psychological treatments should be regarded as 'first-line' treatment and medication as second-line treatment.

10.2 An initial brief course of trauma focused CBT may consist of 8-12 one-to-one sessions with a trained therapist. As well described by Northwood (http/www.cvt.org.file.php?ID=5365), successive themes are explored within these sessions. Early themes include the building up of rapport and then of trust, and the establishment of safety and stabilisation. These permit the subsequent assimilation and integration of the trauma experiences and the process of mourning for what has happened. This then allows the patient to begin the process of reconnection with society.

10.3 Mr. Waryoba has only made a limited response to CBT, EMDR and a variety of antidepressants. This is not surprising. People with complex PTSD following trauma such as torture often do not however respond well to brief trauma focused CBT and need much longer and more specialized psychotherapy which may need to continue for at least 2-3 years. Even in the UK, such treatment is only available in a small number of specialist centres.

10.4 Mr. Waryoba's prominent auditory hallucinations suggest that he would benefit from the addition of an antipsychotic to his antidepressant treatment."

48. In a section of his report specifically dedicated to "Plausibility" Professor Katona said this:

"11.1 I have considered the possibility that Mr. Waryoba might have been feigning or exaggerating his symptoms. However, my clinical impression (as stated in Paragraph 9.5 of my report) is that his clinical presentation is in keeping with the experience of extreme trauma. Had he been feigning or exaggerating he would in my view have been likely to claim active current suicidal intent. His pattern of responses to the impact of Events Scale questions is also characteristic of people with 'true' interpersonal trauma such as a rape torture; people feigning or exaggerating would be unlikely to endorse the items of the 'intrusive thoughts' subscale more strongly than that for 'avoidant behaviours', particularly since the scale is not laid out as separate subscales.

11.2 Mr. Waryoba's presentation to me is in keeping with his presentation to the many clinicians (including Dr. Toon) who have assessed him and whose findings I have summarized in Section 6 of this report. It is perhaps noteworthy that the nurse counsellor who first assessed him (Nicky Pippen) expressed initial doubts about his motivation in seeking counselling but that it later became clear that he engaged well in counselling and gained considerable benefit from it. In my experience (which includes working with professional actors feigning mental illness in the context of training and assessing medical students and psychiatrists) it is very difficult even for such professionals to sustain the full picture of a mental illness consistently over time and to multiple clinicians."

49. Finally, in a section which described the effect of immigration detention on Mr Waryoba's mental health, Professor Katona said:

"13.1 Mr Waryoba finds his experience of prolonged and indefinite immigration detention very distressing. He told me that his mental symptoms had worsened considerably since he has been detained and continue to do so. There is consistent research evidence both internationally and in the UK that continued immigration detention has an adverse effect on mental health (Robjant et al 2009). Mr. Waryoba's mental symptoms are in my view likely to worsen significantly if he remains in detention."

50. The Claimant's appeal was finally heard by the FTT on 10 February 2012. It will be noted that this is the day following the date of Professor Katona's report. In the FTT decision, reference is made to a report from Professor Katona dated 18 January 2011. That date is obviously an error because the Claimant had not even been seen by Professor Katona until 16 January 2012. It is not clear whether the FTT had an earlier, different report from that which I have seen, which may perhaps have been dated 18 January 2012, or whether it had a copy of the report dated 9 February 2012, which I have seen. What seems clear, and I make this specific finding, is that the central opinions as ultimately expressed in the report dated 9 February 2012 were before the FTT.
51. The FTT reserved judgment and issued its decision on 12 March 2012. In summary, the FTT roundly rejected both appeals. The decision contains a comprehensive summary of the facts. The Claimant does not seek to undermine that summary for the purposes of the application for judicial review. The only point made, which is obviously correct, is that the referenced date of Professor Katona's report is wrong.
52. Key features of the FTT's decision are that:

(a) There were inconsistencies in the Claimant's account which lead to the belief that the Claimant was not a British citizen as he had earlier claimed. In any event, at the hearing he conceded he was a national of Tanzania.

(b) It was not established that the Claimants' claimed medical condition was of such a serious and life threatening nature or that it had reached such an advanced or critical state that removing him to his own country would place the UK in breach of its ECHR obligations.

(c) The Claimant had a history of deception and manipulation which lead to it attaching little weight to alleged emails between the Claimant and his daughter.

(d) That the contents of the letter purporting to be from the Muhinbili National Hospital were a fabrication created by the Claimant to bolster his claim.

(e) That the Claimant had a propensity to manipulate and deceive, a conclusion that had also been reached by the probation officer.

(f) "We reject in totality his claim that eh (sic) worked for the intelligence services, was detained in (sic) ill treated and subjected to torture"

(g) "His propensity is to dishonesty"

(h) "There is no supporting evidence for any of these claims"

(i) In respect of the Defendant's Reasons for Refusal Letters, the FTT found their conclusions correctly reflected the lack of credibility in the Claimant's claims.

(j) "We do not accept the appellant's claim to have a genuine fear of persecution by the authorities in Tanzania and neither is he at risk of being killed or subjected to inhuman or degrading treatment were he to return to his country."

(k) There were issues with regards to contact with the Claimant's daughter. The FTT had regard to the letter from the Local Authority's Children Services.

(l) The Claimant's evidence about him enjoying family life with Miss Brown was not believed. If she existed, she did not attend the hearing although her attendance was indicated by the Claimant as forthcoming. The style and grammar of her witness statement appeared to be similar to that of the Muhinbili National Hospital. The FTT appears to have come to the view that the Claimant was simply not telling the truth about Miss Brown coming to the hearing or in relation to her witness statement.

53. In respect of the medical evidence, the FTT set out a summary of Professor Katona's report and the evidence from Dr Toon. At paragraph 44 the FTT said:

"Whilst we have regard to the assessments by the two clinicians we take into account that Dr Toon placed some weight on the letter from the hospital as corroboration of the appellant's claim and in turn, Dr Katona placed weight on the presentation of the appellant to Dr Toon. Dr Toon had seen what he considered to be supporting evidence of the claimed torture. This is a medical report purportedly from Muhinbili National Hospital…"

54. Ultimately, the FTT dismissed the appeal on asylum grounds and dismissed the appeal on human rights grounds.
55. On 11 April 2012 the Claimant was interviewed face to face by officials of the Tanzanian High Commission in support of an ETD application.
56. On 9 May 2012, the Claimant was refused permission to appeal against the decision of the FTT. The Upper Tribunal concluded that no arguable error of law had been disclosed. In these proceedings, the parties have treated that date as the date upon which the Claimant became "appeal rights exhausted".
57. On 16 July 2012 the Tanzanian High Commission advised the CROS Africa 1 team that they were unable to confirm the Claimant's nationality because he had not answered all the questions asked of him by the officer and as he did not claim to be Tanzanian. It will be recalled that the Claimant had accepted that he was a Tanzanian at the FTT hearing.
58. In the detention review that followed after this information was known, the reviewer decided to seek advice from a CSIT case officer to determine how to progress the case. It was recognised that ETD was now the only barrier to removal. The case was apparently referred to the country identity specialist officer on 30 July 2012.
59. As a result of the judicial review proceedings issued 1 August 2012, the report from Professor Katona was provided to the Defendant and treated as part of an application for temporary release. The Claimant points out that the Defendant would already have seen the report by reason of the appeal proceedings before the FTT. That may be so but, until now, it had not been provided to the Defendant in the context of the continued decision to detain. The request for temporary release was apparently refused on 14 September 2012.
60. On 19 September 2012 the UKBA contacted CROS Africa 1 about a further face to face interview between the Claimant and the Tanzanian High Commission but was told that this would only be arranged if supporting evidence such as a birth certificate, identity card or passport was provided. In consequence the relevant officer referred the Claimant's case to the country specialist team for further advice on how to progress the case.
61. The Claimant issued a bail application which was received by the Defendant on 20 September 2012.
62. On 21 September 2012 the UKBA put forward the Claimant's case for Operation Terminus. This is a joint operation between the UKBA and the Metropolitan Police aimed at maximising intelligence and information. It was hoped that this would assist in identifying relevant information or evidence about the Claimant.
63. On 25 September 2012 the Claimant was granted bail by the FTT and he was released from detention the next day.

THE REVIEWS

64. As indicated above, throughout the relevant period the Claimant's detention was reviewed by the Defendant. Primary reasons for the decision to maintain detention were the risk of absconding, the risk of re-offending, the risk of harm to the public and the on-going appeal. On the face of the reviews, it was understood that there was a presumption of release and that the purpose of detention must be to enable deportation.
65. It is right to note that the Claimant's file notes dated 26 October 2011, shortly after the report of Dr Toon, record that the UKBA had been unable to discuss his medical notes but that the Claimant had been undergoing counselling regarding his Rule 35 report.
66. Within a number of the Claimant's detention reviews it was noted that the Claimant had claimed to be HIV positive. In March 2012 contact was made with the detention centre who confirmed that the Claimant had not mentioned this to the health care department and that he was not receiving treatment for it. Notably, at the hearing of this application for judicial review, it was not suggested that the reasonableness of the Claimant's period of detention should be affected because he is HIV positive if, indeed, he is.
67. It does not appear that the detention reviews made much (if any) reference to the Claimant's treatment for depression or to him suffering from PTSD.

HARDIAL SINGH – THE APPROACH

68. In these proceedings it is common ground that the exercise which the Court is required to undertake is a fresh re-consideration of whether principles (ii) and (iii) of Hardial Singh have been complied with rather than a Wednesbury review of the decision(s) taken on behalf of the Defendant to continue detention: see paragraph 62 of The Queen on the application of A v the Secretary of State for the Home Department [2007] EWCA Civ 804. Before me the parties were agreed that it was for the Court to decide afresh whether (and, if so, when) a reasonable period of detention had expired and when, if ever, it had become or should have been apparent to the Defendant that there was no prospect of the Claimant's removal.
69. In his realistically pitched submissions, Mr Jesurum for the Claimant acknowledged that there were a number of unattractive features of his client's position. Nonetheless, Mr Jesurum reminded me, undoubtedly correctly, that the purpose of the legislation was only to enable detention for immigration purposes and that it should not be used for any other purpose. The power to continue to detain should be exercised with caution even in respect of those individuals who appear undeserving by reason of their criminal record. I accept that. What Baroness Hale of Richmond said she thought of Mr Kambadzi at paragraph 61 of Kambadzi v Secretary of State for the Home Department [2011] 1 WLR 1299 may equally be thought of this Claimant. But that does not mean that the Defendant was entitled to detain the Claimant indefinitely.

HARDIAL SINGH – PRINCIPLE (ii)

70. The Claimant's case is that a reasonable period of immigration detention had expired on 9 February 2012. That happens to be the date upon which the report from Professor Katona was issued although, as Miss Mannion, counsel for the Defendant, rightly pointed out, the relevance of that fact would have been far greater if the Court had been concerned with an argument that the Defendant had failed properly to apply the terms of her own review policy. Seemingly, the Claimant treats the date of the issue of that report as something which turns what was, until then, a reasonable period of detention into what then became an unreasonable period. This was explained on the basis that the Claimant's case was that the period for which it is reasonable to detain someone may be shorter where that person suffers from mental illness. The Claimant suggested that, if 9 February 2010 is the date on which Professor Katona prepared his report, it is the earliest date on which the Defendant could have known the full details of the Claimant's mental health.
71. The Claimant alternatively contends that a reasonable period expired on 10 March 2012 when his continued detention was authorised despite the report from Professor Katona; alternatively, on 12 March 2012 when the FTT disbelieved the Claimant's account of events but did not, so it is said, dismiss the diagnosis of depression and PTSD.
72. In the determination of what constitutes a reasonable period, there is no exhaustive list of factors to be taken into consideration. I have taken into account the factors set out by Dyson LJ (as he then was) in I and repeated by him in Lumba.

"48. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."

73. In the instant case, Miss Mannion helpfully drew together the particularly relevant factors under a series of four headings which I propose to adopt. Mr Jesurum did not disagree that the headings encompassed the principal issues. I have placed due weight on these factors but not to the exclusion of the other factors endorsed by Lord Dyson JSC in Lumba. By way of summary, Mr Jesurum submits that the reasonable period of detention should have regard to the fact the Claimant is a non violent offender; who, although he has not co-operated in facilitating his return, has not actively (or successfully) misled anyone; and who suffers from mental health problems to which the Defendant paid no regard.
74. I am conscious that the overall period of immigration detention in this case was nearly 27 months. The authorities show that there is no fixed time limit beyond which immigration detention must, by its very nature, be unreasonable. Nonetheless, in his skeleton argument Mr Jesurum points out that a period of 30 months was described by Mitting J in R (Wang) v The Secretary of State for the Home Department [2009] EWHC 1578 (Admin) as:

"right at the outer limit of the period of detention that can be justified on Hardial Singh principles except in the case of someone who has in the past committed very serious offences and who may go on to commit further offences or poses a risk to national security."

The history of offending and the risk of re-offending

75. I have identified the Claimant's offending history. In my view it is significant. The value involved in the conspiracy count was £70,000. The comments of the sentencing Judge are of particular relevance. The Claimant was at the centre of the well organised fraud. Mr Jesurum accepted that the Claimant was guilty of a serious offence albeit not one that could properly be described as grave. The sentence was of such a length that his presence in the UK was deemed not to be for the public good. The fact that the Claimant's offences were non violent offences is by no means determinative: see The Queen on the Application of M v The Secretary of State for the Home Department [2008] EWCA Civ 307 at paragraph 34.
76. In the course of his offending, the Claimant has used false names. He also evaded justice for over two years.
77. I also take into account that the Claimant probably entered and certainly remained within the UK illegally. That tends to deprive him of much, if any, entitlement to rely on periods of good character.
78. I take into account the finding of the FTT that the Claimant has a propensity to dishonesty. The FTT found he had fabricated his story and sought to mislead them by producing various false documents including the report from the Muhinbili National Hospital.
79. In respect of the risk of re-offending, the Claimant particularly relied on an OASYS report which described that risk as "low". The prospect of him offending within 12 months of release was valued at 27% and the prospect of him doing so within 24 months of release was valued at 43%. In the community he was described as having a low risk of serious harm to children, public, known adults, staff and prisoners.
80. In answer to this, Miss Mannion submits that I should regard that assessment as having been based on static factors. She submits that the factors which informed that report are not the same as those which I am required to take into account. For example, the report takes no account of the Claimant's illegal entry, nor the subsequent allegations of domestic violence. It is also based on his explanation for the offence which is not one which has been advanced elsewhere. I do not regard these as reasons to ignore the banding assessment of re-offending as low. On the other hand, I agree that the banding of low risk within the OASYS report should not simply be adopted as my own conclusion.
81. It is noteworthy that, since the OASYS report, the Claimant has continued to try to deceive. The FTT found he had a propensity to dishonesty. The Claimant sought to mislead the FTT itself.
82. I also take into account the past allegations of domestic violence. Although these were never proven to conviction there is sufficient material within the documents before me to suggest at least some risk of offending of similar type.
83. In the circumstances, taking into account all the available evidence, I have come to the conclusion that there was a real and likely risk that, if the Claimant were released, he would re-offend and that the nature and gravity of the offending would be of a serious nature. I accept that the primary risk relates to offences of dishonesty rather than any offence of violence. Nonetheless, I also accept the Defendant's submission that dishonesty offences do pose a real harm. This Claimant has shown he is able to operate at the centre of a well organised fraud in which he played a central role organising others in the process. Despite his prison sentence he sought to deceive the FTT.
84. The risk of re-offending is of "paramount importance" because, if established, it would frustrate the deportation for which the individual may be detained and the likely reasons for it.

Non compliance and misinformation

85. It is accepted that a relevant consideration is the extent to which the Claimant has contributed to the length of his own detention. There are two types of delay which fall for consideration: the delay caused by legal proceedings and the delay caused by a refusal to return voluntarily to the country of origin.
86. Turning first to the legal proceedings, I am required to adopt a fact sensitive approach. It would be wrong in principle to automatically leave out of account the time which it takes to resolve the legal proceedings in determining the length of a reasonable period of detention. Time taken to resolve a hopeless legal challenge may only be given limited weight in the Claimant's favour whereas time taken to conduct a meritorious appeal, even if ultimately unsuccessful, could attract greater weight. In this respect I adopt the summary of Deputy High Court Judge John Howell QC at paragraph 52 of The Queen (on the application of Amin Sino) v The Secretary of State for the Home Department [2011] EWHC 2249 (Admin) and his references to Lumba.
87. Applying that test to the facts of this case, I have come to the clear conclusion that the Claimant's appeals against deportation and in respect of asylum were at the very hopeless end of the spectrum. Even if they were not at the very end of the spectrum, they were certainly very close to it. Mr Jesurum was forced to accept the challenge was towards the bottom end of the scale. The FTT was plainly wholly unconvinced by the Claimant's case and reached the conclusion that he was deliberately seeking to deceive them in respect of a number of factual matters raised. An appeal against the decision was refused.
88. For that reason, it is my view that the Claimant can pray very little of the period up to May 2012 in aid of an unreasonable period of detention. Until May 2012 there were on-going legal proceedings and the existence of those proceedings was a key reason why the Claimant remained in detention. He was seeking to frustrate his removal during that time by pressing his hopeless appeal.
89. The second feature of this heading concerns delays occasioned by the failure of the Claimant to return voluntarily. In Lumba it was held that this feature was a relevant consideration where a risk of absconding can properly be inferred from the refusal. I accept, though, that the refusal to return voluntarily cannot be used as a "trump card" to detain indefinitely. In this respect I follow and endorse the approach of Deputy High Court Judge John Howell QC in Sino at paragraph 56. Again, this means that the significance of the detainee's conduct becomes a fact sensitive exercise. In The Queen on the application of Aime Benoit Amougou-Mbarga v The Secretary of State for the Home Department [2012] EWCA 1081 (Admin) there was a distinction drawn between a mere refusal to co-operate with removal on the one hand and evidence of repeated deception to avoid removal on the other. In that case the Claimant lied to the authorities for a considerable period and did so successfully. In consequence, the authorities were entitled to conclude that there would be a further attempt at deception. I recognise that a distinction can properly be drawn between non-co-operation and actual deception.
90. In my view I am entitled to take into account the fact that the Claimant did not co-operate in enabling the Defendant to obtain an ETD. On a few occasions he paid lip service to doing so but the reality was that he provided no assistance at all. Mr Jesurum pointed out, rightly, that he was not obliged to co-operate. But in this case the Claimant did more than remain silent. I agree he effectively maintained a campaign of dishonesty and misinformation.
91. I have reached the clear conclusion that the Claimant's non co-operation and refusal to return to Tanzania voluntarily was of a type that enables me to infer a risk of absconding. I have already recited the history. He entered the UK illegally. He has used false names. He committed offences of dishonesty and absconded. The FTT found that the Claimant had a propensity to dishonesty and that he produced false documentation even as evidence before it. The history of his asylum claim was totally rejected. So too was his human rights claim which was also based on false information about his family life. His initial claim to British nationality was clearly untrue and admitted as such. The Claimant made no attempt to voluntarily engage with the Japanese authorities to support his contention that he was entitled to reside and work there. Nor has he provided evidence to support the existence of his Japanese connections.
92. Mr Jesurum submitted that such evidence of deception as there was should be ignored because it was not causative of any extension to the period of his detention. I reject that submission. The reviews show that the Defendant took steps to address each contention raised by the Claimant. For example, during the period when the Claimant said he was British he asked for and was given more time to prove this. Similarly, when the Claimant raised the untrue torture allegations, these had to be investigated. This avenue had not been pursued whilst the Claimant was maintaining his British nationality.
93. For these reasons, I am entitled to and do take into account the failure by the Claimant to return voluntarily when reaching my decision as to the assessment of a reasonable period of detention.

Risk of absconding

94. The risk of absconding is a factor of "paramount importance" because, if established, it would frustrate the deportation for which the individual may be detained and the likely reasons for it.
95. In my view this was a very strong factor against the Claimant which applies in the present case. The Claimant absconded between conviction and sentence and was at large for over two years. He received a six month sentence for this admitted bail offence. There is nothing within the material made available to me to suggest that he had changed his ways. On the contrary, his propensity to deceive and disrupt justice was manifest, not least by the manner of his legal challenges through the appeals process.
96. I agree with the Defendant's submission that this Claimant presented the very highest risk of absconding.

The Claimant's mental health

97. The Defendant accepts the principle that the state of a person's mental health can affect the determination of a reasonable period of detention based on the Hardial Singh principles: see The Queen on the Application of M v Secretary of State for the Home Department [2008] EWCA Civ 307.
98. As Mr Jesurum conceded, this factor represents the very high water mark of the Claimant's case. His complaint is that the Defendant failed to take sufficient or any account of the Claimant's diagnosis of PTSD and depression. There is some force in the contention that the Defendant's review records do not make sufficient reference to the Claimant's mental health condition. Mr Jesurum submits that, in determining a reasonable period of detention, I should take account of those features and reduce the period accordingly.
99. Importantly, Mr Jesurum accepts, and does not seek to undermine, the findings of the FTT rejecting the Claimant's case that he was a victim of torture. Nonetheless, he submits that the FTT did not specifically reject the diagnosis of PTSD. He says it was and is an opinion expressed by a qualified consultant Psychiatrist and that I should take account of it.
100. A possible question is whether the diagnosis can even stand in light of the findings of the FTT. That is because the two are intertwined in one obvious respect. The entirety of Professor Katona's opinion is based on the underlying factual assumption that the event giving rise to PTSD is one which the FTT has determined did not happen. The question is whether the FTT implicitly rejected all of Professor Katona's conclusions (including the diagnosis) because it ultimately rejected the allegation of torture. There is some limited suggestion of this. It certainly sought to undermine his conclusions because they were based, in part, on the report from Dr Toon which was, itself, based on the falsified letter from the Muhinbili National Hospital. On the other hand, as Mr Jesurum submitted, it is possible that the Claimant is suffering PTSD resulting from whatever event it was that gave him the scarring, which was unarguably physically evident, even if it was not the result of torture.
101. Miss Mannion pointed out that, whether or not the FTT rejected the asylum claim, it is possible that the Claimant had feigned his symptoms before Professor Katona. She points out that Professor Katona allied himself to the torture allegation and that he rejected other causes such as country separation, marriage breakdown or immigration uncertainty. She submits that the totality of his evidence must be seen to fall with the rejection of the torture contention by the FTT.
102. Mr Jesurum submits that Professor Katona considers and rejects the possibility of feigning in terms: see sections 9 and 11 of his report. He notes that the presentation of symptoms was reported to be in keeping with presentation of symptoms to many other clinicians (including Dr Toon) who have seen the Claimant including the nurse who first assessed him. He submitted it would not have been possible for the Claimant to have misled all the clinicians into believing he was suffering from mental health problems.
103. In my view, it is not possible to definitively say that the FTT rejected the diagnosis of PTSD. Primarily that is because it was not necessary for the FTT to do so. It clearly rejected the underlying alleged cause that Professor Katona had identified. I find it more difficult to reach any firm conclusion whether the Claimant has feigned the condition (despite what Professor Katona has said) although it is fair to say that I carry a degree of scepticism about the legitimacy of the diagnosis. In my view, the proper approach is to proceed on the basis that there is some possibility that the Claimant suffers from PTSD. However, the lack of certainty surrounding the diagnosis is but one factor that I should take into account in my determination. Accordingly, to the extent that I take into account the psychiatric evidence in my determination of what constitutes a reasonable period of detention, I should give that evidence less weight than I would in circumstances where the existence of the medical condition was beyond dispute. However, I proceed on the basis that there is clear, legitimate evidence that the Claimant suffers from depression.
104. In light of that conclusion, the question then becomes one of the relevance and weight of the medical evidence. As to that Miss Mannion relies upon the approach taken by the Court of Appeal in paragraph 39 and 40 of The Queen on the application of M v The Secretary of State for the Home Department [2008] EWCA Civ 307.

"39 I accept that, if it is shown that a person's detention has caused or contributed to his suffering mental illness, this is a factor which in principle should be taken into account in assessing the reasonableness of the length of the detention. But the critical question in such cases is whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering. It is the view of the in-house psychiatrist at Colnbrook Healthcare (under whose care the appellant is while he is in detention) that he does not have a serious condition such as would require his treatment elsewhere. He has not been assessed as unfit to remain in detention, where his condition is being managed.

40 As I understand it, this professional assessment has not been challenged in these proceedings. In these circumstances, I consider that the mental illness should be given little weight on the facts of this case. Quite apart from the fact that the illness is being kept under control, there is some doubt as to the extent to which the illness has been caused or contributed to by the detention, rather than by the appellant's anxiety about the prospect that he will be deported unless he succeeds in his appeal."

105. Accordingly Miss Mannion submits that the threshold test is whether a person's detention has caused or contributed to the suffering of mental illness for, if so, she acknowledges that it is a factor which in principle should be taken into account when determining the reasonableness of the length of detention. The critical question is whether there are facilities in place to keep the illness under control and prevent suffering. In response to this submission Mr Jesurum says that the case of M does not prescribe a test. It merely provides an illustration of what should be a fact sensitive question. He submits that to apply this as a threshold test strictly would mean that a pre-existing mental health condition would not be taken into account. He also submits that the "critical question" is not, in fact, a hard edged test.
106. I am prepared to accept that it is perfectly possible for a pre-existing mental health condition to be a relevant factor but, in most cases, that is likely to be one to which the fact of on-going detention is likely to be contributing, even though it has not initially caused it. It therefore falls to be taken into account as a factor. I accept Miss Mannion's submission that the critical question is that which Dyson LJ (as he was) identified in M.
107. The relevant consideration is the impact of continued detention upon the mental illness. The high water mark of the Claimant's case is paragraph 13.1 of Professor Katona's report. Miss Mannion submits that this is not sufficient and should merely be read as a generalised observation that it is always worse for someone with mental health difficulties to remain in detention. She points out that there was no medical evidence that the Claimant required treatment elsewhere. Nor was there any evidence to say the Claimant was unfit to remain in detention. Finally, she points out that there is no suggestion that the Claimant's condition was not being properly managed in detention or of inadequate treatment. He had already received courses of EMDR and CBT which Professor Katona had referred to, had undergone a course of counselling and was in receipt of medication. Tellingly, the Claimant did not seek or obtain any support for PTSD during his custodial period of imprisonment nor was it even raised in the early part of his immigration detention. Nor, indeed, were there any medical records provided by the Claimant for the purposes of this application.
108. I agree and accept those submissions. Although Professor Katona says that the Claimant's mental symptoms would be likely to worsen significantly if he remained in detention he does not give any timescale over which this would be said to occur. Nor is it clear to me whether he says this deterioration would occur even if his condition were properly managed.
109. In all the circumstances, whilst I do not entirely exclude consideration of the medical evidence, I attach relatively little weight to it.

Conclusions

110. I have weighed up the relevant factors including those specifically identified above. I have taken into account the period both before and after the issue of the report from Professor Katona. The high point of the Claimant's case is that insufficient regard was paid to the psychiatric evidence. In my view, relatively little weight can be given to this evidence for two principal reasons. First, the diagnosis of PTSD is questionable although, I accept, the diagnosis of depression is made out. Second, there is no real or sufficient evidence that the continued detention was materially contributing to either of these conditions at the time of the Claimant's detention or that he was not receiving proper treatment for them. In any event, when the psychiatric evidence is weighed against the other factors, which include the risk of re-offending and of absconding and the delay caused by the Claimant's unwarranted appeals, the medical evidence is not a significant factor. In my judgment, a reasonable period of detention had not expired by the date upon which the Claimant was actually released. Specifically I reject the Claimant's case that a reasonable period had expired either by February 2012 or by 10/12 March 2012, those being the Claimant's alternative dates.
111. Although there were admitted stages of unlawful detention within the period between February and September 2012 by reason of the Defendant's failure to follow her own policy, it does not mean that the overall period of detention was unreasonable from a Hardial Singh perspective. In my view, these periods of unlawful detention were subsumed within an overall period which was, itself, reasonable.

HARDIAL SINGH – Principle (iii)

112. I now turn to the second basis of the application for judicial review.
113. The Claimant contends that by 16 July 2012 it ought to have become apparent that it was no longer possible for the Defendant to effect deportation within a reasonable period. That date is selected because there is an internal record stating that the Tanzanian High Commission informed the CROS Africa 1 team on that day that it could not confirm the Claimant's nationality because he had failed to answer the questions asked of him at interview and, by that time, it was also clearly apparent to the Defendant that the Claimant was not going to provide any assistance to enable his deportation to Tanzania. Mr Jesurum submits that from that point on, any further enquiries which the Defendant made were speculative and had no real prospect of success in assisting in his return to Tanzania.
114. I have to ask myself whether, at all times in the relevant period, there was at least one reasonable and justifiable lead of enquiry to enable deportation which was still available to the Defendant. Shortly after that had ceased to be the case, the Defendant could no longer legitimately maintain the view that she would be able to effect deportation within a reasonable period. However, the Claimant accepted that it was not a necessary requirement for the Defendant to show that deportation would occur within a finite period.
115. Accordingly I have paid close attention to the period in question from 16 July 2012 until the date of the Claimant's release. It is clear that the Defendant was well aware that time was running out for it to be able to justify the Claimant's on-going detention. Steps were being taken to see how the Claimant could be deported. In particular, shortly after the information from the Tanzanian High Commission was received by the UKBA, the caseworker referred the case to a specialist officer within CSIT. An application had been made to CSIT by 30 July 2012. There is no evidence to show that this lead had closed. On 19 September 2012 the caseworker also referred the matter back to the CROS Africa 1 team to see if a further face to face interview could be arranged. This was met with the response that such a meeting would only be arranged if supporting evidence could be provided. On 21 September 2012 the Defendant also made contact with the Metropolitan Police through Operation Terminus. However, four days later the Claimant was released.
116. Mr Jesurum criticises each of these steps as too little too late. He also submitted that they should have been attempted in parallel rather than in series so that the overall timescale could have been reduced. Miss Mannion submits that it would not have been sensible to pursue these leads when the appeal outcome was not known. She adds that it is unrealistic to expect these leads to be progressed in parallel because there is always a realistic hope that one lead will prove successful. It would be expensive and onerous to follow up certain specialist leads when other options may still be available. Escalating the appropriate course of action was entirely reasonable. I am generally sympathetic to her submissions which appear to me to be realistic.
117. Overall I am not satisfied that, prior to the Claimant's actual release, there was any period during which it was or ought to have been apparent to the Defendant that she would not be able to effect the Claimant's deportation within a reasonable period. In my judgment there were realistic leads still being pursued by the Defendant in August and September 2012.
118. I specifically reject any suggestion that the Claimant was merely being detained in order to secure his assistance in the deportation process.
119. Although there was one late review in the period between 16 July 2012 and the Claimant's ultimate release, that period of unlawful detention is not material to the question to be determined under the third principle of Hardial Singh.

EFFECT OF FAILURE TO FOLLOW POLICY

120. Mr Jesurum conceded that the admitted periods of unlawful detention prior to February 2012 could not sound in damages because the detention would have continued in any event.
121. I have determined that the Defendant's failure to follow her own policy of conducting 28-day reviews both before and after that time did not ultimately impact on the overall duration of a reasonable period of detention and is not material to the question of when (if ever) prior to the Claimant's release it ought to have been apparent to the Defendant that she could not effect the Claimant's deportation within a reasonable time. The Claimant has failed to show that, by reason of these admitted periods of unlawful detention, he would have been released any earlier in time than he was in fact released. The Claimant was not entitled to pursue his claim in respect of the self-standing ground of the Defendant's failure to follow her own policy as permission to do so was refused.
122. Accordingly, I proceed on the basis that there was ultimately no consequence which resulted from these periods of unlawful detention so far as the matters before me are concerned.
123. That notwithstanding, Mr Jesurum submitted that even if I rejected the Claimant's application for relief on Hardial Singh grounds I should grant a declaration that the Claimant's detention was unlawful by reason of the Defendant's admissions. Mr Jesurum submits that there is a public interest in recording the fact of unlawful detention irrespective of the point that it may have no consequence. Miss Mannion submits that a declaration is a discretionary remedy and the Court should decline to award discretionary relief which leads nowhere.
124. In my judgment it would not be appropriate to grant declaratory relief in such circumstances. I would, effectively, be doing so in respect of the ground for which the Claimant was specifically refused permission namely a failure to follow her own policy. In the context of the remaining issues before me the declaration would serve no useful purpose.

SUMMARY OF DECISION

125. For the reasons set out above, I am wholly satisfied that the Claimant's continued detention from 10 February 2012 until his release on 26 September 2012 was lawful on Hardial Singh principles. I therefore refuse the application for a declaration that the Defendant falsely imprisoned the Claimant during the period prior to his release. In consequence, the claim for damages is likewise refused.

Note 1   I have been given different dates for the commencement of immigration detention. It may have been as early as 20 June or as late as 26 June 2010. I have taken 22 June from the Defendant’s Monthly Progress Report to the Claimant dated 28 July 2010 [A7 of D’s Bundle].    [Back]

Note 2   The skeleton argument provided to the Court at the trial retained a section at paragraphs 28 to 36 that was still concerned with the initial detention decision. However this was not pursued in oral argument.     [Back]