M, R (on the application of) v Secretary of State for the Home Department

The appellant is an Iraqi national. He is now 30 years of age. He came to the United Kingdom in January 1994 and was granted exceptional leave to remain for one year. Following various extensions, on 21 May 2001, he was granted indefinite leave to remain. On 25 September 2001, he was convicted of obtaining money by deception and sentenced to 18 months imprisonment. On 9 August 2005, he was convicted of persistently using a public telecommunications system causing annoyance, inconvenience and needless anxiety. On 2 November 2005, he was convicted on 3 counts of domestic burglary, 5 counts of obtaining property by deception and 1 count of handling stolen goods. He was sentenced to 3 years imprisonment.

On 6 July 2006, the Secretary of State served him with notice that he intended to deport him on the grounds that his presence was not conducive to the public good. At the release date (27 November 2006), the appellant was detained pursuant to para 2(2) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”). He has been detained purportedly pending his deportation to Baghdad ever since. The reason why he has not yet been deported is that, throughout the period of his detention, the Secretary of State has considered that it is too dangerous to escort the appellant to Baghdad. There is no evidence that the position is likely to change in the immediately foreseeable future.

He appealed against the decision to deport him. His applications for bail were refused on 7 and 20 December 2006. A probation report was prepared for the first appeal hearing. The writer of the report referred to the fact that the appellant had 2 previous convictions for failing to surrender to custody on 5 April and 21 June 2004. She said that he was assessed as a high risk of re-offending in view of his previous convictions. In refusing bail on 7 December, the immigration judge noted that the appellant had been assessed as a high risk of re-offending and that he had failed to comply with bail conditions in the past. The sureties had failed to provide clear evidence of their means. The judge said that he was satisfied that, without substantial sureties, the appellant would fail to appear and would offend if granted bail. The decision to refuse bail on 20 December was made for essentially the same reasons.

His appeal was dismissed by a decision of the Asylum and Immigration Tribunal (“AIT”) published on 3 April 2007. On 26 April, a senior immigration judge ordered a reconsideration. The decision was upheld on reconsideration by a determination issued on 30 October 2007. On 20 November, the appellant sought permission to appeal this decision. Permission was refused by a decision of the AIT on 15 February 2008. He has applied to this court for permission to appeal. He has two grounds of appeal. The first is that the AIT erred in rejecting the expert report of Julia Guest in relation to the appellant’s Arabic language skills. The second is that he should be allowed to rely on a new argument (“the new point”) based on paragraph 339C of the Immigration Rules and Article 15C of the EU Directive 2004/83/EC. The application for permission to appeal was fast-tracked and came before us on 11 March. It might have been possible for us to deal with the first ground of appeal. But an issue was raised by Mr Patel as whether we had jurisdiction to deal with the new point or whether that point should be the subject of a fresh claim. In these circumstances, and because the parties had not been given sufficient time to consider this issue, we decided to adjourn the application for permission to appeal.

Meanwhile, there had been concerns about the appellant’s mental health which culminated in his attempted suicide on 26 May 2007. On 31 May, he issued judicial review proceedings in which he alleged that his continuing detention was unlawful and sought a mandatory order for his release. He was granted permission to apply for judicial review by McCombe J on grounds limited to the issue of the lawfulness of his detention having regard to (a) the issue of there not appearing to be any possibility of imminent enforced removal to Iraq; (b) his location; and (c) his mental health.

The application for judicial review was dismissed by His Honour Judge Mackie QC by a judgment given on 9 November. The appellant issued a notice of appeal against that decision on 23 November. On 2 December, he again attempted suicide and was immediately placed on “suicide watch” by the detention centre. He was seen by various doctors during the following weeks. It seems to have been common ground between them that the appellant was suffering from a depressive illness.

Thus it was that on 14 January 2008, the appellant applied to this court for an order that he be released as a matter of urgency. Laws LJ ordered that “the suicide watch ACDT be restored immediately if it is not presently effective”. On 30 January, Buxton and Hooper LJJ heard both this application and the application for permission to appeal the decision of Judge Mackie. They granted permission to appeal and required the Secretary of State to procure an up to date report from the Probation Service both on the danger of re-offending and the appellant’s social ties and connections, as well as the latest monthly review reports by the Secretary of State on the appellant. On the Secretary of State undertaking to take and act upon medical advice as to the circumstances in which, and the extent to which, the appellant’s case required suicide watch, the court discharged the order made by Laws LJ and refused the application for an order for immediate release from detention.

The appellant was liable to deportation on the ground that, pursuant to section 3(5) of the 1971 Act, the Secretary of State deemed his deportation to be conducive to the public good. Section 5(1) of the 1971 Act provides that where a person is liable for deportation under section 3(5), then the Secretary of State may make a deportation order against him. Para 2(2) of Schedule 3 of the 1971 Act provides:

The principles applicable to the present case are not in dispute. They have been stated most fully in two decisions of this court, namely R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 and R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804. The statutory power to detain a prospective deportee until his removal or departure is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists, namely the purpose of deportation. Secondly, it may be exercised only for a period that is reasonable in all the circumstances.

In R(I), I said at para 48:

As regards the risk of absconding and a refusal to accept voluntary repatriation, Toulson LJ said in R(A) at para 54 that these:

As I shall explain, it is common ground that the refusal to accept voluntary repatriation is of little, if any, relevance in the present case. It is, therefore, unnecessary to consider the differences between the views expressed by myself in R(I), the majority in R(A) and Keene LJ in R(A) on this point.

As for the risk of re-offending, Toulson LJ said at para 55:

Thus, the combination of a risk of absconding and a risk of re-offending may justify allowing the Secretary of State, in the words of Simon Brown LJ in R(I) at para 29, “a substantially longer period of time within which to arrange the detainee’s removal abroad”. The greater the risks, the longer the period for which detention may be reasonable. But there must come a time when, whatever the magnitude of the risks, the period of detention can no longer be said to be reasonable.

It is common ground before us that the court should consider the lawfulness of the appellant’s detention as at the date of the hearing (11 March 2008). There has been produced to us a probation report dated 27 February 2008 as well as the Secretary of State’s most recent detention review dated 4 March. The reasonableness of the detention must be judged in the light of all the circumstances including, in particular, the circumstances disclosed by the recent documents.

The judge held that there was a risk of the appellant absconding in the light of the background to the case and his history of failing to attend criminal courts when required to do so. As for the risk of re-offending, the judge said:

He continued:

In his skeleton argument, Mr Drabble QC makes a number of criticisms of the judgment below. These include the following. The judge erred in accepting an assessment of risk which was 11 months old; in failing to recognise that the risk of absconding and re-offending were not great and were considerably less than in the case of the appellant in R(A); in failing properly to take into account the possibility of releasing the appellant on bail with an electronic tagging requirement; failing to have regard to the fact that the appellant has a brother resident in the United Kingdom; giving insufficient weight to the length of the appellant’s detention; and failing to accord sufficient weight to the fact that the appellant had an outstanding immigration appeal.

A number of these points were developed by Mr Drabble in oral argument before us. But the focus shifted away from a criticism of the judge’s reasoning, since the lawfulness of the detention has to be determined on the basis of the up to date material that has been placed before this court. Before I deal with the way that the case is now put, I need to refer to this material in a little detail.

The writer of the report, Rekha Brigue, states that she interviewed the appellant for two hours. She left “numerous” messages with his family in the UK asking them to contact her, but she received no response. Because she was informed that the appellant’s sister was out of the country, she left her contact details with the appellant’s brother. In the section of the report headed “Attitude to index offence”, she recorded that the appellant “emphasised genuine remorse for his actions”. She says:

Under the heading “Criminogenic issues and Future Plans”, she says:

Under the heading “Employment and Education”, she says:

Under the heading “Emotional Wellbeing and Health”, she says:

Finally, under the heading “Risk”, she says:

Mr Jal Makai states that, having been in Lebanon for 8 days, he returned to the UK on 26 January 2008. On the following day, he received a message to contact Ms Brigue at the Slough Probation Service. He did so later that day, but was told that she had left the office for 2 weeks and there was no-one else to whom he could speak in relation to the appellant’s probation report. He says that their sister often visits Lebanon to see her husband who currently resides there. She and her husband plan to return permanently to the UK in approximately 10 days (ie on about 16 March 2008). They have a 3 bedroom house in London NW8. He (the appellant’s brother) has a flat in London W9. At para 5 of his statement, he says:

This review refers to the appellant’s psychiatric condition. It records that the has been seen by a psychiatrist who said that the appellant did not have a serious condition that required treatment outside the detention centre and that he had not been assessed as unfit to remain in detention. He has been seen by a psychiatrist on 7 February 2008 who increased the dosage of his antipsychotic medication to 150 mg. The report records that the appellant was now claiming that he was being overdosed and refused to take any medication. It states that it is proposed to maintain detention since the appellant has again been psychiatrically assessed as fit for detention. On the question of risk of re-offending and absconding, the review merely summarises what appears in Ms Brigue’s probation report.

In my judgment, there is a substantial risk that, if he were released from detention, the appellant would abscond. Mr Drabble places much reliance on the evidence of the brother and the assessment of the risk in the probation report. The probation report states that there was no evidence to suggest a “high” risk of absconding. He submits that, unless the risk of absconding is very high, a long detention such as has occurred in this case cannot be justified as reasonable. He contrasts the case with R(A), where the risk of absconding was said to be “as high as it could be”.

I have serious doubts as to whether the appellant’s family would provide the stable support to which Ms Brigue refers. The brother’s failure to respond to the numerous messages left by her has not been adequately explained. This itself casts considerable doubt as to the degree of support that the appellant’s family are willing to provide. It is also to be noted that the brother did not attend the hearing of the first appeal on 15 January 2007. The AIT commented on this at para 38 of their determination saying that this indicated that “the brother does not support the appellant as much as he says he does”.

The brother says that the appellant will live with their sister, but there is no evidence from the sister to verify this. Moreover, the appellant apparently told Ms Brigue that, if he were released, he would like to “settle with his partner and start a family”.

These features of the evidence alone lead me to conclude that there is a substantial risk that the appellant would abscond if he were released from detention. But there are other aspects of the case which reinforce this conclusion. First, there are the two failures to surrender to bail to which I have referred. Mr Drabble makes the point that the appellant did not go to ground on either occasion and the fact that they were not considered to be serious matters is demonstrated by the very modest penalties that were imposed. Nevertheless, they show a tendency to abscond. Moreover, it should not be overlooked that the appellant had not been given notice of the Secretary of State’s intention to deport him at the time of the failures to surrender. In my view, therefore, there is less significance in the fact that the appellant did not go to ground than would otherwise have been the case.

Secondly, there are indications that the appellant will do everything possible to avoid returning to Iraq. He has pursued every avenue of appeal with vigour, but they have all been resoundingly rejected. His appeal against the decision to make the deportation order was dismissed. His appeal on a reconsideration also dismissed. His application for permission to appeal was dismissed. If his application to the Court of Appeal for permission to appeal fails, he knows that he will have exhausted all the possibilities of challenging the decision to deport him, unless the new point falls properly to be dealt with as a fresh claim. The fact that he has pursued all avenues of appeal is itself an indication that there is a risk that, if released from detention, he will abscond. But the manner in which he has pursued them is also of significance. In their decision of 3 April 2007, the AIT found that the appellant had told lies, including the lie that his mother was dead. They found that he had told “a significant lie to bolster his case” and that this “causes us to have the gravest doubts about his credibility generally and about his assertions that he will not commit crimes in the future” (para 39). But he has also explicitly made it clear that he is desperately anxious to remain in this country. He has an intense fear of being returned to Iraq. In his report dated 28 December 2007, Professor Katona records that the appellant told him that he was terrified at the prospect of being deported to Iraq: he was convinced that he would be recognised on arrival and tortured and/or killed. The same point was made by Ms Brigue in her report: see para 23 above.

It is also of significance that on 7 and 20 December 2006, the AIT refused to grant the appellant bail because they had concerns that he would abscond. It seems to me that, if anything, the risk that he will abscond is greater now than it was then, because he has almost exhausted his rights of appeal and is in a state of greater anxiety than he was then. I note that the first attempted suicide was in May 2007.

In these circumstances, I do not think that much weight can be placed on Ms Brigue’s statement that she has no evidence to suggest a high risk of absconding. The only basis for this negative statement is her assessment of the significance of the two failures to surrender to bail. For the reasons that I have given, I am of the opinion that there is also other evidence from which it is right to conclude that there is a high risk of absconding.

I turn to the risk of re-offending. Mr Drabble submits that the offences committed by the appellant were not of the utmost seriousness. They were serious offences of dishonesty. He has committed no offences of violence and there is nothing to suggest that, if released, he might commit such offences. I accept that there is no evidence that there is a risk that he would commit offences of violence. But the offences that he did commit were serious and numerous, and the distress and harm caused by such offending, particularly domestic burglaries, should not be underestimated. These offences cannot by any stretch of the imagination be regarded as insignificant.

In my judgment, there is a substantial risk that the appellant would re-offend if he were released. To a considerable extent, the risk of re-offending is linked with the risk of absconding. If he were to abscond, he would not be able to lead the stable life and have regular employment which Ms Brigue considers to be the precondition for his avoiding a return to an offending lifestyle. Since I consider that there is a substantial risk that he would abscond, it must follow that there is a substantial risk that he would re-offend. In any event, I have already explained why I have considerable doubts as to whether his family would provide him with the support that he would need. I have some difficulty in seeing how the last two paragraphs of Ms Brigue’s report which I have quoted at para 24 above can be reconciled. In the first paragraph, she says that, if the appellant is released without any structure, he will “inevitably” return to an offending lifestyle. In the last paragraph, she says that without the support structures in place, the appellant will still pose a “medium” risk of re-offending. I doubt whether it can be right to say that it is inevitable that he would re-offend. But it seems to me that in the light of the appellant’s record of offending and dishonesty, without family support and, more importantly, without employment, the risk of re-offending must be very high. It is highly significant that obtaining employment is regarded by Ms Brigue as essential to minimise the risk of re-offending. There is no evidence as to how the appellant would obtain employment if he were released. On the material before us, it is inherently unlikely that he would find any employment.

I find further support for my conclusion that there would be a high risk of re-offending if the appellant were released in para 39 of the decision of the AIT of 3 April 2007 to which I have referred at para 30 above. I should also refer to para 40 of their decision where they said: “The appellant is a man with a significant criminal record, for offences of dishonesty, including domestic burglary, who was assessed as being at a high risk of re-offending and nothing he has said causes us to dissent from that view”. There is the further point that the appellant told Ms Brigue that his attitude to offending had changed as a result of his participation in the Enhanced Thinking Skills programme, but there was no evidence that he had completed any such course. Finally, as Ms Brigue points out, the appellant’s successful completion of Home Detention Curfew in 2001 did not deter him from further offending.

The position, therefore, is that there is a substantial risk that, if he were released, the appellant would both abscond and re-offend. The combination of these two risks is that a longer period of detention can be justified as being reasonable than would otherwise be the case. But the detention in this case has already been substantial (some 15 and a half months). There is no immediate prospect that the deportation will take place. However grave the risk of absconding and re-offending, there must come a time when it can no longer be said that the detention is reasonable. The decision as to what is reasonable in all the circumstances calls for a difficult exercise of judgment as to which opinions may legitimately differ. Leaving aside the effect, if any, of the appellant’s mental illness, I have come to the conclusion, with some hesitation, that the risks of absconding and re-offending are so great that it is reasonable for the detention to continue for the time being. Circumstances may change. It may become safe to escort the appellant to Baghdad. If the appeal process is completed before the expiry of the period of reasonable detention, then the question of the effect of a refusal of voluntary return (if the appellant does refuse) will have to be considered. I should make it clear that, in reaching my conclusion, I have given no weight to the fact that the appellant has chosen not to return to Iraq voluntarily. Since he has not exhausted the appeal process, it would not be right to give weight to this factor.

It remains for me to consider the relevance of the appellant’s mental illness. As I have said, it is common ground that the appellant is suffering from a depressive illness. He has twice attempted suicide and has been prescribed medication. It is not clear whether he is taking the medication at the present time. At one stage, it was being contended on behalf of the appellant that his mental illness was such that his continuing detention was in breach of chapter 38 of the Secretary of State’s operation Enforcement Manual. But Mr Drabble does not so contend before us. His argument is that the fact that the appellant’s detention has caused or contributed to his mental illness is a factor to be taken into account in assessing the reasonableness of the length of the detention.

I accept that, if it is shown that a person’s detention has caused or contributed to his suffering mental illness, this is a factor which in principle should be taken into account in assessing the reasonableness of the length of the detention. But the critical question in such cases is whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering. It is the view of the in-house psychiatrist at Colnbrook Healthcare (under whose care the appellant is while he is in detention) that he does not have a serious condition such as would require his treatment elsewhere. He has not been assessed as unfit to remain in detention, where his condition is being managed.

As I understand it, this professional assessment has not been challenged in these proceedings. In these circumstances, I consider that the mental illness should be given little weight on the facts of this case. Quite apart from the fact that the illness is being kept under control, there is some doubt as to the extent to which the illness has been caused or contributed to by the detention, rather than by the appellant’s anxiety about the prospect that he will be deported unless he succeeds in his appeal.

For these reasons, I would dismiss this appeal. This is a case which causes me considerable concern. The appellant has already been in detention for a very long time. It is essential that the adjourned application for permission to appeal be determined as a matter of urgency. The same sense of urgency needs to be demonstrated in dealing with the new point as a fresh claim (if that is what happens). By that I mean that if the new point becomes the subject of a fresh claim, it must be processed with expedition by the Secretary of State and any proceedings instituted by the appellant if the fresh claim is refused must also be pursued with speed.

I agree.