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||Neutral Citation Number:  EWHC 1594 (Admin)
||Case No: CO/9404/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
HIS HONOUR JUDGE BLAIR QC
SITTING AS A DEPUTY HIGH COURT JUDGE
|| THE QUEEN (on the application of HOD,
by the Official Solicitor as his litigation friend)
||- and –
||THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Alex Grigg (instructed by Elder Rahimi) for the Claimant
Julie Anderson (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 3rd and 4th February 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
HIS HONOUR JUDGE BLAIR QC:
- On the 26th November 2007 the Claimant pleaded guilty and was sentenced by the Crown Court at Lewes to 12 months imprisonment for possessing a false identity document. The judge recommended him for deportation, it being clear that he was a foreign national. Whilst in custody he was served with a notice of an intention to deport him.
- The element of the prison sentence which he was required to serve came to an end on the 12th May 2008, whereupon he was transferred to immigration detention. After 5 months of immigration detention a decision was made to grant him bail on strict conditions and, once a fixed address had been arranged, he was admitted to bail on 15th October 2008 (according to his Case Record Sheets).
- However, when he went to obtain an asylum identity card on 15th December 2008, his fingerprints alerted the Defendant to material which showed that the Claimant had come to her attention in 2004 using a totally different identity. Accordingly, when he complied with his bail reporting condition on 22nd December 2008 he was detained again.
- He remained in immigration detention until August 2012, when he was released to accommodation arranged by the National Asylum Support Service. His release came about in somewhat complex circumstances arising from the fact that in January 2012 the Claimant sought and obtained an interim Order in these proceedings requiring that he be transferred to a hospital for the treatment of psychiatric conditions as soon as an appropriate bed was available after 23rd January 2012, whereupon he was to be bailed to the hospital until alternative arrangements for accommodation were made. A conflict between the requirements of the interim Order and the clinical assessments led to a hiatus which finally resulted in a Consent Order replacing the January interim Order. The Consent Order in my papers records that he be granted bail once transferred to an accommodation address which, on the Agreed Facts, was 9th August 2012.
- Accordingly, the Claimant was in immigration detention for an initial period of a little over 5 months under one of his guises (prior to the 2 months he was on bail at the end of 2008). Thereafter he was returned to immigration detention, where he remained for a further 3 years 7½ months.
The Claim and its presentation
- These are proceedings for Judicial Review, lodged at the end of September 2011. The claim has inevitably evolved as the situation has developed - most particularly as a result of the de facto release of the Claimant on bail in August 2012 and a subsequent change in his immigration status. However, this matter was finally set down for a hearing with a 2 day time estimate before me on 3rd and 4th February 2015.
- The Claim is now pleaded in a 48 page 'Amended Statement of Facts and Grounds' dated 2nd December 2014. That document begins: "1. The Claimant…applies for judicial review of the Defendant's decisions to detain him for over four years…". Herein lies something about the way in which the Claimant's case has been framed which requires immediate comment. The decisions of the Defendant to continue to detain the Claimant were taken at intervals in the light of the information available to her officials at each review. The application of hindsight cannot be used to make a generalised judgment about what is now known of the cumulative time for which the Claimant was in fact detained.
- This impinges upon the nature of the underlying purpose of the proceedings – a declaration of unlawful imprisonment and consequential claims for damages. When the claim form was filed in September 2011 the decisions of the Defendant which were reviewable within the time frame provided for by Rule 54.5(1) could not have extended back to a date before the end of June 2011. (In fact the Claimant continued to be detained until August 2012 and obviously the ongoing claim, as amended in 2014, extends to the Defendant's decisions to detain up until his release.) Consequently, the Claimant is out of time in seeking any declaration in Judicial Review proceedings about decisions of the Defendant made prior to the end of June 2011. (This claim is not procedurally quite the same as R (Lumba) v SSHD  1 AC 245 (SC(E)). In that case a number of claimants were permitted to pursue damages claims for the tort of false imprisonment, having first sought a declaration in judicial review proceedings about the application of an unpublished policy which was allegedly unlawful, the existence of which had only recently been revealed to them.)
- There are 3 grounds in the Amended Statement of Facts and Grounds with the following headings:-
i) Unlawful detention – Hardial Singh principles;
ii) Application of the unlawful Cullen policy to operate a blanket presumption in favour of detention; and
iii) Mental illness.
- The relief sought is stated as follows:-
i) A declaration that the Claimant was unlawfully detained and/or in breach of articles 3, 5 and 8 ECHR;
ii) Damages under the common law for the tort of false imprisonment including aggravated and/or exemplary damages and/or damages under the Human Rights Act 1998, to be transferred to the Queen's Bench Division if not agreed, in respect of any period of detention that is found to be unlawful;
- Concern has been expressed to me by counsel on behalf of the Defendant that the breadth and scope of the Claimant's pleadings; the evidential material (10 lever arch files); cited case law (70 law reports in 3 lever arch files); and very wide-ranging arguments, have overstepped the parameters of proper judicial review proceedings. Rule 54 of the Civil Procedure Rules is designed to provide a comparatively quick method of challenging public law decisions and it is not the proper forum for the pursuit of compensatory damages for breaches of private law rights against a public body.
- Notwithstanding the Defendant's representations, Rule 54.3(1)(a) makes clear that a Claimant may use Judicial Review to seek a declaration against a public authority and, pursuant to rule 54.3(2), make an allied claim for an award of damages. I therefore have jurisdiction to consider the Claims.
- Nonetheless, it is relevant to observe that proceeding in the Administrative Court (rather than by an action commenced in the ordinary list of the Queen's Bench Division for false imprisonment and/or negligence) presents substantial practical obstacles in the assessment of disputed evidence and in drawing inferences from materials over which there are rival contentions. Essentially I have been presented with, and taken to parts of, a mountain of documentation, from which it is argued by the Claimant it is established that the Defendant breached public law duties in relation to him, thereby rendering his detention unlawful, for which I should make the declaration(s) sought and adjourn the assessment of damages.
- Many of the arguments on behalf of the Claimant, and the overwhelming majority of the paper materials submitted, have been irrelevant to the determination of the public law issues which I have to address. Using a metaphor from warfare, it has been litigation conducted on behalf of the Claimant using flak rather than guided weapons.
- A written application was made on behalf of the Claimant after the hearing to admit further specific evidence and thereby to rely on yet another document – the Tavistock Report: 'A Review of Mental Health Issues in Immigration Removal Centres'. That application is opposed by the Defendant. I refuse the Claimant's application. Reading that document could not assist my determination of this case. Although the commissioning of that Report had been mentioned by the Defendant, its potential (albeit marginal) relevance was merely as to the fact that it had been commissioned and not as to what its content might reveal.
- Since an inadequate time-estimate of 2 days had been given for the case I was obliged to invite the Claimant's counsel to submit his Reply to the Defendant's oral submissions in writing. That document is 186 paragraphs long, filling 47 pages of single spaced submissions. The Defendant's counsel has subsequently justifiably complained (in a short written Note on Reply) that the Reply has exceeded all proper bounds by raising new points and relying on additional case law. I agree. The reason for this judgment being somewhat delayed is partly as a result of that.
- There was no application to file a witness statement from the Claimant himself and so I have no evidence before me from him. Nor have I had the benefit of any witness statements from individuals involved in the handling of the Claimant's case on behalf of the Defendant.
- Defence counsel complains that serious assertions have been made during the course of the Claimant's counsel's commentary on the documents which have not been adequately pleaded so as to enable her to meet them evidentially. These cover such matters as allegations of individuals involved in the Claimant's case (for whom the Defendant may have been responsible) failing properly to have regard to/deliberately turning a blind eye to/inadequately recording evidence of his psychiatric conditions; collusion between a case officer and clinicians to achieve a pre-judged outcome of a psychiatric assessment; dishonest exaggeration at bail hearings as to the Defendant's progress in deporting him; and on one occasion transferring him between immigration removal centres in the middle of the night as a kind of 'extraordinary rendition' so as deliberately to unsettle him. This she says has prejudiced her by not being able to meet the case as it has ultimately been presented. I agree that I cannot properly make adverse findings of fact against the Defendant in relation to serious allegations which have not been adequately pleaded.
- In directing myself in relation to the drawing of inferences I have proceeded on the necessary basis that, where there is a range of possible inferences that could be drawn from the material presented to me, I can only accept the contention made on behalf of a party if, in the light of all the material relevant to that issue, that interpretation is more probable than the others. Some contentions have been put forward on behalf of the Claimant which would involve reaching very serious conclusions about the misconduct of individuals based entirely on drawing an adverse inference from documentation interpreted in one particular way. I have been unpersuaded that I can draw inferences that those alleged instances involved misconduct - there are other more probable interpretations, consistent with the documents, which do not involve those conclusions.
- The Defendant's counsel also observes that there is an inadequately pleaded case in relation to the human rights aspects of the claim. (Civil Procedure Rules Practice Direction 16 paragraph 15.2(a) – "A party…must in his statement of case…give precise details of the Convention right which it is alleged to have been infringed and details of the alleged infringement").
- I acknowledge the Defendant's concerns set out in the preceding paragraphs (although some of these points were in my view clearly adverted to in earlier versions of the Claimant's served case papers) but there was no realistic prospect of me agreeing to an adjournment (nor indeed was one applied for) on the morning of the 2 day fixture. Therefore, I have been careful to approach my consideration of the case as it has ultimately been presented to me in such a way as to exercise great circumspection where detailed allegations have emerged in argument without having been adequately pleaded. I have also considered the human rights aspects of the claim only insofar as the details of the alleged infringements have been made adequately clear. Many of the matters presented to me on behalf of the Claimant (and the materials relied upon in support) were ones which have nothing whatsoever to do with the public law issue of the lawfulness of the Claimant's detention, but instead were matters of complaint about his treatment in detention which do not materially impact on the issue. Accordingly, in this judgment I confine myself to the material which is relevant and I have not engaged with the material which is not.
- An unopposed application was made at the outset of the hearing for the Claimant to be referred to only by initials so as to protect him from adverse consequences were he to be identified. Consequently in this judgment he is referred to in that fashion.
The relevant legal principles
- When a recommendation for deportation of a foreign national offender ('FNO') is made by a Crown Court judge the authority to detain him (after he ceases to be a serving prisoner) arises under the Immigration Act 1971, Schedule 3, paragraph 2(1). It has been termed 'the statutory warrant':-
"(1)…he shall…be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case…"
- If, as was the case with this Claimant from 10th May 2010, an FNO is served with a deportation order requiring him to leave the UK then the authority to detain him switches to paragraph 2(3) of the same Schedule 3, Immigration Act 1971:
"(3) Where a deportation order is in force…he may be detained under the authority of the Secretary of State pending his removal…(and if already detained by virtue of sub-paragraph (1)…when the order is made, shall continue to be detained unless…the Secretary of State directs otherwise)."
- Thus, an FNO is prima facie lawfully detained by virtue of these provisions in cases such as that of the Claimant.
- There is an abundance of case law which addresses the boundaries and parameters governing the lawfulness of immigration detention when the Secretary of State exercises her permissive executive powers to detain pending deportation, but the applicable law where there is a judicial recommendation for deportation of an FNO begins from a wholly different statutory mandate as set out above – he "shall" be detained/continue to be detained.
- That is not to say that the lawfulness of immigration detention under these provisions may not at some stage and in certain circumstances be vitiated, enabling an FNO to challenge his continued detention by seeking a declaration in judicial review proceedings. In these circumstances what a Claimant is doing is to assert that he has a right to his liberty, subject to a procedure prescribed by law to effect his deportation (pursuant to English statutory and common law and ECHR Article 5.1.f) and to argue that the Secretary of State can no longer lawfully justify his further detention under those provisions. I proceed on the basis that when the Claimant challenges a decision of the Defendant to continue to detain him it is for the Defendant to satisfy me on a balance of probabilities that the Claimant was lawfully detained.
- The principles at play have been expressed in different ways by the Court of Appeal in R (Francis) v SSHD  EWCA Civ 718. Moore-Bick, LJ. concluded:
"47. I have no doubt that the Hardial Singh principles apply to detention under paragraph 2(1) of Schedule 3. The purpose of detention under that paragraph is to facilitate deportation and in the absence of any indication to the contrary Parliament must be taken to have intended that persons should be detained only for that purpose. Once the purpose of detention has become incapable of being achieved, detention can no longer be justified and it cannot have been Parliament's intention that it should then continue. In my view Parliament must also have expected the Secretary of State to act with reasonable diligence and expedition to remove the detainee and must, in the absence of any contrary indication, be taken to have intended that detention should continue only for a reasonable period..."
- Sir Stephen Sedley expressed his reasons differently but reached the same conclusion. He stated:
"56. …The mandate to detain is made expressly subject to two conditions. One is that the mandate only operates 'pending the making of a deportation order'…and is the foundation of the Hardial Singh doctrine."
"57. The other condition, expressed in 'unless' form, is that the mandate for detention ceases if the Home Secretary directs release. Such a condition necessarily places upon the Home Secretary an obligation (not merely a discretion) to consider provisional release in all paragraph 2(1) – and by extension paragraph 2(3) – cases. Such an obligation…does logically require review at reasonable intervals…
"66. …As Lord Justice Moore-Bick says, Hardial Singh can be properly seen as giving effect to Parliament's intentions rather than qualifying them, particularly if, as I have suggested above, the express purpose of paragraph 2 of Schedule 3 is to facilitate prospective deportation, so that, once the prospect has ceased to be real, the paragraph has no purchase."
- Lord Dyson reaffirmed the Hardial Singh principles for cases such as this in a convenient formulation at paragraph 22 of his judgment in R (Lumba) v SSHD  1 AC 245:
(1) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(2) the deportee may only be detained for a period that is reasonable in all the circumstances;
(3) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(4) the Secretary of State should act with reasonable diligence and expedition to effect removal.
- These have to be read, as stated in R (Francis) v SSHD (supra) as principles which are relevant to the exercise of the Secretary of State's obligation to review the immigration detention of FNOs and to direct their release if Parliament's intention (deportation) is not achievable within what is a reasonable period in the circumstances of the particular case.
- The Claimant argues that the second principle was breached – he was detained after the expiry of a period which was reasonable in all the circumstances of the case. Alternatively, that the third principle was breached – even if his detention was still within a reasonable period for his case, nevertheless it was apparent that the Defendant would not be able to effect his deportation within a reasonable period and so he should have been released.
- It is not without significance that an FNO's detention arises from a statutory warrant to detain because of the recommendation of a Crown Court judge. The imperative of the judicial recommendation directed to the Defendant to seek to achieve deportation brings weight to the first of Lord Dyson's formulations in Lumba.
- The 'reasonable period' of immigration detention can be influenced by many factors.
- The risk of the person absconding if granted bail is highly relevant. In this case the Claimant had been found in 2007 using a false identity document (a Spanish passport) to try to travel to Canada, thereby giving rise to a substantial fear that he would use similar illegal methods to abscond and defeat the deportation recommendation. The subsequent revelation in December 2008 that he had used another identity to claim asylum in 2004, but then absconded and disappeared from the Defendant's attention for 3 years, further increased the fear of his absconding again. Additional identities revealed by more investigations into his past, as well as numerous additional identities and nationalities claimed by him thereafter, unquestionably increased that fear of him absconding.
- In some cases a substantial fear of the FNO committing further serious criminal offences might influence the reasonable period. In this case there can only have been a legitimate basis for fearing he would commit further false document offences given the absence of any evidence of other types of offending in his past. Therefore this cannot be a significant additional factor (over and above the risk of absconding) when assessing the 'reasonable period' of immigration detention for the Claimant.
- The relevance of the Claimant's conduct in assessing the 'reasonable period' falls to be examined in some detail in the light of established case law principles.
- The Defendant says that the Claimant's multiplicity of claimed identities, nationalities, personal histories and general conduct were not simply examples of non-cooperation, but amounted to deliberate deceptions designed to obstruct and frustrate the Defendant from effecting his deportation within a shorter time frame, thus directly affecting the 'reasonable period' for his detention. He is thus the author of his own misfortune; it ill-behoves him to complain, since it is his own conduct which has greatly lengthened the time during which the Defendant has had reasonably to detain him so as to effect his deportation while each of his stories is investigated fully. Further, the Defendant argues that his conduct provided additional evidence of the significance of the serious risk that he would abscond so as to prevent his deportation if he were granted bail.
- It is said on behalf of the Claimant, on the other hand, that his conduct claiming multiple identities and past histories was a symptom of serious florid psychiatric disorders; those disorders were unreasonably disbelieved by the Defendant; his mental illnesses were incapable of being managed satisfactorily in an immigration removal centre ('IRC'); if the Defendant had properly applied her own policies for the mentally ill he would have been released from detention; and, therefore, his conduct cannot be a basis for significantly extending the 'reasonable period' of his detention. As for any other general lack of cooperation on his part, it is said that that cannot in law justify a longer 'reasonable period' in detention.
- There are, of course, numerous cases in which the conduct of a detainee has properly been held to have extended the reasonable period of detention because he has frustrated the Defendant's endeavours to have him deported – examples are Noureddine  EWHC 1707 and Mohammed  EWHC 972.
- Much of the documentary material relied upon for the Claimant concerned his psychiatric condition whilst detained. Reference was made to the Defendant's published policies concerning the detention of persons with serious psychiatric conditions whose management is not possible in an IRC, in particular the Defendant's Enforcement Instructions and Guidance ('EIG') Chapter 55.10.
- Although it is asserted by the Claimant's counsel that the Defendant was in breach of her published policy, it was accepted that this in itself could not invalidate the lawfulness of his detention under the statutory warrant of paragraphs 2(1) or 2(3) of Sch.3 Immigration Act 1971, nor can it give rise to a compensatory award of damages in what is a public law claim. Defence counsel correctly contended that even if a breach of a policy could be established concerning the detention of someone with a serious psychiatric condition, it would be legally incapable of invalidating the statutory warrant authorising the detention. However, it was common ground that when assessing the Hardial Singh 'reasonable period' of detention, a detainee's psychiatric condition can be taken into account as one of the factors which may affect the determination of that period.
- This latter principle was firmly established in R (on the application of Das) v SSHD  EWCA Civ 45 (CA) at paragraph 16. Beatson, L.J. then set out the proper approach in paragraphs 57-70 of that case, which is the approach I have taken in considering the evidence in this case. A useful example of applying this approach can be found in R (on the application of DK) v SSHD  EWHC 3257 (Admin), where Haddon-Cave, J. summarised the exercise at paragraph 171.
- Both the Claimant's 'Grounds' and Skeleton Argument have separately addressed "mental illness" as a 3rd Ground. In the light of the legal principles summarised above this is not the correct approach. The handling of mental illness is relevant to the 'reasonable period' of lawful immigration detention of an FNO pending deportation under the Hardial Singh principles. Nonetheless, purely for the purposes of summarising the evidence it is convenient to deal with mental illness separately.
The relevant facts on the first Ground – unlawful detention – Hardial Singh principles
Claimed nationalities and identities
- From the 'Statement of Agreed Facts' drafted by the parties it is agreed that the Claimant has at various times claimed to be of at least 9 different nationalities and has given at least 15 different names (again referred to below only by their initials):
Year Nationality Name Further detail
2003 Sierra Leone - S.S. - fingerprinted in Belgium
2003 Liberian - P.R. - claimed asylum in the Netherlands
2004 Liberian - N.A. - claimed asylum in the UK, saying he
had arrived using a false passport in
the name of P.J.
2004 Spanish - D.O-M.G.
2004 Nigerian - N.A. - saying he had come via Belgium
2007 Nigerian - L.B.
2008 South African - L.B.
2008 Canadian - D.E. - saying he was adopted from an
orphanage in Canada by a woman from
the Dominican Republic and then lived
2009 British - D.E. - but came from the Dominican Republic
2009 - D.O.J.E.C.B. – but adopted from Canada and taken
to Dominican Republic and then
Belgium under the name of P.R. as a
Liberian. Real mother may be
Barbadian but suspected father to be
2009 Bahamian - D.O.O.E. - said he had studied music in St Lucia
2009 Tongan - - said he was a national of Tonga
2009 - - said he was born in Antigua
2010 Canadian - H.O.D.
2010 - D.V.G. - born in Bahamas or Kenya
2011 - T.C., P.M., M.P. & G.M.F.
- Throughout his periods of immigration detention applications have been made by or on behalf of the Claimant for bail to the First Tier Tribunal (FTT). It is agreed there were 43 applications. All were rejected save for one, which led to his release on conditional bail between October and December 2008. (He was returned to detention because his 2004 asylum claim in the identity of a Liberian called N.A. was uncovered).
- Some serious allegations are made on behalf of the Claimant to the effect that at a number of bail applications the Defendant's representatives misled the FTT and/or failed in their duties of disclosure when seeking to justify the refusal of bail. I am not involved in having to make findings in relation to those specific allegations because they are not necessary to the decision I have to make - my focus is on the evidence relating to the application of the 2nd and 3rd Hardial Singh principles. However, where things were said at bail applications which I consider to be of significance to this claim I will refer to them where relevant.
Efforts to determine the Claimant's true identity & nationality so as to deport and the Claimant's conduct
- A notice of intention to make a Deportation Order was served on 9th May 2008 at a time when he was claiming joint Nigerian and South African nationalities. The Claimant unsuccessfully appealed the deportation decision (in that appeal giving a detailed account of it being unsafe to return to his village in Nigeria because of a dispute with his uncle over family rights to the village headship); he asked for a reconsideration which was refused; he sought a High Court review which was refused; and all his appeal rights were exhausted by 6 October 2008. Shortly thereafter he was granted bail as L.B.
- On his re-detention in December 2008, notwithstanding the incontrovertible evidence, the Claimant denied any connection with the person who had used the N.A. identity in 2004. He now claimed his identity to be D.E.
- The Defendant set about undertaking investigations into the Claimant's true identity and nationality. Inquiries were initiated with authorities in Belgium, Canada, the Netherlands, South Africa and Liberia as well as with the organisations the Claimant said he had been employed by. The Defendant's opinion was that he was Nigerian. However, when Nigerian Officials attended his IRC on 28th January 2009 to undertake documentation interviews the Claimant refused to speak to them.
- On 29th January 2009 there is an email in the Defendant's disclosure (timed at 12:39pm) referring to a conversation with the Claimant in which he was adamant that he had never been to Nigeria. Later that day, at 5:05pm the Defendant's Strategic Director of Criminality and Detention sent an email saying:-
"We need to do all we can to progress the case. He should be visited by our staff/immigration staff to progress the ETD [Emergency Travel Document] issue as fast as possible and persuade him to see Nigerian High Commission people. We should make direct contact with the Nigerian HC to press them for ETD as a matter of urgency as a humanitarian case. Let me know of progress if things deteriorate at all."
- In the spring of 2009 the Defendant's various inquiries began to be met with negative results. Canada & US databases did not have his fingerprints; Belgium provided material about his claims to them of being S.S. from Sierra Leone. On 12th March 2009 information was received from the IRC that he had indicated he was Nigerian. As a result Nigerian High Commissioners attended on the 25th March for another ETD interview with him. He refused to attend the interview and again refused to be interviewed by them on 2nd April 2009 by telephone.
- Further inquiries were sent by the Defendant to Canadian Children and Youth Services, but then the Claimant began to say he was D.E. from the Dominican Republic. Therefore, the Defendant commenced inquiries with the Dominican Republic. That received negative feedback. On the 29th April 2009 the Claimant again declined to attend an interview with Nigerian officials. However, on the 8th May and 29th May he spoke with immigration officers and said he would speak to Nigerian Officials.
- Through the summer of 2009 immigration officials were given further accounts by the Claimant and they also tried to obtain more information as to his identity from someone who had been visiting him. The Claimant himself sent an email giving an account of who he was and where he was from. He had previously initiated contact with the Bahamian High Commission and so they and the Defendant followed up those leads.
- The Bahamian inquiries received negative results in September and October 2009. Further attempts to persuade him to see the Nigerian officials, accept voluntary assisted return and undertake language analysis were all refused by the Claimant in October and November 2009. The Defendant then approached the police to see if language analysis could be undertaken from his original police interview. During this autumn period his fingerprints and photographs were sent to authorities in Canada. The Claimant variously claimed that he could be from Barbados, the Bahamas, Canada, Antigua and Tonga.
- The results of speech and language analysis conducted using the Claimant's police interview from 2007 became available to the Defendant in the early Spring of 2010. It concluded that his accent strongly suggests he comes from West Africa, possibly southern Nigeria or south east Benin. This was presented to the Nigerian High Commission at the end of February 2010, which indicated it would consider it. At the end of March 2010 the Nigerian High Commission confirmed that the Claimant was Nigerian but said that they would not issue an ETD for him without at least a face to face interview. A Deportation Order was signed by the Minister of State on 23rd April 2010 and served on the Claimant on 10th May 2010.
- However, although the Claimant was seen by Nigerian officials on 5th May he stated he had never been to Africa and was a Canadian citizen. As I understand the papers the interview was unsatisfactory from the point of view of the Nigerian officials. The Claimant was rude and dismissive and would not even speak to them in private. They were not prepared to issue an ETD without having forwarded to them for verification the materials which had been provided when the Claimant was previously claiming to be Nigerian.
- Solicitors then acting for the Claimant wrote to the Defendant on 4th June 2010 asking about a number of matters including the results of any language analysis: "We can confirm our client's instructions are very clear that he is not Nigerian and we would also refer you to the fact that he clearly does not have a Nigerian accent." They went on to address questions about the lawfulness of his ongoing detention and to ask: -
"In short, when does the Secretary of State expect to be able to deport Mr [E] and what is the basis of that expectation?"
- The Defendant's response on 8th June included the following:-
"…To date Mr [E] has claimed at least 10 different nationalities. He continues to claim that he is an adopted Canadian citizen, even though we have evidence that he is not a Canadian citizen and the Canadian authorities have no record of his adoption in the country. He is currently claiming that he is from the Bahamas, again we have made contact with the relevant authorities in the Bahamas and they have no record of his birth in their country – even after checking the 13 different names Mr [E] has provided to us. A couple of months ago Mr [E] claimed that he was from Antigua, again no trace of him has been found there either.
As made clear in the psychiatric assessment from Colne Ward, and by Mr [E's] own words, he is a compulsive liar and is refusing to provide his true details in relation to his nationality and identity to frustrate our attempts to deport him from the United Kingdom.
Mr [E] has consistently used deception in his dealings with the UKBA; by entering the United Kingdom illegally; by attempting to leave the United Kingdom on a document that he is not entitled to use; by constantly providing us with different names and nationalities in order to conceal his true identity.
You can be assured that Mr [E's] detention is reviewed monthly by senior officers in UKBA, and that he is informed of the reasons for his detention. Mr [E's] detention remains lawful whilst we attempt to investigate his case with the Nigerian authorities. The Nigerian authorities are conducting checks in an attempt to correctly identify Mr [E]."
- Claims of Bahamian nationality continued to be made and were investigated by the Defendant through the summer of 2010. Then in August 2010 further inquiries were made of the occupier of the address from which the Claimant was arrested in 2004 and of a surety. Information and material from those inquiries revealed some more leads (identifying a possible sister of the Claimant and linking him further to Nigeria under the identity of N.A.). The investigation of those leads proved neither to be a quick nor a productive exercise: the address obtained for the Claimant's possible sister led to its occupants saying she was not known there; the details of her passport was sought from the Nigerian High Commission; it turned out eventually that her employers had dismissed her years before; and the Department of Work and Pensions ('DWP'), when chased, only reiterated the same address for her in February 2011. Meanwhile the Claimant continued to assert other identities, aliases and places of birth.
- From the Spring of 2010 onwards the Defendant was asserting at various bail applications that the Nigerian High Commission had accepted that the Claimant was Nigerian. The representatives of the Claimant pressed the Defendant for disclosure of any documentation which confirmed this and it is apparent that there was nothing in writing from the Nigerian High Commission.
- There was a bail hearing on 6th August 2010 when the Claimant was represented by someone from the Legal Advice Centre at the College of Law. The Defendant's written reasons for opposing bail sets out a very great deal of the history of the case (including quotations from previous bail decisions) and saying that:
"[the] Nigerian officials have agreed to continue to work with the UKBA in order to issue an ETD; in this respect a report has been drafted for submission to the Heads of Immigration at the High Commission in London and Abuja. It is hopeful that an agreement for the issue of an ETD will be made shortly."
The Immigration Judge dealing with the bail application has written:
"I have been told that the Nigerian authorities accept that the applicant is Nigerian and are prepared to provide documentation to assist removal. It follows that removal is likely within a reasonable time…"
- In a letter dated 13th August 2010 the Defendant wrote to the Legal Advice Centre to say that:
"[the] Nigerian officials have not been able to provide us with a timescale of when an ETD would be issued. The issue of documentation for Mr [E/B] is no longer if he will be issued with an ETD, but when. This decision will be made by the Nigerian officials and we are hopeful that a decision will be made shortly."
- Another bail application followed on 10th September 2010. The Immigration Judge commented:
"…there has still been no removal and no formal documentation indicating acceptance of the applicant's supposed nationality. The absence of such documentation is troubling but not so troubling as to cause me to doubt the reliability of the current assurances from the Home Office. That confidence in the assurances might well be displaced if the appellant is not removed in timely manner and if at any future bail hearing there is still no formal documentation establishing that the Nigerian authorities have, as is now directly stated, accepted the applicant's nationality. On the material before me I conclude that the appellant's removal is reasonably imminent and I refuse bail."
- The Defendant's CCD Director reviewed the Claimant's detention on 14th September 2010 having considered a report from her senior executive officer Mr Lambert which said:
"I am confident that with the new information obtained through investigations that we will receive the travel document and that removal will take place within the next 2-3 months."
In other words by about the end of 2010.
- I am told the last time the Claimant applied for bail (his 43rd bail application) was on the 11th or 12th October 2010. There was still no documentation from the Nigerians. All that was disclosed by the Defendant was email communications between the Foreign and Commonwealth Office and Defendant from 7 months earlier which referred to there having been an oral statement by someone in the Nigerian High Commission saying they believed the Claimant to be Nigerian. Bail was again refused.
- A pre-action protocol letter was sent to the Defendant on 14th October 2010 by Ziades Solicitors. The Defendant replied at the end of October 2010 to say that they had further reviewed the Claimant's detention but that they did not accept the representations made.
- 28 day Detention Reviews and Monthly Progress Reports to Detainees have been provided to me. The October and November 2010 Detention Reviews are almost identical to the one in September 2010 referred to above. There are references to awaiting information from the DWP as to the address of the Claimant's possible sister. The first December Detention Review speaks of visiting the possible sister's employers to ascertain her address and possibly interviewing her at work. The second Detention Review in December refers to the possible sister's HR manager inviting a visit on 19th January 2011. The report continues to restate confidence in removal within the next 2-3 months, as does February's. The February 2011 Detention Review gives the outcome of the visit to the Claimant's possible sister's employers. It took matters little further because she had been dismissed 5 years earlier. The Detention Review in March 2011 has Mr Lambert now expressing confidence that removal will take place within the next 3-6 months (i.e. June-September 2011).
- Another pre-action protocol letter was sent to the Defendant on 4th August 2011 by the Claimant's current solicitors. It focuses principally on matters of mental health, but it also refers to: "the prospect of removal is, if a possibility at all, extremely remote." and "…as time goes by any real prospects for removal become more extremely remote."
- The August 2011 Detention Review of the Claimant's case reveals Mr Lambert was no longer saying anything specific about a confident time frame for the Claimant's removal. He now only says this:
"… The case owner continues to be proactive in investigating identity in this very difficult non compliant case and at present action on establishing identity of this Nigerian national is focussed on obtaining information from his sister and other sources of information..."
The September and October 2011 Detention Reviews use exactly the same wording.
- The Defendant's reply to the Claimant's pre-action protocol letter (on 28th August 2011) does not refer to any specific actions having been undertaken in the preceding 10 months to facilitate the Claimant's deportation, however the October 2011 Detention Review reveals there was a visit to the old address of the Claimant's possible sister in March 2011 but she was not known by anyone there. Another address linked to her was tried in Chelsea on 8th June 2011 but no one was present. The Metropolitan Police Intelligence Bureau initially failed to respond to requests for any other addresses that might be known for her, but after a second request advised they had no intelligence to assist. A voicemail message was left for a contact who had provided intelligence about the Claimant in August 2010. That contact was thought to be in Nigeria until mid-August 2011 but he had not responded to the voicemail message and was not answering calls to his number.
- In November 2011 the Defendant collated materials with a view to the Nigerian High Commission providing an ETD. An interview was scheduled for the Claimant to be seen by them for that purpose on 24th November 2011. The interview did not go ahead because the Claimant yet again refused to speak to them.
- On 6th/7th December 2011 the Claimant was moved in the middle of the night to Dover IRC from Colnbrook IRC. He did not want to be moved and apparently was told not to worry because if he maintained his objections it would not happen. This incident plainly unsettled the Claimant very substantially. The Claimant's counsel argued that it displayed the hallmarks of being a deliberate rendition designed to try to cause him to co-operate with the Defendant's objective of deporting him. Dover IRC were not able to handle the Claimant and he was returned to Colnbrook on 8th December 2011.
- Arrangements were then made for the Claimant to be interviewed by the Nigerian High Commission on 15th December 2011. This time the Claimant did agree to attend. The Nigerian officials agreed to consider the evidence put forward, but on 19th December 2011 refused to issue an ETD based on the interview. They nevertheless agreed to conduct their own investigations based on the evidence which had been submitted. The Defendant therefore considered that she had to await developments from those.
- On 19th January 2012 permission was granted for this Judicial Review. On the 25th of that month the Claimant's position was raised at a case conference meeting with the Nigerian High Commission. Nothing novel was suggested beyond that which was already being undertaken.
- Then on 18th April 2012 the Claimant was interviewed by UK immigration officials prior to a further planned interview with the Nigerian High Commission. 2 additional Nigerian immigration officials had been invited to attend. The Claimant refused to assist and said he would stab the male immigration official to death if he saw him again. On 30th April 2012 the case was raised at the UK/Nigerian Government working group and a detailed case summary passed to the Nigerian Officials for consideration.
- Although a further ETD pack with supporting evidence was prepared in July 2012 for the Nigerian High Commission when they attended the IRC, no further interview was arranged with their officials because the Claimant indicated he would not attend any further interviews with them.
- Finally, the Claimant was released on 9th August 2012.
The relevant facts on the second Ground - Application of the unlawful Cullen policy to operate a blanket presumption in favour of detention
- This part of the claim concerns the allegation that there was an application by the Defendant of "an unlawful policy" in this case "to operate a blanket presumption in favour of detention". This Ground was not developed orally by the Claimant's counsel beyond what is in the pleadings and is based on dicta in Lumba. It is confined to a complaint about the initial 5 months of immigration detention. The Claimant's skeleton argument (at para.129) argues that this explains why the Claimant was not released immediately after he had served his prison sentence.
- I am wholly unpersuaded on the evidence that the Claimant was unlawfully detained between 12th May and 15th October 2008 by reason of an unlawful blanket policy of the Defendant's. He was plainly detained initially by reason of the 'statutory warrant' (as I have referred to it above) and then perfectly obviously there was a merits based review of his continued detention which led to him being granted bail (in one of his false identities) once an adequate bail address had been secured. I accept the Defendant's submissions that this ground is misconceived.
- The decisions of the Defendant in that 5 month period are also years before the period of 3 months preceding this judicial review claim and I have not been provided with any explanation as to why I should countenance granting a declaration so long out of time. Further, this claim was issued in late September 2011, some 6 months after the judgment of the Supreme Court in Lumba.
The relevant facts on the third Ground – mental illness
- Care is needed when considering the evidence of the Claimant's mental health to distinguish the material which was contemporaneously available to the Defendant from that which was at the time confidential within a doctor/patient relationship. Therefore, I summarise only that which it appears to me to fall into the former category.
- The applicable principles where a detainee is mentally ill (and the consequences of the Defendant's relevant policies) have been drawn out from the case of R (Das) v SSHD  EWCA Civ 45 and set out in the judgment of this court in SA (Holland) v SSHD  EWHC 2570. The part of the Defendant's EIG Chapter 55.10 policy about mentally ill detainees only comes into play if the illness is serious enough to mean that it cannot be managed satisfactorily in detention – the policy's objective is to prevent inhumane treatment of detainees. If that policy is engaged (and continued detention cannot be justified under its proviso for 'very exceptional circumstances'), then the 'reasonable period' in the Hardial Singh principles for a detainee's ongoing detention will be curtailed. The Defendant cannot totally abdicate her own responsibilities to clinicians but she is generally entitled to rely on them where reasonable inquiries have been made and her policies have been considered where applicable.
- It is also important to bear in mind what is properly to be imputed to the Defendant. In this respect I follow what was decided in the case of DK (supra) at paragraph 208:
"It is clear that when assessing whether to detain a person known to have a mental illness particular care is needed: the Secretary of State, through her officials, should consider whether particular arrangements should be made to monitor a detainee's welfare or for signs of deterioration (see Beatson LJ in Das at ). If, however, the Secretary of State has fulfilled her duty to ensure that suitable particular arrangements are in fact put in place for detainees with particular needs, in my judgment, it is not necessary (or appropriate) as a matter of public law that knowledge of all healthcare staff in the system is then automatically 'deemed' to be that of the Secretary of State."
- Within 6 weeks of the Claimant entering immigration detention, when transferred between IRCs on 20th June 2008, his clinical notes include this record of his mental status:
"- He is very much depressed
- Stated he has lost his mother
- Good eye contact
- No suicidal nor self-harm ideation. But he needs a quiet place whilst he is still grieving.
- To see m/o. Requesting single cell."
- After he was returned to detention in December 2008, after 2 months on bail, he ingested soap which led to a visit to hospital on Christmas day. This was one of several occasions when he swallowed liquid soap from a hand dispenser. On 6th January 2009 he attempted to hang himself using shoelaces. He intermittently refused food and fluids. On 30th January 2009 he threatened to kill staff and then himself which led to him being on a higher level of intensity of clinical observations to monitor his health. Confirmation was given that he was fit to be detained. He apologised and said he would not harm himself or others.
- On 18th February 2009 the defendant replied to a letter from the Claimant's then solicitors (asking him to be given 'temporary admission' status) which included this:
"18. I have noted your claims regarding your client's medical state and we are fully aware of incidents that have occurred since your client was re-detained. However, you can be assured that his situation has been closely monitored throughout this period both by various staff, including healthcare professionals, based at the removal centre he has been in, and by the unit responsible for managing your client's case. Your client's fitness for detention has been reviewed throughout this period and he is deemed fit for continued detention. I am also aware that your client has access to and indeed has utilised the healthcare services within the removal centres he has been in and we are entirely satisfied that they can adequately deal with any medical issues your client may have."
- On the 2nd March 2009 bail was refused by an immigration judge, noting the risk of absconding and indicating that any healthcare needs could be met in detention. (This was the pattern for a series of such bail applications thereafter.) A few days later a formal request was made by the UKBA for the Claimant to be seen by an NHS psychiatrist and an appointment arranged. On 31st March 2009 the Defendant was informed that other detainees had intervened when witnessing the Claimant trying to kill himself. As a result he was returned to the healthcare section and placed on constant watch.
- However, the papers disclose that on 23rd April 2009 the Defendant says an NHS consultant reported to her that there were no overt signs of a mental disorder and that the Claimant was fit to be detained and to fly. (This Report has not appeared in writing and no name has been provided of the Consultant.)
- It seems that on 11th May 2009 the Claimant either attempted suicide, or at least threatened it (referred to in a letter to the Defendant from the Claimant's then solicitors dated 3rd July 2009).
- It was at this stage that a consultant psychiatrist (Professor Katona) was first commissioned on the Claimant's behalf. His 1st report is dated 24th June 2009. He concluded that the Claimant had moderate depressive symptoms and a high risk of suicide and, whilst acknowledging that it is difficult to be certain of a diagnosis of bi-polar disorder from a single interview, he needed in-patient psychiatric assessment to confirm the diagnosis and establish him on appropriate treatment. He strongly disagreed with the unnamed NHS consultant's psychiatric opinion that the Claimant was fit to be detained and that the IRC could adequately meet his medical needs.
- The Defendant was now therefore facing conflicting opinions about the Claimant's mental health. She was sent a pre-action protocol letter on 13th July 2009 and replied on 16th July. She expressly responded to the references about Chapter 55 of her EIG and the Claimant's mental health by saying that his medical needs were being adequately addressed at the IRC and there was no evidence that he was unfit to be detained. However, she did say that she was arranging for him to be seen by a psychiatrist for a full medical report.
- Although Hillingdon Hospital's psychiatric services were asked to assess the Claimant's mental health in August 2009 and a psychiatrist was identified for the purpose, the psychiatrist then cancelled the appointment and by 8th September 2009 the hospital said they would not assess the Claimant unless he was in need of an acute hospital bed. In this time period he was indicating suicidal ideation and at the beginning of September was in the Vulnerable Person's Unit due to his behaviour. His Physical Care Records during September reveal serious concerns about his mental condition. On 8th September they record "he remains angry and feels suicide will resolve the problem for everyone. He says he has £25m in Belgium. He has rational thinking and good engagement, except he remains firm that he wants to commit suicide - discouraged. Needs to continue on constant watch. Needs psychiatric review plan." He continued to threaten suicide and made some preparations to strangle himself between the 11th and 13th September, when several notes were made about his need for a psychiatric review.
- On 17th September 2009 a GP called Dr Emadi saw the Claimant at midday, I assume following another attempted suicide that day. On reviewing the Claimant's notes Dr Emadi refers to the possible diagnosis he may have of BPAD [Bi-Polar Affective Disorder] which he says is "currently
untreated poorly managed" (sic). He refers to the need for an urgent psychiatric assessment and advised the addition of an anti-psychotic medication to those the Claimant was already prescribed for depression and anxiety. A week later Dr Emadi saw him again and recorded that the Claimant was calmer. The Claimant was still expressing that he hears derogatory voices but there had been no behavioural issues, or further suicide episodes, or self harm. He noted that a psychiatric assessment was being awaited.
- On 30th September Dr Emadi saw him again at 1005am. He notes that the previous day the Claimant had displayed aggression and suicidality. He had still not had a psychiatric assessment and the GP wrote: "In my opinion this gentleman is unfit for detention. He is mentally unwell, has been seen by an independent psychiatrist who feels he has BPAD. Currently suicidal & unpredictable behaviour…Needs urgent psychiatric assessment this afternoon."
- That happened. A Dr Ahmed carried out a psychiatric assessment - recorded in nearly 4 pages of notes. His impression of the position is set out as "BAD [Bipolar Affective Disorder]; mixed affective state; ? rapid cycling." A plan is then set out, including some changes to his medication, with some situations to avoid. Dr Ahmed's opinion is then expressed: "In my opinion currently not fit for removal, if no improvement then need med.[ical] in-patient Rx [referral]. Review Note – to remain on constant watch for time being until some stability in mood is witnessed" and he asked for a Registered Mental Nurse to keep a mood chart.
- A very full and detailed Detention Review by the Defendant conducted in mid-October 2009 makes express reference to Professor Katona's psychiatric report as well as the threats and attempts of the Claimant to commit suicide up to and including 17th September 2009. The Claimant made a number of communications to the Defendant's caseworkers after that last suicide attempt, requesting transfers to a hotel and then asking to be sent back to Colnbrook IRC from Harmondsworth IRC where he then was. (He was returned to Colnbrook IRC on 7th October 2009.) The review provides the reasoning for its conclusion that he should remain in detention.
- As a result of an instruction from his then solicitors the Claimant was psychiatrically assessed by Dr Sen on 12 November 2009. In his Report dated 5th December 2009 Dr Sen concurred with the views of Professor Katona but also noted features also found in people with schizophrenia and emotionally unstable personality disorder. He recommended the Claimant be transferred to a low secure psychiatric setting and that Hillingdon Hospital be asked to assess him so as to commission a suitable placement.
- This Report led the Claimant's then solicitors to issue a pre-action protocol letter based on the psychiatric needs of the Claimant. The Defendant's response was to commission her own expert report.
- Dr Balakrishna supplied this on 29th January 2010. He observed that the Claimant appeared dismissive of Dr Sen's assessment and Dr Balakrishna wrote:
"The health records since [the Claimant's] return from Harmondsworth do not suggest further attempts at self-harm, and continue to demonstrate inputs and reviews by trained and qualified clinicians, including those trained in psychiatry. [The Claimant] has remained throughout on the VPU, where there is close supervision by officers, regular reviews by clinicians and awareness of any significant changes in behaviour.
Neither Dr Sen (in November 2009) nor Professor Katona (June 2009) reach a definitive view about diagnosis…
It is unclear if these self-harm acts are deliberate attempts at protest or attentive-seeking or a function of an abnormal mind…"
He agreed it would be appropriate for a 3-4 week placement in a specialist secure unit with multi-disciplinary expertise for regular observation, where any inconsistencies in the Claimant's presenting mental state would be examined.
- As is sadly widespread within the NHS because of hard pressed resources there were delays in securing a bed for the assessment. The Claimant made a serious attempt at suicide by hanging on 10th February 2010. He was finally admitted to Colne Ward (Psychiatric Intensive Care Unit) at Hillingdon Hospital on 17th March 2010 and discharged back to Colnbrook IRC nearly 6 weeks later on 28th April 2010. On admission he was told he would be returned to the IRC after the assessment period whereupon he said he would try to kill himself on the ward. The next day he was stopped by a nurse after moving a chair outside and attaching a sheet to a window frame to hang himself. The hospital's Discharge Summary provided this opinion:
"…There were no signs of acute mental illness observed throughout this period. The team rigorously carried out repeated observations and interviews, mindful of the complexities including the lack of information and the inconsistencies in the history. We acknowledge that there was no evidence of acute mental illness including depression, hypomania, psychosis. We cannot comment about past history due to lack of corroborative history. However we accept [the Claimant] understandably experiences considerable distress due to his frustration related to his immigration status. He is likely to act out when he is frustrated and has demonstrated a low tolerance to frustration…At present we did not feel there was any need to add any psychotropic medication and the low dose of citalopram was sufficient to manage anxiety as he did not need higher antidepressant doses. He is aware of our views and agrees he does not suffer from major mental illnesses."
- A week before his discharge the hospital told the Defendant he was fit to be detained. A Deportation Order was prepared and then signed by the Minister of State on 23rd April 2010. It was served on the Claimant on 10th May 2010.
- On 28th October 2010 the Defendant was told that the Claimant had been seen by a doctor at the psychiatric clinic and had no symptoms of psychosis. He was prescribed a low dose anti-depressant.
- Then in the summer of 2011 concerns were being recorded again about the Claimant's psychiatric condition. He was prescribed more medication for his symptoms. A solicitor asked Dr Malfatto (an NHS Staff Grade psychiatrist) to assess him in June 2011 and Dr Malfatto concluded the Claimant was suffering from a psychiatric disorder which would make it advisable for a period of hospitalization to observe, diagnose and establish a proper pharmacological treatment. Professor Katona reported again on him on 6th July 2011. He was clear that the Claimant had a 'real' psychotic illness, appearing to fulfil the ICD criteria for Schizoaffective Disorder which is a cyclical condition, but said it remained difficult to be certain of a diagnosis. It was his opinion that it would be difficult to fake convincingly. He could not account for the contrary views of the other psychiatrists at Hillingdon Hospital about 15 months earlier when the Claimant was assessed for 6 weeks. It was his opinion there should be psychiatric in-patient assessment and treatment followed by release into the community because of the unsuitability of immigration detention for people who have severe and enduring mental illness.
- The August 2011 pre-action protocol letter from the Claimant's Solicitor relied upon this psychiatric evidence.
- The Claimant was put on suicide watch in September 2011 for a few days and then again in December 2011 through to the end of January 2012.
- The Defendant's October 2011 Detention Review of the Claimant continued to rely upon the assessment of the Claimant at Hillingdon Hospital in the Spring of 2010 to assert that the Defendant's EIG 55.10 policy did not apply to his case.
- I have already outlined something of the Claimant's move to Dover IRC in early December 2011. He arrived at Dover IRC at 2am or 4am according to the evidence. He was reviewed by Dr Khan (Consultant Psychiatrist) and Mr Eugene (an NHS in-reach mental health practitioner) at 17:00 on the 7th December 2011. The notes describe the Claimant as non-coherent and that it was difficult to control the interview; the Claimant said he did not believe he had a mental illness but would take medication if suggested. He was reporting he had attempted suicide 3 days before at Colnbrook IRC. Constant watch was recommended. This assessment was sent to Colnbrook IRC after the Claimant was returned there on the 8th December 2011 by Mr Eugene. Mr Eugene added: "…we had concerns regarding his mental health and were considering referring to outside hospital should his presentation remain concerning".
- An update was requested by his solicitors about the Claimant's mental health and Professor Katona reported further on 22nd December 2011 and 3rd January 2012. He concluded that the Claimant's condition had deteriorated considerably since last seen; his diagnosis should now be regarded as 'schizoaffective psychosis, mixed'; his test scoring was indicative of a very severe mental illness; he now urgently needs in-patient assessment and treatment; and once stabilised should not be returned to immigration detention because of its unsuitability for people with severe and enduring mental illness. He added that the Claimant's apparent or perceived lack of cooperation with Nigerian officials was in his view a reflection of his mental illness and his complex delusional system, or maybe that he simply does not have the information that is being requested (a Nigerian identity).
- These Judicial Review proceedings led to an interim Order that the Claimant be transferred to Hillingdon Hospital as soon as a bed was available after 23rd January 2012. This gave rise to a problem because when their consultant (Dr Felton) was able to assess the Claimant on 8th February 2012 he concluded there was: "no current evidence of any mental disorder warranting hospital transfer" and that "current presentation would not even warrant community mental health team involvement". They therefore declined to admit the Claimant to hospital.
- The Defendant then commissioned a report next from Dr Szpak, who reported on 10th March 2012. She concluded that: there were characteristic features of a psychotic illness in the spectrum of schizophrenia; a schizoaffective disorder would most accurately describe his illness; the causes were unclear but "[o]ne such trigger, I believe, may be his prolonged detention. It has been noted throughout his years of detention that he was fed up with the immigration proceedings and that he was frustrated not to be able to get out." She recommended appropriate medication for his treatment and ended her report saying that the Claimant did not present as requiring urgent transfer to a secure psychiatric unit but his condition can fluctuate so that he may present differently at another point in time. She added that in order potentially return to the community he would require a period of mental health rehabilitation and assessment of his skills to cope.
- The relevant local authority undertook a full community care assessment on 22nd March 2012 and declined to offer support or accommodation on the grounds it was not necessary. Dr Felton carried out a further assessment of the Claimant on 28th March 2012 and maintained his conclusion that in-patient treatment was not required.
- Professor Katona produced an updated Report on 18th June 2012. His assessment had not changed but he accepted that community care rather than hospital treatment was required. He sought to explain the discrepancy between his assessment and that of Dr Felton as possibly because of the cyclical nature of the Claimant's condition and its consequential fluctuation.
- Dr Felton was reverted to again on 17th July 2012 for his opinion following a 3rd assessment of the Claimant. He was clear in his view: "He does not have an enduring mental illness and he does not display symptoms such that detention under the Mental Health Act 1983 is necessary or appropriate…" and that due to the absence of a diagnosable enduring mental illness, community mental health services are not required.
Conclusions of fact
- I do not accept for one moment that the Claimant's conduct in presenting himself first as one identity and nationality, later to change to another, and another, and another, etc., etc., was principally a symptom of mental illness. If any inference is to be drawn from the materials presented to me it is overwhelmingly plain that the preponderance of this part of the Claimant's conduct was motivated by a conscious desire and deliberate effort to frustrate the Defendant's efforts to put into effect the judicial recommendation to deport him.
- Having had the benefit of an overview of all the evidential material a prime example of this cynical manipulation of the system has been that whenever the Nigerian authorities came anywhere close to issuing him with travel documentation he either refused to engage with them or flatly contradicted what had previously been established. This extended to his declining to co-operate with the Defendant's wish to obtain expert linguistic evidence about his accent and the consequential delays of obtaining a tape of his original interviews with the police from when he had been arrested in the autumn of 2007. There is only one realistic inference to be drawn from all of this – it was a conscious desire to obstruct the Defendant's duty to seek to deport him.
- Even if the established pattern of his consciously motivated dishonest behaviour about his identity, nationality and immigration history became intertwined with grandiose fantasies associated with a cyclical mental illness from time to time during his detention (which itself remains a controversial diagnosis), I reject the contention that I may properly infer from the evidence that the Defendant should have concluded that his conduct was the consequence of mental illness.
- For much of the time when the Claimant was in immigration detention and was behaving in ways which tested the skills of those charged with his detention the Defendant had to contend with conflicting psychiatric opinions from experts in that complex field. Even at the end of this saga she was being provided with firmly held and utterly contradictory conclusions from experts.
- I am of the opinion that the contemporaneous evidence which was available to the Defendant about the possibility of the Claimant suffering from a significant mental illness was not such as to have required her to release him in pursuance of her own policies and in fulfilling her public law duty to review his continued detention. It was open to her reasonably to conclude that such mental health issues as the Claimant had were satisfactorily manageable in detention. She took the precaution of having him assessed in a psychiatric hospital for several weeks at one stage of his detention - when sufficiently serious concerns had been raised. Her conclusions from that were ones she was perfectly entitled to reach and entirely reasonable. The steps she took to ensure his proper psychiatric assessment and appropriate care while pursuing her obligation to seek to deport him were not in breach of her public law duties.
- Further, in the light of the material available and known to her from time to time, the controversial (and still controversial) 'mental health issues' were not in my view such as to affect what was the 'reasonable period' for the Claimant's detention under the second of the Hardial Singh principles.
- In the light of all of the evidence about the circumstances of the Claimant's case (in particular the material set out above in the section on 'The relevant facts on the first ground – unlawful detention - Hardial Singh principles') it has been established to my satisfaction that the 'reasonable period' for detaining him for the purpose of deportation expired no earlier than the end of 2011. Certainly at least until then it was reasonable for the Defendant to detain the Claimant while making efforts to remove him in a reasonably diligent and expeditious manner.
- However, it has been established to my satisfaction that the Defendant was not entitled to continue to detain the Claimant after the end of 2011 because of the 3rd of Lord Dyson's formulations of the Hardial Singh principles. By that date it had become quite clear that she would not be able to effect his deportation within a reasonable period. The purpose of his detention – to facilitate deportation - had become incapable of being achieved within a reasonable period. She therefore had a public law duty to release the Claimant. All reasonably diligent and expeditious efforts had by then been taken and had come to nothing on the 19th December 2011 when the Nigerians refused to issue an ETD. Thereafter the steps undertaken by her amounted to little more than window dressing while hoping that the Nigerian High Commission might come up with something themselves which would persuade them to issue an ETD.
- This was 3 years and 7 months after the Claimant had first entered immigration detention in the middle of May 2008. It was 3 years after he had been returned to immigration detention following a period on bail. It was 19 months after the Defendant had been confidently stating at bail applications that the Nigerian authorities had accepted that the Claimant was Nigerian. It was after the Defendant had received a substantial quantity of legal correspondence from solicitors firms acting for the Claimant so as to put her on the very clearest of notice that they challenged her assessment of the case and her compliance with her public law obligations. Detention after the Nigerian refusal of an ETD on 19th December 2011 was no longer justified barring a few days for the Defendant to undertake a final review and to arrange adequate bail conditions so as to reduce the risk of the Claimant absconding. That should have been achieved by the end of that month.
- Accordingly, I find that the Claimant is entitled to a declaration that he was unlawfully detained from 1st January 2012 until 9th August 2012.
- Nothing arises on the facts which would result in any more extensive a declaration by reason of any alleged breaches of some or all of Articles 3, 5 or 8 of the European Convention of Human Rights, as given direct domestic force under the Human Rights Act 1998, than that which I have already indicated I will make.
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