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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 >> Anam, R (on the application of) v Secretary of State for the Home Department (No. 2)  EWHC 1770 (Admin) (27 June 2012)
Cite as:  EWHC 1770 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of Ruhul Anam)
|- and -
|Secretary of State for the Home Department (No. 2)
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7404 1424
Official Shorthand Writers to the Court)
Mr John-Paul Waite (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 17 and 18 May 2012
Crown Copyright ©
|B. Overview of events relevant to the present case||9|
|C. Legal principles||21|
|C1. Power to detain, and ramifications, explained in Lumba||21|
|C3. OM (Nigeria)||37|
|C4. LE (Jamaica)||43|
|C5. The Hardial Singh principles||46|
|C5.1. Citation of authorities about the Hardial Singh principles||46|
|C5.2. How long is a reasonable period||48|
|C5.3. The detainee's psychiatric condition||50|
|C5.4. Risk of absconding/reoffending||52|
|C5.5. Failure to co-operate with return||53|
|C5.6. Pursuit of claims, litigation, or tribunal proceedings||54|
|C5.7. Relevance of bail decisions||56|
|C6. Public law obligations, including as to published policy||57|
|C7. Article 5 of the European Convention on Human Rights||62|
|C8. The test for whether damages are more than nominal||65|
|D. Departmental policy to 26 August 2010||68|
|E. Departmental policy from 26 August 2010 onwards||72|
|F. The Hardial Singh fourth principle||73|
|G. "Spent" convictions||74|
|H. The background history||75|
|I. The period prior to the decision of 14 August 2009||78|
|J. Detention from 14 August 2009 onwards||99|
|Annex 1: Departmental policy as set out in EIG||Annex 1|
|Annex 2: Mr Anam's mental health up to 14 April 2008||Annex 2|
|Annex 3: Mr Anam's first period of detention||Annex 3|
|Annex 4: Mr Anam's second period of detention||Annex 4|
Mr Justice Walker:
(1) The secretary of state must intend to deport the person and can only use the power to detain for that purpose;
(2) The deportee may only be detained for a period that is reasonable in all the circumstances;
(3) If, before the expiry of the reasonable period, it becomes apparent that the secretary of state will not be able to effect deportation within a reasonable period, [the secretary of state] should not seek to exercise the power of detention;
(4) The secretary of state should act with reasonable diligence and expedition to effect removal.
Article 5 Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
(1) While Mr Anam's detention was unlawful until the decision was taken on 14 August 2009 to continue detention, as regards the period prior to that decision Mr Anam is entitled to no more than nominal damages because during that period those responsible could and would have taken a lawful decision to detain him.
(2) Following the decision taken on 14 August 2009 Mr Anam's detention remained unlawful, as neither that decision nor subsequent decisions took account of Professor Katona's second report dated 22 July 2009, but as regards the period prior to close of business on Thursday 11 February 2010 Mr Anam is entitled to no more than nominal damages because during that period those responsible could and would have taken a lawful decision to detain him.
(3) From close of business on Thursday 11 February 2010 Mr Anam's detention was unlawful because it failed to comply with Hardial Singh principles.
(4) Subject to any development warranting the contrary conclusion, Mr Anam is now entitled to his liberty.
(5) Mr Anam is entitled to substantial damages for his detention from close of business on Thursday 11 February 2010 onwards.
B. Overview of events relevant to the present case
"[N]onetheless you decided to part company with your defence team and you tried to pretend that you were ill when I was quite satisfied that you were not ill."
C. Legal principles
C1. Power to detain, and ramifications, explained in Lumba
(1) Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the secretary of state directs him to be released pending further consideration of his case or he is released on bail.
(a) a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and
(b) he appeals against his conviction or against that recommendation,
the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.
(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 detained 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).
C3. OM (Nigeria)
23. 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.
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 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.
37. 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.
39 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.
46 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  EWCA Civ 1112 , at -.
(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.
C4. LE (Jamaica)
27. Mr Southey also took issue with the judge's finding that, having regard to the risk of absconding, the decision was a rational one. There were two aspects to this line of argument. The first was one of principle, that the judge was wrong to analyse the matter in terms of the rationality of the decision to detain: the court is not limited to applying a Wednesbury test but is required to act as primary decision-maker in deciding on the evidence before it whether detention was in accordance with the policy. The second was case-specific, that the judge was wrong on the facts to find a strong risk of absconding.
28. I can deal shortly with the second point.
29. Mr Southey's submission that the judge was wrong to apply a Wednesbury test in determining the lawfulness of the decision to detain the appellant requires somewhat fuller consideration:
i) It is common ground that the construction of the policy is a matter for the court rather than being subject to a Wednesbury test (see, for example, R (MD (Angola)) v Secretary of State for the Home Department  EWCA Civ 1238 at ). But on this aspect of the case, unlike the issue considered next concerning the application of the policy to those with a mental illness, no question arises as to the construction of the policy: it is not contended here that the decision-maker misunderstood the meaning of the policy.
ii) It is also common ground that the power to detain is limited by the Hardial Singh principles, in particular that detention is lawful only if it is for a reasonable period, and that it is for the court itself to determine whether a reasonable period has been exceeded. This was spelled out in R (A) v Secretary of State for the Home Department  EWCA Civ 804, most clearly by Keene LJ at -. Although Mr Southey placed considerable weight on that authority, it does not appear to me to be directly in point since the reasonableness of the period of detention and the application of the Hardial Singh principles are not in issue here.
iii) Subject to the limits imposed by the Hardial Singh principles, the power to detain is discretionary and the decision whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. That discretion is vested by the 1971 Act in the Secretary of State, not in the court. The role of the court is supervisory, not that of a primary decision-maker: the court is required to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision-maker has acted within the limits of the discretionary power conferred on him by the statute.
iv) That accords with the approach taken in R (OM) v Secretary of State for the Home Department  EWCA Civ 909. In that case the detention was held to be unlawful for failure to take into account the paragraph of the then current policy relating to mental illness, but the court held that if due consideration had been given to the policy the appellant could and would lawfully have been detained and that she was entitled only to nominal damages. In my judgment, with which Ward LJ and Hughes LJ agreed, I said at  that the question whether the appellant could lawfully have been detained was a matter of legal assessment which had two separate strands to it
Although that analysis was applied in a context where detention had already been found to be unlawful and the issue was one of damages, I can see no basis for adopting a different approach when determining whether the initial decision to detain was itself a lawful one. Mr Southey was not able to point to any sensible point of distinction.
v) I accept that there are observations in the judgment of Black LJ in Anam v Secretary of State for the Home Department  EWCA Civ 1140 (a case considered further below in relation to the issue of mental illness) that run counter to the views I have expressed. In particular, at , Black LJ took a broader view of what was said in R (A) v Secretary of State for the Home Department, treating it as "binding authority that the court must assume the role of primary decision maker when considering the lawfulness of detention rather than simply reviewing the decision of the Secretary of State along traditional public law lines", and she went on to indicate that this involved the court "attaching appropriate weight in its deliberation to matters such as government policies, risk assessments, and the evidence as to likely time-scales for the deportation of the individual". All this arose in the context of deciding on the correct approach of the court to determining the lawfulness of detention in circumstances where the decision-maker had failed to have regard to the published policy. The other members of the court (Longmore LJ and Maurice Kay LJ) agreed with Black LJ's conclusion that the appeal should be dismissed but gave reasons of their own for that conclusion. In any event, the decision pre-dated the decisions of the Supreme Court in Lumba and Kambadzi, and it appears from R (Moussaoui) v Secretary of State for the Home Department  EWHC 126 (Admin) at  that the appeal in Anam was re-opened following those decisions and that the appeal was then allowed. Although that may not directly undermine what Black LJ said in Anam about the role of the court as primary decision-maker, it does suggest the need to approach the case with a degree of caution.
vi) Our attention has also been drawn by counsel to the judgment of the Court of Appeal in R (AM) v Secretary of State for the Home Department  EWCA Civ 521, handed down after the hearing of the present appeal. The case related to the appellant's detention in alleged breach of the policy in paragraph 55.10 of the Enforcement Instructions and Guidance (considered below in the context of mental illness). Applying the principles in Lumba and Kambadzi, the court held that the detention had been contrary to the policy and unlawful, in that there was independent evidence that the appellant had been tortured and there were no very exceptional circumstances why detention should have been maintained. It was common ground between the parties that the decision on such questions was for the court itself and did not depend on the application of Wednesbury principles: see  and . The authorities referred to for that proposition were R (A) v Secretary of State for the Home Department at  per Keene LJ, and Anam v Secretary of State for the Home Department, at  (mistakenly attributed to Maurice Kay LJ). I have considered both those authorities above. R (AM) v Secretary of State for the Home Department does not take the matter any further, since the court proceeded in it on the basis agreed between the parties and did not engage in any reasoned consideration of the point.
vii) Accordingly, I see nothing in the decided cases to cause or require me to depart from the views expressed above or in R (OM) v Secretary of State for the Home Department.
viii) In summary, it seems to me that in submitting that it is for the court to determine as primary decision-maker whether detention was in accordance with the policy, Mr Southey has elided the question whether the decision-maker directed himself correctly as to the meaning of the policy (a matter on which the court is the ultimate decision-maker) and the question whether, if so, the decision-maker acted within the limits of his discretion when applying the policy to the facts of the case (a matter in relation to which a Wednesbury test applies).
ix) Whilst I have thought it right to set out at some length where I stand on this issue, a decision on it is not necessary for the purposes of the present case. That is because it makes no difference on the particular facts whether the court adopts a Wednesbury test or makes its own independent assessment of the justification for detention.
C5. The Hardial Singh principles
C5.1. Citation of authorities about the Hardial Singh principles
C5.2. How long is a reasonable period
103. A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in R (I), there may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.
104. How long is a reasonable period? At para 48 of my judgment in R (I), I said:
"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 paragraph 2(3) of Schedule 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."
105. So far as I am aware, subject to the following qualifications, the relevance of these factors has not been questioned. The qualifications are first that the relevance of the risk of offending on release is challenged on behalf of the appellants in the present case. Secondly, "the nature of the obstacles" begs two questions that have been raised on this appeal, namely what is the relevance, if any, of delays attributable to the fact that a detained person (i) is challenging the decision to deport him by appeal or judicial review and will generally not be deported until his challenges have been determined; and (ii) has refused to return voluntarily to his country of origin?
C5.3. The detainee's psychiatric condition
When considering what was a reasonable period for which to detain Mr Lumba in accordance with the Hardial Singh principles, however, I would stress that his psychiatric condition must be among the factors to be taken into account.
C5.4. Risk of absconding/reoffending
107. It seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation, or (more broadly) as a power which may also be exercised to further the object which it is sought to achieve by a deportation, namely, in the present case, that of removing an offender whose presence is not conducive to the public good. The distinction between these two objects was clearly drawn by the Court of Appeal in R (A) v Secretary of State for the Home Department  EWCA Civ 804. Toulson LJ said at para 55:
"A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view, that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because he has a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
Para 78 of Keene LJ's judgment is to similar effect.
108. I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that the Court of Appeal was right in R (A) to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown LJ said in R (I) at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee re-offending is "an obviously relevant circumstance".
109. But the risk of re-offending is a relevant factor even if the appellants are right in saying that it is relevant only when there is also a risk of absconding. As Lord Rodger 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.
110. The risk of re-offending is, therefore, a relevant factor.
121. 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.
144. There must come a time when, however grave the risk of absconding and however grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation.
C5.5. Failure to co-operate with return
127. It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) or treatment contrary to article 3 of the ECHR . Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return.
128. What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a "trump card" which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in R (I), "the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation." If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R (I) and Keene LJ in R (A) and I agree with them.
144. The courts below appear to have taken into account Mr Lumba's refusal of voluntary return without making it clear how this is relevant to the assessment of a reasonable period. As I have said, it is of limited relevance as a free-standing reason (see paras 122-128 above). It would be legitimate to infer from the refusal of voluntary return that there is a risk of absconding.
C5.6. Pursuit of claims, litigation, or tribunal proceedings
121. If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re-offending, which would compel an appellant's release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi and I agree with it. 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.
144. in certain respects the courts below have not applied the Hardial Singh principles correctly. In particular, they have wrongly regarded the fact that Mr Lumba has been able to delay his deportation by pursuing applications and appeals which, thus far, have been unsuccessful as being relevant to the assessment of a reasonable period of detention. It has not been suggested by the Secretary of State that any of these applications or appeals have been hopeless and abusive. For the reasons given above, the fact that the applications and appeals delayed the deportation should have been regarded as irrelevant.
C5.7. Relevance of bail decisions
118. Paragraph 29 of Schedule 2 to the 1971 Act gives the First-tier Tribunal power to grant bail pending an appeal, but this is subject to the restrictions stated in paragraph 30. Paragraph 30(1) provides that an appellant shall not be released under paragraph 29 without the consent of the Secretary of State if removal directions are currently in force. There is nothing in the schedule which requires the tribunal to apply the Hardial Singh principles in deciding whether or not to grant bail and, in particular, to have regard to the past and likely future length of a detention. Bail is not a determination of the legality of detention, whether at common law or for article 5(4) purposes.
C6. Public law obligations, including as to published policy
C7. Article 5 of the European Convention on Human Rights
The common law is just as respectful of the liberty of the person, and just as distrustful of arbitrary and secret decision-making by officials acting on behalf of Government, as is the Convention.
C8. The test for whether damages are more than nominal
This concession [that Mr Anam's detention to 14 August 2009 was unlawful] is a significant one in terms of materiality of the error. As such it requires a considerable step by the Defendant to then conclude that damages should only be nominal because she would and could have detained; if so a finding, as important as illegality of detention, would be rendered otiose;
In this case, if the Claimant can show greater illegality of detention than that conceded by the Defendant (albeit that the burden is in fact on the Defendant in this speculative stage) then he clearly establishes an entitlement to more than nominal damages;
D. Departmental policy to 26 August 2010
12. Chapter 38 of the Operational Enforcement Manual ("OEM"), which was a published document in force until April 2008, stated in its introductory section that the 1998 White Paper confirmed that "there was a presumption in favour of temporary admission or release and that, whenever possible, we would use alternatives to detention". Para 38.3 stated:
"1. There is a presumption in favour of temporary admission or temporary release.
2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.
3. All reasonable alternatives to detention must be considered before detention is authorised."
13. Identical wording was contained in Chapter 55 of the Enforcement Instructions and Guidance ("EIG") which replaced Chapter 38 of the OEM and came into force on 19 June 2008.
14. On 9 September 2008, Chapter 55 of the EIG was amended. With regard to FNPs, para 55.1.2 stated:
"Due to the clear imperative to protect the public from harm and the particular risk of absconding in these cases, the presumption in favour of temporary admission or temporary release does not apply where the deportation criteria are met. Instead the person will normally be detained, provided detention is, and continues to be lawful."
15. The EIG then gave guidance to caseworkers as to the factors which might make further detention unlawful. In particular, it stated that the presumption of detention "will be displaced where legally the person cannot or can no longer be detained because detention would exceed the period reasonably necessary for the purpose of removal." Following the decision of Davis J in the current proceedings, on 22 January 2009 this policy was changed again so as to replace a presumption in favour of detention with a presumption in favour of release from detention.
The meaning of the policy
51. Paragraph 55.10 provides that those 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 problem 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.
E. Departmental policy from 26 August 2010 onwards
F. The Hardial Singh fourth principle
G. "Spent" convictions
H. The background history
I. The period prior to the decision of 14 August 2009
J. Detention from 14 August 2009 onwards
(1) Mr Anam was taking his anti-psychotic medication and his delusional beliefs were less prominent.
(2) There was another change from the position in July 2008 in that Mr Anam by July 2009 had quite prominent depressive symptoms, which were a reaction to his prolonged detention.
(3) While Mr Anam was now on regular anti-psychotic medication, he was not receiving any psychological treatment and was not in a rehabilitative environment, both of which were key components of treatment in care of people with schizophrenia.
(4) Professor Katona reiterated his recommendation for a supportive environment, and noted that family members had now expressed a willingness to provide such support.
(5) In Professor Katona's view continued immigration detention was causing the claimant considerable stress, which was likely to worsen his psychotic and depressive symptoms.
(1) that the claimant serve a statement of case which
(a) sets out the first date, and subsequent alternative dates, in relation to which there is an allegation that detention could not have been lawful, or if lawful would not in fact have been directed; and
(b) for each such date identifies each ground for saying that this was the case, and in particular as regards an allegation that detention could not have been lawful identifies separately whether each ground relied upon involves a Hardial Singh principle and if so which, or a public law obligation which necessarily would make it impossible for detention to be lawful, and if so what; and
(c) for each such ground, specifies the facts and matters that are relied upon;
(2) that the respondent set out a detailed statement of case in answer dealing with each such date, ground, and fact or matter; and
(3) that the claimant reply in detail to the respondent's answer.
Annex 1: Departmental policy as set out in EIG
The published departmental policy, as described in paragraphs 43 to 48 of Cranston J's judgment:
43 The Secretary of State's policy currently in force relevant to the immigration detention in this case is contained within Chapter 55 of the Enforcement Instructions and Guidance. It is to detain persons suffering from mental illness under immigration powers in only "very exceptional circumstances". That policy derives from the Government White Paper, Fairer, Faster and Firmer, Cm. 4018, 1998. The White Paper stated in Chapter 12 that it was regrettable that detention was necessary to ensure the integrity of immigration control. Whilst there was a presumption in favour of temporary admission or release, detention was normally justified where there was a reasonable belief that the individual would fail to keep the terms of temporary admission or temporary release; initially, to clarify a person's identity and the basis of their claim; or where removal was imminent. In particular, where there was a systematic attempt to breach immigration control, detention was justified wherever one or more of these criteria was satisfied. Paragraph 12.4 read:
"12.4 The Government also recognises the need to exercise particular care in the consideration of physical and mental health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual's asylum claim is being considered."
The following paragraphs explained that the detention of families and children was particularly regrettable, and that unaccompanied minors should never be detained other than in the most exceptional circumstances.
44 That White Paper evolved into what was Part 38.10 of the Operations Enforcement Manual. Part 38.10 was in force for the first three months of the claimant's immigration detention. From July 2008 the manual was replaced with the Enforcement Instructions and Guidance. That was revised in September 2008 and January 2009.
45 Chapter 55 of the Enforcement Instructions and Guidance, entitled "Detention and Temporary Release", refers at the outset to the 1998 White Paper as containing the general policy applicable in the area. Paragraph 55.1.2 refers to cases concerning foreign national prisoners ("FNP"), dealt with by the Criminal Casework Directorate ("CCD"), which are subject to the general policy, including the presumption in favour of temporary admission or release. In such cases, if detention is indicated, because of the higher likelihood of the risk of absconding and harm to the public on release, paragraph 55.1.3, on the use of detention, provides that it is normally 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 is detained until either deportation occurs, the foreign national prisoner wins an appeal against deportation, bail is granted or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful.
" 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. Where the offence which has triggered deportation is included in the list at 126.96.36.199, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences" (emphasis in original).
Robbery is a serious offence listed in an annex to Chapter 55. Detention in such cases must be authorised by a senior official in the Criminal Casework Directorate.
46 Decisions to detain in CCD cases are addressed specifically in paragraph 55.3.A. For more serious offences that paragraph provides:
"A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result, the high risk of public harm carries particularly substantial weight when assessing what period of detention is reasonably necessary. So, in practice, it is likely that a conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate. Caseworkers must balance against the increased risk, including the particular risk to the public from re-offending and the risk of absconding in the individual case, the types of factors normally considered in non-FNP detention cases, for example, if the detainee is mentally ill. Caseworkers are reminded that what constitutes a "reasonable period" for these purposes will generally be longer than in non-criminal cases, or in less serious criminal cases, particularly because the ex-FNP has committed a serious crime or crimes" (emphasis in original).
Among the factors listed influencing the decision to detain are whether the person has mental ill health: paragraph 55.3.1.
"55.3.1 Factors influencing a decision to detain
All relevant factors must be taken into account when considering the need for initial or continued detention, including:
What is the likelihood of the person being removed and, if so, after what timescale?
Is there any evidence of previous absconding?
Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
Has the subject 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)
Is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave etc)
What are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? Does the person have a settled address/employment?
What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?
Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?
Is the subject under 18?
Does the subject have a history of torture?
Does the subject have a history of physical or mental illness?"
47 Further guidance on detention in CCD cases where a person has completed a custodial sentence is given in paragraph 55.3.2. The paragraph is to be read in conjunction with 55.3.1, with substantial weight being given to the risk of further offending and the risk of harm to the public. With serious offences the exceptional nature of release is reiterated:
"Where a time served foreign national prisoner has a conviction for an offence in the list below, particularly substantial weight should be given to the public protection criterion in 55.3.1 above when considering whether release on restrictions is appropriate. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling because of the significant risk of harm to the public posed by those convicted of violent, sexual, drug-related and other serious offences. In practice, release is likely to be appropriate only in exceptional cases. This does not mean, however, that individuals convicted of offences on the list can be detained indefinitely. All relevant factors (see 55.3.1) must be considered when assessing whether there is a realistic prospect of removal within a reasonable timescale."
Release as exceptional is underlined in paragraph 188.8.131.52 because of the seriousness of violent, sexual, drug-related and similar offences.
48 The critical paragraph relied on by the claimant is 55.10, which provides that mentally ill persons should normally be considered suitable for detention only in very exceptional circumstances.
"55.10 Persons considered unsuitable for detention
Certain persons are normally considered 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:
unaccompanied children and young persons under the age of 18 (but see 55.9.3 above);
the elderly, especially where supervision is required; pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl's Wood);
those suffering from serious medical conditions or the mentally ill - in CCD cases, please contact the specialist Mentally Disordered Offender Team;
those where there is independent evidence that they have been tortured;
people with serious disabilities;
persons identified by the Competent Authorities as victims of trafficking (as set out in Chapter 9)."
Paragraph 55.15 deals with detention in national security cases.
Annex 2: Mr Anam's mental health up to 14 April 2008
The evidence concerning Mr Anam's mental health prior to immigration detention, as described in paragraphs 12, 13, 16, 17 and 18 of Cranston J's judgment:
12 Both sides accept that the claimant's mental health has fluctuated. The earliest reference to the claimant's mental state in evidence is to a report of Dr Gandhi in 1991. His diagnosis is mentioned in a later report dated the 18th October 2000 by Dr Joseph. Dr Joseph's report was prepared in relation to the care proceedings involving the claimant's children. In it Dr Joseph agreed with Dr Gandhi's diagnosis that the claimant suffered from paranoid psychosis.
13 In September 2008 Dr Patel prepared a report in relation to the Crown Court proceedings for the robbery. In Dr Patel's opinion the claimant was suffering from a paranoid psychotic illness consistent with a diagnosis of paranoid schizophrenia. He had displayed intermittent psychotic symptoms since 1991. It was likely that the claimant had not received a definitive diagnosis of paranoid schizophrenia earlier as a consequence of co-morbid psychoactive substance misuse, a lack of sustained engagement with mental health services and impaired compliance with prescribed medication. Dr Patel recorded that the claimant had been treated with anti-psychotic medication in prison following Dr Patel's initial assessment of him, and this had resulted in an improvement in his psychotic symptoms and general presentation. Dr Patel did not believe at that time that the claimant's mental illness was of a nature or degree to warrant transfer to hospital for further assessment and treatment. Following release into the community, the claimant would need follow up treatment by a community mental health team to monitor his mental state, compliance with prescribed medication and abstention from the use of illicit substances. Were his mental health to deteriorate, and his risks to become unmanageable, or if the claimant were to become non-compliant with medication, consideration would need to be given to his transfer to hospital.
16 There is reference in the claimant's detention records to his mental state. The earliest prison report in relation to mental health is on his reception in March 2007, where there is a reference to his clearly documented paranoid schizophrenia and post traumatic stress disorder, although it is noted that he is stable on Risperidone. A mental health review in May 2007, by Tony Adams, a community psychiatric nurse, recorded the claimant's poor mental health owing to his move to the prison. Later that month Tony Adams noted that the claimant did not feel well and wanted to stop his medication. Mental health reviews in June 2007 recorded that on one occasion the claimant appeared more relaxed, but a few days later he said he was not progressing well, although he was not specific with his description of symptoms.
17 An entry on the 21st June 2007 records that Dr Birmingham was scheduled to see the claimant at a psychiatric outpatient clinic but that the claimant declined to attend. Tony Adams reported in early July that he saw the claimant in the cells after reports of bizarre behaviour and that the claimant declined to restart his Risperidone. Tony Adams reported in October 2007 that there were no significant relapse symptoms evident and in early November that his mental health was stable with no symptoms of illness present. The claimant continued to present without the symptoms in late November. That was also the case in early December when there was a mental health review by Tony Adams, along with Dr Birmingham. The claimant continued to refuse treatment.
18 In mid December 2007 a mental health review by Tony Adams found that the claimant did not appear distracted or thought disordered, although his demeanour changed when Mr Adams attempted to discuss whether his presenting symptoms had changed since his admission in 2005. There was no evidence of thought disorder or hallucinations the following day but there was possible evidence of delusive thinking. A mental health review in late January 2008 found the claimant in a good mood and reporting no concerns about his mental health. Mr Adams and Dr Birmingham saw the claimant on the 20th March 2008 for a routine psychiatric review. The claimant did not want to take any psychotic medicines.
Annex 3: Mr Anam's first period of detention
(The first period of immigration detention covers the period up to the decision to detain immediately prior to the decision of 14 August 2009.)
A3-1. The order of the Court of Appeal dated 21 November 2011, and some of the later detention reviews, refer to Mr Anam's detention as having begun in May 2008. However it is clear from the early detention reviews, and is accepted by the Secretary of State, that immigration detention began on 14 April 2008. This was approximately 42 days sooner than the half way period at which Mr Anam would have been entitled to release from prison. The reason was that Mr Anam had been approved for release under the early release scheme.
A3-2. Directions were set for Mr Anam's removal on 24 April 2008. At this stage the view of the secretary of state was that Mr Anam had not within the relevant time limit lodged an appeal against the notice of intention to deport, reasons for which, according to the secretary of state, had been given in a letter dated 9 October 2007. Mr Anam had, however, written to the Asylum and Immigration Tribunal ("AIT") on 7 February 2008. As his letter had not at that stage been accepted by the AIT as an out of time appeal the Secretary of State considered that it did not constitute a barrier to removal. Representations by Mr Anam on 24 April 2008 as to why he should not be deported from the United Kingdom were the subject of a response the same day. The response noted that Mr Anam had provided evidence of his mental health and his diagnosis of schizophrenia in the form of the letter from community psychiatric nurse Tony Adams dated 25 January 2008 and the report of Dr Patel dated 8 September 2006. Mr Anam had expressed a concern that in Bangladesh he would lose the treatment for mental illness available to him in the United Kingdom. In response the Secretary of State cited advice that while the standard of care provided in government hospitals was not necessarily up to UK standards, most doctors also ran high quality private practices where fees were minimal compared with the UK.
A3-3. The response added that while these points had not previously been considered, when taken together with the material that had been considered in the letter giving reasons for deportation of 9 October 2007, they would not have created a realistic prospect of success. (This was a reference to the secretary of state's assessment of what the position would be in the event of an appeal taking place.) The decision was accordingly certified under section 96(1) of the Nationality, Immigration and Asylum Act 2002.
A3-4. What then happened was that the removal on 24 April 2008 did not proceed as Mr Anam became disruptive and was removed from the flight. On 30 April 2008 removal directions with escorts were re-set for 8 May 2008. On 2 May 2008 Mr Anam's representatives submitted an out of time appeal and representations on his behalf. On 7 May 2008 Mr Anam lodged an application for asylum, with the result that removal directions were cancelled. On 8 May 2008 the AIT advised that the "out of time" appeal was to proceed.
A3-5. Nursing assessments on 25 April and 1 May 2008 are described in paragraph 19 of Cranston J's judgment. Neither side disagreed with this description, which was as follows:
A nursing assessment at the time of his arrival at a detention centre on the 25th April 2008 briefly reports that he was in touch with a psychiatric hospital and that he appeared paranoid. Sharing a room made him feel stressed. There was a medical health needs assessment on the 1st of May 2008 by a community psychiatric nurse which recorded that the claimant was not complaining of any psychiatric condition and had refused to offer details of his past involvement with or treatment by psychiatric services. Dr Patel's report was available, as were the short reports from Tony Adams. The report writer was not able to perform the full medical health assessment because of the claimant's reluctance to engage. Consequently he was unsure whether the claimant was suffering with a mental health problem. During the session the report writer could not detect any significant levels of emotional disturbance other than being angry at his present situation and facing the possibility of being returned to Bangladesh. The claimant did not complain of any psychiatric condition. There was some uncertainty about his diagnosis.
A3-6. A detention review was prepared by Mr Mellor of CCL2 (Criminal Casework Liverpool Team 2) on 13 May 2008. It gave the date of Mr Anam's detention as 14 April 2008 and noted, among other things, that Mr Anam had now stated that he was appealing against deportation because he feared for his life if returned to Bangladesh, and because he had mental health problems. Under the heading "Likelihood of removal within a reasonable timescale" Mr Mellor stated:
The timing of Mr Anam's appeal and representations were made on the day of his planned removal. The timing of these and also of his 'Out of Time Appeal', suggest that this is no more than a delaying tactic.
Mr Anam can be removed as soon as the appeal has been heard, if he is unsuccessful, as we have a valid passport (currently with Heathrow removals desk).
A3-7. On this footing Mr Mellor proposed to detain Mr Anam until his appeal had been heard and his asylum application considered. That proposal was countersigned by a senior executive officer on the same day without comment.
A3-8. Also on 13 May 2008 Mr Mellor prepared a monthly progress report to be given to Mr Anam. It notified Mr Anam that the current barriers to removal were the asylum claim, as to which arrangements were being made for him to be interviewed, and his appeal hearing, as to which his file and papers had been forwarded to the AIT. It recorded that after review it had been decided that he should remain in detention for three reasons: in order to effect removal from the UK, because he was likely to abscond if given temporary admission or release, and because there was a risk of further reoffending. It added that the decision had been reached on the basis of three factors: his refusal to return voluntarily, his previous failure or refusal to leave the UK when required to do so, and his unacceptable character, conduct or associations.
A3-9. On 12 June 2008 Mr Mellor prepared a further detention review. He noted that a full asylum interview had been booked for 20 June 2008. As to the likelihood of removal within a reasonable time scale, he repeated the assertions made on 13 May 2008, along with the same reference to Mr Anam's appeal and representations being no more than a delaying tactic, and the same proposal. This review does not appear to have been countersigned by a more senior officer. A monthly progress report dated 20 June 2008 was issued to Mr Anam, giving an account of the then current position. It recorded that after review it had been decided that he should remain in detention, and identified the same three reasons and the same three factors as had been identified in the monthly progress report dated 13 May 2008.
A3-10. The next detention review was prepared on 21 July 2008 by Mr Mellor and countersigned by the CCL1 team leader the same day without comment. It noted among other things that on 20 June 2008 a full asylum interview had been completed, and that on 24 July 2008 Mr Anam's appeal against deportation was due to be heard. As to likelihood of removal within a reasonable time, comments similar to those of 13 May were made, and the proposal was again that Mr Anam be detained until his appeal had been heard and his asylum application considered. Mr Mellor also prepared a monthly progress report which was issued to Mr Anam, giving an account of the then current position. It recorded that after review it had been decided that he should remain in detention, and identified the same three reasons and the same three factors as had been identified in earlier monthly progress reports.
A3-11. Not long afterwards Mr Kennedy took over from Mr Mellor as the case worker responsible for Mr Anam. This may be what lay behind a delay in the preparation of the next detention review, which was dated 23 August 2008. By that time a number of events had occurred:
(1) On 24 July 2008 Mr Anam's solicitors lodged further representations, and enclosed a report by Dr Katona dated 19 July 2008. That report was summarised by Cranston J at paragraph 14 of his judgment:
14. Dr Katona's report of the 19th July 2008 was prepared for the purposes of the hearing before the Asylum and Immigration Tribunal. Dr Katona agreed with Dr Patel's diagnosis that the claimant was suffering from paranoid schizophrenia. His condition was likely to have deteriorated in recent times he had been in immigration detention for some 2 to 3 months because of his reluctance to take anti-psychotic medication. The claimant informed Dr Katona that he was prepared to restart on the medication although he had some concerns that it might make him feel "lumbified". Dr Katona opined that the claimant's condition was most likely to improve if he restarted medication and was placed in a supportive environment, with close mental health monitoring. This could initially be in a psychiatric inpatient setting, but it might also be possible to provide sufficient monitoring in the community if he also had the benefit of family support. It was unlikely that his mental health needs would be met on return to Bangladesh.
(2) On 12 August 2008 the AIT dismissed Mr Anam's appeal. The AIT's reasons for this decision were summarised by Cranston J at paragraph 9 of his judgment:
9. In early August 2008 the claimant's appeal against a deportation order was heard by the Asylum and Immigration Tribunal, which dismissed it. In the course of the determination the Tribunal addressed the suggestion that the drug, Risperidone, with which the appellant was being treated, was not available in Bangladesh. The Tribunal noted that that part of Dr Katona's report was not particularly helpful because it did not express clearly how important Risperidone was to the claimant's care and whether there were other drugs which would have been effective in treating his condition. The Tribunal also noted that Risperidone was not available in other countries such as Australia, Belgium and France. The Tribunal also noted that the claimant had returned to Bangladesh on a number of occasions, summarised the position with regard to his children and also noted his admission to long misuse of cannabis and cocaine "which may have contributed to his present mental condition". In the result the Tribunal concluded that medical treatment would be available for the claimant in Bangladesh and that, having regard to his long and escalating history of offending, any interference with his rights under Article 8 was proportionate.
(3) Mr Anam had sought a review of this decision.
A3-12. The detention review of 23 August 2008 stated that the date of Mr Anam's detention had been 18 May 2008. This was wrong. All previous detention reviews gave the date as 14 April 2008. Indeed the first detention review had been dated 13 May 2008 5 days prior to what was now said to have been the date of detention. And, as will be seen below, on 26 August 2008 Mr Kennedy was to prepare a monthly progress report which correctly identified the date of detention as 14 April 2008.
A3-13. The 23 August 2008 detention review noted that there were three current barriers to removal. The first was the outstanding asylum claim, which would require further investigation to establish who was dealing with it. The second was the outstanding request for a review of the AIT decision of 12 August 2008. The third was the letter from Mr Anam's legal representatives dated 24 July 2008 which required a response. Under the heading "Proposal," the review stated:
Mr Anam's case has been considered under current detention criteria. Mr Anam has thwarted two removal attempts. Given his extensive criminal history and the nature of his offence it is considered that he has no incentive to comply with any reporting restrictions placed upon him.
A3-14. A similar reference to Mr Anam's case having been "considered under current detention criteria" appeared in each subsequent detention review during the first period.
A3-15. On 26 August 2008 the 23 August 2008 detention review was countersigned by a higher executive officer. The higher executive officer said this:
Agreed. This man presents a very high risk of re-offending and non-compliance with restrictions if we were to release him. The subject has an extensive criminal history with 41 offences resulting in 26 convictions. He has made a late claim for asylum once removal directions had been set which suggests it is solely an attempt to prevent removal. The subject has been served with a deportation order and has already thwarted two removal attempts. There is therefore little likelihood of him abiding by any restrictions and he poses a high absconder risk. Continued detention remains appropriate and in line with current detention criteria.
A3-16. On 26 August 2008 Mr Kennedy signed a monthly progress report to Mr Anam. The report correctly gave 14 April 2008 as the date when Mr Anam was detained under Schedule 3 to the 1971 Act. It noted that the deportation appeal had been dismissed and that a review of this had been sought. It also noted the further representations which had been submitted on 24 July 2008 and said that they would be addressed as soon as possible. It then recorded the decision that Mr Anam should remain in detention, and set out the same three reasons, and the same three factors, as had appeared in previous monthly progress reports.
A3-17. On 28 August 2008 Mr Anam's application for review of the decision of the AIT promulgated on 12 August 2008 was refused by a senior immigration judge. On 12 September 2008 Mr Anam applied for the matter to be considered by a High Court judge.
A3-18. These developments were noted in a detention review dated 16 September 2008, which like all subsequent detention reviews perpetuated the mistake that 18 May 2008, rather than 14 April 2008, had been the date of detention. The 16 September 2008 detention review also recorded that the higher executive officer had authorised detention in August, and that her directions were to deal with the outstanding actions on the case as soon as practical. In that regard the review noted that on 1 September 2008 Mr Anam's asylum file had been forwarded to Liverpool, and from there to Angel Square, but after investigations with Liverpool, Angel Square and the AIT it was still unclear who was dealing with the asylum claim. Thus the position was that three barriers to removal still remained. The first was the outstanding asylum claim of 7 May 2008, where further investigation was required. The second was Mr Anam's application to the High Court of 12 September 2008. The third was his representatives' letter of 24 July 2008 which required a response. Under the heading "Proposal" the author of the detention review set out exactly the same wording as had appeared in the detention review of 23 August 2008. It is not clear who the author of the 16 September 2008 detention review actually was.
A3-19. A monthly progress report dated 16 September 2008 was prepared by Ms McGill of CCD. It, like all subsequent monthly progress reports, mistakenly said that 18 May 2008, rather than 14 April 2008, had been the date of detention. The 16 September 2008 monthly progress report stated that Mr Anam's case was being dealt with by Mr Kennedy and gave an account of the then current position. It recorded that after review it had been decided that Mr Anam should remain in detention, and identified the same three reasons and the same three factors as had been identified in earlier monthly progress reports.
A3-20. A detention review dated13 October 2008 noted that Mr Anam's asylum claim had been refused on 25 September 2008, and said that the refusal did not carry a right of appeal as the decision was subsidiary to the deportation decision. Thus the barriers to removal which remained were Mr Anam's application to the High Court concerning the AIT decision of 12 August 2008, and his representatives' letter of 24 July 2008 which required a response. The "proposal" was that the representations of 24 July 2008 should be responded to so that, if the application to the High Court were dismissed, Mr Anam's removal could be initiated. In other respects the proposal was identical to that made on the previous two occasions. This detention review was countersigned on 15 October 2008 by the same higher executive officer who had dealt with the August detention review. On this occasion when authorising review she commented:
Continued detention agreed. Mr Anam has an extensive criminal history and has thwarted two previous attempts to remove him. He is fully aware of out intention to carry out removal should his High Court review be refused. He has no incentive to abide by any restrictions given the late stage of his case and therefore poses an absconder risk.
Please consider the outstanding representations before the next review.
A3-21. A monthly progress report to Mr Anam prepared by Mr Kennedy on 15 October 2008 curiously made no reference to the asylum claim having been refused on 25 September 2008. In other respects it gave an account of the then current position. It recorded that after review it had been decided that he should remain in detention, and identified the same three reasons and the same three factors as had been identified in earlier monthly progress reports.
A3-22. A detention review dated 12 November 2008 noted a number of developments. On 29 October 2008 Mr Anam's application to the High Court concerning the AIT decision of 12 August 2008 was dismissed, and thus all appeal rights in relation to the decision to make a deportation order were exhausted. On 31 October 2008 a response had been sent to Mr Anam's solicitors rejecting the representations in the letter of 24 July 2008. On 6 November 2008 CCD had been notified that Mr Anam was due to be transferred to Colnbrook Immigration Removal Centre, but he had refused to be transferred and force had to be used to restrain and transport him. The only barrier to removal which remained was that there was a need, now that the appeal rights against the decision to deport had been exhausted, to obtain a deportation order. It was noted that Mr Anam's Bangladesh passport was valid until 29 January 2009. The report was countersigned by an Inspector on 13 November 2008. He commented:
It is anticipated that we will in a position to make another attempt to remove this man from the UK in a couple of weeks or so. His passport is only valid until January 2009 so we need to pursue this with some urgency as escorts will be required and Anam will inevitably do whatever he can to prevent his return to Bangladesh. He has committed over 40 offences here, which have resulted in almost 30 convictions. It is clear that he treats our laws with contempt and would not comply with any restrictions. Detention is clearly justified in this case and is proportionate to risk.
A3-23. It seems that the signed deportation order was speedily obtained, as a monthly progress report to Mr Anam dated 13 November 2008 said that CCD was in possession of it. The report added that CCD would now arrange for Mr Anam to be returned to Bangladesh. In other respects it gave an account of the then current position. It recorded that after review it had been decided that he should remain in detention, and identified the same three reasons and the same three factors as had been identified in earlier monthly progress reports.
A3-24. However Mr Anam was not returned, as was explained in a detention review dated 14 January 2009. After investigation it had become apparent that there was no evidence to suggest that Mr Anam had been served with his "Reasons For Refusal Letter" following the refusal of his asylum claim. This was duly prepared, including the assertion about the absence of a right of appeal, and was issued to him on 11 December 2008. On 12 December 2008 he had written requesting further information regarding his case, and a response had been provided on 17 December 2008. A removal directions pack had been compiled on 16 December 2008. On 19 December 2008 CCD was notified that Mr Anam had refused to be relocated to the residential unit at Colnbrook IRC and was instead placed in the short term boarding facility. It was said that his disruption had continued and that he was relocated to the Vulnerable Persons Unit on 31 December 2008 as he refused to share a room.
A3-25. I interpose here in order to note that, as recorded by Cranston J at paragraph 10 of his judgment, Mr Anam's complaint about not being allocated a single room on arrival at Colnbrook was ultimately upheld by the Prisons and Probation Ombudsman in July 2009.
A3-26. On 23 December 2008 removal directions were set for 5 January 2009. However on 2 January 2009, three days prior to the planned removal, Mr Anam lodged a further asylum claim. The 14 January 2009 review added that "judicial review and injunction paperwork was also received from the subject's brother." In those circumstances removal directions had been cancelled. Under the heading "Proposal" the review stated:
Mr Anam's case has been considered under current detention criteria. Mr Anam is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. His JR and asylum applications will be dealt with as swiftly as possible and, if resolved, we will try to obtain a new travel document for him. The fact that we are in possession of his Bangladesh Passport, which will by then have expired, should expedite this process.
A3-27. Also on 14 January 2009 the review was countersigned by a senior executive officer, who authorised continued detention "in view of the subject's extensive criminal history, which demonstrates a disregard for UK law." He asked that the progress of the judicial review claim should be chased regularly. A monthly progress report to Mr Anam dated 16 January 2009 made no reference to the Reasons For Refusal Letter of 11 December 2008, nor to the correspondence of 12 and 17 December 2008. It noted that the removal planned for 5 January 2009 was cancelled because a judicial review had been lodged on 2 January 2009. The report said that the judicial review would now be addressed, and, once resolved, Mr Anam's removal would be re-arranged. The reasons given for continuing detention, and the factors relied upon, were identical to those appearing in early monthly progress reports.
A3-28. There does not appear to have been a detention review or monthly progress report in December 2008. The reviews and reports in November 2008 and January 2009 make no reference to medical reports from the immigration detention centres. There had been such reports during November 2008, which were summarised in paragraph 19 of the judgment of Cranston J as follows:
On the 2nd November 2008 an assessment recorded his past psychiatric history and that he was suffering from paranoid psychotic illness and possible post traumatic stress disorder. On the 18th November 2008 the previous diagnosis of paranoid psychosis is recorded. A report on the 24th November 2008 found the claimant reporting himself more paranoid but he appeared more relaxed, cooperative and coherent.
A3-29. The judicial review claim of 2 January 2009 mentioned in the January detention review and monthly progress report was CO/12/2009, and was one of the two ancillary claims considered by Cranston J in his judgment. At paragraph 2 of his judgment Cranston J said that the ancillary claims challenged "legality of detention and additional issues".
A3-30. From 6 February 2009 onwards there was correspondence between the United Kingdom Borders Agency ("UKBA") and those acting for Mr Anam.
A3-31. A detention review dated 13 February 2009 said that Mr Anam's judicial review claim of 2 January 2009 "has been allocated to a case worker and an outcome is anticipated shortly." Meanwhile on 6 February 2009 a letter responding to the representations of 2 January 2009 had been issued, "with a refusal to revoke the deportation order". Mr Anam had applied to the AIT for bail on 5 February 2009 and the application had been refused on 9 February 2009. He had submitted another application for bail to the AIT, for which there was to be another hearing on 17 February 2009. The review continued:
Mr Anam's Judicial Review will need to be addressed prior to re-arranging his removal. Unfortunately his passport was only valid until 28 January 2009 so, due to the JR claim, expired after removal directions were cancelled. We will obtain an Emergency Travel Document from the Bangladesh Authorities and this should be a simple process due to the fact we have his expired Passport as supporting evidence. I will request that an application be submitted this week in anticipation of the JR being refused.
Mr Anam's case has been considered under current detention criteria. Mr Anam is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. He is a prolific offender who has employed the use of at least 20 aliases prior to his imprisonment. He has clearly shown that he has the ability to deceive both Immigration and Police Authorities.
A3-32. The senior executive officer on 16 February 2009 authorised continued detention, stating that Mr Anam's convictions suggested a risk of harm and that his behaviour suggested a risk of absconding. A monthly progress report to Mr Anam dated 16 February 2009 summarised recent developments. It gave the same three reasons and three factors for continuing detention as had been given previously.
A3-33. It was on the following day that Mr Anam issued the judicial review claim form in the present case. He acted in person for this purpose. Just over a week later the Court of Appeal handed down judgment in R (BA (Nigeria)) v Secretary of State for the Home Department  EWCA Civ 119,  QB 686. Where representations seek to have deportation orders revoked on asylum or human rights grounds and are rejected, section 82 of the Nationality, Immigration and Asylum Act 2002 confers a right of appeal. At first instance in BA (Nigeria) it was held that, because the refusal did not relate to a "first" or "fresh" asylum or human rights claim, section 92(4)(a) of the 2002 Act had the effect that the right of appeal was not available while the proposed appellant was within the United Kingdom. The Court of Appeal reversed this decision. It held that the words "asylum claim" and "human rights claim" in Section 92(4)(a) were not implicitly limited to an initial claim or a fresh claim. The consequence was that there would be a right of appeal while in the United Kingdom if two requirements were met. First, there must be a nexus between the immigration decision against which the appeal was directed and the content of the asylum or human rights claim. Second, the claim must not have been certified under section 94 of the 2002 Act as "clearly unfounded".
A3-34. A detention review dated 13 March 2009 did not advert to the possible impact of the Court of Appeal decision in BA(Nigeria). It made no reference to there being any possibility of an in-country appeal against the refusal on 6 February 2009 to revoke the deportation order. The report said that Mr Anam had continued "to abuse the bail application system": on 10 March 2009 he had withdrawn an application for bail on the day of the hearing, but had then re-applied the following day. As regards "bio-data" information for the purposes of obtaining an Emergency Travel Document from the Bangladesh authorities, Mr Anam had provided "a minimum of information as he was being refused bail for not complying". The detention review made no mention of the judicial review claim that had been begun on 17 February 2009. It identified only two barriers to removal. The first was the judicial review claim of 2 January 2009, on which, as mentioned earlier, an outcome was anticipated shortly. The second was the need for an Emergency Travel Document to be obtained
A3-35. The 13 March 2009 review was countersigned on that day by a higher executive officer, who commented that the high risk of absconding strongly outweighed the presumption in favour of release. On 17 March 2009 an assistant director agreed to maintain detention, commenting that this was "clearly in the public interest given the level of offending and the risk of absconding."
A3-36. A monthly progress report dated 17 March 2009 was issued to Mr Anam. This, like the detention review, made no mention of the judicial review claim form of 17 February, nor of any in-country right to appeal against the 6 February 2009 refusal to revoke the deportation order. It noted that the AIT had refused bail at hearings on 17 February, 23 February, 5 March and 16 March 2009. It continued to give the same three reasons for remaining in detention, on the basis of the same three factors, as had been notified previously.
A3-37. A detention review dated 8 April 2009 noted that a further bail hearing had taken place on 25 March 2009 and was unsuccessful. It made no reference to there being any possibility of an in-country appeal against the refusal on 6 February 2009 to revoke the deportation order. As regards obtaining an Emergency Travel Document, there was a need for what was described as "a disclaimer stating that Mr Anam is happy to return." Recognising that Mr Anam would not sign such a document until his judicial review claim had been dealt with, Mr Kennedy explained that he had provided Mr Anam with a disclaimer stating that he would be happy to return should his judicial review claim be dismissed, but this had not yet been signed by Mr Anam. The Judicial Review Unit had asked that a revised decision letter be drafted "so as to progress the JR," something which Mr Kennedy said he had agreed to do in the next two days. In all these respects the reference to Mr Anam's judicial review claim appears to be to the claim made on 2 January 2009: in this detention review, as in the previous one, there is no reference to the present judicial review claim, begun on 17 February 2009.A senior executive officer on 9 April 2009 identified the judicial review [i.e. the claim begun on 2 January 2009] as the barrier to removal, which CCD were working to progress as quickly as possible. Her assessment that the risk of absconding and reoffending outweighed the presumption of release was based on the fact that Mr Anam was a serial offender who had used a number of aliases, so was well practiced in deception and had little regard for UK laws. On the same day a deputy director agreed with the assessment and recommendation, commenting that the risk of reoffending, harm to the public and absconding outweighed the presumption to release.
A3-38. On 17 April 2009 Mr Kennedy issued a monthly progress report to Mr Anam. This, too, made no reference to the judicial review claim of 17 February 2009. As regards the judicial review claim of 2 January 2009 Mr Kennedy said that CCD had been instructed by the Judicial Review Unit that the original deportation decision letter would need to be amended and reissued, and that he would endeavour to do this by the end of the week commencing 20 April 2009. There was to be a bail hearing on 21 April 2009 as Mr Anam had refused to attend a hearing on 9 April 2009. No mention was made of any in-country right of appeal against the refusal on 6 February 2009 to revoke the deportation order. The report recorded that after review it had been decided that Mr Anam should remain in detention, and identified the same three reasons and the same three factors as had been identified in earlier monthly progress reports.
A3-39. A "twelve month" detention review was prepared by Mr Kennedy on 11 May 2009. This again made no explicit reference to the judicial review claim form issued on 17 February 2009. As regards the judicial review claim issued on 2 January 2009, while a redrafted decision letter had been prepared, clarification had been sought from lawyers regarding "certification and appropriate appeal rights in this case." Both Mr Kennedy and an assistant director who considered the matter on 13 May 2009 described the proposal as "?maintain detention." On 14 May 2009 the director of CCD stated:
Based on the presumption to release, I have considered whether the continued detention is lawful. In light of their risk of further offending and harm that this may cause, as well as the likelihood of absconding, I consider these additional factors outweigh the presumption to release, I therefore authorise their detention for a further 28 days.
A3-40. Mr Kennedy prepared a monthly progress report to Mr Anam dated 14 May 2009. This, too, made no explicit reference to the judicial review claim issued on 17 February 2009. Nor did it refer to any in-country right of appeal against the refusal to revoke the deportation order. As regards the judicial review claim of 2 January 2009 it stated that a redrafted deportation decision letter had been prepared, but was awaiting approval from solicitors. It added that as Mr Anam had thwarted removal on three separate occasions, "we are looking to ensure that if your judicial review is unsuccessful, you will be removed immediately and have no further grounds for appeal." Continued detention was said to be warranted for the same three reasons, and on the basis of the same three factors, as identified previously.
A3-41. Both the claim form issued on 2 January 2009 (CO/12/2009) and that issued on 17 February 2009 (the present claim, CO/2023/2009) came before Beatson J for consideration on the papers. In CO/12/2009 he refused permission to apply for judicial review. In the present claim, by an order dated 29 May 2009, Beatson J granted permission to apply for judicial review, and directed that if Mr Anam were still in detention the hearing was to be expedited. When making the order Beatson J observed that no acknowledgment of service had been filed. Although he had refused permission in CO/12/2009 he directed that the two cases should be considered together. No doubt he had in mind that there would be an oral renewal of the application for permission in CO/12/2009.
A3-42. A further detention review was prepared on 29 June 2009. This was the first of the detention reviews to contain an explicit reference to the fact that two judicial review claims had been brought. It described the orders that had been made by Beatson J, adding:
Permission has been granted on the second JR because the courts have said that there is evidence that the Claimant suffers from a mental illness and no explanation from the SSHD as to why he is being detained.
A3-43. The 29 June 2009 detention review also noted that on 15 May 2009 it had been agreed by the chief caseworker that "the refusal to revoke the deportation order of 6 February 2009 should be granted a full in-country right of appeal." It was said that a letter dated 16 June 2009 granting a full in-country right of appeal had been served on Mr Anam, but that as yet no appeal appeared to have been lodged.
A3-44. The review repeated previous wording to the effect that Mr Anam's judicial review would need to be addressed prior to rearranging his removal, and that it should be a simple process to obtain an Emergency Travel Document. The proposal was, "?Maintain detention." On 30 June a senior executive officer authorised continued detention "based on a clear risk of harm and re-offending."
A3-45. A monthly progress report to Mr Anam dated 30 June 2009 noted the orders made by the court in the two judicial review cases, but made no reference to issue of a letter dated 16 June 2009 granting an in-country right of appeal against the refusal to revoke the deportation order. Detention was said to be warranted for the same three reasons, and on the basis of the same three factors, as had been notified previously.
A3-46. A detention review prepared by Mr Kennedy on 6 July 2009 made an assertion that Mr Anam had until 8 July 2009 to submit grounds for appealing against the refusal to revoke the deportation order. This assertion, however, seems doubtful: earlier in the review Mr Kennedy had noted that the "replacement Refusal to Revoke a Deportation Order letter" was produced on 16 June 2009. He went on to say that it had been served on Mr Anam "on 30 May 2009". This seems to be an obvious slip for "30 June 2009." If so this may have meant that Mr Anam had a little longer than 8 July 2009 in which to submit grounds of appeal.
A3-47. The 6 July 2009 detention review also noted that an application to the AIT for bail was due to be heard on 8 July 2009. The review then stated:
Mr Anam's case has been considered under the presumption of liberty. He is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. He is a prolific offender who has employed the use of at least 20 aliases prior to his imprisonment. In doing so he has clearly shown that he has the ability to deceive both Immigration and Police Authorities.
He has, as yet, failed to lodge any grounds to oppose his asylum refusal and has only one more day to do this. He has, however completed an application for AIT bail since being served with his Refusal to Revoke a Deportation Order.
Should he fail to lodge any appeal grounds, Mr Anam will be removable from the United Kingdom as soon as the travel document is agreed and, as he has repeatedly shown that he is willing to employ any method at his disposal to avoid this end; he is likely to abscond if released.
We have lots of supporting evidence to demonstrate Mr Anam's Bangladesh nationality and obtaining a travel document should take only a few weeks.
A3-48. On 7 July 2009 the senior executive officer noted that if Mr Anam did not lodge grounds of appeal removal might be possible within the near future. Even if that were not the case, however, she recommended that detention be maintained:
The subject has committed a variety of offences and has used 20 aliases. He clearly has a propensity to deceive and cannot be relied upon to comply with any reporting. I have considered the presumption of liberty but believe it is outweighed by the risk of absconding and reoffending.
A3-49. On 9 July 2009 the review was considered by a deputy director. The deputy director does not appear to have inquired as to whether grounds of appeal had been lodged. Nevertheless the deputy director agreed with the recommendation that detention be maintained, adding:
There is a long criminal history which outweighs the presumption of liberty. There is supporting evidence for an ETD and removal should be possible within a reasonable timescale.
A3-50. In fact on 3 July 2009 Mr Anam had lodged an appeal with the AIT "against all extant adverse decisions" made by the secretary of state: see paragraph 11 of the AIT decision and reasons dated 9 December 2009.
Annex 4: Mr Anam's second period of detention
(The second period of immigration detention starts after the decision to detain immediately prior to the decision of 14 August 2009. This annex, for reasons explained in the judgment, deals with that period up to and including 1 July 2010.)
A4-1. Following the decision on 9 July 2009 to maintain detention, the next monthly progress report to Mr Anam does not appear to have been issued until 5 August 2009. As with previous monthly progress reports from 16 September 2008 onwards, and like all subsequent monthly progress reports, it stated that 18 May 2008, rather than 14 April 2008, had been the date of detention
A4-2. As regards appealing against the refusal to revoke the deportation order, the 5 August 2009 monthly progress report stated that:
Nothing was received in our office but a letter from the Asylum and Immigration Tribunal, received 28 July 2009, states that they have accepted your appeal as "in time" and will allow it to proceed.
A4-3. The 5 August 2009 monthly progress report then turned to the question of an Emergency Travel Document, stating that it had not been possible to apply for this sooner than 7 July 2009 as Mr Anam had refused to sign a disclaimer stating that he would be willing to return if his judicial review was unsuccessful. The refusal to sign this document was said to constitute an acknowledgment that Mr Anam had no intention of leaving the United Kingdom even when lawfully required to do so. Continued detention was said to be warranted for the same reasons, and on the basis of the same factors, as identified previously.
A4-4. In the meantime on 22 July 2009 Dr Katona had prepared a second report. In his judgment at paragraph 15 Cranston J summarised it in this way:
15. Dr Katona prepared a second report, dated the 22nd July 2009, for the current proceedings. He confirmed his previous diagnosis of paranoid schizophrenia. The main differences between the claimant's presentation then and his presentation the previous year was that his delusional beliefs were less prominent, presumably as a result of the anti-psychotic medication he was then taking, and that by July 2009 he had quite prominent depressive symptoms, a reaction to his prolonged detention. That depression did not alter the primary diagnosis of schizophrenia. He was now on regular anti-psychotic medication, Risperidone, but was not receiving any psychological treatment and was not in a rehabilitative environment, both of which were key components of treatment in care of people with schizophrenia. Dr Katona reiterated his recommendation for a supportive environment, and noted that family members had now expressed a willingness to provide such support. In Dr Katona's view continued immigration detention was causing the claimant considerable stress, which was likely to worsen his psychotic and his depressive symptoms.
A4-5. On 11 August 2009 the substantive hearing in the present case had been due to take place, along with the renewed application for permission to apply for judicial review in CO/12/2009, at a hearing before Dobbs J. The hearing was adjourned that day and was directed to be relisted on 19 August 2009, together with a further judicial review application, CO/3250/2009. This was the second of the ancillary applications mentioned in the judgment of Cranston J. Directions were given which permitted the secretary of state to serve further evidence by noon on Friday 14 August 2009. It was ordered that the secretary of state should pay Mr Anam's cost attributable to the adjourned hearing.
A4-6. Mr Kennedy prepared a detention review dated 13 August 2009. As with all detention reviews from 23 August 2008, and like all subsequent detention reviews, it perpetuated the mistake that 18 May 2008, rather than 14 April 2008, had been the date of detention.
A4-7. Reference was made in the 13 August 2009 detention review to the letter of 16 June 2009 conferring an in-country right of appeal against the refusal to revoke the deportation order. It was said that this letter had been served on Mr Anam "on 30 May 2009". This seems to have been a repetition of the mistake in the 6 July 2009 detention review noted in annex 3, and should have read "30 June 2009". The detention review went on to note that on 28 July 2009 a letter had been received from the AIT stating that Mr Anam had now submitted grounds and that his appeal would be allowed to proceed. Under the heading, "Changes in circumstances (include full details of notified Human Rights factors)", the review stated:
Mr Anam is known to have mental health issues which are under constant assessment at Brook House IRC Healthcare Unit. They have confirmed that there has been no change in his condition and he remains fit for detention.
A4-8. Under the heading "Proposal," the review said:
Mr Anam's case has been considered under the presumption of liberty and in accordance with the current detention criteria. He is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. He is a prolific offender who is known by Police to have employed the use of at least 19 aliases prior to his imprisonment. In doing so he has clearly shown that he has the ability to deceive both Immigration and Police Authorities.
He has lodged an appeal against the Decision not to Revoke a Deportation Order and that was due to be heard at Hatton Cross AIT on 10 August 2009. Unfortunately the hearing had to be adjourned and has been re-scheduled for 16th September 2009. I spoke to Feltham Presenting Office who assure me that all our documents will be submitted to the Tribunal in time for the hearing. Should this hearing rule in his favour we will no longer be able to pursue deportation. If his appeal is dismissed we will arrange for him to be removed.
His appeal grounds appear to have been submitted beyond the deadline for doing so but the AIT had agreed to allow him to proceed.
Mr Anam has also lodged an unlawful detention JR which was due to be heard on 11 August 2009, but was adjourned to 19 August 2009. Arrangements will be made for Mr Anam to be produced at court in good time for this hearing.
We have lots of supporting evidence to demonstrate Mr Anam's Bangladesh nationality and are in possession of an expired Passport. The Bangladesh authorities have now amended their criteria and have agreed to issue travel documents in cases such as these without the need for an interview. We have contacted RGDU and asked them to expedite the application if possible. With Mr Anam's co-operation it would have already been issued but his non-compliance will not longer be a factor preventing us from obtaining and Emergency Travel Document. We anticipate that we will be able to obtain an ETD within the next month.
Mr Anam has repeatedly shown that he is willing to employ any method at his disposal to avoid removal and, given his history of deception; he is likely to abscond if released. It is also probable, given that he appears to have never been lawfully employed, that the subject will return to criminality in order to support himself.
Should Mr Anam's JR against his current detention be successful he will be released. This will not affect the deportation order and if his appeal is unsuccessful we will still pursue deportation.
Mr Anam is known to have mental health issues that were taken into consideration pre-sentencing; and as part of his asylum claim. I have spoken to John Howgate who is the Nursing Manager at Brook House IRC. Mr Howgate confirmed that Mr Anam was assessed upon arrival at Brook House and is in contact with their unit on "an almost daily basis". He also has a copy of the subject's healthcare file which details the medical assessments that have been conducted on the subject prior to his arrival at the centre. Mr Howgate confirmed that all Mr Anam's health needs are being appropriately met and that he is fit for detention. Mr Anam was moved to Harmondsworth IRC on 13 August 2009. Itr had been recognized that Mr Anam required a room to himself and had a two-bed room to himself at Brook House. It was felt to be a better use of bedspaces to move him to Harmondsworth where there are single-occupancy rooms. There is no reason to believe that Mr Anam's health needs will not be catered for at Harmondsworth. I have asked that I be notified of any changes in the subject's condition.
In light of our policy to only detain those with mental health issues under 'exceptional circumstances' I have weighed the presumption of release generally and in light of his mental illness against the number, and serious nature, of his offences. I have also considered his prior use of deception and his propensity to abscond.
Under the circumstances, I am of the view that Mr Anam is a very exceptional case and in accordance with our policy, his detention should be continued. In particular, he poses a high absconder risk and is clearly capable of avoiding Police and Immigration Authorities for long periods. His healthcare needs are being met and we are in the latter stages of obtaining a travel document for him. The only barriers to removal are his appeal against deportation, which will he heard on 16th September 2009, and the absence of a travel document which we expect to be issued in a matter of weeks.
We will pursue deportation regardless of the outcome of his unlawful detention JR hearing on 19 August 2009. It is anticipated that this hearing will conclude all of his current judicial review challenges and no further hearing is expected. Although we must accept that if his presence is required for further hearings this may constitute a barrier to removal and his Article 6 rights will be considered in this regard.
It is not possible to specify certain action points other than pursuing the ETD until the outcome of his appeal and JR are know.
? Maintain detention.
A4-9. On 14 August 2009 the senior executive officer forwarded the report to the Director, commenting:
The barriers to removal in this case are threefold. The first is the ongoing JR, the second is the appeal before the AIT and the third is the lack of an ETD. If all three are resolved in our favour, Mr Anam should be removable sometime in either October or November. The ETD should now be relatively straightforward to obtain within the next month, whilst the JR hearing is scheduled for 19 August 2009 and the AIT hearing is now set for 16 September 2009. We have considered Mr Anam's ongoing mental health issues and we are satisfied that risks of harm, re-offending and absconding posed by him are sufficient to make this an exceptional case which warrants continued detention.
Do you agree?
A4-10. The decision of the Director, also on 14 August 2009, was set out at the end of the detention review as follow:
Based on the presumption to release, I have considered the whether to continue the detention of the detainee. In light of their risk of further offending and the harm that may cause, as well as their likelihood of absconding I consider these additional factors outweighs way the presumption to release. I therefore authorise their detention for further 28 days.
A4-11. The hearing before Cranston J took place on 19 August 2009. As would later be noted in his judgment, the time estimate given for the hearing had been only two hours, and it had been necessary to deal with what he called the "ancillary claims" by means of written submissions.
A4-12. A detention review dated 21 September 2009 was prepared by Mr Kennedy. It noted that a ruling was awaited following the Administrative Court hearing on 19 August 2009. The "deportation appeal" (i.e. the appeal against the decision refusing to revoke the deportation order) was said to have been refused on 16 September 2009. After taking account of these developments, the "Proposal" in the detention review was in other respects almost identical to that in the review dated 13 August 2009.
A4-13. On 23 September 2009 a higher executive officer commented that she was "not persuaded" that Mr Anam was a suitable candidate for release "due to the significant risk of absconding and reoffending." On the same date a deputy director agreed and gave authority to detain. She stated that both the presumption of liberty and the policy on detaining those with mental health problems had been considered, but detention was appropriate "in the light of absconding and reoffending." The time scale for resolving outstanding issues was considered to be reasonable.
A4-14. Mr Kennedy prepared a monthly progress report dated 24 September 2009 to be given to Mr Anam. This reported a new development which had not featured in the detention review earlier that month. Advice had been given by the Treasury Solicitor on 22 September that "the outstanding JR decision from the judge is not a barrier to your removal". The monthly progress report said that accordingly, as soon as the Bangladesh authorities agreed to issue a travel document, CCD would give consideration to Mr Anam's Article 6 rights, and if there was no reason why he would be able to maintain contact with his solicitors while in Bangladesh, CCD would arrange for him to be deported there. The report gave the same reasons for continued detention, on the basis of the same factors, as had been identified in previous reports.
A4-15. By 19 October 2009 it had become apparent that CCD had misunderstood what had happened at the deportation appeal hearing on 16 September 2009. In a detention review prepared that day it was noted that the outcome of that hearing was still not known. By this time formal hand-down of the judgment of Cranston J had taken place on 13 October 2009. Curiously, the detention review described this as "Mr Anam's JR oral hearing", and stated that an outcome was awaited. The review proposed that Mr Anam's detention should be continued, essentially for the same reasons as had been given in the review of 13 August 2009. On 20 October 2009 the senior executive officer commented that there were still a number of barriers to removal, "but we are confident that they will be resolved in our favour in the near future and that a removal is likely before the end of the year." On the same day the director authorised detention in the light of the risk of further offending and the harm that might cause, as well as the likelihood of absconding, which he considered outweighed the presumption to release.
A4-16. The material provided to me did not include detention reviews in November or December 2009, or in January 2010. A monthly progress report dated 19 November 2009 and prepared by Mr Kennedy for issue to Mr Anam said that Mr Anam had raised several issues regarding the October monthly report, and an amended version had been provided on 16 November 2009 "to explain that your detention had been assessed and remained lawful." The 19 November 2009 report noted at an early stage that in the judicial review proceedings Mr Anam had complained that the spelling of his name in the deportation order had been incorrect. It said that the court held that no material error had been made in the decision to deport, and that the court had instructed that an amended version of the deportation order be served with the correct name. In that regard the report said that an amended deportation order had been signed and would be issued once advice on a covering letter had been obtained.
A4-17. The 19 November 2009 report then repeated the history of events given in earlier reports before returning to the judicial review proceedings. Cranston J's judgment on the main judicial review claim was dealt with in a single sentence:
He [the judge] found that, although the UKBA had failed to follow its own policy to the letter, there was no material error in the decision to maintain your detention and your continued detention was deemed lawful.
A4-18. More extensive treatment was given to the ancillary claim in respect of an incorrect name having been used in the deportation order. Here the judge was said to have been "particularly scathing and clearly saw the claim as a waste of the court's time, as well as an abuse of the judicial review process." A substantial portion of the judgment on this aspect was then set out.
A4-19. The 19 November 2009 report noted that a travel document had now been received from the Bangladesh High Commission. The current barriers to removal were identified as being the need to await the outcome of the deportation appeal, the need to issue an amended deportation order, and (if the deportation appeal failed) the need to consider Article 6 rights to ensure Mr Anam would have access to legal representation once returned to Bangladesh. The report stated that CCD were aware of Mr Anam's mental health issues and had been assured that all his health requirements were being met. It continued:
You have asked for proof of this. We provided the court with proof as part of your Judicial Review hearing. This is discussed in the determination and you have been issued with a copy.
A4-20. The 19 November 2009 report identified the same three reasons, and the same three factors, as had been identified in previous reports as warranting continued detention.
A4-21. On 9 December 2009 the AIT promulgated its determination and reasons in relation to Mr Anam's appeal against the decision of the secretary of state dated 16 June 2009 to refuse to revoke the deportation order made on 9 October 2007. At paragraph 12 the Tribunal noted that counsel for Mr Anam made an application for an adjournment "essentially because she wished to instruct an expert to comment on the risk to the appellant if he were returned to Bangladesh." At paragraph 13 the Tribunal said that they had carefully considered that request, but thought that "we could do justice to both parties if we proceeded with the appeal on that day and that the appellant had not shown sufficient reason for an adjournment."
A4-22. Under the heading, "Medical Reports" the Tribunal noted in paragraph 19 that the only report of recent origin was from Professor Katona. The reports of Dr Patel in September 2006 and Dr Joseph in October 2000 were briefly summarised. At paragraph 20 the Tribunal said this:
20. As we say there is a more up to date report from Professor Katona dated 22 July 2009. Professor Katona also has an impressive list of qualifications in psychiatry. He too diagnosed the appellant as suffering from a complex set of persecutory beliefs. In summary he was suffering from paranoid schizophrenia which, to some extent, was kept under control as a result of the anti-psychotic medication the appellant was taking. Most of his previous offences took place when he was either not being treated with such medication or was non-compliant with the medication prescribed for him. Without a background of family and social support it was likely that in its absence his psychotic symptoms would almost certainly worsen.
A4-23. The Tribunal noted that the evidence before them included witness statements and oral evidence from both Mr Anam and his mother. Mr Anam had said, among other things, that his family helped him to feel calmer, that mental health problems were not recognised in Bangladesh, that he thought his offences were connected with his mental illness, and that he knew that in future he would have to listen to his family and not reoffend. His mother had said that she would support Mr Anam no matter what happened in the future, that if he were returned to Bangladesh he would have no one to look to for care and support, that it would be very difficult for her to visit him in Bangladesh, and that all her children were now in the United Kingdom.
A4-24. In their reasons the Tribunal set out in some detail what had been said by Immigration Judge Brenells and Mr A J Crag CMG in August 2008 when dismissing Mr Anam's first appeal, and referred to this as "the Brenells decision". Under the heading "Material findings of fact" the Tribunal made no findings of fact of their own. They said that they adopted paragraphs 13 to 25 of the Brenells decision. The remainder of the Tribunal's determination and reasons comprised three paragraphs only, which appeared under the heading "conclusion". I set them out in full:
34. We agree with the carefully reasoned conclusion of the Brenell's decision as set out in paragraphs 14 to 30 thereof. We further adopt paragraphs 31 to 37 thereof and 38 to the end. The argument before us was that the appellant having been in the United Kingdom for a long time and having special links in terms of support with his family, he should be allowed to remain both in terms of private life and family life. We agree with Ms Rhind that the case law from Strasbourg that she cited in her skeleton argument is relevant as is the important decision of the House of Lords in Beoku-Betts  UKHL 39. We also agree that we must take account of the facts and matters raised by Ms Rhind in paragraphs 16 to 18 of her skeleton argument. But, in our judgment, the appellant's offences greatly outweigh contrary arguments directed at his remaining in the United Kingdom. We are at one with paragraphs 39 to 40 of the Brenell's decision in this respect.
35. We are aware that the manufacturers of the drug Resperidone, on which the appellant depends, have said that it is not available in Bangladesh. But there are alternative therapies to which the appellant could turn. Professor Katona said that the appellant has not been as well established on other drugs than on this one. To take steps that would deprive him of Risperidone would risk a worsening of his psychotic symptoms. That fact alone would not, in our judgment, engage Article 3 of the ECHR. There is no duty upon the Crown to ensure that the appellant takes his medication.
36. In short, we think that the appellant has no claim to remain under Articles 3 or 8. Ms Rhind did not seriously advance an asylum claim. The actions of the respondent in removing the appellant to Bangladesh would be a proportionate response under Article 8(2) to the appellant's offending. We dismiss this appeal.
A4-25. At some point prior to 11 February 2010 Mr Logue succeeded Mr Kennedy as the caseworker in CCD responsible for Mr Anam. On that date Mr Logue prepared a detention review which noted that on 9 December 2009 the deportation appeal had been dismissed, and that on 18 December 2009 an amended deportation order with Mr Anam's correct name was served. On 12 January 2010 removal directions had been set for Mr Anam to be removed to Bangladesh. As appears from the monthly progress report (see below), the removal was due to take place on 20 January 2010. However the detention review noted that the directions were cancelled after it transpired that on 21 December 2009 Mr Anam had sought a review of the deportation appeal decision of 9 December 2009. This was under what was known as the "filter", which the detention review stated had been "disallowed" on 21 January 2010. It was added that on 11 February 2010 "Mr Anam applied for another High Court review" which was yet to be scheduled for a hearing. What this seems to have been referring to was a rejection by a senior immigration judge of the application to review the AIT decision of 9 December 2009, followed by the next stage of that process, in the form of an application to the High Court for such a review. It was thought that the High Court application "should be heard before the summer".
A4-26. Under the heading "Proposal" the 11 February 2010 detention review said that Mr Anam had clearly shown that he had the ability to deceive both immigration and police authorities, and that he was willing to employ any method at his disposal to avoid removal, with a likelihood of absconding if released. He was known to have mental health issues, but under the circumstances was a "very exceptional case and in accordance with our policy, his detention should be continued."
A4-27. Also on 11 February 2010, following comments by a senior executive officer that day, a deputy director gave authority to maintain detention, stating:
I have reviewed detention in the light of the presumption of liberty but I am satisfied this is outweighed by the factors set out in the review. I note the long criminal history, the risk of reoffending and the harm Mr Anam presents. Also, I consider that his use of multiple identities makes him a significant absconding risk. I agree there are exceptional circumstances warranting detention despite his mental health issues. If the appeal is dismissed he can be removed and time scales are reasonable.
A4-28. The recommendation by the senior executive officer on 11 February was "Maintain detention?" It was prefaced by a comment that the "exceptional circumstances" noted by Mr Logue seemed to warrant continued detention, based on reasoning as follows:
The outstanding barrier to removal is an appeal against deportation which should be heard in the next couple of months. If the appeal be rejected removal could be effected in a reasonable time scale as we have already secured an ETD.
A4-29. A monthly progress review was prepared by Mr Logue on 11 February 2010. It gave an account of the cancellation of removal directions which had been set for 20 January 2010, and of the decision of the Senior Immigration Judge in relation to the "filter" process prior to that date. In other respects it was similar to earlier monthly progress reports. It identified the same three reasons for remaining in detention as had been identified earlier. The decision in that regard was said to have been taken on the basis of the same three factors as had been identified earlier, with the addition of a fourth:
You have shown a lack of respect for United Kingdom law as evidenced by your 26 convictions.
A4-30. On 11 March 2010 Mr Logue signed a detention review which noted that on 11 February 2010 Mr Anam had applied for a High Court Review (under the filter procedure). In other respects the 11 March 2010 detention review was similar to that of 11 February 2010. Also on 11 March 2010 an acting assistant director gave authority to maintain detention, commenting:
I authorise continued detention based on a clear risk of harm, reoffending and of absconding, which I believe outweighs the presumption of liberty. Hopefully we'll have an outcome to the High Court application within the next month or two. If the result does not go in the subject's favour, he will be removable.
A4-31. A monthly progress report dated 11 March 2010 was prepared by Mr Logue. It noted the latest development under the filter procedure, but in other respects it was similar to previous monthly progress reports. It identified the same three reasons for remaining in detention as had been identified in the February progress report, along with the same four factors.
A4-32. A detention review prepared by Mr Logue in April 2010 was commented upon by an assistant director. There is some confusion as to the dates: Mr Logue's review is dated 8 April 2010 and the assistant director's comments are dated 7 April 2010. Mr Logue's review added nothing to what had been said in the March 2010 review: the position remained that the outcome of Mr Anam's application to the High Court was awaited. The assistant director noted that it was expected that "the hearing" would take place before the summer, and thus that removal was likely to occur within a reasonable period. On 8 April 2010 the director gave authority to maintain detention, commenting
Based on the presumption to release, I have considered whether the continued detention is lawful. In light of the risk of further offending and harm that this may cause, as well as the detainee's likelihood of absconding, I consider these additional factors outweigh the presumption to release, I therefore authorise their detention for a further 28 days.
A4-33. A monthly progress report dated 8 April 2010 was in materially identical terms to the March report.
A4-34. On 6 May 2010 Mr Logue prepared a detention review which was in materially identical terms to the April detention review, recording the earlier advice from the Treasury Solicitor that the "appeal" should be heard "before the summer". On the same day an assistant director gave authority to maintain detention, commenting:
I have noted the likely time scale to removal and am satisfied that taking this factor into account alongside the risks of re-offending, harm and absconding, the presumption of release is currently outweighed.
A4-35. On 6 May 2010 Mr Logue prepared a monthly progress report which was in materially identical terms to the March and April progress reports.
A4-36. A detention review prepared by Mr Logue on 3 June 2010 noted that on 10 May 2010 Mr Anam had made an application for bail to the Immigration and Asylum Chamber of the first-tier tribunal. Relevant functions of the AIT had been transferred to the first-tier tribunal in February 2010 under the Tribunals Courts and Enforcement Act 2007. The Tribunal had refused bail on 13 May 2010. On 27 May 2010 the administrative court office had contacted CCD stating that an existing backlog had made it impossible to deal with Mr Anam's High Court review prior to the Whitsun vacation; it was now expected to be "cleared in the next month." Despite this, the detention review repeated a sentence which had now featured on three occasions recording the advice from the Treasury Solicitor that the "appeal should he heard before the summer".
A4-37. In the section of the 3 June 2010 detention review headed "Proposal" Mr Logue noted that the healthcare team at Harmondsworth IRC were satisfied Mr Anam was fit to be detained. This formed part of 3 paragraphs as follows:
Mr Anam's case has been considered under the presumption of liberty and in accordance with the current detention criteria. He is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. He is a prolific offender who is known by Police to have employed the use of at least 19 aliases prior to his imprisonment. In doing so he has clearly shown that he has the ability to deceive both Immigration and Police Authorities. Given his history of deception, he is likely to abscond if released.
Mr Anam is known to have mental health issues that were taken into consideration pre-sentencing and as part of his asylum claim. In light of our policy to only detain those with mental health issues under 'exceptional circumstances' I have weighed the presumption of release generally and in light of his mental illness against the number, and serious nature, of his offences. The Healthcare Team at Harmondsworth IRC are satisfied that Mr Anam is fit to be detained.
Under the circumstances, I am of the view that Mr Anam is an exceptional case and in accordance with our policy, his detention should be continued. In particular, he poses a high absconder risk and is clearly capable of avoiding Police and Immigration Authorities for long periods. His healthcare needs are being met and a travel document has been agreed.
A4-38. Comments from a senior executive officer dated 3 June 2010 drew attention to the expectation that the High Court review would be concluded within the next month. A deputy director authorised the maintenance of detention, commenting that she had taken into account the presumption of liberty and the detention policy as it relates to those with mental health problems, but there was a significant risk of re-offending and of absconding. If the High Court review were dismissed removal would take place in a reasonable time frame.
A4-39. On 3 June 2010 Mr Logue prepared a monthly progress report which was in materially identical terms to the previous progress report.
A4-40. Although the Administrative Court had not been able to complete the High Court review prior to the Whitsun vacation, it was in fact able to ensure that the application was put before His Honour Judge Pelling QC, sitting as a judge of the High Court, during the vacation. On 2 June 2010 he ordered that the Tribunal should reconsider its decision of 9 December 2009. His reasons were as follows:
An application was made to the Panel for an adjournment. That was refused. This issue is addressed at Paragraph 12 of the Adjudication. The description of the basis of the application as being " because [the Applicant's representative] wished to instruct an expert " was a wholly inadequate description of the basis of the application if what is said in the application for reconsideration is correct. A critical issue in the case is whether the Applicant's paranoid schizophrenia can be treated in Pakistan. On 5th August 2009 an application for an adjournment was made and granted so as to enable the Applicant to obtain appropriate medical evidence. That medical evidence had been sought but was not available at the date of the hearing. The application for a further adjournment having been refused by the panel, the panel then addressed what was on any view a critical issue by reference to evidence that had been placed before a precious tribunal which that tribunal had expressed reservations about. In my judgment to refuse an application for a short adjournment in the circumstances was an error of law. This issue was not addressed at all by the SIJ. The only basis for refusing reconsideration in such circumstances would be a conclusion there was no realistic prospect of a different outcome if reconsideration was ordered. I am not able to reach that conclusion. The mental health issue, the availability of appropriate treatment and the risks associated with its non-availability were fundamental to the Article 8 issue see Bensaid. The reasoning at Paragraph 35 of the Determination is wholly inadequate in my judgment as a basis for addressing this issue. It is likely it would have been better informed had the relevant evidence been before the panel. In those circumstances there must plainly be a reconsideration of this case.
A4-41. On 1 July 2010 Mr Logue prepared a detention review which noted that on 2 June 2010 the High Court had ordered a reconsideration of the Tribunal decision of 9 December 2009. It also noted that an application to the First-tier Tribunal for bail had been refused on 9 June 2010. No reference was made to any information as to the likely time that would be required for reconsideration of the 9 December 2009 decision to be completed. Under the heading "Proposal" Mr Logue set out the identical three paragraphs which he had set out in the June detention review.
A4-42. Also on 1 July an assistant director gave authority to maintain detention, commenting:
This case is moving through the judicial process and there is no further caseworking action necessary at this stage. Should the HCR be dismissed, we will be looking at removal within a reasonable timescale.
In reviewing detention, I too have attached due weight to the presumption of release, and the mental health issues. I have noted that the latter have not caused medical staff to conclude that the subject is unfit for detention.
On balance, I have concluded that the presumption of release currently is outweighed when all relevant factors are taken into consideration.
A4-43. A monthly progress report dated 1 July 2010 was prepared by Mr Logue. It noted the High Court decision of 2 June 2010, and that the outcome of the appeal against deportation was a current barrier to removal. It repeated what had been said about Mr Anam's mental health in the four previous reports, and said that Mr Anam would remain in detention by reference to the three reasons and four factors identified in previous reports.