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
		07/11/2014

Mr Justice Green :

A. Introduction

1. There is before the Court a renewed application for permission to apply for judicial review and application for interim relief. An Anonymity Order has been made in favour of the Claimant who is referred to in this judgment as either "the Claimant" or "BCZ". Because of a concern about his capacity he is a protected party and is represented in this litigation by the Official Solicitor. Ms Nicola Braganza appeared at the hearing on his behalf. Ms Julie Anderson appeared for the Defendant, the Secretary of State for the Home Department ("SSHD").
2. This case concerns the position of a person in detention facing deportation who refuses food and fluid with a view to pressurising the SSHD into giving him leave to remain but who, in consequence, is at risk of suffering a serious neurological condition. Cases such as these highlight acute conflicting public interest considerations. On the one hand the State has in place an immigration policy which it seeks, and is entitled, to enforce vigourously and which includes detention pending removal as an important protective component. On the other hand detention is an acute deprivation of a person's civil liberties and, ordinarily, should be used only exceptionally where other courses short of detention are unavailable. Whilst in detention the State must take proper care of detainees and permit them to have access to a Court or Tribunal to test the legality of their detention and their Deportation Order. But, at the same time, it must do what it can to progress the removal process. These cases, therefore, raise complex and sensitive issues.

B. Procedure

3. In the present case an application was made for permission to apply for judicial review on 1^st August 2014. This, in substance, alleged that the continued "ongoing" detention of the Claimant was unreasonable. In essence what was challenged was a continuing breach which was said to be unlawful because the stage had been reached when removal was neither imminent nor was there any prospect of removal within a reasonable time. The grounds were framed under both domestic law and the European Convention on Human Rights ("ECHR"). It was accompanied with a request for urgent consideration. On the same day Cranston J. directed anonymity and abridged time for service of an Acknowledgement of Service ("AOS") to 14 days. In the event the AOS was served on 15^th August 2014. Permission to apply for judicial review was refused on paper by Kenneth Parker J. on 20^th August 2014. The reasons given by the Judge may be summarised as follows. First, it was not arguable that there was no real prospect of removal within a period that was in all the circumstances reasonable. As to the proposed date of the Claimant's asylum appeal against the Defendant's rejection of his application (due to be heard in November 2014) to the extent that the delay caused by an appeal may be relevant it was open to the Claimant to seek expedition. Secondly, with regard to the alleged deterioration of BCZ's physical and mental health and the diagnosis of depression the responsible clinicians advising the Defendant had throughout the detention considered these matters and did not advise that detention was no longer appropriate. The Defendant had taken that advice into account and had considered the implications of the relevant policy bearing upon the physical and mental health of detained persons. The Judge could see no arguable basis for challenging the decision to detain on the grounds that the Defendant had either misunderstood or mis-applied any relevant policy in the case. Thirdly, the Judge concluded that given the Claimant's immigration history and previous offending the Defendant had more than reasonable grounds for concluding that the risk of absconding was very substantial and that the risk of re-offending was not insignificant. Fourthly, he concluded that the claims under Articles 3 and 5 ECHR were in essence parasitic upon the other grounds which the Judge had already addressed and rejected.
4. The matter came before me by way of renewed application for permission on 7^th October 2014. I heard argument over the course of approaching three hours and, subsequent to the hearing, have read in detail all of the available medical evidence and the detention and other reports relevant to the Claimant. This has included a considerable volume of late disclosure provided by the Defendant the day before the hearing which included, inter alia, monthly progress reports submitted to the detainee, Detention Reviews ("DRs"), and material from the General Case Information Database ("GCID") together with correspondence passing between the parties and certain third parties including with medical professionals. This material bears directly upon the Defendant's decision both as of the date of the application but also as the position has progressed. Both sides, in effect, treated the disputed decision as ongoing and the new evidence relevant to it. I have reviewed comprehensively the evidence in this case. I have not considered myself bound or affected by the earlier refusal to grant permission which was on a different evidential basis.

C. The facts

5. In the text below I provide a chronological summary of the relevant events and of the medical issues arising. A very helpful and detailed chronology was provided to me by the Claimant. I have not found it necessary to record every event which has occurred or to refer to every document that I read.
6. The Claimant – BCZ - is a Chinese national who was born in October 1992. He arrived in the UK illegally as a minor aged 13 in September 2006. On 19^th June 2013 he was arrested in connection with a fraud. He was detained upon a basis which included that he was likely to abscond and that he had given unsatisfactory answers to police questions. He was interviewed on 20^th June 2013 when he admitted his status as an illegal immigrant. In interview he stated that he feared persecution in China from the authorities because of a family connection with Falun Gong. The Claimant stated that he was Han Chinese of Falun Gong religion. He stated that his parents had been murdered by the Chinese authorities for their beliefs and he would be persecuted if he was returned to China. I note, though, elsewhere in the documents when interviewed about his parents he stated that he was not aware whether they were dead or alive. He was brought before Magistrates on 21^st June 2013 and was charged with being in possession of items for use in the course of fraud (including a false passport and fraudulent credit cards) and he was sentenced to two periods of six months' imprisonment to be served consecutively giving rise to a total of twelve months' imprisonment.
7. On 8^th August 2013 whilst BCZ was in custody the United Kingdom Borders Agency ("UKBA") issued a Notice of Liability to Deportation which was served upon the Claimant on the following day and was predicated upon the basis that deportation was conducive to the public good.
8. On 20^th August 2013 the Claimant claimed asylum. He was interviewed in prison on 24^th August 2013 and on 4^th November 2013. (He subsequently, on 10^th June 2014, refused to take part in the substantive interview process to support his asylum claim.)
9. In November 2013 the Home Office file was sent to the Asylum Team in Liverpool for consideration. The file was then sent to the Solihull Asylum Team by the Liverpool Team to arrange for an asylum interview. On 6^th February 2014 at the request of prison staff at HMP Littlehey the Claimant was seen by an Immigration Officer. The Claimant stated that he had a child in the United Kingdom with a married woman and that he wanted to be let out so that he could deal with gaining access to the child. However, it has subsequently transpired that he has had no contact with the child and there is uncertainty as to whether he is in fact the father.
10. BCZ was released from custody on 20^th December 2013. He was however immediately detained pursuant to section 36(1) UK Borders Act 2007 pending a determination by the Defendant as to whether one of the exceptions to deportation under section 33 of the Act applied. Detention Reports prepared in January, February and March 2013 record a "medium risk" of absconding and/or re-offending as the justification for continued detention.
11. On 19^th March 2014 the Claimant applied to the First tier Tribunal for bail, which was refused (on 24^th March 2014) on the basis of a "real risk of absconding". A Detention Review of 9^th April 2014 stated that removal was not imminent but that it was likely to occur within a reasonable time.
12. On 21^st April 2014 the Claimant stated that he had been subject to mistreatment by the Chinese police whilst in China. This claim was investigated by the Defendant and rejected in a letter of 24^th April 2014 which also held that, in any event, it had no impact upon the Claimant's continued detention.
13. Two days later on 26^th April 2014 the Claimant started refusing food and fluids until such time as he was given leave to remain in the United Kingdom. When the Claimant embarked upon this course of action he was seen by the detention centre medical team. The consequences of this course of action were explained to him, namely, that he might have to be moved to another detention centre which was more expert in dealing with food refusal detainees, and, that he could cause long term medical harm to himself. The Claimant is recorded in the evidence as having understood but also as having stated that he did not care.
14. On 3^rd May 2014 the Claimant was admitted to hospital in connection with the physical consequences of his food refusal. He refused treatment. He was assessed on 5^th May 2014 as having capacity. The Defendant concluded that the Claimant was both fit for detention and fit to fly.
15. On 9^th May 2014, in a Detention Review, the Claimant was categorised as presenting a medium risk of absconding, reoffending or of harm to the public if released. The outstanding barriers to deportation, at that point, included appeals from deportation orders and the obtaining of Emergency Travel Documentation ("ETD") from the Chinese authorities. The review records in summary form the conclusions of previous reviews and provides an update of relevant events. These address the allegation of torture raised on 22^nd April 2014 and any other "compassionate" circumstances in relation to children. As to this the following is stated:

"[The Claimant] claims to be in a relationship with a Thai national [name] born on 19 June 1977 and have a child together born on 13 July 2011 who has British nationality by birth. He has yet to provide evidence. However the Social Services confirmed that his claimed child is known to them but solely for the different parents and [Claimant] has nothing to do with the child".

16. The comments of the Authorising Officer, which reflect the consistently held view of the authorities throughout, were in the following terms:

"[Claimant] has been convicted of an offence involving a false instrument. There is no evidence of legal entry into the UK. He has failed to comply with Immigration laws, by avoiding Border control on entry. This would suggest that he is unlikely to comply with reporting restrictions. He has no legal basis to remain in the UK and has provided no evidence of subsisting relationships. As both of these are missing, there would appear to be no mechanism for support, and so is likely to resort to criminality, simply to support himself. He has been convicted of the use of a false instrument that he did not have on entry. He has demonstrated not only a willingness and ability to obtain a false instrument, but is also prepared to use this fraudulently. Should he be released, it is possible that he could obtain another and use this identity to go to ground and avoid the Home Office. The pernicious harm that such activities bring to members of the public affected and the undermining effect on our own institutions cannot be underestimated. He has made a late application for asylum. While this is outstanding, he has started a food and fluid protest as he has not been served his deportation decision. This is being closely monitored on a daily basis. We are having constant assurance from Harmondsworth that he can be successfully managed within their healthcare department. There are no compelling reasons to believe that he would remain in contact with the Home Office so we can effect his removal. Bearing these facts in mind, I have considered the presumption to liberty outlined in Chapter 55 of the Enforcement Instructions and Guidance. In this case the presumption is on balance outweighed by the risk of harm to the public should he re-offend, the likelihood of re-offending, and the significant risk of absconding. I concur with the proposal that detention remains appropriate at this time".

17. The Claimant continued with his food and fluid refusal until 18^th May 2014 when the Claimant resumed drinking water but not eating food. He was monitored medically during this period. There is evidence that he was suffering from some degree of dehydration, malnourishment and depression. For example on 17^th May 2014 Dr. Naomi Hartree (instructed by solicitors for BCZ), on the basis of three 15 minute telephone conversations with the Claimant, and a review of certain healthcare records, concluded that he was suffering from severe dehydration with a risk of kidney damage, malnutrition, severe depression and that he was refusing monitoring and treatment. She stated that it was difficult to assess over the telephone how ill the patient was but that she was concerned that he "may be" dangerously unwell. More generally, she concluded that he was coherent and orientated and his cognition was reasonable. Her report was sent to the healthcare staff at Harmondsworth IRC. Dr. Hartree concluded:

"I realise you may already be aware of some or all of these concerns, but as [Claimant] told me he was refusing tests and examination, and as the IRC records suggest he is not engaging with medical care, I thought it best to communicate with you regarding my concerns".

18. The Claimant was reviewed by the medical team throughout May 2014 and he was considered fit for detention notwithstanding that he persisted in a food refusal course of action and refused to co-operate with the supervising medics. For instance, during the night of 16^th May 2014 BCZ is recorded as vomiting and retching but also that he refused assistance and refused to permit medical observation. At that point in time the detention centre medical staff considered that they were able to deal with the Claimant's medical state. During this period medical professionals (in particular a Dr. Longman) began to express concerns at BCZ's cognitive functions.
19. On 16^th June 2014 the Claimant's application for asylum was rejected upon substantive grounds. The reasons concluded that there were no health considerations justifying refraining from deporting the Claimant, nor were there any justified grounds based upon a fear of persecution linked to a possible association with Falun Gong.
20. On the next day, 17^th June 2014, the Claimant ended his food and fluid refusal. He was assessed as fit for detention.
21. On 17^th June 2014 Dr. Hartree spoke, once again, to the Claimant on his mobile phone. The report is a balanced one; it expresses serious concern about the risk of a neurological condition arising out of prolonged starvation but also paints a picture of a person who might be capable of being effectively treated. She once again sent a report of her conversation with the Claimant to the healthcare team at Harmondsworth IRC. She stated that the Claimant sounded stronger in voice and more alert and cheerful compared to the previous week. She noted however that he was disorientated in terms of time generally and how long he had been detained and he asked her what was happening with his legal case. He explained that he was taking medication. Given that the Claimant had, in the past, refused hospital treatment Dr. Hartree suggested that he undertake an assessment in hospital. He did not agree but he did not say "no". She stated:

"So overall, he sounds to me physically improved, but with a clinical picture that continues to be strongly suggestive of Wernicke-Korsakoff syndrome".

22. She discussed with the healthcare staff the prescribing of Thiamine. She stated:

"According to some literature on the topic, the extent of brain damage in Wernicke's encephalopathy may vary, and in patients not exposed to alcohol there may be increased potential for recovery; the optimum dose of Thiamine is uncertain, but Pabrinex is the most potent form available".

23. Her conclusion was in the following terms:

"I remain concerned that [Claimant] may not have capacity to refuse hospital treatment (since he may not retain the information needed to weigh up this decision). He has expressed concern about his memory and has previously said to me repeatedly (a few days ago) that he did not want to lose his memory.

In my opinion it is crucial to optimise any possible recovery of his cognitive function and therefore I would urge you to consider any possible means by which this may be done, and whether parenteral vitamins or liaison with hospital specialists could be facilitated so as to maximise any recovery. My apologies for writing to you if you are already doing this – I hope that by communicating my clinical concerns I can be of assistance".

24. It is apparent from the evidence that when he recommenced eating and drinking he resumed a normal pattern of meal taking. He was "…still being monitored in healthcare by a doctor every day". The evidence suggests that at this point in time his "…health is stable". The focus now shifts from concerns about his physical wellbeing to concerns about his neurological condition and whether he was suffering from Wernicke-Korsakoff syndrome.
25. I turn now to an issue occurring in mid-June 2014 which concerned the mental capacity of the Claimant to make decisions regarding his care. On 17^th June 2014 the Home Office wrote to the Claimant relating to an assessment of the Claimant's health that had been conducted by a doctor at Harmondsworth IRC. An initial opinion had been formed that the Claimant lacked mental capacity and was not able to make decisions about his health. The doctor concerned was of the opinion that the Claimant could neither understand information nor retain information concerning his health and wellbeing and that he was not therefore able to use information about his health to take decisions about his own safety. The doctor considered that the likely cause of the deterioration was Wernicke-Korsakoff's syndrome, the cause of which was lack of nutrition directly attributable to the Claimant's food and fluid refusal. As a result it was decided that the Claimant would be transported by ambulance to Hillingdon A&E and arrangements were made. However, the report also stated that this judgment, namely that the Claimant lacked capacity, changed after the paramedics arrived. This was because the Claimant now responded cogently and lucidly in communications with the paramedics in contrast to his demeanour during the earlier medical examination. The conclusion of the Defendant was in the following terms:

"Whilst it was stated within the recent Detention Rule 35 report (dated 13 June 2014) that the Healthcare centre doctor was of the opinion that you lacked the mental capacity to make decisions on your health, it is noted that this was a judgment which changed after the paramedics arrived. It is therefore considered that on the strength of the most recent evidence, you have mental capacity to make decisions on your health and that you are refusing to accept medical treatment with full knowledge of the risks and implications of doing so.

Having regard to the information in the Detention Rule 35 report indicating that your medical condition can not be satisfactorily managed within detention, consideration has been given to whether there are very exceptional circumstances in your case to warrant your continued detention in accordance with the Chapter 55.10 of the Home Office's Enforcement Instructions and Guidance.

Although it is reported that your condition cannot be satisfactorily managed within detention, this could be remedied if you agree to accept the medical care and treatment that […] has been offered on several occasions but which you are refusing to receive for re-feeding syndrome".

26. The Claimant's appeal against the refusal to grant him asylum and against deportation was lodged with the First Tier Tribunal on 23^rd June 2013.
27. Further medical inspections occurred throughout July and August. Dr. Sagovsky visited the Claimant on 4^th July 2014 in order to fully assess his cognitive functioning. This was a report commissioned by the Claimant's solicitors. The report records (at paragraph 6.1) that the Claimant was getting physically stronger as a result of resuming food and fluid intake. In relation to his appearance and behaviour during the interview, it is recorded that he commenced the interview by greeting the doctor with a smile and talking fluently but he appeared "perplexed". Throughout the interview he replied "appropriately to questions" but the doctor was of the view that he was experiencing considerable difficulties remembering new and old information. As the interview progressed and he was confronted with his memory difficulties he exhibited an increasingly low mood. He explained that he felt despair and helplessness and he was scared that he could not remember things. The doctor concluded that there was "…no clear evidence of thought disorder" (paragraph 8.3). In relation to cognition he had regained the ability to speak English. However, and importantly, the doctor recorded numerous instances of the Claimant having extremely poor recall of names, places, personal history and even facts which had been raised in the course of the conversation. Dr. Sagovsky was of the opinion that the Claimant had "undiagnosed severe cognitive problems" which had worsened considerably since she had seen him upon the first occasion. However, she concluded (paragraph 9.2.1) that before a diagnosis could be made the Claimant required neurological and neuropsychological assessment as a matter of urgency. She stated that he "…may be suffering from Wernicke-Korsakoff syndrome following starvation". She thought it was "unlikely" that he was fabricating or exaggerating his problems. She could find no evidence of this. She was of the view that the prescription of 100mg Thiamine was insufficient and in discussion with the prescribing psychiatrist it was agreed that the dose would be increased to 300mg daily. She emphasised upon a number of occasions that there was an urgent requirement for neurological assessment. Dr. Sagovsky expressed serious concern about the Claimant's capacity to take decisions about his healthcare.
28. At this point enquiries were made whether BCZ could be cared for in the community. In August 2014 Hillingdon Borough Council confirmed that it would undertake a Community care assessment but that medical care was required for the Claimant before he would be well enough to participate in an assessment process. On 14^th August 2014 the Claimant saw a neurologist consultant at Hillingdon Hospital who recorded that the Claimant had a poor memory and felt dizzy when he stood up. A CT scan was scheduled for 17^th September 2014 but did not proceed. A further neurological assessment was scheduled to take place at Hillingdon Hospital on 4^th November 2014.
29. On 24^th September 2014 Dr. Hartree, over the course of over 2 hours, assessed the Claimant for cognitive and memory problems and she concluded that he might be suffering from a neurological condition. She explained in her careful and thorough report that she, personally, had no prior professional experience of a patient with Wernicke-Korsakoff syndrome (paragraph [6.14]). She also concluded that it "…would be premature and speculative to make a firm diagnosis" (paragraph [7.11]). Nonetheless, Dr Hartree was of the opinion that BCZ's health needs could not adequately be met in detention. She identified concerns relating to his mental health arising from the fact that he would be bored, unoccupied, anxious and socially isolated. She referred to the need to develop his physical strength. With regard to treatment she said: "Specific treatment recommendations are speculative without a diagnosis confirmed" [12.7]. In relation to future care she said that expressing an opinion was "…difficult to answer without a clearer diagnosis; since without one it is difficult to estimate the prognosis for [BCZ's] memory and cognition" [15.1].
30. This brings me to the most recent official analysis of the Claimant's position, namely a monthly progress report dated 26^th September 2014. Since this represents the most up to date position before the Court I will set out its conclusions in some detail.
31. First, the current barriers to removal of the Claimant, at that point in time, included the outstanding appeal against the Notice of Decision to make a Deportation Order, the service of the Deportation Order and the ETD. As to this it was noted that the appeal was scheduled for 12^th November 2014.
32. Secondly, the progress report recorded a continued intention on the part of the Defendant to detain the Claimant. The following reasons were given:

"You are advised that your continued failure to co-operate with the Emergency Travel Documentation process is a factor in the decision to maintain detention. You should also be aware that continued failure to co-operate will remain a factor in deciding whether to maintain detention or grant bail in future. While decisions will be considered on the basis of all known, relevant factors, you should note that non-co-operation may result in a prolonged period of detention. In addition, there is an onus on you to leave the country once your appeal rights have been exhausted. Your case has been reviewed. It has been decided that you will remain in detention to effect your removal from the UK because

• You are likely to abscond if given temporary admission or release.

• Your release carries a high risk of public harm.

This decision has been reached on the basis of the following factors

• You have obstructed the removal process by failing to co-operate with the application process to obtain an Emergency Travel Document. On 20 August 2013 you completed bio-data, other ETD forms, fingerprints and photos. An ETD interview was booked for 7 November 2013; the Chinese Embassy rejected the ETD and asked you to check the details. You maintained the details were correct. Towards the end of the interview you stated that you would speak to your representatives and may consider the FRS scheme. At the meeting with Mr Hegarty on 23 June 2014 FRS was explained again to you.

• You have failed to observe the United Kingdom immigration laws by entering by clandestine means.

• You have not produced satisfactory evidence of your identity, nationality or lawful basis to remain in the United Kingdom.

• You have previously failed to comply with conditions of your stay, temporary admission or release, set out the details.

• You do not have enough close ties (e.g. family or friends) to make it likely that you will stay in one place – You claim to have a son living in the United Kingdom, however this is not considered an incentive for you to remain in one place, and you have not provided evidence to substantiate this claim.

• You have shown a lack of respect for United Kingdom law as evidenced by your conviction(s) for a serious crime, namely possession or under control an identity document, namely One Chinese Passport that was false and possession or under control an article, namely four bank cards for use in the course of or in connection with a fraud.

• You have been assessed as posing a serious risk of harm to the public because you have committed the following offence: possession or under control an identity document, namely One Chinese Passport that was false and possession or under control an article, namely four bank cards for use in the course of or in connection with a fraud.

• You have committed offence and there is a significant risk that you will re-offend.

• Your unacceptable character, conduct or associations as evidenced by your conviction.

Consideration has been given to all relevant factors in favour of release but in the light of the above, it is considered that detention for the purposes of deportation is reasonable.

Your detention will continue to be reviewed on a regular basis and any significant material changes to your case will be considered against this decision"

33. Thirdly, in relation to the risk of absconding, re-offending and harm to the public this was described as "medium".
34. Fourthly, the views of the Authorising Officer as of 28^th August 2014 are recorded. It is noted that he was "…a little concerned that there are no updates relating to [Claimant's] health since June. Please contact HC and obtain up to date information which will be included in the next DR". There is no reference in the document (which of course was dated 26^th September 2014) to Dr Hartree's very recent report of 24^th September 2014. This might very well be because the opinion was transmitted to relevant officials only 2 days before the DR and there was no chance for its contents to be taken account of. However, as recorded above the opinion of Dr Hartree candidly recognised the need for a fuller diagnosis and the September DR set up the next DR for a full up to date assessment.
35. Fifthly, in section 6 of the DR it is recorded that further information had been sought from Harmondsworth IRC as to whether there were any notable changes in the Claimant's health or a prognosis requiring further treatment or medical examination. Information was also sought as to whether Healthcare had any concerns about the Claimant being released into external accommodation. In response, it was confirmed that the Claimant's CT scan (which had been scheduled for 19^th September) was being undertaken "…to confirm the diagnosis that there is no organic reason for his condition". The following was also stated:

"His condition has improved and he is now mobilising well with a walking frame. He has been discharged from the neurology department with no follow on required. Healthcare has no concerns with regard to him being moved to section 4 housing. He is fully self-caring and there is no reason why he cannot share a room".

36. Sixthly, the ultimate conclusion which sought to balance medical and other considerations was in the following terms:

"[Claimant] was convicted of an offence involving fraud. He has failed to comply with immigration laws by avoiding Border control on entry. This would suggest that he is unlikely to comply with reporting restrictions. He has no legal basis to remain in the UK and has provided no evidence of subsisting relationships. As both of these are missing, there would appear to be no mechanism for support, and so is likely to resort to criminality, simply to support himself. He made an application for asylum only after being notified of his liability to deportation. A person in genuine need of humanitarian protection would likely make such an application at their first opportunity. This is more likely expected actions of someone attempting to frustrate the deportation process. He has appealed his asylum refusal and the deportation process. He has also been on Food and Fluid refusal. Although this is no longer the case, he would appear to be suffering with health complications from this. He was admitted to hospital but refused treatment. He is also refusing to comply with the ETD process. There are no compelling reasons to believe that he would remain in contact with the Home Office so we can effect his removal.

Bearing these facts in mind, I have considered the presumption to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance. I have paid special attention to section 55.10 in regard to his medical issues. In this case the presumption is on balance outweighed by the risk of harm to the public should he re-offend, the likelihood of re-offending, and the significant risk of absconding. I concur with the proposal that detention remains proportionate at this time".

37. During September 2014 the Claimant's solicitors sought confirmation that external accommodation support would be provided to the Claimant in the event that he was released. Steps were taken to confirm the details. A helpful Witness Statement was produced by Ms Jane Ryan, a solicitor from the Claimant's legal advisors, which sets out the details of the steps that she has taken to secure accommodation for the Claimant. It would appear that in principle accommodation might be available were he to be released and that he would be capable of sustaining himself in the community, albeit with appropriate assistance.
38. Finally, on 1st October 2014, Dr. Victoria Singh-Curry, a locum consultant neurologist in the Department of Neurology, at The Hillingdon Hospital, provided a letter, which was placed before the Court in relation to the Claimant's medical condition:

"I apologise for the delay in response to your letter but I have been away on leave. I have not yet met [Claimant] (he was previously seen by Dr. Hamdalla who worked in the Trust only briefly), but on review of the medical reports forwarded to me, I would agree with Dr. Hartree that Wernicke-Korsakoff syndrome is a likely diagnosis".

It is explained in the witness statement of Ms Ryan on behalf of the Claimant, and is evident also from correspondence on the file, that the medical reports upon which Dr. Singh-Curry expressed this view were prepared between 17^th May 2014 and 5^th July 2014. There are nine reports and letters in total; five of these were prepared by Dr. Hartree. There is no medical evidence subsequent to 5^th July 2014. It follows that the view expressed in the letter of 1^st October 2014 was not a current opinion. It does no more than reflect the views of other professionals in June/July 2014, i.e. BCZ might be suffering from Wernicke-Korsakoff syndrome.

D. The law: Analysis and Conclusions

39. The original Grounds set out over 20 specific arguments. In argument Ms Braganza very helpfully and realistically boiled these down to two core issues. First, whether the continued detention was unlawful as of the date of the hearing and the latest DR given the Claimant's medical condition. Secondly, whether in all the surrounding circumstances removal would occur within a reasonable timetable. I address each point separately.

(i) The reasonableness of detention in the light of the Claimant's medical condition

40. The Claimant's case accepts that the Defendant had before her all relevant reports and that expert opinions prepared on BCZ's behalf were promptly communicated to the Defendant. The case is that the Defendant failed to act upon these opinions or to consider them as part of her decision making, as evidenced by the DRs. The error alleged is "failing to consider the evidence". There is no real dispute as to the factors which must be taken into account by the Defendant when arriving at a decision to detain or continue to detain a person pending deportation. I summarise the main points below.
41. The starting point: The most elementary of starting points is that the detention of a person is a profound interference with his or her civil liberties and that detention should be ordered and continued only in exceptional circumstances.
42. Adherence to policy guidelines: Administrative detention under Section 36(1) or (2) of the Borders Act 2007 will be unlawful on public law grounds if the Secretary of State fails properly to apply her policy as set out in Chapter 55.10 of the Enforcement Instructions and Guidance. Mental illness and medical conditions (i.e. physical illness) are addressed in §55.10. It was common ground before me that the Defendant is bound to have regard to her own guidelines: See Lumba v SSHD [2011] UKSC 12 per Lord Dyson JSC at paragraph [34] in the context of the requirement for the Defendant to apply transparent immigration policies. The central question is whether a detainee's mental health can be satisfactorily managed within detention. The relevant parts of the provision state:

"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:

o 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.

…"

(Emphasis added)

43. Mental health of the detainee: Where a mental condition arises this is a factor which is to be given particular weight in the balancing exercise: See R (Anam) v Secretary of State for the Home Department [2009] EWHC 2496 (Admin); R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597; and Beatson LJ in Das v SSHD [2014] EWCA Civ 45 at paragraphs [51ff]. In that latter case Lord Justice Beatson made clear that when assessing a detainee's mental health the Defendant had to exercise independent judgment and there could be no question of her abdicating her statutory duties to the relevant health officials or clinicians; although this did not mean that she was not entitled to place proper reliance upon reports properly prepared and reported to her (ibid paragraph [70]). The issue is not whether a detainee has a "serious" condition but whether that condition can be managed satisfactorily within detention: See, for example SA (Holland) v SSHD [2014] EWHC 2570 paragraphs [2] – [6] endorsed in DK v SSHD [2014] EWHC 3257 per Haddon Cave J. The Secretary of State is required to consider all relevant evidence but is entitled to rely upon the opinions of the responsible clinicians and in the event of a conflict form a view as to which advice to prefer.
44. Public interest in deporting foreign criminals: It is undisputed that the public interest in the deportation of foreign convicted criminals upon release from custody is a weighty consideration. With regard to the position of foreign national prisoners and the "automatic deportation" provisions in the United Kingdom Borders Act 2007, the force and weight of the policy favouring the deportation of foreign national prisoners contained in primary legislation was reiterated and emphasised by Laws LJ in SS (Nigeria) and others v Secretary of State for the Home Department [2013] EWCA Civ 550 at [48] ff.
45. Risk of further offending: In the present context in considering whether it is reasonable to detain the Claimant, and the period for which it is reasonable to detain him, the assessment of the risk of harm to the public the person poses through further offending is a particularly important factor: see e.g. the discussion in R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 at [29] ff., and R (Anam) v Secretary of State for the Home Department [2009] EWHC 2496 (Admin) at [53] – [55]. See also R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597 at [11], [21] [25] and [28].
46. Risk of absconding: The risk of absconding is also very important. It strikes at the very integrity of the Defendant's immigration policy if a person facing deportation can evade removal by absconding. It is of course a factor which is not confined to foreign national prisoners: See per Beatson LJ in Das v SSHD [2014] EWCA Civ 45 at paragraph [23].
47. Duty of constant supervision: Further, the fact that there is a duty of constant supervision of detainees with medical conditions and of reporting to the Defendant is also relevant. Rules 33 – 35 of the Detention Centre Rules 2001, SI No 238 of 2001, provide for a regime of monitoring and supervision. Rule 33 provides that all detention centres shall have a health care team including a general practitioner. Rule 34 stipulates that every detained person is to be given a physical and mental examination by a medical practitioner within 24 hours of admission. Rule 35 provides:

"(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.

…

(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.

(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) for his supervision or care".

The purpose of Rule 35 is to ensure that vulnerable detainees are brought to the attention of those with responsibility for authorising, maintaining and reviewing detention.

48. The overall balancing exercise: In Das (ibid) at paragraph [24] Lord Justice Beatson, having reviewed the cases on mental health, offending by foreign nationals, the risk of re-offending and the risk of absconding, stated this of the relationship between mental health and other policy considerations:

"24. Those cases … also show that these factors continue to be significant where the foreign national prisoner suffers from mental illness. Even where the policy now contained in §55.10 in principle applies, it will be necessary for the person considering detention to weigh the risk of harm to the public against the reason why that person would normally be regarded as unsuitable for detention. In the cases of those with mental illnesses who are not foreign national prisoners, the strength and weight of the policy concerning them will not be present. This means that, although the broad principles of assessment of the question whether detention is justified will be the same, some care should be taken in reading over from the result of the assessment of a case involving a person with a mental illness who is foreign national prisoner to the case of a person who is not".

(emphasis in original)

49. I have come to the conclusion that the Defendant has to date acted lawfully and it is not arguable to suggest otherwise. My reasons for this conclusion are as follows.
50. First, there is as yet no conclusive evidence that the Claimant does suffer from Wernicke-Korsakoff syndrome. There is a consensus of opinion that as of June/July 2014 he might have been and that it was a "likely" diagnosis but since then he has resumed eating and drinking and is doing so normally; there is however, no final diagnosis. Dr Hartree's careful and balanced opinion of September 2014 does not advance matters very much beyond this. There is as yet no outcome to his CT scan and he has not recently been subject to a full medical assessment. The Claimant's representatives have been arranging for the possibility of release into external accommodation and this is upon the basis that he could live, very largely independently (see paragraph [35] above). In my view based upon these facts it was not unreasonable of the Defendant to conclude that his detention should be continued and his healthcare could be catered for from within detention.
51. Secondly, there is no evidence that the Claimant's medical condition is being ignored. Ms Braganza criticised the Defendant for not having updated the Claimant's medical position and she drew attention to the concern ("a little concerned") expressed in late August 2014 by one official (see paragraph [34] above) to the effect that there had been no medical update since June. But that DR has laid down a marker and called for a fuller assessment and the chronology shows that the detention centre healthcare team are monitoring the Claimant's position daily. They have access to Dr Hartree's opinion of 24^th September 2014 and have put in train a fuller review to be included in the next DR post-September 2014. The evidence shows that the Defendant's officials have access to the Claimant's expert opinions. There is, in short, no evidence that the Claimant is not being monitored or that his position is not under review. Once again in these circumstances I cannot accept that the challenge to the Defendant's decision to keep the Claimant in detention is arguably unreasonable.
52. Thirdly, if I am wrong in this assessment, then I have to consider what impact the fact that the Claimant's condition is self-induced has upon the reasonableness of his detention and how this is to be balanced against the risks of reoffending and absconding which have been identified. His initial and his continued decision to refuse food and fluid was in order to impose pressure upon the Defendant to release him and it seems to be common ground that his present mental condition and his possible lack of capacity are due to the starvation effects of his food and drink refusal. I accept that when proven medical obstacles to continued detention are in play the fact that they may be self-induced is not conclusive against a detainee but neither is the fact irrelevant in the overall assessment to be made by the Defendant as was made clear in Das (ibid): see quotation at paragraph [48] above. The impact of these considerations was also addressed by the Court of Appeal in IM (Nigeria) v SSHD [2014] EWCA Civ 1561 at paragraphs [42] – [45]. In that case the fact that the detainee refused to consent to treatment was considered to be of real significance by Lord Justice Lloyd Jones who analysed the situation of a deliberate refusenik as either being outside the ambit of the present policy of the Secretary of State, or, an exceptional circumstance warranting continued detention:

"42. There is therefore, no reason to conclude that the respondent has by these statements of policy in any way renounced her statutory powers or limited them in the manner suggested. The respondent's published policy does not prevent the removal to hospital in detention of a detainee whose serious medical condition cannot be managed satisfactorily in a removal centre and, accordingly, it does not require his release from detention to enable him to receive hospital treatment.

43. How, if at all, do these policies apply in this case? In normal circumstances where a detainee is suffering from a serious medical condition which cannot be satisfactorily managed in an IRC, the policy would require his removal in detention to hospital, save in very exceptional circumstances. However, as the judge explained, the premise for the assessment of an individual as unfit for detention in a removal centre leading to removal to a hospital for treatment is that the detainee will consent to treatment. In light of the appellant's refusal to receive medical treatment (a refusal which, it should be noted, extends not only to treatment of his condition but also to any medical care that would make him more comfortable) I consider that the respondent is entitled to conclude, as matters presently stand, that notwithstanding the appellant's serious medical condition, the policy does not require his removal in detention to hospital. While it could be concluded, as the judge did, that as long as the appellant continues to refuse medical treatment of any kind his condition can be as satisfactorily managed within an IRC as in a hospital, I should prefer to put it on the ground that the continuing refusal of the appellant to accept any medical treatment removes his case from the scope of the policy statements relied on by the appellant because they simply did not envisage such a case.

44. It should be noted that counsel for the respondent has at no point in these proceedings maintained that the decision to continue the appellant's detention was made on the basis of the existence of very exceptional circumstances, as referred to in Chapter 55.10. However, she has submitted that, if necessary, it would be open to the respondent to conclude that such circumstances do exist in the present case and that the continued detention of the appellant could be justified on that basis. In the light of the conclusion to which I have come on the effect and applicability of the published policies, it is not necessary to decide whether there are present here very exceptional circumstances which would justify departure from them. However, if it were necessary to decide it I should conclude, in agreement with the judge, that the facts of the present case are capable of amounting to very exceptional circumstances justifying such a departure. I come to that conclusion, not because the appellant's condition can be considered to be self-inflicted, but because of his continuing refusal to consent to medical treatment unless released, a refusal which, as matters presently stand, is a matter of his free choice made with capacity to make it".

53. Fourthly, Ms Braganza was critical of the fact that in the Detention Reviews there was confusion and inconsistency she submitted, as to the level or categorisation of risk of re-offending, absconding and to the public. He has been assessed as being of "medium risk" by certain officials but as of "high" or even "very high" risk by others. In my view what matters is not so much the label (high, medium or low) but the substance and as to this there has been no change in the view of the SSHD over the entire period of the Claimant's detention. The facts upon which the SSHD's assessment has been made are not seriously open to challenge: he did enter the country illegally; he did commit a criminal offence which did involve the use of false documents; he has proved himself capable of remaining under the radar for a prolonged period; if released he would have no obvious means of sustaining himself and thereby he might have an incentive to return to crime in order to support himself; and he would have a strong incentive to abscond. Given these hard facts whether they amount to a "medium" or "high" or "very high" risk is somewhat beside the point. Based upon these facts the Defendant's decision was clearly reasonable. It is not in my view arguable to suggest otherwise.
54. Fifthly, it is important to note that the conclusion I have reached is one made as of the date of the challenged "ongoing" decision and which takes account of evidence submitted subsequent to the application for judicial review. Ms Anderson, for the Secretary of State, submitted that the Claimant was premature in the sense that his position might alter in the light of the CT scan and/or in the light of a fuller assessment of his mental condition than now exists and that the Secretary of State had a continuing responsibility of supervision. If, for the sake of argument, a full and comprehensive assessment led to the conclusion that he was suffering from incapacity or a serious condition that could not be treated in detention then the position might be different. The Secretary of State might then have to reconsider her decision. But that stage has not yet been arrived at.
55. In conclusion, applying an anxious Wednesbury approach which has involved a thorough analysis of all the evidence, the decision of the Defendant to continue with detention of the Claimant has not been shown to be arguably wrong.

(ii) The duration of detention: Hardial Singh principles.

56. I turn now to the second issue which is whether removal can occur within a reasonable period of time. It is not disputed that it is for the Court itself to determine the answer to this question: See e.g. R (A) v SSHD [2007] EWCA Civ 804 per Toulson LJ at paragraph [62] and per Keene LJ at paragraph [74]; and Kambadzi v Home Secretary [2011] UKSC 23. The assessment is to be made as of the date of the decision in question and not with the benefit of hindsight: Hussein v SSHD [2009] EWHC 2506.
57. The principles governing this question were set out in the decision of Woolf J in R v. Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704. Today the most oft-cited formulation is by Lord Justice Dyson (as he then was) in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 at [46]. More recently in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, at [22] Lord Dyson JSC affirmed the Hardial Singh principles. He summarised them in the following way:

1. The Secretary of State can only use the power to detain for the purpose of deporting the detainee;

2. the period of detention must be no longer than that which is reasonable in all the relevant circumstances;

3. if before the end of that period it becomes apparent that it will not be possible to effect deportation within it the power should not be exercised; and,

4. the Secretary of State should act with reasonable diligence and expedition to effect removal.

58. In Lumba (ibid) Lord Dyson observed that the Hardial Singh principles reflected basic public law duties to act consistently with the statutory purpose and reasonably in a Wednesbury sense. He also held that the principles were not exhaustive and included the public law duty of adherence to published policy. Ms Braganza submitted that the sorts of considerations relevant to this question included: the duration of the detention to date; the nature of outstanding obstacles to removal; the diligence of steps taken by the Secretary of State; the detainee's conditions of detention; the effect of detention on the detainee; the risk of absconding or of the commission of further offending.
59. It is clear as Ms Braganza submitted that a person's mental health will affect the determination of what is a reasonable period for which to detain that person: see Baroness Hale in Lumba (ibid) at [218] and Dyson LJ in M v Secretary of State for the Home Department [2008] EWCA Civ 307 at [39] - where detention has caused or contributed to a person suffering mental illness that was a factor which "in principle" account should be taken of in assessing the reasonableness of the length of the detention. In such cases a critical question remains whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering.
60. In my view the Hardial Singh principles have not in this case been breached, nor arguably so. I summarise my reasons as follows.
61. First, my view on the Claimant's medical (mental) condition is set out above. As matters stand I accept the Defendant's analysis that the Claimant's position can be treated within detention but that assessments are not completed and will be kept under review. Of course things might change but at present there is no adequate reason why he cannot be treated in detention. I do not ignore his medical condition but it must be seen in context.
62. Secondly, BCZ's appeal to the First Tier Tribunal is imminent. Judgments from the Tribunal usually follow relatively shortly after a hearing. Applications for permission to appeal which must be made to the First tier Tribunal (if the Claimant loses) take a matter of weeks. Thereafter, if permission is not granted a paper application for permission to the Upper Tribunal can follow and, if permission is granted, an appeal would follow within a relatively small number of months thereafter. If that fails the Defendant will have to arrange the ETD prior to removal and there is evidence that this is problematic. Any projected timetable is of course always subject to uncertainties and vicissitudes. Ms Braganza projected a possible timescale of 12-15 months before removal (she submitted that removal would be not before the end of 2015 or the start of 2016) to which she then added the circa 6 months plus that the Claimant has been in detention already. She said that in the circumstances this was unreasonable and excessive. She argued also that this might be even longer because the Claimant would be applying for an adjournment of the imminent appeal in order to obtain a fuller medical report and their chosen expert was not available to conduct an examination of BCZ until after the date presently fixed for the appeal hearing. Ms Anderson submitted that it was wrong to seek to engage in future temporal speculation. The process was far too uncertain: the expert might become available earlier; the Tribunal might anyhow refuse to adjourn; the Claimant might seek expedition which might be granted; he might win his appeal, etc. And in any event if the amount of time that judicial proceedings took, and during which every appellate avenue and every opportunity for forensic delay was explored and exploited, became a relevant and powerful consideration this would lead to almost every detainee who appealed being released. I accept this analysis. It is consistent with the approach adopted by the Courts: See citation at paragraph [65] below.
63. She submitted that in relation to the Hardial Singh principles the first principle was plainly satisfied since the Defendant was detaining the Claimant for the legitimate purpose of removal. The legitimate purpose is detention pending removal where "pending" does not mean "imminent": See e.g. per Lord Brown in Khadir v SSHD [2005] UKHL 39.
64. As to the second principle the period of detention was no longer than was reasonable in all the circumstances: the risk of absconding and the risk of re-offending were well established by the evidence and not seriously disputed; the Claimant's mental condition could be adequately addressed from within detention but was in any event a factor which was under review; the appeal was imminent and there was no reason to assume therefore that removal was not therefore pending; there was no reason to assume that if urgency was required in order to take account of the Claimant's mental health condition that this could not be catered for. I accept his analysis.
65. As to the third Hardial Singh principle this applies where it is clear on the material available to the decision that there is no real prospect of effecting deportation within a reasonable period. Ms Anderson underlined that there was a "sufficient prospect" of removal in this case and that to establish otherwise there must be "no" prospect and that it was not enough that the prospects may be low or uncertain: See Muqtaar v SSHD [2013] EWCA Civ 1270 per Lord Justice Richards at paragraphs [37]-[38]:

"37. Mr Husain submitted that for continued detention to be lawful it was necessary for the Secretary of State to identify the timescale within which removal could be effected, whereas in this case the timescale was wholly uncertain. An argument along those lines was rejected in R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112. At para 64 of my judgment in that case (with which the other members of the court agreed) I referred to the approach taken by Toulson LJ in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, to the effect that there must be a "sufficient prospect" of removal to warrant continued detention, and that what is sufficient is a question of balance in each case. I continued:

"65. I do not read the judgment of Mitting J in R (A and Others) v Secretary of State for the Home Department as laying down a legal requirement that in order to maintain detention the Secretary of State must be able to identify a finite time by which, or period within which, removal can reasonably be expected to be effected. That would be to add an unwarranted gloss to established principles …. Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again, the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors …."

38. Mr Husain submitted that that reasoning cannot live with the formulation of the Hardial Singh principles by the Supreme Court in Lumba, in particular at paras 103-104 where Lord Dyson said that a convenient starting point in the application of the principles to Mr Lumba's appeal was "to determine whether, and if so when, there is a realistic prospect that deportation will take place" and that "if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful", and where he went on to identify factors relevant to the question of how long it is reasonable to detain a person pending removal. There is nothing to show, however, that Lord Dyson was intending to address the point made in the passage quoted above from MH, and there does not seem to me to be any inconsistency between his observations and that passage. I adhere to the view that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. At the time of receipt of the rule 39 indication in the appellant's case, although it was not possible to say when the ECtHR proceedings would be concluded, there was nonetheless a realistic prospect of their being concluded and of removal being effected within a period that was reasonable in all the circumstances".

(emphasis added)

66. In my judgment there is a sufficient prospect of removal based upon the undisputed facts that he is an illegal immigrant with a criminal record. I cannot pre-judge the Tribunal's view on BCZ's asylum appeal but it is quite clearly not so overwhelming or strong that the Defendant was not entitled to take the view she did.
67. As to the fourth Hardial Singh principle the Defendant is moving with all due speed. Such delays as might occur are due to the Claimant's mental health, a problem which is entirely self-induced.

E. Conclusion

68. In the circumstances that have arisen I have reviewed the facts in an intensive manner. This is consistent with the fact that, even when determining arguability for permission purposes, the Court might have to grapple with a complex factual history in the context of grounds which require the Court itself to form a view of what is reasonable under the Hardial Singh test. I have concluded that the application fails. It is not arguable.
69. I would only add that the Claimant's case was well prepared, cogently presented and forcefully argued. I am grateful to both counsel for the assistance provided to me.