QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Julie Anderson QC and Mr Andrew Byass (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 1 and 2 April 2014
Crown Copyright ©
Mr C M G Ockelton :
The basic facts
A. Immigration detention in general
(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."
"55.1.3. Use of detention
Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. A person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable.
Criminal casework cases
As has been set out above, due to the clear imperative to protect the public from harm, the risk of re-offending or absconding should be weighed against the presumption in favour of temporary admission or temporary release in cases where the deportation criteria are met. In criminal casework cases concerning foreign national offenders (FNOs), if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale.
If detention is appropriate, an FNO will be detained until either deportation occurs, the FNO wins their appeal against deportation (see 55.12.2. for decisions which we are challenging), bail is granted by the Immigration and Asylum Chamber, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful (see 55.3.2 and 55.20.5 below).
In looking at the types of factors which might make further detention unlawful, case owners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. 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 here, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release.
In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public.
55.3.2. Further guidance on deciding to detain in criminal casework cases.
22.214.171.124 This section provides further guidance on assessing whether detention is or continues to be within a reasonable period in criminal casework cases where the individual has completed their custodial sentence and is detained following a court recommendation or decision to deport, pending deportation, or under the automatic deportation provisions of the UK Borders Act 2007. It should be read in conjunction with the guidance in 55.3.1 above, with substantial weight being given to the risk of further offending and the risk of harm to the public.
Whilst as a matter of practice, the need to protect the public has the consequence that criminal casework cases may well be detained pending removal, caseworkers must still carefully consider all relevant factors in each individual case to ensure that there is a realistic prospect of removal within a reasonable period of time.
In family cases, each individual must be considered to see if there is interference with their Article 8 rights and, if so, whether it is proportionate. For example, thought should be given to whether it is appropriate to detain family members due to be deported or removed with the foreign national offender and, if so, when please see chapter 45 for cases where one or more family member(s) is under the age of 18. An up to date record of convictions must be obtained from the police national computer (PNC) in order to inform decisions to detain or maintain detention in criminal casework cases. Please also see 55.8 regarding detention reviews and 55.20.5 for instructions on managing contact where a criminal casework case is released on restrictions. Where a time served foreign national offender has a conviction for an offence on this list, 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 and, regardless of the effects of detention on their dependants.
All relevant factors (see 55.3.1) must be considered when assessing whether there is a realistic prospect of removal within a reasonable timescale. See 126.96.36.199 to 188.8.131.52 for more detail on the way to approach the application of the factors in 55.3.1 in criminal casework cases.
184.108.40.206 Any decision not to detain or to release a time served foreign national offender on restrictions must be agreed at grade 7 (assistant director) level and authorised at strategic director level. Cases should be referred on the relevant form, which should cover all relevant facts in the case history, including any reasons why bail was refused previously.
If it is proposed to release a serious criminal to rejoin a family including dependent children under the age of 18, advice should have been sought from the Office of the Children's Champion and it is likely that a referral to the relevant local authority children's service will be necessary."
B. Immigration detention of the mentally ill
"55.10. Persons considered unsuitable for detention
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In criminal casework 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. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
- Unaccompanied children and young persons under the age of 18 (see 55.9.3 above).
- The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention.
- 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 which cannot be satisfactorily managed within detention.
- Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.
- Those where there is independent evidence that they have been tortured.
- People with serious disabilities which cannot be satisfactorily managed within detention.
- Persons identified by the competent authorities as victims of trafficking (as set out in Chapter 9, which contains very specific criteria concerning detention of such persons).
If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file."
(i) When interpreting and applying Chapter 55.10 it was essential to keep firmly in mind the purpose of the policy, which was to ensure compliance with the requirements of immigration control (especially in the context of the removal of FNOs where that was accorded a particular importance by the statutory policy of Parliament reflected in the automatic deportation regime and that of the Secretary of State) but prevent treatment that was inhumane .
(ii) A purposive and pragmatic construction was required "In the light of the purpose of immigration detention identified above, that is enabling lawful removal pursuant to an effective immigration policy, the policy seeks to ensure that account is taken of the health of the individuals affected and (save in very exceptional circumstances) to prevent the detention of those who, because of a serious mental illness are not fit to be detained because their illness cannot be satisfactorily managed in detention" .
(iii) The phrase "suffering from a serious mental illness which cannot be managed satisfactorily within detention" must not be dissected but considered as a whole.  and .
(iv) The policy exception in chapter 55.10 does not apply simply because a person has a diagnosis of a mental illness that is regarded as 'serious' , ,  and . In LE (Jamaica) the claimant had a long established condition of Paranoid Schizophrenia (which had rendered him unfit to plead to criminal charges) but the policy was not engaged as the condition was one that could be managed satisfactorily in detention.
(v) The 'threshold for applicability of the policy' is that the mental illness is serious enough to mean it cannot be managed satisfactorily in detention. 
(vi) 'Satisfactory management' involves considerations such as the medication required and whether 'demonstrated needs' can or cannot be provided by the place of detention. The Court noted that OM (Nigeria) at  shows that some of those suffering significant adverse effects of mental illness may be managed appropriately in detention, the views of the experts were divided but the Court of Appeal found that the balance of expert advice was that her illness could be managed appropriately in detention . It is noted that in OM there were expert reports in much stronger terms than in this case that stated that the treatment needed by OM was not available in detention and that her mental health was deteriorating significantly as a result of detention so she was unfit to be detained (and lacked capacity to act). Whilst the responsible clinicians did not provide 'expert reports' in the same way as those procured by claimant representatives, the Court considered the views expressed in the medical papers to the effect that the needs for satisfactory management of OM's mental health were met in detention and the Court of Appeal accepted the approach of the responsible clinicians.
(vii) The Secretary of State was generally entitled to rely on the responsible clinicians where reasonable enquiries had been made and the requirements of Chapter 55.10 were considered where applicable, so long as there was not a total abdication of the Secretary of State's own responsibilities to the clinicians. .
(viii) For the purposes of the decision in Das, the Court did not decide whether 'satisfactory management' involved facilitating the possibility of recovery but at  the Court 'strongly doubted' that this was the correct approach as:
- this was unlikely to be the intention of the policy given its purpose
- it was unlikely to be the natural construction of the words used
- it was inconsistent with the established jurisprudence of the higher courts
- it was impractical given the variance of treatment available in the community
- it was inconsistent with the context of the purpose of removal from the UK as soon as possible
(ix) Where the threshold for applicability was met and a serious mental illness could not be managed satisfactorily in detention so the policy applied the 'very exceptional circumstances' test was a demanding one. It was not met by the mere fact of liability for circumstances' test was a demanding one. It was not met by the mere fact of liability for removal and the refusal to repatriate voluntarily. It could be met by circumstances such as the detainee posing a serious risk of harm to the public or the anticipated period of further detention being short. It required an assessment of where on the 'spectrum' of seriousness the case fell (that spectrum including those with no record of offending right through to the most serious terrorism cases). ."
C. Citizens of the Union
(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if
(a) that person does not have or ceases to have a right to reside under these Regulations; or
(b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.
(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.
(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
21. (1) In this regulation a 'relevant decision' means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with permanent right of resident under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who
(a) has resided in the Untied Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.
(7) In the case of a relevant decision taken on the grounds of public health
(a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010 shall not constitute grounds for the decision; and
(b) if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision."
"The question whether the requirement of a continuous period of 10 years residence is established at the date of the decision to deport, turns on the degree of integration established at that time. This is a question of fact for the Tribunal. Following the test in Tsakouridis, periods of absence within the 10 years immediately preceding the decision do not of themselves disqualify and neither does a period of imprisonment. The period of imprisonment is, however, relevant as a factor to be considered when deciding upon integration at the date of decision. Integration will not normally be established by time spent in prison save that it may have limited relevance by contributing to the severance of links with the country of origin. If integration has been established prior to the custodial term, it will not necessarily be lost by that term."
The Facts in detail
"This constitutes the clearest possible failure to comply with the duty of candour, and the court is invited to censure this in strong terms. Further, and separately, in the light of this failure, the court must assume that the Defendant has failed to discharge her duty to demonstrate that detention was lawful, and has little choice but to conclude that detention was unlawful as from January 2012"
Criminality and risk of further offences
Risk of absconding
Nationality, immigration status and history, and practical removability
(ii) Assuming he used his Dutch passport, the claimant's entry to the United Kingdom was lawful, and he has never been here unlawfully; but following his initial period of three months' residence permitted to all EEA nationals, he has never had any claim as a national of the Union to resist removal from the United Kingdom save by the general provisions of reg 21, acquisition of rights of permanent residence, or acquisition of the enhanced protection arising from ten years' residence. It might be very difficult to show any such right in the light of the authorities on the extent to which residence in prison can count towards the five years needed to establish a permanent right of residence or towards the ten years' continuous residence needed in order to provide the extra protection against expulsion provided by reg 21(4). If he did not have a right to reside his removal was in any event, without regard to his offence, permitted by the Regulations (reg 19(3)(a)) subject only to its being inhibited by other factors, for example a successful art 8 claim. In other words, without proof of the acquisition of the right of residence, and contrary to what is asserted in the claimant's solicitors letters beginning with that in response to the original threat of automatic deportation, his status as a Dutch national does not give him any general protection against removal.
(iii) The practical question of his removability was therefore not very much affected by his nationality. Perhaps he could not have been removed to Somalia, but that was never under active consideration because from the beginning of his immigration detention the claimant had claimed his Dutch nationality, and that was investigated and then recognised. Because of his history, however, his mere status as a Dutch national, gave him no perceptible protection beyond that available to a person of any other nationality.
(ii) The claimant's appeal was pending from July 2011, when it was lodged, until time for any further appeal by the Secretary of State's expired in February 2013. The latter date was long after the end of the claimant's detention. The First-tier Tribunal's decision was in favour of the claimant, but it failed to determine a number of the issues that needed to be decided. It was swiftly challenged, and properly so. The First-tier Tribunal's decision was set aside by the Upper Tribunal and cannot be relied upon for any purpose. It is wrong for the claimant to place emphasis on this interim victory: while an appeal is pending it is pending and until it is finally determined it cannot be said that effect has to be given, or perhaps even notice taken, of decisions that may be set aside.
(iii) The First-tier Tribunal's determination does not in its text appear to support the Secretary of State's evidence that the result of that hearing may have been prompted by ill-advised concessions by the presenting officer. But despite the complexity of the issues before it the determination is very short. In any event, if those concessions were made it is difficult to see why that fact should assist the Secretary of State now.
(iv) Although both determinations invoke the phraseology unique to reg 21(4) and thus imply that they are dealing with a person who has within the meaning of that regulation, resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision, neither gives any indication of having grappled with the meaning of that phrase, and neither contains any reasoned finding that reg 21(4) applies to the claimant. There is no judicial finding that the claimant has become entitled to the special protection given by that regulation or to the lesser protection of a person who has acquired a permanent right of residence. In those circumstances both decisions, particularly that of the Upper Tribunal, that the appeals should be allowed under the Regulations must be regarded as wholly unexpected.
(v) The decision of the Upper Tribunal allowing the appeal is very specifically based on all the evidence before it, including in particular the most recent reports. It cannot be regarded as a decision that the claimant would have won an appeal on any proper legal basis during the time of his detention. There appears therefore to be nothing in the appeals process that should have led anybody to think during the time when the claimant was in immigration detention and the appeal was pending that the claimant could or would not be removed.
Medical condition and history before immigration detention
"However, [SA] is showing that he could present as uncooperative and difficult during interviews or assessment. The latter is not due to any underlying cognitive impairment nor is due to exacerbation of his mental illness which in fact is currently in remission. It is most likely due to his tendency to avoid facing the consequences of his inappropriate action by adapting [sic] the sick role so as to blame his mental and physical illnesses for making him unable to recall events or to cope with the court proceedings. The latter is not a form of malingering but it is his way of avoiding the consequence of his action as mentioned above. Having said that [SA]'s Diabetes Mellitus if not controlled appropriately could cause him fluctuations in his mood, irritability and lower his tolerance to provocation or stress. The court should be aware that [his] blood sugar is kept within normal range during the court proceedings"
"currently well. He has possibly suffered from schizophrenia in the past. He also has mental and behavioural disorders due to psychoactive substance misuse [this is a reference to khat]. His schizophrenia IS NOT making him attack others. He prefers to not take his medication and to chew khat which makes him become unwell. This pattern will continue when [he] is released. He uses psychiatric symptoms to avoid responsibility for his actions."
"During his current detention at HMP Wormwood Scrubs [his] behaviour has improved considerably. He is no longer aggressive and he remains compliant with his prescribed medication. His moods can be volatile but he is responsive to reassurance from staff and other prisoners. It appears that with good support [he] can function effectively"
Mental condition during immigration detention
"I understand that [SA] has been managed on ordinary location for the majority of stay in HMP Wormwood Scrubs and whilst he has been on the Healthcare Unit there have again been no suggestions that [SA] has been psychotic. In every area of the prison he has been located on there has been difficulties managing [SA]'s behaviour, most of these difficulties appear to have been centred around his access to tobacco and frustration when this access is not immediate. There have been other difficulties managing [SA] when his immediate needs have not been met; he has a low tolerance of frustration and poor impulse control. At times when his needs have not been met he has threatened to harm himself by superficially cutting his arm, he has superficially cut his arm, he has burnt his arm, he has jumped off one of the landings I understand on one occasion last year and landed on the safety net with minimal injuries. [SA] has set fire to some papers and bedding in his cell, in March this year and has also been known to bang his head against the cell wall.
It does seem as if [SA]'s difficulties have been heightened at times; when the outcome of his court case was pending and the future was uncertain; and subsequently when [SA] was due to be released and his detention was continued on immigration grounds. He has stated that he found this frustrating and distressing.
[SA] has been reprimanded on a number of occasions and has been in the Segregation Unit on a number of occasions. He has frequently been deemed 'unfit' to be on the Segregation Unit by the GP and either returned to ordinary location or transferred to the Healthcare Unit. It seems as if when he has not been declared 'unfit' to be on the Segregation Unit [SA]'s behaviour has deteriorated, for example refusing his insulin medication, leading to hyperglycaemia with vomiting, to secure his transfer to healthcare because of a deterioration in his physical health when a transfer to healthcare in terms of his psychiatric health has been refused.
Throughout, [SA]'s time at HMP Wormwood Scrubs he has been repeatedly reported to be manipulative with his medication, both his psychiatric medication and his insulin medication when his perceived needs are not met and on one occasion at least this had led to him being admitted to Hammersmith Hospital with increased blood sugar levels requiring treatment.
Of note there do appear to have been a couple of periods of relative stability in [SA]'s presentation and I wonder if during these periods [SA] has less input from staff and possibly more time to consider the difficulties that he has experienced throughout his life. This in turn seems to lead to a deterioration in his presentation and behaviour which can rapidly decline, resulting in [SA] having a significant amount of input from staff from a range of backgrounds."
"3) In my opinion, his detention since 28th January may have exacerbated his mental disorder overall that is his maladaptive behaviours which occur in the context of mixed personality disorder in combination with chronic paranoid schizophrenia. In my opinion his behavioural problems are best understood as arising from chronic mental illness in the context of borderline intellectual functioning and Mixed Personality Disorder. Although his challenging behaviours are not directly related to hallucinatory phenomena, they are likely to be a general feature of his overall personality deterioration in the context of chronic mental illness. In my opinion the uncertainty relating to his detention is likely to have exacerbated his sense of frustration and adversely affected his mental state and behaviour.
4) Whilst the Prison have attempted to manage his behaviour, it is clearly not possible for a prison environment's use of segregation to manage his disruptive behaviour in accordance to relevant NICE guidelines. If he were in, for example, a low secure rehabilitation hospital facility, then the approach to his challenging behaviour would clearly be enhanced and might involve a behavioural incentive plan to reward pro-social behaviour.
5) In my opinion his disruptive behaviour is consequent upon chronic mental illness in the context of Mixed Personality Disorder. Overall, it is my view that mental disorder is relevant to understanding his disruptive behaviour.
6) In my opinion a more appropriate therapeutic environment would be either a highly supportive twenty-four hour staffed hospital in the community with experience of dealing with chronically mental ill patients, or in a low secure hospital setting. I agree broadly with the conclusions of Dr Spencer about a potential community placement; however, in my opinion, establishing a trial of clozapine in the community is likely to be fraught with difficulties. In my opinion, if he were discharged to a community placement there would be risk of a community placement breaking down, in which case he would need to be considered for admission to a low secure rehabilitation unit as has previously been the case. In my opinion his behavioural disturbance is unlikely to improve in a custodial setting.
7) In my opinion further prison detention is potentially likely to have a detrimental effect on his mental health. Although the prognosis for improvement of his mental health and behaviour must be guarded, in my opinion there is more prospect of this improving in an appropriate therapeutic environment."
"Whilst Dr Taylor stated that on occasions when transferred to segregation, your client has been deemed as unfit and has been transferred to Healthcare, this information has not been conveyed to the UK Border Agency. If and when such information is provided it will be taken into account but it cannot be assessed in abstract. "
(ii) The claimant has also raised queries about the treatment of the (second) Taylor report, given that it is not referred to in the detention review that immediately followed its submission. I think the pragmatic reason for that is that both the journey of the report to those responsible for acting on it and the drafting and authorising of the review took several days: probably the report was not to hand at the time the review was being produced. In any event, it is clear that the report was considered in full before the next review and it is clear from the way in which the Secretary of State dealt with the report that the answer would not have been different if the report had been considered earlier.
(iii) It looks as though the report may have been received by the Criminal Cases Directorate on 28 October. The full response to it was sent on 16 November. That does not appear to me to be an undue delay. The period of under three weeks has to be considered in the context of the fact that although Dr Taylor is said to have thought that continued detention was harming the claimant, his report took just over a month to prepare after he had interviewed the claimant.
(iv) The claimant and those representing him had had their response to the (second) Taylor report in the letter of 16 November. It was entirely unnecessary to recite that letter or summarise it or even to refer to the report in subsequent detention reviews provided that the letter took into account all relevant factors.
(v) Mr Buley expresses delicate outrage at paragraph 26 of the 16 November letter, which is as I have said not easy to understand. I do not know what attempts were made to resolve the question at the time but I suspect that it derives from a misunderstanding of what Dr Taylor said. He was merely summarising the occasions when the claimant has swiftly been moved from segregation (where he had been sent for misbehaviour) to healthcare when it was appreciated that his misbehaviour included a damaging failure to follow his drugs regime, rendering him medically unfit. There is at least one instance of the claimant's manipulation of decisions so that he would be in healthcare rather than segregation. I think the writer of the 16 November letter must have thought Dr Taylor meant something else: what, I do not know, but it was evidently something he or she thought was new to the case.
(vi) The claimant places a great deal of weight on Dr Taylor's second report, asserting that it was sufficient to make the case that the claimant should not be detained, because his mental state had already deteriorated in detention since 28 January 2011, that it would deteriorate further if detention continued, and that the claimant's mental illness could not be managed in detention. In my judgment the letter cannot bear that weight. So far as concerns the first of those factors, Dr Taylor does not say that the claimant's mental state has deteriorated in detention: he says that his detention since 28th January 'may have exacerbated his mental disorder overall'. Dr Taylor is the only person who had completed two full reports on the claimant. His first report was, as it happened, a little under three months before the beginning of the claimant's immigration detention. Despite his own opportunity for comparing his impression of the claimant then with what he found on 20 September together with the reports on the claimant's behaviour in immigration detention, he is not able to cite a single respect in which he observes a decline and is not able to say that there has been one. Further, although specifically asked only about decline in immigration detention, he gives no hint that he has considered the impact of detention in general, or of the criminal detention that continued for about three months after his previous report. If there had been any evidence at all of such exacerbation, it would have been cited in this report. In that context his statement that immigration detention may have had the result set out can be seen only as benevolent speculation; and there is no proper basis for treating this opinion as anything else.
(vii) The second assertion is based on paragraph 7 of Dr Taylor's opinion. In order to put that into context, the paragraph needs to be read as a whole, making it clear that 'a detrimental effect on [the claimant's] mental health' is being treated as a direct contrast to improvement. It is not being treated as a contrast to maintaining the status quo, ie neither deterioration nor improvement. No criticism can be offered to a doctor who sees his role as making people better; but lack of improvement is not the same as deterioration. There had been no deterioration that Dr Taylor was able to identify in the past period under review and it is difficult to see what basis there could be for supposing there could be one in the future. The 'detrimental effect' to which Dr Taylor refers is clearly (mere) lack of improvement.
(viii) The third assertion is based on paragraphs 4 and 5 of Dr Taylor's opinion. The second part of paragraph 4 is again a reference to improvement, not a reference to current management. Dr Taylor, like others, in particular Dr Spencer, regards the claimant's behaviour as secondary to his mental condition. But that is a world away from saying that his behaviour is his mental illness: it is clearly not. Although his 'mental disorder is relevant to understanding his disruptive behaviour', there are other factors in play. His behaviour is a consequence of a number of factors: his psychiatric diagnoses, his low IQ (which is not an illness), his need for regular insulin injections (which is not a mental illness), his addiction to tobacco (which is not said to be an illness) and no doubt others. Managing the claimant's behaviour is different from managing his illness. His illnesses (both mental and physical) are managed by persuasion or if necessary compulsion in relation to the drugs regime, together with counselling and other interventions. Managing his behaviour is a different matter, and (for exactly the reasons stated by Dr Taylor at paragraph 5) it may be easier when management of his illnesses is succeeding. Whether or not the management of his behaviour is or is not in accordance with NICE standards and whether or not his behaviour could be managed differently or better in other surroundings is not directly relevant, and perhaps not relevant at all, to the management of the claimant's mental illness.
(ix) So far as concerns the previous reports there is nothing at all that gives any currency to a submission that the claimant's mental illness had deteriorated in immigration detention. His behaviour continued to be often bad (but sometimes better). His psychotic symptoms had all but vanished. His schizophrenia was in a state that at times it could be called a merely historic diagnosis or 'in recession'. His personality disorder is a new diagnosis but there is no basis for thinking it is a new condition: there are references to the possibility of such a diagnosis from the beginning and the only difference is that there is now more material on which to base it; although it still is rather tentative. The claimant often presented well, not unkempt; was often co-operative; was not disoriented (save when he saw advantage in pretending to be); was developing an understanding of the need to adhere to his drugs regime.
(x) The task for the Secretary of State was to determine whether the claimant had a serious mental illness that could not be satisfactorily managed in detention. It is apparent that a conclusion that the claimant did not have an illness with those characteristics was almost inevitable on the evidence and despite (and to an extent even in accord with) Dr Taylor's report. In the same way and for similar reasons that view had been properly open to the Secretary of State all through the claimant's immigration detention in the light of all the material available to her.
(xi) Mr Buley also asserts that the Secretary of State had a duty to seek further information (or to make sure that information was provided promptly when it had been asked for). In general terms there may be such a duty when there is any reason to suppose that the missing information might make a difference to a claimant's management; and the failure might be actionable if it can be shown that but for it the claimant would (for example) have been released earlier. But none of that applies to the present case. The claimant already had a history of detention and of his management in detention when his immigration detention began. An eye was being kept on the mental illness. Not only did nothing happen that ought to have alerted anybody to deterioration in his mental condition as it happened, but no such event can be identified by the claimant's expert with the benefit of hindsight from October 2011.
(xii) The material dating from after the claimant's release contains, in my judgment nothing that can assist in assessing the legality of detention decisions as they were taken.