QUEEN'S BENCH DIVISION
B e f o r e :
|ON THE APPLICATION|
|OF ANDRIUS ZALYS||Claimant|
|- and -|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
J. Anderson (instructed by the Government Legal Department) appeared on behalf of the Defendant
Crown Copyright ©
MR JUSTICE SAINI:
This judgment is divided into 5 parts as follows:
I. Overview paras. [1-11]
II. Legal Principles paras. [12-17]
III. The Facts paras. [18-38]
IV. The Grounds paras. [39-48]
V. Analysis - paras. [49-52]
VI. Conclusion - paras. [53-64]
II. Legal Principles
"Where other factors appear to be evenly balanced it is a counsel of
prudence to take such measures as are calculated to preserve the status quo."
III. The Facts
"He has scars on his body which are documented on the body map. He is complaining of nightmares, flashbacks, anxiety and hyperarousal symptoms, suggesting PTSD, so we have referred him to our mental health team on an urgent basis for further assessment. He also has self-harmed whilst in detention and has been on ACDT. Furthermore, he reports two mental health admissions to the hospital in Lithuania. In addition to his mental health, he is currently suffering from TB and is on medication for this, as well as Subutex for his opiate addiction. We note alcohol depending in the past as well. In view of the multiple mental and physical health problems, in our opinion, as a GP, detention is and will be likely to continue to have a negative impact on his physical and mental health."
"Reason for balance: the panel recommended to maintain detention and monitor the appeal. The First Tier heard and an outcome is anticipated shortly. The CPP suggested case owner chose r.35 decision as a priority. The CPP reviewed Mr Z's AARL2, agreed, although a recent ACDT vulnerability plan opened on 02/03/2020, no new concern raised via healthcare, well-being appears to be managed well and AARL2 engaged. The CPP noted Mr Z's harm risk, agreed elements of public protection, reasonable grounds to maintain detention. The CPP agreed, as there is a prospect of removal, dependent on the outcome of the appeal and r.35 application. There is a UK letter for travel, CPP agreed removal clear case progression, CPP agreed removal anticipated in a reasonable time scale."
The panel decision was a recommendation to maintain detention.
"On 1 April 2020, the Defendant considered and addressed the rule 35 report. The Defendant accepted that the Claimant fell to be considered at Level 3 of the AAR policy. The Defendant gave detailed consideration to the risk factors and the competing immigration factors. The decision letter noted:
'You have been assessed at level 3, of the Adults at Risk Detention Policy and the Medical Practitioner has referred you for evaluation regarding your mental distress (to confirm that you have PTSD) to the Mental Health Team as per protocol, as yet no date has been confirmed. Your other associated conditions, TB, opiate and alcohol dependency have been prescribed for and your situation is being monitored and managed.
With regard to your assessment at level 3, the AAR Policy advises that: "Where on the basis of professional and/or official documentary evidence, detention is likely to lead to a risk of harm to the individual if detained for the period identified as necessary to effect removal, they should be considered for detention only if one of the following applies: the individual presents a significant public protection concern, or if they have been subject to a 4 year plus custodial sentence"'.
When balancing the factors in regard to your circumstances and specifically your previous convictions, it is clear that you are considered to be a significant public protection concern and any decision to maintain can be seen to be in adherence to the stated policy.
You are removable by EU Letter and once the appeal outcome is promulgated and should it be dismissed, without prejudice, this can be obtained within 5 working days. However, this is balanced against any difficulty in effecting removal at the current time and with current circumstances this is very difficult to predict.
A primary consideration in relation to detention is the imminence of removal, in your case, as mentioned previously, there is an outstanding appeal against Deportation for which you had your First-Tier substantive hearing on 13 March 2020, and we await the Determination which has been reserved. Without prejudice to the outcome of your appeal, it is considered that removal could be achieved, in the event that your appeal is refused, within 12 weeks. But it is acknowledged that this is extremely difficult to establish due to the current restrictions on flights and therefore may in fact take longer.
The presumption to liberty has been considered along with alternatives to detention, however in light of the negative factors outlined above, it is considered that provisions associated with release would be insufficient at present to ensure the protection of the public with the risk factors associated and outlined above."
IV The Grounds
"But it is acknowledged that this is extremely difficult to establish due to the current restrictions on flights and, therefore, may in fact take longer."