QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
SITTING AS A DEPUTY HIGH COURT JUDGE
| THE QUEEN (on the application of HOD,
by the Official Solicitor as his litigation friend)
|- and –
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Julie Anderson (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 3rd and 4th February 2015
Crown Copyright ©
HIS HONOUR JUDGE BLAIR QC:
The Claim and its presentation
i) Unlawful detention – Hardial Singh principles;
ii) Application of the unlawful Cullen policy to operate a blanket presumption in favour of detention; and
iii) Mental illness.
i) A declaration that the Claimant was unlawfully detained and/or in breach of articles 3, 5 and 8 ECHR;
ii) Damages under the common law for the tort of false imprisonment including aggravated and/or exemplary damages and/or damages under the Human Rights Act 1998, to be transferred to the Queen's Bench Division if not agreed, in respect of any period of detention that is found to be unlawful;
The relevant legal principles
"(1)…he shall…be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case…"
"(3) Where a deportation order is in force…he may be detained under the authority of the Secretary of State pending his removal…(and if already detained by virtue of sub-paragraph (1)…when the order is made, shall continue to be detained unless…the Secretary of State directs otherwise)."
"47. I have no doubt that the Hardial Singh principles apply to detention under paragraph 2(1) of Schedule 3. The purpose of detention under that paragraph is to facilitate deportation and in the absence of any indication to the contrary Parliament must be taken to have intended that persons should be detained only for that purpose. Once the purpose of detention has become incapable of being achieved, detention can no longer be justified and it cannot have been Parliament's intention that it should then continue. In my view Parliament must also have expected the Secretary of State to act with reasonable diligence and expedition to remove the detainee and must, in the absence of any contrary indication, be taken to have intended that detention should continue only for a reasonable period..."
"56. …The mandate to detain is made expressly subject to two conditions. One is that the mandate only operates 'pending the making of a deportation order'…and is the foundation of the Hardial Singh doctrine."
"57. The other condition, expressed in 'unless' form, is that the mandate for detention ceases if the Home Secretary directs release. Such a condition necessarily places upon the Home Secretary an obligation (not merely a discretion) to consider provisional release in all paragraph 2(1) – and by extension paragraph 2(3) – cases. Such an obligation…does logically require review at reasonable intervals…
"66. …As Lord Justice Moore-Bick says, Hardial Singh can be properly seen as giving effect to Parliament's intentions rather than qualifying them, particularly if, as I have suggested above, the express purpose of paragraph 2 of Schedule 3 is to facilitate prospective deportation, so that, once the prospect has ceased to be real, the paragraph has no purchase."
(1) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(2) the deportee may only be detained for a period that is reasonable in all the circumstances;
(3) 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;
(4) the Secretary of State should act with reasonable diligence and expedition to effect removal.
The relevant facts on the first Ground – unlawful detention – Hardial Singh principles
Claimed nationalities and identities
Efforts to determine the Claimant's true identity & nationality so as to deport and the Claimant's conduct
"We need to do all we can to progress the case. He should be visited by our staff/immigration staff to progress the ETD [Emergency Travel Document] issue as fast as possible and persuade him to see Nigerian High Commission people. We should make direct contact with the Nigerian HC to press them for ETD as a matter of urgency as a humanitarian case. Let me know of progress if things deteriorate at all."
"In short, when does the Secretary of State expect to be able to deport Mr [E] and what is the basis of that expectation?"
"…To date Mr [E] has claimed at least 10 different nationalities. He continues to claim that he is an adopted Canadian citizen, even though we have evidence that he is not a Canadian citizen and the Canadian authorities have no record of his adoption in the country. He is currently claiming that he is from the Bahamas, again we have made contact with the relevant authorities in the Bahamas and they have no record of his birth in their country – even after checking the 13 different names Mr [E] has provided to us. A couple of months ago Mr [E] claimed that he was from Antigua, again no trace of him has been found there either.
As made clear in the psychiatric assessment from Colne Ward, and by Mr [E's] own words, he is a compulsive liar and is refusing to provide his true details in relation to his nationality and identity to frustrate our attempts to deport him from the United Kingdom.
Mr [E] has consistently used deception in his dealings with the UKBA; by entering the United Kingdom illegally; by attempting to leave the United Kingdom on a document that he is not entitled to use; by constantly providing us with different names and nationalities in order to conceal his true identity.
You can be assured that Mr [E's] detention is reviewed monthly by senior officers in UKBA, and that he is informed of the reasons for his detention. Mr [E's] detention remains lawful whilst we attempt to investigate his case with the Nigerian authorities. The Nigerian authorities are conducting checks in an attempt to correctly identify Mr [E]."
"[the] Nigerian officials have agreed to continue to work with the UKBA in order to issue an ETD; in this respect a report has been drafted for submission to the Heads of Immigration at the High Commission in London and Abuja. It is hopeful that an agreement for the issue of an ETD will be made shortly."
The Immigration Judge dealing with the bail application has written:
"I have been told that the Nigerian authorities accept that the applicant is Nigerian and are prepared to provide documentation to assist removal. It follows that removal is likely within a reasonable time…"
"[the] Nigerian officials have not been able to provide us with a timescale of when an ETD would be issued. The issue of documentation for Mr [E/B] is no longer if he will be issued with an ETD, but when. This decision will be made by the Nigerian officials and we are hopeful that a decision will be made shortly."
"…there has still been no removal and no formal documentation indicating acceptance of the applicant's supposed nationality. The absence of such documentation is troubling but not so troubling as to cause me to doubt the reliability of the current assurances from the Home Office. That confidence in the assurances might well be displaced if the appellant is not removed in timely manner and if at any future bail hearing there is still no formal documentation establishing that the Nigerian authorities have, as is now directly stated, accepted the applicant's nationality. On the material before me I conclude that the appellant's removal is reasonably imminent and I refuse bail."
"I am confident that with the new information obtained through investigations that we will receive the travel document and that removal will take place within the next 2-3 months."
In other words by about the end of 2010.
"… The case owner continues to be proactive in investigating identity in this very difficult non compliant case and at present action on establishing identity of this Nigerian national is focussed on obtaining information from his sister and other sources of information..."
The September and October 2011 Detention Reviews use exactly the same wording.
The relevant facts on the second Ground - Application of the unlawful Cullen policy to operate a blanket presumption in favour of detention
The relevant facts on the third Ground – mental illness
"It is clear that when assessing whether to detain a person known to have a mental illness particular care is needed: the Secretary of State, through her officials, should consider whether particular arrangements should be made to monitor a detainee's welfare or for signs of deterioration (see Beatson LJ in Das at ). If, however, the Secretary of State has fulfilled her duty to ensure that suitable particular arrangements are in fact put in place for detainees with particular needs, in my judgment, it is not necessary (or appropriate) as a matter of public law that knowledge of all healthcare staff in the system is then automatically 'deemed' to be that of the Secretary of State."
"- He is very much depressed
- Stated he has lost his mother
- Good eye contact
- No suicidal nor self-harm ideation. But he needs a quiet place whilst he is still grieving.
- To see m/o. Requesting single cell."
"18. I have noted your claims regarding your client's medical state and we are fully aware of incidents that have occurred since your client was re-detained. However, you can be assured that his situation has been closely monitored throughout this period both by various staff, including healthcare professionals, based at the removal centre he has been in, and by the unit responsible for managing your client's case. Your client's fitness for detention has been reviewed throughout this period and he is deemed fit for continued detention. I am also aware that your client has access to and indeed has utilised the healthcare services within the removal centres he has been in and we are entirely satisfied that they can adequately deal with any medical issues your client may have."
"The health records since [the Claimant's] return from Harmondsworth do not suggest further attempts at self-harm, and continue to demonstrate inputs and reviews by trained and qualified clinicians, including those trained in psychiatry. [The Claimant] has remained throughout on the VPU, where there is close supervision by officers, regular reviews by clinicians and awareness of any significant changes in behaviour.
Neither Dr Sen (in November 2009) nor Professor Katona (June 2009) reach a definitive view about diagnosis…
It is unclear if these self-harm acts are deliberate attempts at protest or attentive-seeking or a function of an abnormal mind…"
He agreed it would be appropriate for a 3-4 week placement in a specialist secure unit with multi-disciplinary expertise for regular observation, where any inconsistencies in the Claimant's presenting mental state would be examined.
"…There were no signs of acute mental illness observed throughout this period. The team rigorously carried out repeated observations and interviews, mindful of the complexities including the lack of information and the inconsistencies in the history. We acknowledge that there was no evidence of acute mental illness including depression, hypomania, psychosis. We cannot comment about past history due to lack of corroborative history. However we accept [the Claimant] understandably experiences considerable distress due to his frustration related to his immigration status. He is likely to act out when he is frustrated and has demonstrated a low tolerance to frustration…At present we did not feel there was any need to add any psychotropic medication and the low dose of citalopram was sufficient to manage anxiety as he did not need higher antidepressant doses. He is aware of our views and agrees he does not suffer from major mental illnesses."
Conclusions of fact