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Cite as: [2011] EWCA Civ 909

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Neutral Citation Number: [2011] EWCA Civ 909
Case No: C4/2010/2148

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
HHJ McMULLEN QC

[2010] EWHC 2147 (Admin)

Royal Courts of Justice
Strand, London, WC2A 2LL
28/07/2011

B e f o r e :

LORD JUSTICE WARD
LORD JUSTICE RICHARDS
and
LORD JUSTICE HUGHES

____________________

Between:
The Queen (on the application of OM acting by her Litigation Friend, the Official Solicitor)
Appellant
- and -

Secretary of State for the Home Department
Respondent

____________________

(Transcript of the Handed Down Judgment of
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____________________

Ranjiv Khubber and Gilda Kiai (instructed by Lawrence Lupin Solicitors) for the Appellant
Eleanor Grey QC and Julie Anderson (instructed by The Treasury Solicitor) for the Respondent
Hearing date : 11 July 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Lord Justice Richards :

  1. The appellant is a 33 year old woman of Nigerian nationality who suffers from mental illness. She entered the United Kingdom illegally and made an unsuccessful claim to asylum and under the European Convention on Human Rights. Following her conviction of criminal offences, a decision was taken to deport her. On 8 August 2008 she was released from prison into administrative detention pending deportation. In December 2009 she brought judicial review proceedings to challenge the lawfulness of her continuing detention and the refusal by the Secretary of State to treat her further representations as a fresh claim. The judicial review claim was heard on 22-23 July 2010 by His Honour Judge McMullen QC, sitting as a deputy High Court Judge. In a judgment handed down on 13 August 2010 he dismissed both aspects of the claim (see [2010] EWHC 2147 (Admin)). Permission to appeal to this court was granted in the light of the decision of the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671, to which must now be added the decision of the Supreme Court in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23, [2011] 1 WLR 1299.
  2. In order to explain the issues I need first to outline the facts. The case is one of some complexity but I propose to cut matters back to the essentials. Reference can be made to the judgment below for further detail.
  3. Factual outline

  4. The appellant entered the United Kingdom illegally in November 2003, together with her 3 year old son, S. Her claim for asylum was refused, and an appeal on grounds of asylum and under articles 3 and 8 ECHR was dismissed in July 2004. In August 2004 she either entered or indicated an intention to enter a plea of guilty to an offence of child cruelty, relating to her son S, who had been admitted to hospital with multiple injuries soon after their arrival in this country. She failed to attend a hearing fixed for February 2005 and she absconded for a period of over 2 years thereafter. During that period, in July 2005, she gave birth to a daughter, M. In September 2007 she was arrested and detained in connection with a further offence, namely the possession of a false instrument (a false identity document used in an attempt to open a bank account). She was convicted of that offence and was sentenced in December 2007 to 9 months' imprisonment. Her link with the earlier offence was established only at a later date and resulted in her being brought back before the court in April 2008, when her plea of guilty to child cruelty was either entered or confirmed. On 21 July 2008 she was sentenced to 12 months' imprisonment for that offence and to a concurrent 3 month sentence for breach of bail. The sentencing judge also made a recommendation for deportation.
  5. A decision to deport was made on 5 August 2008. Because of the time spent in custody on remand, the appellant was due for release from her custodial sentence on 8 August 2008. She was released on that day from prison into administrative detention.
  6. An appeal against the decision to deport was dismissed in December 2008, save that the tribunal held that it would not be proportionate to deport the appellant while care proceedings in respect of her child M were unresolved: those proceedings are described below. On 19 June 2009 the appellant's solicitors made representations requesting that the decision to deport be reversed or that the representations be treated as a fresh claim. There was a lengthy delay before the Secretary of State, on 14 December 2009, refused the request. Further representations led to a further decision, on 26 April 2010, that the conditions for a fresh claim were not met. Throughout this period, various applications for bail were either withdrawn or refused.
  7. The charge of child cruelty led to care proceedings in respect of S, the outcome of which was that in March 2005 a residence order was made in favour of S's father and the boy was returned to Nigeria. There were later proceedings in respect of M, which were determined by His Honour Judge Turner QC in the Family Division on 25 June 2009. He made a care order and a placement order with a view to M's adoption. The position at the end of July 2010 was that contact between the appellant and M was limited to two hours every two months and was sought to be reduced, with the prospect of a single goodbye meeting once the appellant was deported or M was given to adoption. Since that time an appeal against the continuance of the placement order has been dismissed and contact has been ended in anticipation of the appellant's deportation.
  8. The present judicial review proceedings were issued on 16 December 2009. Permission to apply was refused on the papers but was granted on 13 May 2010 on a renewed oral application. An expedited hearing was ordered. Judge McMullen's judgment on the substantive claim dealt with the position up to the beginning of the hearing on 22 July 2010. At that time the appellant was still in detention. Thereafter she remained in detention until just before the hearing of the appeal before this court. On 6 July 2011, however, she was released on bail as a result of a further, and this time successful, application to a tribunal judge.
  9. The appellant's mental health

  10. It is not in dispute that the appellant suffers from mental illness, though there has been a disagreement as to the extent of her problems and how best to manage them. Judge McMullen referred to this at some length in his judgment, from which I take the following:
  11. "33. Throughout the whole period of her imprisonment and detention the Claimant has demonstrated the effects of her psychotic illness by self harm, difficult relations with others and attempted suicide. In short the Claimant has been under supervision in prison and detention and has been transferred from both to hospital as a result of self harm throughout the almost three years of her remand, imprisonment and detention.
    34. Dr Olajubu, specialist registrar in forensic psychiatry gave his report on 29 May 2008 for the purposes of sentencing at Snaresbrook. He confirmed his diagnosis of recurrent depressive disorder and emotionally unstable personality disorder but this was not of such a nature as would fulfil the criteria for treatment under the Mental Health Act 1983. [I]f the Claimant was sentenced to imprisonment 'she could continue to receive ongoing psychiatric follow up from the prison "In Reach" team and individual psychological interventions as deemed appropriate'. This report was extant at the time of the deportation decision. The Defendant's officials plainly knew of it .
    35. Professor Katona made the first of a series of reports on 30 April 2009. He agreed with the diagnosis of Dr Olajubu and disagreed with findings of previous immigration Judges refusing bail on the ground that the Claimant is better off in detention. He gave his opinion that her health was likely to deteriorate in response to continued detention. She was not suitable for treatment under the Mental Health Act 1983. By 21 September 2009 her condition had deteriorated considerably and she would now benefit from hospital treatment. He recommended transfer under section 48 of the Mental Health Act. The deterioration was due to detention. On 10 October 2009 his opinion was that the Claimant had significantly deteriorated to the extent that she was no longer able to conduct her proceedings and she should be transferred to hospital under section 48.
    36. Dr Shah acting consultant at Bedfordshire and Luton Mental Health and Social Care Partnership NHS Trust on 21 February 2010 acknowledged the diagnoses previously given of Doctors Mann, Olabuju and Professor Katona. The Claimant was admitted to Dr Shah's care because she attempted to hang herself. Professor Katona again examined her and gave a report dated 1 March 2010. He noted her continued deterioration due to her continued detention and reiterated his opinion that she should be transferred under section 48.
    37. Nurse Munday examined the Claimant at hospital, where the Claimant was being held. She gave her opinion that her health problems could not be met adequately in her current setting i.e. at Yarl's Wood. She assessed a risk of harming children on grade 3 within a risk of 0 to 3. She was at risk of suicide, deliberate self harm and other offending behaviour at 2 giving her a summary risk to herself of 2 and risk to others of 3. That is why on 15 March 2010 Dr Ratnayake consultant psychiatrist at Bedfordshire leading a team of himself, another consultant psychiatrist and Nurse Munday decided that the Claimant's needs were met at Yarl's Wood where she would be under constant observation. Hospital admission would not provide management different to that. She was discharged back to Yarl's Wood.
    38. On 23 March 2010 Professor Katona considered this report and other materials and disagreed with it to some extent. Professor Katona pointed out that the opinion of Dr Ratnayake as to the best place for constant supervision was disputed by Dr Shah, Mr Kupshnik and Ms Munday all of whom recommended psychological intervention in a secure in-patient setting."

    The relevant policy framework

  12. Paragraph 55 of the Secretary of State's Enforcement Instructions and Guidance sets out the policy relating to detention and temporary release. Paragraph 55.1.1 refers in general terms to a presumption in favour of temporary admission or release and the use of alternatives to detention wherever possible. Paragraph 55.1.2 states that foreign national prisoners, who are dealt with by the Criminal Casework Directorate ("CCD"), are subject to the general policy but that the nature of these cases means that special attention must be paid to their individual circumstances; and where the criteria for deportation are met, the risk of re-offending and of absconding should be weighed against the presumption in favour of temporary admission or release. Further, "[d]ue to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained ". This is picked up and developed in paragraph 55.1.3, and further guidance on factors influencing a decision to detain is given in later paragraphs.
  13. Against this must be set what is said in paragraph 55.10 about those suffering from mental illness, under the heading "Persons considered unsuitable for detention":
  14. "Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere. Others are unsuitable for Immigration detention accommodation because their detention requires particular security, care and control. In CCD 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.
    The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere:
  15. The effect of the policy as it applies to the mentally ill was considered by Cranston J in R (Anam) v Secretary of State for the Home Department [2009] EWHC 2496 (Admin), at [51]-[55]. It suffices to quote his conclusion at [55]:
  16. "The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy. The phrase needs to be construed in the context of the policy providing guidance for the detention of all those liable to removal, not just foreign national prisoners. It seems to me that there is a general spectrum which near one end has those with mental illness who should be detained only in 'very exceptional circumstances' along it the average asylum seeker with a presumption of release and near the other end has high risk terrorists who are detained on national security grounds. To be factored in, in individual cases, are matters such as the risk of further offending or public harm and the risk of absconding. When the person has been convicted of a serious offence substantial weight must be given to these factors. In effect paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified."
  17. That passage was approved on appeal: see [2010] EWCA Civ 1140, per Black LJ at [81]. It was accepted before us by Mr Khubber, on behalf of the appellant, as representing the correct approach towards the policy in the case of the mentally ill.
  18. We were told that the policy has been amended with effect from 25 August 2010 by the addition of the words "which cannot be satisfactorily managed in detention" after the reference to mental illness. We do not have to consider the application of the amended policy in this case.
  19. The judge's findings

  20. Judge McMullen found that the Secretary of State had failed to take into account paragraph 55.10 of the policy when considering the justification for the appellant's detention between 8 August 2008 (when detention commenced) and 28 April 2010: I shall refer to that as "the first period". The policy was, however, taken into account from 29 April 2010 (when it was first mentioned in a detention review) up to the date of the hearing before the judge on 22 July 2010: I shall refer to that as "the second period".
  21. As to the first period, the judge went on to find in substance that the failure to take the paragraph into account did not cause the detention, since the decision to detain would have been the same if the policy had been properly considered and applied. On that basis, applying the law as it was understood at the time, he dismissed the claim for false imprisonment in relation to the first period.
  22. It largely followed from the reasons given in respect of the first period that he also found the continuing detention to be lawful during the second period.
  23. In reaching those conclusions he also rejected a parallel argument that the period of detention had become unreasonable and unlawful under the principles in R v Governor of Durham Prison, ex p. Hardial Singh [1974] 1 WLR 704.
  24. The final relevant aspect of the judge's decision was his finding that the Secretary of State had been entitled to reject the contention that the further representations made on the appellant's behalf amounted to a fresh claim on the basis set out in paragraph 353 of the Immigration Rules.
  25. The issues in the appeal

  26. The shape of the issues in the appeal to this court has been significantly affected by the decisions of the Supreme Court in Lumba and Kambadzi, referred to at [1] above.
  27. It was held in Lumba that where a public authority has power to detain but exercises the power in breach of the principles of public law (at least in so far as the breach bears on and is relevant to the decision to detain), the detention is unlawful and it is not a defence to an action for false imprisonment to show that the lawful exercise of the power could and would have resulted in detention. On the facts of the case, since the detention had been based on unlawful policies, the claims in false imprisonment succeeded; but since it was inevitable that the appellants would have been detained if the power to detain had been exercised by the application of lawful policies, they had suffered no loss and were entitled only to nominal damages. Kambadzi was to similar effect: it was held that a failure to carry out regular detention reviews required by the relevant policy rendered detention unlawful and established the tort of false imprisonment; and that the question whether detention would have occurred if lawful detention reviews had been carried out went only to the quantum of damages.
  28. In the light of those decisions, the Secretary of State has now conceded that the appellant's detention during the first period (8 August 2008 to 28 April 2010) was unlawful, since during that period there was a failure to take into account the paragraph of the policy relating to mental illness. The contention advanced, however, is that the appellant is entitled only to nominal damages, since she could and would have been detained in any event on the lawful application of the policy.
  29. That, in turn, has thrown up an issue as to the test to be applied when determining what, if any, loss was caused by the unlawful detention. Mr Khubber submitted that the appellant was entitled to substantial damages unless she would "inevitably" have been detained by the lawful exercise of the power of detention. He based that submission on passages in Lumba where the word "inevitable" appears. For example, Lord Dyson stated in his overall conclusion at [169] that the appellants were entitled only to nominal damages "because, if the Secretary of State had acted lawfully and applied her published policy, it is inevitable that both appellants would have been detained". In my view, however, the use of that language is readily explained by the finding in the courts below, agreed with by the Supreme Court, that detention was "inevitable" on the particular facts (see e.g. per Lord Dyson at [60]). There are, moreover, passages in the judgments where the issue is discussed simply in terms of whether a person "would" have been detained if the decision had been taken lawfully (see e.g. per Lord Dyson at [93] and per Lord Kerr at [256]). Taking the judgments as a whole, I cannot discern any intention on the part of the Supreme Court to lay down a legal test of inevitability for determining whether only nominal damages are payable.
  30. Similar considerations apply to the judgments in Kambadzi. Indeed Lord Hope stated in Kambadzi at [56] that "an award of damages for false imprisonment is based on normal compensatory principles". It seems to me that on normal compensatory principles it would be for a claimant to prove his loss on the balance of probabilities. It well may be that in circumstances such as these the burden shifts to the defendant to prove that the claimant would and could have been detained if the power of detention had been exercised lawfully, but again I see no reason why the standard of proof should be anything other than the balance of probabilities.
  31. In reality, however, the debate is academic in this case. Irrespective of where the burden of proof lies and whether the standard of proof is balance of probabilities or inevitability, I am satisfied that the appellant would in fact have been detained during the first period if account had been taken of the paragraph of the policy relating to mental illness. That is clear from what happened in practice in the second period, from 29 April 2010, when the Secretary of State did take the relevant paragraph of the policy into account: the decision to detain the appellant was not only maintained but was defended vigorously in the judicial review proceedings. The question whether the appellant could lawfully have been detained is a matter of legal assessment in relation to which the burden and standard of proof are of no materiality. The assessment has two separate strands to it. The first, concerning the policy itself, depends on normal Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case? The second requires the lawfulness of continued detention to be assessed by reference to Hardial Singh principles.
  32. Those, then, are the two live issues in relation to the first period. Although they arise in a context where the appellant's detention is conceded to have been unlawful and they are relevant only to damages, they are much the same in practice as the issues that have to be addressed in determining the lawfulness of detention during the second period. It is therefore convenient to look at the first and second periods together when examining the issues, taking the application of the policy as one topic and the application of Hardial Singh principles as another topic.
  33. I should make clear that I propose to confine myself to the first and second periods, which are the subject of the judgment under appeal. Mr Khubber tentatively suggested that this court might also wish to consider the lawfulness of detention since the date of the judgment below (or since the date of the hearing before the judge). In my view, this is not an appropriate case in which to follow such a course. It would require consideration, effectively at first instance, of a substantial body of fresh evidence which was served on the appellant only a few days before the hearing and was not filed with the court. Account would have to be taken of the change to the relevant policy in August 2010 (see [13] above). Further, any concern about the appellant's continuing detention was removed by her release on bail prior to the hearing before us. If, therefore, she wishes to pursue a challenge to the lawfulness of detention between July 2010 and the date of her release on bail, she will have to do so in the normal way by separate proceedings.
  34. In addition to the issues relating to detention during the first and second periods, the appeal involves a separate question as to the correctness of the judge's finding that the Secretary of State was entitled not to treat the appellant's representations as a fresh claim. I will deal with that at the end of my judgment.
  35. The application of the policy

  36. At the heart of Mr Khubber's submissions was the provision in paragraph 55.10 of the policy that those suffering from mental illness will normally be considered for detention only in "very exceptional circumstances". He described this as a very strong presumption against the detention of the mentally ill. He accepted the need to factor in other considerations, such as the risk of further offending and the risk of absconding, and to strike a balance, as indicated in the passage from Anam quoted at [11] above. But he submitted that there were no very exceptional circumstances to justify the appellant's detention; or, to put the point the other way round, that there were no factors of sufficient weight to displace the very strong presumption against detention.
  37. The first factor to consider is the risk of reoffending. The judge said that the offence of child cruelty was very serious but that there could be no possibility of reoffending in that particular way because the appellant was separated from her children. But he referred to the fact that she had committed an offence of possessing a false instrument and to the risk of reoffending in relation to economic crime. He evidently considered that the Secretary of State was entitled to place substantial weight on the risk of reoffending.
  38. Mr Khubber contrasted the extent of the appellant's offending with the claimant's history of "prolific offending" in Anam (see [69] of the judgment of Cranston J in that case) and pointed to passages in the appellant's early detention reviews where it was said that the risk of reoffending had been assessed as low. He also submitted that the appellant, if released, would have been entitled at least to support under s.4 of the Immigration and Asylum Act 1999 and could have been expected to receive further support, as indicated by the fact that she is in the process of a community care assessment following her recent release on bail; and that this would reduce the risk of reoffending in relation to economic crime.
  39. Although some detention reviews said that the risk of reoffending was low, the general tenor of the material we have seen was to place substantial and in my view justifiable weight both on the risk of reoffending and on the seriousness of the harm that might result from reoffending. The judge put the main weight of his analysis on the risk of economic crime, but the offence of child cruelty was also a reason for serious concern. It was a serious offence, the precise circumstances of which were unclear. There was an obvious risk that the appellant, if released, would come into contact with children even though S had returned to Nigeria and M had been taken into care. It is not surprising that an assessment by the liaison nurse in March 2010 put the risk to children as "high". The appellant's mental state was an important consideration. For example, in refusing bail in January 2009, an immigration judge pointed to the psychiatric evidence that the appellant's anger could be directed internally or externally and observed that the risk of harm could not be minimised without successful psychological intervention. In a report in March 2010, Dr Ratnayake expressed the view that the appellant remained "very high risk due to her impulsivity and unpredictability"; and although the focus of his report was on risk to the appellant herself (an issue considered below), there were implications for risk to others if she were released from detention. It is notable that none of the medical experts at any time recommended her release into the community. Even Professor Katona's recommendation was for transfer to hospital, not for release. The detention reviews also pointed to the lack of support and funds available to the appellant in the community as a factor increasing the risk of reoffending. The judge rejected Mr Khubber's attempt to argue that the appellant was at all times entitled to benefit; and, to the extent that Mr Khubber sought to advance similar points before us, I was not persuaded by his arguments. In my view the risk of reoffending would plainly have been increased by the relative lack of support and limited means available to the appellant in the community.
  40. Another theme running through the material is the perceived risk of suicide or self-harm if the appellant were to be released. It was held in R (AA) v Secretary of State for the Home Department [2010] EWHC 2265 (Admin) at [40] that the use of immigration detention to protect a person from himself or herself is an improper purpose, so that the power cannot be used to prevent a person's suicide. I am prepared to assume the correctness of that proposition and to proceed on the basis that the risk of suicide or self-harm in the community should not therefore be taken into account as a factor weighing in favour of detention. But I consider the point to be of only limited significance in the present case because the appellant's impulsivity and unpredictability, and the assessment that her anger could be directed internally or externally, make it impossible to draw any clear-cut line between, on the one hand, the risk of suicide or self-harm and, on the other hand, the risk of harm to others: in terms of assessment of risk, the two aspects march hand in hand.
  41. A related issue is the deterioration in the appellant's mental health as a result of her continued detention: as the judge made clear in the passage quoted at [8] above, it was Professor Katona's view that such a deterioration was occurring and that the appellant should be transferred to hospital. This is undoubtedly a factor to be taken into account in the application of the policy to the mentally ill. Indeed, concern about the potential impact of detention on the mentally ill is presumably one of the main reasons why paragraph 55.10 makes special provision for them. On the facts, however, the point carries little weight since the balance of expert advice was to the effect that the appellant's needs could be managed appropriately in detention, and even Professor Katona was recommending a transfer to hospital rather than release into the community.
  42. A further factor to consider is the risk of absconding. As the judge said, there was plain evidence of that risk, in that the appellant had disappeared for over two years while on bail for the offence of child cruelty. He also said that the absence of family and ties in the United Kingdom and of home, employment and sources of income were all matters to be considered. He accepted that the appellant's wish to remain in contact with M indicated an inclination not to abscond, but he said that that was only one factor.
  43. In addition to the point about contact with M, Mr Khubber submitted to us that the incentive to abscond was reduced by the fact that the tribunal had held that the appellant should not be deported while the care proceedings in respect of M remained unresolved. He submitted that this was not a case where it could be said that the risk of absconding was high.
  44. I disagree. In the light of the appellant's history, her mental state and the vulnerability of her position if released into the community, the risk of absconding would in my view have been very high notwithstanding the desire for contact with M and the knowledge that she could not be deported until the care proceedings in respect of M had come to an end. Her history also illustrates the existence of a real link between the risk of absconding and the risk of reoffending.
  45. Taking everything together, I take the view that it would have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case. There was a very weighty balance of factors in favour of detention, sufficient to displace the strong presumption under paragraph 55.10 in favour of release.
  46. Accordingly, the Secretary of State's failure to take paragraph 55.10 into account during the first period did not cause the appellant any loss. She would and could have been detained in any event in the lawful exercise of the power of detention.
  47. As to the second period, during which the Secretary of State did take paragraph 55.10 of the policy into account, Mr Khubber submitted that the reasoning actually deployed in the detention reviews did not engage sufficiently with it, failed to take all relevant considerations into account and took into account an irrelevant consideration, namely the risk of suicide or self-harm. I accept that the reasoning in the detention reviews was not perfect but I am not persuaded that there was any error of sufficient materiality to render the continuing detention unlawful. Due consideration was given to the application of paragraph 55.10. In so far as the risk of suicide or self-harm was taken into account, it was either linked with the risk of harm to the public (and I have referred above to the impossibility of drawing a clear-cut line between the two) or was considered from the point of view of whether the appellant could be managed appropriately in detention. In any event, for the reasons already covered, it was reasonably open to the Secretary of State to decide in favour of detention in the lawful application of the policy, so that even if there was some material error in the actual reasoning it would be of no practical consequence: as in relation to the first period, the appellant would have suffered no loss.
  48. The application of the principles in Hardial Singh

  49. Apart from the policy, it is necessary to consider whether detention during the first and second periods was lawful under Hardial Singh principles. The judge directed himself correctly by reference to the distillation of the principles by Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Department [2003] INLR 196 at [46], namely: (i) the Secretary of State must intend to deport the person and can only the 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.
  50. Lord Dyson affirmed those principles in Lumba at [22]-[25]. Later in his judgment he examined various matters relevant to the application of the principles, including the significance of delay attributable to challenges to deportation. The only point of any relevance to the present appeal (though it is of very limited relevance) is his rejection at [111]-[121] of the argument that the time taken to resolve legal challenges brought by an individual against deportation should generally be left out of account in considering whether a reasonable period of detention has elapsed. In essence, he rejected any hard and fast rule and treated the point as going to weight, concluding at [121] that "much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one".
  51. In challenging the judge's finding that the appellant's detention was lawful throughout, Mr Khubber focused on two dates in particular. First, he referred to the "fresh claim" representations made on the appellant's behalf on 19 June 2009, to which the Secretary of State did not respond until 14 December 2009. Mr Khubber submitted that this was an excessive delay and that the Secretary of State had thereby failed to act with reasonable diligence and expedition to effect removal. A reasonable period within which to respond to the representations would have been three months, i.e. by mid-September 2009. The failure to respond within that period made it unlawful for the Secretary of State to continue to detain the appellant thereafter.
  52. The second and alternative date on which Mr Khubber focused was the date of the hearing before the judge, by which time the appellant had been in immigration detention for almost two years. He drew attention to the contrast between the 12 month sentence imposed on the appellant and the length of her immigration detention. He observed that, whilst the length of detention increased over time, there was not said to be any increased risk of reoffending or of absconding as time passed. He also pointed to the various developments that had happened over the period of the detention, including the tribunal's decision in December 2008 that the appellant should not be deported until the care proceedings had been resolved; the delay in responding to the "fresh claim" representations in the second half of 2009; and the grant of permission to apply for judicial review in May 2010. He submitted that when account was taken of those matters and of the appellant's particular vulnerability, a reasonable period for detention had expired by the time the judge heard the case in late July 2010.
  53. I do not accept that the Secretary of State's delay in responding to the "fresh claim" representations had the effect of rendering detention unreasonable as from mid-September 2009, though it is certainly a factor to be taken into account in assessing the reasonableness of the overall period of detention.
  54. Nor do I accept that the period of detention had become unreasonable by the date of the hearing before the judge. In reaching that conclusion I am prepared to place weight on the entire period of detention notwithstanding that much of the delay was the result of the appellant's own applications. That is because the applications cannot be said to have been hopeless: the original appeal to the tribunal had some, albeit limited, success, in that the tribunal decided that she should not be deported until the care proceedings had been resolved; and the appellant did at least get over the permission hurdle in her claim for judicial review in relation to her detention and the "fresh claim" decision. I have also taken into account the various matters relied on by Mr Khubber, which are relevant but in my view do not justify the conclusion for which he contended.
  55. It is helpful to review the position by reference to the four points in the summary in R (I) v Secretary of State for the Home Department: (i) It is not in dispute that the Secretary of State intended to deport and exercised the power to detain only for that purpose. (ii) I do not consider that a total period of two years was a longer period than was reasonable in all the circumstances. (iii) At no time was it apparent (nor should it have been apparent) to the Secretary of State that it would not be possible to effect deportation within a reasonable period. Although the cumulative effect of the successive steps taken by the appellant resulted in the event in an extended timetable, deportation within a reasonable period remained a sufficient prospect at every stage pending the decision of the appeal tribunal, pending the outcome of the care proceedings, pending a decision on the "fresh claim" representations and pending the outcome of the judicial review proceedings. It was not necessary for the Secretary of State to identify a finite time by which removal could reasonably be expected to be effected: see R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112, at [64]-[65]. (iv) Although the Secretary of State should have responded sooner to the "fresh claim" representations, that delay had only a minor effect overall (at most, delaying the time when the claimant's judicial review proceedings were brought) and did not in my view constitute a failure to act with reasonable diligence and expedition to effect removal, or at least it did not constitute a failure of sufficient seriousness to render continued detention unreasonable.
  56. In my judgment, therefore, the judge was right to reject the appellant's case that her detention had become unlawful under Hardial Singh principles.
  57. The "fresh claim" issue

  58. Representations will amount to a fresh claim under paragraph 353 of the Immigration Rules if they are "significantly different" from the material that has previously been considered. They will only be significantly different if the content (i) has not previously been considered, and (ii) taken together with the previously considered material, creates a realistic prospect of success before an immigration judge. It is for the Secretary of State to form a judgment on those matters, applying anxious scrutiny; and the Secretary of State's decision is subject to supervision by the court on a Wednesbury basis. That is where the authorities currently stand, notwithstanding some difference of judicial view in recent years: see R (MN (Tanzania)) v Secretary of State for the Home Department [2011] EWCA Civ 193 at [2]-[16], affirming the approach laid down in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495 and TK v Secretary of State for the Home Department [2009] EWCA Civ 1550. It is the approach that Mr Khubber invited us to adopt in this case. It is not entirely clear to me whether it is the approach applied by Judge McMullen, but any subtle differences in approach are frankly immaterial for the purposes of the present appeal.
  59. The representations said to constitute a fresh claim were made under articles 3 and 8 ECHR. Both aspects were pursued before Judge McMullen and are pursued further on the appeal to this court.
  60. As to article 3, the judge cited the decision of the European Court of Human Rights in N v United Kingdom (2008) 47 EHRR 39 to the effect that removal of a person suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the country from which the person is removed may raise an issue under article 3 only in a very exceptional case, where the humanitarian grounds against removal are compelling. He held there to be no reasonable prospect that an immigration judge would hold this to be a very exceptional case such that article 3 was engaged or violated.
  61. Mr Khubber, relying for this purpose on his written skeleton argument without seeking to develop submissions orally, contended that the appellant's mental illness and lack of capacity, the lack of family or other social support in Nigeria, the lack of a realistic ability to obtain relevant assistance, and her separation from her daughter, all combine to make this a very exceptional case to which article 3 is capable of applying.
  62. For my part, I can see nothing in the case to cast doubt on the judge's conclusion. The appellant will no doubt be much worse off in Nigeria than she is in the United Kingdom, but it cannot be said that the humanitarian grounds against removal are compelling, and there is no realistic prospect of establishing that this is one of those very special cases where the article 3 threshold is crossed.
  63. The appellant's case under article 8 relates primarily to family life with her daughter, M. Judge McMullen said that at the time of the dismissal of the appeal against deportation in December 2008 the tribunal had recognised a "vestigial" right in respect of family life as between the appellant and M, at least until determination of the family proceedings, but that the situation had been determined by the order made by Judge Turner in those proceedings in June 2009. In ordering M's placement for adoption, Judge Turner had fully considered the article 8 implications, with all parties represented before him; and it had been conceded on the appellant's behalf before him that adoption would mean the loss of her familial bond. Although the order for limited continuing contact pending adoption meant that article 8(1) was engaged, the issue of proportionality under article 8(2) had effectively been settled by Judge Turner's decision. Judge McMullen concluded that that there was no reasonable prospect that an immigration judge would find that the appellant's deportation would amount to a wrongful interference with her right to family life under article 8.
  64. In challenging Judge McMullen's findings under article 8, Mr Khubber submitted that the judge was wrong to treat the issue as having been determined by the decision of the court in the family proceedings. Judge Turner had been concerned in the family proceedings with whether M should remain in care or be placed for adoption. The question in the deportation proceedings was whether, in the circumstances as they existed following the orders made in the family proceedings, it was proportionate to end all contact between the appellant and M by the appellant's deportation from this country. As at July 2010, when Judge McMullen was considering the matter, it had not yet been possible to implement adoption, there was some continuing contact between mother and child, and the future position was uncertain. There was a realistic prospect in those circumstances that an immigration judge would find that the remaining relationship between mother and daughter was sufficient to render deportation disproportionate.
  65. I do not accept that Judge McMullen made any error in his approach to the family proceedings. Although the court in the family proceedings was looking at the matter from a different perspective, it had engaged in a detailed consideration of article 8 in reaching the decision to order M's placement for adoption. Judge McMullen was entitled to have regard to that and, more importantly, to the practical effect of the orders made in those proceedings, which had been to leave only a vestigial degree of family life between the appellant and M in the form of limited contact between them pending M's adoption. It is true that adoption had not yet been effected and that the future timetable was not certain. It was correct in those circumstances to find that article 8(1) was engaged. But the family life enjoyed under article 8(1) was on any view very weak and was plainly outweighed by the considerations in favour of deportation. There was no realistic prospect of an immigration judge finding that deportation would be a breach of article 8. The judge's conclusion to that effect is unimpeachable.
  66. The Secretary of State was therefore entitled to find that the representations made on the appellant's behalf did not amount to a fresh claim, so that the rejection of her representations did not give the appellant a further right of appeal to the tribunal. Had I reached a different conclusion, it might have had an impact on the reasonableness of the appellant's continued detention under Hardial Singh principles. As it is, however, I have not thought it necessary to refer to the point in examining the application of the Hardial Singh principles in the previous section of this judgment.
  67. Conclusion

  68. In my judgment, the appeal should succeed only to the extent conceded by the Secretary of State in relation to the first period (8 August 2008 to 28 April 2010). It is accepted that the appellant's detention during that period was unlawful and that the claim for false imprisonment must succeed. For the reasons given above, however, I am satisfied that the tort has caused the appellant no loss, since she would and could have been detained in any event in the lawful exercise of the power of detention. I would therefore award her only nominal damages, in the sum of 1.
  69. For the rest, I would dismiss the appeal.
  70. Lord Justice Hughes:

  71. I agree.
  72. Lord Justice Ward :

  73. I also agree.


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