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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Moussaoui, R (on the application of) v Secretary of State for the Home Department  EWHC 126 (Admin) (03 February 2012)
Cite as:  EWHC 126 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen (on the application of Mustafa Moussaoui)
|- and -
The Secretary of State for the Home Department
Jonathan Auburn (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 19 and 20 September, and 3 November 2011
Further written submissions: 12 and 13 January 2012
Crown Copyright ©
MR JUSTICE LINDBLOM:
"Mood – worsened recently – feeling angry, low mood, fatigued, cutting self more, anhedonia, fighting people. Only thing he enjoys is drugs. Has cut himself frequently in the past – last cut 2/12 ago.
The day prior to admission, he went to Tower Bridge to jump off it, wanting to kill himself. This was triggered by frustration at his probation officer.
On initial assessment he still wanted to end his life – thoughts of jumping off building, off bridge, in front of train, OD of valium, walk in front of car, eating batteries. No current active plan, but concerned he may attempt one of these.
He also reported some pseudohallucinations.
In the past 4 years – multiple attempts (8-9) at suicide – tried to hang himself in prison, ate batteries and ate metal. Never succeeded – unable to say what stops him/protective factors.
It was felt that he was suffering from moderate depression with poly substance misuse and psychotic experiences likely secondary to drug misuse rather than psychotic depression. Problems maintained by ongoing social situation (unable to claim benefits/housing due to problems with ID). He was admitted informally".
Under the heading "Summary of progress/significant events while in hospital", the discharge summary stated:
"[The claimant] admitted to £200 of crack use per day and was stealing in order to obtain drugs. He has been in and out of prison. He already has a substance misuse worker from St [Giles'] Trust for resettlement for offenders. He did not appear psychotic and was no longer suicidal and was therefore discharged. However, a day later he took an overdose and was readmitted informally. He was not noted to be psychotic. He went out and returned to the ward intoxicated and appeared elated on his return. He became abusive towards staff and attempted to hit a member of staff. He was therefore discharged from hospital."
As to the "Ongoing issues at discharge" the discharge summary states:
No fixed abode
Impulsive attempts to end life".
At the Oxford Magistrates' Court, on 4 September 2009, the claimant was convicted of theft. For this offence he was later – on 18 September 2009 – conditionally discharged for nine months.
The Enforcement Instructions and Guidance
"However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation … are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as 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, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding."
For non-EEA nationals, the deportation criteria include "a single sentence of 12 months regardless of when it was passed" and "an aggregate of 2 or 3 sentences amounting to 12 months in total over the past five years".
"As has been set out above, due to the clear imperative to protect the public from harm, the risk of re-offending or absconding should be weighed against the presumption in favour of temporary admission or temporary release in cases where the deportation criteria are met. In CCD cases concerning foreign national prisoners, if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. If detention is appropriate, a foreign national prisoner will be detained until either deportation occurs, the foreign national prisoner (FNP) wins their appeal against deportation …, bail is granted by the Asylum & Immigration Tribunal, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful (see 55.3.2 and 55.20.5 below). In looking at the types of factors which might make further detention unlawful, case owners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject's criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered …".
"As has been set out above, public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release might well be outweighed by the risk to the public of harm from re-offending or the risk of absconding, evidence by a past history of lack of respect for the law. However, detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life could be shown to be disproportionate. In assessing what is reasonably necessary and proportionate in any individual case, the caseworker must look at all relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences …".
A list of "Factors influencing a decision to detain" is set out at paragraph 55.3.1. These include: "What is the likelihood of the person being removed and, if so, after what timescale?"; whether there is any evidence of previous absconding; whether there is any evidence of a previous failure to comply with conditions of temporary release or bail, whether the person has "taken part in a determined attempt to breach the immigration laws … (e.g. entry in breach of a deportation order, attempted or actual clandestine entry)"; whether there is a history of him complying with the requirements of immigration control "(e.g. by applying for a visa, further leave, etc)"; the nature of the person's ties with the UK – whether he has close relatives here; whether anyone relies on him for support; whether he has a settled address and a job; his expectations about the outcome of his case, including whether there is an outstanding appeal or a claim for judicial review; whether there is a risk of offending or harm to the public; and whether there is "a history of physical or mental ill-health".
"This form is in three parts and must be served on every detained person, including each child, at the time of their initial detention. The IO must complete all three sections of the form. The IO must specify the power under which a person has been detained, the reasons for detention and the basis on which the decision to detain was made. The detainee must also be informed of his bail rights and the IO must sign, both at the bottom of the form and overleaf, to confirm the notice has been explained to the detainee (using an interpreter where necessary) and that he has been informed of his bail rights.
It should be noted that the reasons for detention given could be subject to judicial review. It is therefore important to ensure they are always justified and correctly stated. A copy of the from must be retained on the caseworking file. If any of the reasons for detention given on the form IS91R change, it will be necessary to prepare and serve a new version of the form.
It is important that the detainee understands the contents of the IS91R. If he does not understand English, officers should ensure that the form's contents are interpreted. Failure to do so could lead to successful challenge under the Human Rights Act (Article 5(2) of the ECHR refers.)".
"Initial detention must be authorised by a CIO/HEO or Inspector/SEO (see section 55.5). In all cases of persons detained solely under Immigration Act powers, continued detention must as a minimum be reviewed at the points specified in the appropriate table below. At each review, robust and formally documented consideration should be given to the removability of the detainee. Additional reviews may also be necessary on an ad hoc basis, e.g. where there is a change in circumstances relevant to the reasons for detention. …
Rule 9 of the Detention Centre Rules 2001 sets out the statutory requirement for detainees to be provided with written reasons for detention at the time of the initial detention, and thereafter monthly (in this context monthly means every 28 days). The written reasons for continued detention at the one month point and beyond should be based on the outcome of the review of detention.
… Detention reviews are necessary to ensure that detention remains lawful and in line with stated detention policy at all times. …".
It is made clear that in CCD cases there is no requirement for an adult detainee's detention to be reviewed during the first 28 days, but that reviews should be conducted monthly, by officials at the levels indicated in the relevant table (Table 3).
"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:
- those suffering from serious medical conditions or the mentally ill – in CCD cases, please contact the specialist Mentally Disordered Offender Team;
On 26 August 2010 this part of the policy document was amended. The new policy stated:
"Certain persons are normally considered 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 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. 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:
- those suffering from serious medical conditions which cannot be satisfactorily managed within detention
- those suffering serious mental illness which cannot be satisfactorily managed within detention (in CCD 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;
The claimant's immigration detention
"States he has Asthma and depression. Takes Ventolin and Becotide for Asthma. Valium 6 mg per day for depression. PNC relates to mainly theft."
"Mr Moussaoui is a Moroccan national and removal to this country is via EUL. However Mr Moussaoui does not have any documentary evidence of his nationality. Furthermore he is now claiming he is an Algerian national and not Moroccan as previously claimed. Given this latest development an ETD interview and status interview has been arranged. Deportation action is yet to be commenced. Mr Moussaoui will be granted an in country appeal should he choose to appeal deportation. A time scale to his removal is therefore unknown."
It was noted, under the heading "Risk to Public", that the claimant had "shown that he can be considered a risk to the public due to his continued [re-offending] for Theft"; under the heading "Risk of [re-offending]", that "[since] arriving in the UK in July 2006 [he] had amassed 8 convictions from 11 offences with a further hearing outstanding"; and, under the heading "Risk of Absconding", that "given that he has avoided contact with UKBA since his release in April 09 he can be considered a Medium to High risk of absconding once he is informed of UKBA's decision". The "Proposal" was stated to be:
"To detain [the claimant] on an IS151 as an illegal entrant until his true nationality can be confirmed and enable CCD to make a decision on … his deportation. Also to enable a travel document to be obtained for his removal from the UK."
"Mr Moussaoui is a Moroccan national and removal to this country is via EUL. However Mr Moussaoui does not have any documentary evidence of his nationality. Furthermore he is now claiming he is an Algerian national and not Moroccan as previously claimed. Given this latest development an ETD interview and status interview has been arranged. Deportation action is yet to be commenced. Mr Moussaoui will be granted an in country appeal should he choose to appeal deportation. A time scale to his removal is therefore unknown."
"[The claimant] entered the room looking very unwell. He managed to maintain eye contact at first, but later in the consultation he was gazing inwards and half ignoring us. He was clean and kempt and respectful to us.
He said he had "lost touch with life" for 7 days, and has had little to eat or drink. He looked dehydrated, I gave him some juice, but he drunk little and he said he felt sick. His weight on admission was 53 Kgs, he is now 51 Kg. This is more loss of weight than one would expect from natural changes.
He said he didn't remember where he was, or what day it was, and he found it difficult to answer any questions about his recent past. Sometimes he hung his head in his hands and looked despairing.
He said that he still felt suicidal, and indeed he is on 'suicide watch' (ACDT) in the IRC.
He said he cannot sleep at night and feels strangled. He hears voices telling him to kill himself.
He has scars of self harm, on both right and left arms, and the scar of what appears to be a needle stick injury.
This young man was extremely distressed and almost psychotic. In my opinion detention is having an adverse effect on his symptoms. He should be admitted to a mental health centre specialising in substance abuse for assessment and management as soon as possible. He is a serious suicide risk. He may need a long term as an inpatient.
He may also be dehydrated and suffering from a lack of intake of food. I advised the Colnbrook Health centre to do the appropriate blood tests."
In their letter of 21 June 2010 the claimant's solicitors contended that Dr Goldwyn's report and other material enclosed with the letter, including his discharge summary of July 2009 demonstrated that the claimant
"suffers from a history of mental illness and there are currently serious concerns regarding his mental health. It is therefore submitted that our client is unsuitable for detention.
If a decision is taken to continue our client's detention we request that a response is provided setting out your reasons."
The Secretary of State was asked to respond by 23 June 2010, addressing the points the solicitors had raised. She did not do so.
• Clandestine entry to UK;
• Used more than one identity and three nationalities;
• Has failed to appear at a magistrates court and been recorded an absconder;
• Has criminal convictions and faces deportation;
• Failed asylum seeker."
Bail had been opposed by the Secretary of State, who highlighted the claimant's history of absconding and offending, stating:
- Mr Moussaoui has used deception in a way that leads us to believe that he may continue to deceive if released. He is an absconder who only came to light upon his arrest for criminal offences. As such, no reliance can be placed upon him in adhering to any reporting restrictions.
- Mr Moussaoui proposes no sureties and only £1000 recognisance has been offered. We consider that this is disproportionate to the risk of absconding in this case, particularly given the late stage of his case and his previous Immigration history.
- As an alternative to detention, we have [assessed] his suitability for … electronic monitoring. We advise that Mr Moussaoui failed to meet the criteria, as he is a previous absconder who has shown a blatant disregard to the United Kingdom immigration and criminal laws. It is noted that those who are resolute to abscond have removed electronic tags[. As] such the setting up of the [equipment] and the cost of daily monitoring will only increase the overload that has already been used up on his case.
- We have had regard to his well-being and it is stated that he continues to receive treatment for asthma, and he is on Ventolin and Beclomethasine medications. Mr Moussaoui is currently detained at Colnbrook IRC, which is staffed with Healthcare Team.
- In light of the above it is considered that there are substantial grounds for believing that Mr Moussaoui, if released on bail (whether subject to conditions or not), would fail to surrender to custody. It is submitted that this bail application be refused similarly as his previous application."
"ICD 1070 approved by the SCW.
In order to IS detain [the clalmant] IS91 faxed to Colnbrook IRC.
Also faxed to Colnbrook IRC ICD1070 (decision to make a deportation order), ICD 1041(appeal notice) & ICD 2967 (confirmation of conveyance). Requested Colnbrook to return copy of confirmation of conveyance once paperwork is served on the subject.
[The claimant] has been advised in the ICD letter that he will be served with the reasons for deportation letter (ICD 1914) shortly which will trigger his right of appeal given in the ICD 1070 letter." (my emphasis).
The following entry for the same date states:
"On behalf of caseowner D.Burgis contacted Colnbrook IRC … and it was confirmed by Duty officer/Immigration that all the paperwork (IS91, ICD 1070, ICD 1070, ICD 1041 & ICD 2967) was received. Casework file returned to the Team Leader."
In section 2 of the form IS91 it is indicated that the detention authorized by the Secretary of State is of a "person served with a Notice of Decision to make a deportation order …", and, as the relevant footnote – footnote 3 – explains, the statutory provision relied upon was paragraph 2(2) of Schedule 3 to the 1971 Act. Evidently, the Secretary of State did not serve on the claimant at this stage a form IS91R, setting out the reasons for his detention.
"… The following five symptoms have been present during the same two week period and cause clinically significant distress.
• Depressed mood most of the day, nearly [every day], as indicated by subjective report
• Markedly diminished interest or pleasure in all, or almost all activities, most of the day, nearly every day
• Insomnia nearly every day
• Fatigue or loss or energy
• Diminished ability to think or concentrate nearly every day".
As to the claimant's "severe post traumatic stress disorder" Dr Sagovsky said this (in para. 33):
"In my opinion he is also suffering from severe post traumatic stress disorder, fulfilling the following of the DSM-IV criteria:
Dr Sagovsky could not readily explain the differences between the claimant's presentation on 13 October and 27 October 2010 – a "marked deterioration in mood" and a "diminution in cognitive abilities". She put forward (in para. 35 of her report) a number of possible explanations, none of which she found it possible to identify as the true cause. These included "illicit drug use", the possibility that the claimant might be dissembling, and the possibility that as a consequence of his post traumatic stress disorder he had a dissociative disorder. Dr Sagovsky noted (in para. 36) that the claimant had been started on an antidepressant drug, Citalopam, on 26 October 2010, but he had had only one dose of this before she saw him a second time, on 27 October 2010. Dr Sagovsky gave this "Prognosis" (in para. 37):
"[The claimant's] mental health problems are complex and require further extended psychological and psychiatric assessment. His mental state is unlikely to show consistent improvement without specialist treatment of his PTSD. His depression may respond to the prescribed medication if he continues to take it regularly but, after one dose, he was not confident it would help him and he may try to avoid taking it, as he did the Mirtazapine, because he found the side effects unacceptable. The treatment priority should, in my opinion, be to help him to sleep by reducing the intrusive thoughts, flashbacks, nightmares and the high levels of arousal. This could be attempted by introducing a low dose antipsychotic medication at night in addition to the antidepressant. When his acute symptoms have subsided, trauma focussed therapy, with a specialist experienced in assessing and working with dissociative disorders, is likely to be necessary in order to enable him to rebuild his life. He will also require support to avoid illicit substances which hinder the therapeutic work.
Given that at the time of the second interview, he was not at risk of suicide, this work could be carried out as an out patient if he has sufficient support in the community, such as he felt he had when living in Oxford prior to detention. However, given the rapid changes in his presentation, it is possible that he will again become a suicidal risk and require further inpatient treatment. His current environment repeatedly brings to mind his traumatic experiences and so progress is very unlikely, even with medication and counselling, whilst he continues to be detained."
"We are continuing to make arrangements to obtain a travel document for your removal from the United Kingdom. However this is taking longer than we would like because you have failed to provide documentary evidence of your nationality. You previously claimed to be a Palestinian, French, Morocco [sic] and Algerian national. If you wish to assist us in progressing your case, and potentially reducing the time you spend in detention prior to removal, please speak to one of the immigration officers at the removal centre.
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."
The report said that the claimant's case had been reviewed and that it had been decided that he would remain in detention, for five reasons:
The report then went on to set out the factors on which the decision to keep the claimant in detention had been made:
• You have previously failed or refused to leave the UK when required to do so. You are a … multiple failed asylum seeker and your appeal rights were exhausted on 2 August 2007.
• You have previously been listed as an absconder and who only came to light due to a criminal offence and arrest and there is a significant risk that you would do so again.
• You have previously failed to comply with conditions placed upon [you] by the police or the courts. On 4 September 2009, at Oxford Magistrates Court you were convicted of failing to surrender to custody at the appointed time, you received 9 months conditional discharge. On 17 May 2010, you were arrested by Police as wanted on 2 court warrants and for immigration matters.
• You have failed to observe the United Kingdom immigration laws by (entering in breach of a deportation order OR entering or seeking to enter by clandestine means).
• You have entered the UK illegally on one occasion and have failed to depart even when your appeal rights were exhausted.
• You have not produced satisfactory evidence of your identity, nationality or lawful basis to remain in the United Kingdom. You have claimed to be a Palestinian, Morocco, French and Algeria national without any evidence in support.
• You have previously failed to comply with conditions of your stay. Temporary admission or release. You have been previously listed as an absconder.
• You have used or attempted to use verbal deception to gain leave to enter, remain or evade removal and it is considered likely that you will do so again. On 4 July 2006, in the company of another male, you entered the UK via Ramsgate. When you were apprehended you claimed to be a Palestinian national and a minor and subsequently claimed asylum. You were screened for the asylum process. On 20 July 2006, at ASU you again claimed asylum under the identity Mustafa Moussaoui as a Moroccan national. On 4 June 2007, your asylum claim was refused and your subsequent appeal was dismissed on 25 July 2007. Your appeal rights were exhausted on 2 August 2007.
• You do not have subsisting family ties or strong social connections in the UK to make it likely that you will stay in one place. Indeed even if these ties exist, it is not believed that they represent sufficient influence on you having been convicted of several criminal offences in the past.
• You have shown a lack of respect for UK laws as evidenced by your convictions for serious crimes and poor immigration history.
• You have committed a number of offences over a period of time (10 September 2007 and you were last convicted on 4 September 2009) and there is a significant risk that you will re-offend.
• Your unacceptable character, conduct or associations since your clandestine entry into the UK
• You previously claimed to be under the age of 18, however your physical appearance and demeanour very strongly indicates that you are significantly over 18 years of age and no credible evidence exists to the contrary."
The report then stated:
"Consideration has been given to the factors in favour of release, but due to the seriousness of the offences these must be particularly compelling to outweigh the above, therefore 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.
"Mr Moussaoui made a serious suicide attempt on 1 June 2010. He was referred to the Accident and Emergency on for Asthma attack. He was again referred on 13 June 2010 due to a major fit. He suffered another fit on 14 June 2010 and was treated with Rectal Valium.
Mr Moussaoui saw the clinical psychology [sic] on 8 June 2010 where he admitted to taking Heroin, starting in 2007 when he was aged 17 and depressed. Mr Moussaoui was an inpatient in the drug treatment Opal ward of Archway hospital from 14 May 2009 to 3 June 2009. He was complaining of body pains all over, headache, difficulty in seeing and smelling. He claimed he had gone to Tower Bridge with the intention to jump off and kill himself. He had other idea suicide ideation [sic], and had made 8 or 9 attempts on his life. Mr Moussaoui claims to be suffering from mental health issues; however, there is no evidence to support that he has been sectioned under the Mental Health Act.
On 11 November 2010, Colnbrook Health care advice is that the psychiatrist has changed Mr Moussaoui's medication from Citolpram to Olanzapine 10mg and a referral has been made to Hillingdon Hospital for assessment."
In section 6, under the heading "Changes in status of the case (new barriers)", the review stated:
"On 7 October 2010, Mr Moussaoui's Judicial Review application was allowed to proceed solely on Mental Health grounds. The application is listed for substantive hearing on 26 November 2010."
In section 7, under the heading "Progress since last detention review", the review said this:"The Clinical Compliance Officer and the Healthcare Contract Manager at Colnbrook IRC are acutely aware of the urgency on this matter. In regards to his well-being and mental health matters, we are in the process of securing a bed space at the Hillingdon hospital so Mr Moussaoui can be transferred under the relevant section applicable in his case. Our attempt to secure a bed space via MHU was refused as MHU advised that the referral to MHU [has] to be submitted by Colnbrook healthcare and not by CCD. We are keeping Mr Moussaoui's solicitors, Tsols, Judicial Review caseworker in the loop as to the progress being made in securing a bed space via the Healthcare at Colnbrook IRC. On 12 November 2010, Healthcare advised the referral to Hillingdon is still pending an assessment and it is noted that prisoners in need of treatment at secure mental health hospitals often have to wait months for a bed."
The "Plan of Action" in section 8 was this:"The caseowner to:
- Actively monitor the outcome of the JR application listed for substantive hearing on 26 November 2010 (the outcome of this hearing could have an impact on how this case is progressed thereon)
- If Colnbrook are unable to secure a bed space, to pursue other avenues to secure a private bed space (will the NHS fund this?)
- Continue to actively liaise with Healthcare team at Colnbrook IRC, Mr Moussaoui's Solicitors, Tsols, Judicial Review caseworker [and] all other interests
- Actively monitor the deportation appeal listed for 7 December 2010
- Obtain a signed DO should Mr Moussaoui's appeal [fail]
- Continue to respond and promptly deal with other matters as the arises [sic]"
In section 9, under the heading "Likelihood of removal within a reasonable time scale (outline details of barriers to removal, including availability of travel documents, and likely time needed to resolve these)" the review stated:"Mr Moussaoui's case and the timescale of his removal cannot be ascertained. There are mental health concerns, substantive hearing for a judicial review and deportation appeals. The outcome of the judicial review on 26 November 2010 could have an impact on how this case is progressed thereon."
The "Recommendation" in section 10 of the review was this:"Mr Moussaoui is considered a potential risk to the public due to his mental health concerns. Currently, the relevant avenues are being pursued in order to secure a bedspace in a Mental Health Unit pending on the assessments by Hillingdon hospital.
Mr Moussaoui is a multiple failed asylum seeker who has previously been listed as an absconder and he has failed to comply with court orders. Mr Moussaoui has not submitted any evidence to support that he has subsisting family ties or strong social connections in the UK. Indeed even if these ties [exist], it is not believed that they represent sufficient influence on him having been convicted of several criminal offences [in] the past. As such, we know of no reliable person to entrust with his release.
I have considered the presumption to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance, but in this case, the presumption is on balance outweighed by the significant risk of harm and absconding. I propose that detention is maintained."
The official who approved that recommendation stated in her "Comments":"I agree that detention is vital at this stage as it is highly likely that Mr M will abscond if he was released at this stage. We need to ensure that whilst Mr M is [in] Colnbrook he is complying with the medication required and if during this period his detention is exacerbating his condition we will need to assess whether continued detention is appropriate in accordance with section 55.10. Mr M['s] deportation is being pursued under the 1971 act and therefore should be transferred and section [sic] under Section 48 of the MHA. Please continue to liaise with Colnbrook whilst we continue to liaise with MHU."
- On 19 November 2010 the Secretary of State's officials approached the Hillingdon Hospital directly, seeking to secure a bed for the claimant. A mental health nurse at the hospital said the claimant could not be admitted because he was suffering from post-traumatic stress disorder, which was not an illness that could be treated there. Hospital staff agreed to assess the claimant. It was said that this might take up to two weeks. A doctor at the hospital, who had read Dr Sagovsky's report, said she did not think that his condition warranted detention in a secure unit. On the same day the Mental Health Unit of the Ministry of Justice indicated they might be able to help in finding a place for the claimant in a mental hospital once the second psychiatric assessment had been undertaken.
- On 25 November 2010 Ms Gloriana Patrick, an Executive Officer in the CCD, made a witness statement, in which she recounted the events in the final four weeks of the claimant's detention (in paras. 13 to 26 of her witness statement). In paragraph 13 of her witness statement, Ms Patrick said this:
"The [claimant's] case was reviewed on 22 October 2010 and he was brought into a IS detention under Schedule 3 to the Immigration Act 1971. The decision to detain was made having taken into account his history of absconding and a potential danger he poses to the public. At the time of detention, the [Secretary of State] had no outstanding applications or representations to provide him with any incentive to maintain contact with the immigration authorities. His mental health was taken into consideration and at the time, his mental health did not deem [sic] to warrant detention in a mental health facility. Further enquiries into his case were required in order to consider a deportation decision."
Ms Patrick said (in paras. 14 and 25 of her witness statement) that when the claimant's detention was considered on 1 November 2010 it was concluded that there was little incentive for him to stay in touch with the UKBA. Ms Patrick explained (in paras. 16 to 23 of her witness statement) what happened after Dr Sagovsky's report was received by the Secretary of State. In paragraph 23 of her witness statement she said this:"On 19 November 2010 and due to the urgency we approached Hillingdon hospital directly in view of securing a bed space. The Colne Ward at Hillingdon hospital is a dedicated Ward for Colnbrook patients. The Mental Health Nurse advised that they are unable to make a reservation to admit the claimant as a patient as the psychiatric report shows that he is suffering from a post traumatic stress disorder and it is not an illness that they are able to monitor or treat. They did however, agree to undertake the assessment for UKBA and suggested that this make take up to two weeks. The Doctor for the ward outlined that having read the report she did not feel that his mental health warranted detention in a secure unit; however, a full assessment was scheduled for 26 November 2010 and re-scheduled for 30 November 2010 due to the Judicial hearing listed for 26 November 2010."
Ms Patrick said (in paras. 25 and 26 of her witness statement) that when the claimant's detention was reviewed on 25 November 2010 UKBA officials again found little incentive for the claimant to keep in touch with them if he were released. As Ms Patrick put it:"… The seriousness of his crime and the risk of re-offending and the potential harm to the public were also considered to outweigh the presumption to liberty."
Ms Patrick concluded her witness statement by saying (in para. 27):"We have considered the presumption to liberty as outlined in Chapter 55 of the Enforcement Instructions and Guidance but in this case, the presumption is on balance outweighed by the significant risk of absconding and potential public harm."
"[The claimant] is currently under our care at The Maudsley. We aim to discharge him on Thursday this week. Our impression regarding his presentation is that Mr Moussaoui was suffering an acute stress reaction, possibly precipitated by concerns regarding his potential relocation. His symptoms have subsided completely and we do not feel that he justifies a psychiatric diagnosis of further care".
"14. However, as can be seen from the above paragraphs, the agreed Chronology and the medical records, this does not mean that the claimant's case was being ignored or that informal reviews were not constantly taking place. For example the claimant was under constant review and in contact with medical staff throughout his period of detention. During June and July 2010 UKBA staff were attempting to identify the claimant's true nationality to enable his matter to be processed, which was frustrated by the [claimant's] lack of co-operation, including having his matter transferred to, and then back from, the EEA-national team. In October 2010 the claimant's case was again reviewed and he was re-detained pending a Notice of Decision to Make a Deportation Order and in early November 2010 a Monthly Progress Report was completed.
15. In the course of preparing this witness statement I have fully reviewed the [claimant's] detention file between May and November 2010 and have reached the conclusion that, had the relevant detention reviews been carried out during the period of May to November 2010, the [claimant] would have been detained as he posed a risk of absconding (given his history of absconding), he posed a risk of re-offending (given his previous criminal record) and he posed a risk to the public because of the violence in his crimes."
The issues in the claim
(i) if, in detaining the claimant, the Secretary of State failed to apply her own policy for the detention of those suffering from mental illness in paragraph 55.10 of the EIG, whether she would have detained him in any event, and whether she could lawfully have done so in accordance with her policy ("Issue (i): paragraph 55.10 of the EIG");
(ii) whether the claimant's detention offended the principles acknowledged in Hardial Singh ("Issue (ii): the principles in Hardial Singh");
(iii) whether the Secretary of State misused the relevant statutory provisions for immigration detention, in paragraph 16 of Schedule 2 and paragraph 2 of Schedule 3 to the 1971 Act ("Issue (iii): the statutory provisions"); and
(iv) whether the claimant would and could lawfully have been detained if his detention had been regularly reviewed, and whether he is entitled to be awarded more than nominal damages ("Issue (iv): damages").
The statutory framework for immigration detention
"Where an illegal entrant is not given leave to enter or remain in the United Kingdom, an immigration officer may give any such directions in respect of him as in a case within paragraph 8 above [relating to "[a] person arriving in the United Kingdom [who] is refused leave to enter] are authorised by paragraph 8(1)."
Paragraph 16 of Schedule 2, under the heading "Detention of persons liable to examination or removal", provides:
(2) If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending –
(a) a decision whether or not to give such directions;
(b) his removal in pursuance of such directions.
(2) Where notice has been given to a person in accordance with regulations under Section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not a detained person in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise)."
"Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial detention, and thereafter monthly."
"An action for false imprisonment is an action in personam. The tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. …".
Immigration detention is imprisonment in fact. The fundamental question in this case, as in every case of its kind, is whether the claimant's immigration detention was at any stage unlawful.
" There is no dispute as to the principles that fall to be applied in the present case. They were stated by Woolf J in [Hardial Singh]. This statement was approved by Lord Browne-Wilkinson in Tan Te Lam v Superintendant of Tai A Chau Detention Centre  AC 97, at 111A-D … . In my judgment … the following four principles emerge:
(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with the reasonable diligence and expedition to effect removal.
 Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State my not lawfully detain a person 'pending removal' for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.
 It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to para 2(3) of Sch 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"23. … As regards the first principle, I consider that Woolf J was saying unambiguously that the detention must be for the purpose of facilitating the deportation. The passage quoted by Lord Phillips PSC includes, at para 262, the following: "as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose" (emphasis added). The first principle is plainly derived from what Woolf J said.
24. As for the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating deportation; (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases where it is apparent that deportation will not be possible "within a reasonable period". It is clear at least from (iii) that Woolf J was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect the deportation."
"It must be for the court to determine the legal boundaries of administrative detention. There may be incidental questions of fact which the court may recognise that the Home Secretary is better placed to decide than itself, and the court will no doubt take such account of the Home Secretary's view as may seem proper. Ultimately, however, it must be for the court to decide what is the scope of the power of detention and whether it was lawfully exercised, those two questions being often inextricably interlinked. In my judgment, that is the responsibility of the court at common law and does not depend on the Human Rights Act (although Human Rights Act jurisprudence would tend in the same direction)."
(see also para.  of the judgment of Keene LJ).
"… [The] error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, a decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. Nor too would a decision to detain a person under conditions different from those described in the policy. Errors of this kind do not bear on the decision to detain. They are not capable of affecting the decision to detain or not to detain."
"… As Lord Rodger of Earlsferry JSC pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his re-offending will impede his deportation."
Therefore, said Lord Dyson (in para. 110), the risk of re-offending is a relevant factor. He accepted (in para. 121) that the weight to be given to time spent in detention during appeals is "fact-sensitive", and went on to say (ibid.):
"… The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, 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."
"The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied … it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They should receive no more than nominal damages."
"… But the whole point of the regular reviews is to ensure that the detention is lawful. That is not surprising. It was held in Tan Te Lam … that the substantive limits on the power to detain were jurisdictional facts, so the Secretary of State has to be in a position to prove these if need be. He will not be able to do so unless he has kept the case under review. He himself has decided how often this needs to be done. Unless and until he changes his mind, the detainees are entitled to hold him to that. Just as Mr Leachinsky's detention was unlawful even though there were in fact good grounds for arresting him, the detainees' detention is unlawful during the periods when it has not been reviewed in accordance with the policy, irrespective of whether or not the review would have led to their release. In my view, Munby J was right to hold that reviews were "fundamental to the propriety of the continuing detention" and "a necessary prerequisite to the continuing legality of the detention. …"
(see also para. 86 in the judgment of Lord Kerr). The public law error bore directly on the decision to detain the appellant and thus satisfied the test adopted by the majority in Lumba for determining when a public law error will result in detention being unlawful (see para. 42 in the judgment of Lord Hope and para. 88 in the judgment of Lord Kerr). It was no defence to the claim that there were grounds which justified the appellant's detention (see para. 54 in the judgment of Lord Hope, para. 73 in the judgment of Lady Hale and para. 88 in the judgment of Lord Kerr).
" … [The] decision on this point in Lumba was that the appellants were entitled to no more than nominal damages as their detention was at all times justifiable. But this cannot be assumed to be so in every case, and in this case the facts have still to be established. So I would not foreclose entirely the possibility that the appellant in this case is entitled to more than a purely nominal award. … In any event, false imprisonment is a trespass against the person which is actionable without special damage … ."
and (in para. 56):
"… It may be that the conclusion in this case will be that an award of nominal damages is all that is needed to recognise that the appellant's fundamental rights have been breached. But that does not affect the issue of principle."
Lady Hale said (in para. 74)
"It follows also, from the decision in Lumba … that the fact – if it be a fact – that had the requisite reviews been held, the decision would have been the same makes no difference. However, the result of any review, had it been held, cannot be irrelevant to the quantum of damages to which the detainee may be entitled. False imprisonment is a trespass to the person and therefore actionable per se, without proof of loss or damage. But that does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused. The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done. …".
And Lord Kerr said (in para. 89):
"As the majority in Lumba … held, … causation is relevant to the question of the recoverability of damages. For the reasons that I gave in my judgment in that case, I consider that if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation and that nominal damages only will be recoverable."
"51. Paragraph 55.10 provides that those [who are] mentally ill are normally considered suitable for detention in only "very exceptional circumstances". To my mind the existence of very exceptional circumstances demands both a quantitative and qualitative judgment. Were this provision to stand in isolation in the policy the power to detain the mentally ill could only be used infrequently, and the circumstances would have to have a quality about them which distinguished them from the circumstances where the power is frequently used. Otherwise effect would not be given to the requirement that the circumstances not simply be exceptional but very exceptional.
52. There are two points to be made. The first is that in my view mental health issues only fall to be considered under Chapter 55 where there is available objective medical evidence establishing that a detainee is, at the material time, suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. This consideration must be given to the nature and severity of any mental health problems and to the impact of continuing detention on it.
53. Secondly, the provision that the mentally ill be detained in only very exceptional circumstances does not stand in isolation. The opening part of paragraph 55.10 provides that for Criminal Casework Directorate 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". Paragraph 55.13 indicates, as would be expected[,] that that demands a consideration of the likelihood of the person re-offending and the seriousness of the harm if re-offending occurred. With an offence like robbery, the paragraph specifically requires substantial weight to be given to the risk of further offending and harm.
54. Absconding as a consideration is introduced by paragraph 55.3A for CCD cases. That provides that in assessing what is a reasonable period of detention necessary for removal in the individual case, case-workers must address all relevant factors, including the risks of re-offending and absconding. That paragraph specifically mentions mental illness when considering more serious offences such as robbery. The relevant passage has been quoted earlier in the judgment: case-workers must balance the risk to the public from re-offending and absconding if the detainee is mentally ill.
55. 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."
On 28 November 2011 the Court of Appeal decided to re-open the appeal in Anam, holding now that the detention of the appellant had been unlawful from its inception in May 2008 to 14 August 2009, and directing that all questions of damages for this period of unlawful detention, together with any issue as to the lawfulness of any subsequent detention, were to be remitted to the Administrative Court "without regard to the observations of the Court of Appeal herein with regard to the inevitability of detention".
"… 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  [of his judgment in Lumba]). 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  and per Lord Kerr at ). 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".
On the burden and standard of proof Richards LJ said (in para. 23):
"Similar considerations apply to the judgments in Kambadzi. Indeed Lord Hope stated in Kambadzi at  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 may well 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 I see no reason why the standard of proof should be anything other than the balance of probabilities".
Richards LJ then added this (in para. 24):
"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 the 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 the continued detention to be assessed by reference to Hardial Singh principles".
"Here the claimant has a history from 1991 of prolific offending, some forty offences involving twenty-six convictions. This offending culminated in the robbery conviction, serious enough to warrant a four year sentence. … Apart from the escalating seriousness of the claimant's pattern of offending and the risk posed as a result of that, there is also the very high risk of absconding. That is evident in the considerable number of offences relating to bail and failing to surrender to custody. Closely associated with that is the disruptive behaviour to frustrate removal, and the claimant's failure to co-operate in an attempt to document him on the expiry of his Bangladesh passport. There are also the unmeritorious applications he has made for asylum and judicial review and the frequent and unsuccessful applications he has made for bail. Given all these factors, the balance is against release."
Cranston J's approach was endorsed by the Court of Appeal, Black LJ observing (in para. 80 of her judgment) that the factors he had identified were "well recognised by the authorities … as relevant in this regard, namely the risk of absconding and the risk of further offending, as well as the Appellant's own disruption of legitimate attempts to effect his removal, his refusal to co-operate with attempts to obtain documentation from him and his belated challenges, aimed at frustrating his otherwise lawful deportation".
Issue (i): paragraph 55.10 of the EIG
Submissions for the claimant on issues (i)
Submissions for the Secretary of State on issue (i)
Discussion and conclusion on issue (i)
Would the claimant have been detained in any event?
Could the Secretary of State lawfully have detained the claimant in accordance with her policy in paragraph 55.10?
The period from 17 May to 21 June 2010
The period from 22 June to 2 November 2010
The period from 3 to 29 November 2010
Conclusion on issue (i)
Issue (ii): the principles in Hardial Singh
Submissions for the claimant on issue (ii)
Submissions for the Secretary of State on issue (ii)
Discussion and conclusion on issue (ii)
The first principle
The second principle
The third principle
The fourth principle
Conclusion on issue (ii)
Issue (iii): the statutory provisions
Submissions for the claimant on issue (iii)
Submissions for the Secretary of State on issue (iii)
Discussion and conclusion on issue (iii)
Issue (iv): damages
Submissions for the claimant on issue (iv)
Submissions for the Secretary of State on issue (iv)
Discussion and conclusion on issue (iv)