Onabule v Secretary of State for the Home Department

LADY JUSTICE ARDEN: This is a renewed application for permission to appeal against the order of King J of 9 December 2013 refusing permission to apply for judicial review in respect of immigration detention for a limited period between February and November 2013.

The position is that after that date the Appellant was released. Her mental health had deteriorated and was not good, so she is no longer in detention. I am focusing therefore on the period between February 2013 and November 2013.

She is a lady of some 50 years of age. She comes from Nigeria with no permission to be here. A deportation order was, at some stage, made. She was appeal rights exhausted in December 2012. She had in fact been detained on 25 November 2011. So by the end of November 2013 she had been detained for two years, which is a very considerable period of time.

The court is concerned about the seriousness of immigration detention and the result for any person who is detained. It is a very serious matter, but the court has devised principles to deal with this situation. They are common law principles which operate as a considerable method of control on executive action.

They are generally known as the Hardial Singh principles, which, so far as relevant, may be summarised as follows. First, the Secretary of State must intend to deport the person and can only use the power to detain for that purpose. Second, the deportee may only be detained for a period that is reasonable in all the circumstances. Third, if before the end of the reasonable period it becomes apparent to the Secretary of State that she will not be able to effect deportation within a reasonable period, she should release at that point. Those are the Hardial Singh principles in outline and they are the basis of this application for permission to bring judicial review proceedings.

A strong point is made by Mr Graham Denholm, who appears with Miss Catherine Robinson for the Appellant, that one must look at this matter cumulatively. I hope that I have stressed that this is one of those cases where the detention was approaching two years at the beginning of the period with which I am concerned. It was certainly 18 months.

The position is that she did in fact take judicial review proceedings in which she sought an injunction. That was initially refused by the court, but was granted by Ouseley J. That all occurs within the period with which I am concerned.

I mention that because one of the factors which undoubtedly the court considers in determining whether or not detention was for a reasonable period is whether there were proceedings which were likely to extend the time. But in refusing permission to appeal, Underhill LJ said that it was reasonable to expect that permission would be considered timeously and Mr Denholm has properly not sought to go behind that.

The position is that the matter came before Cox J on 17 October and then the permission application was then adjourned. On 25 October it became apparent that the matter would not be listed until December. So the matter, in the event, took much longer than it would have been reasonable for the Secretary of State to expect. While undoubtedly that is a relevant consideration, it is not a consideration which, in my judgment, means that the Hardial Singh principles were infringed.

I next take the question of absconding. This is an Appellant who is within the United Kingdom without any permission at all to enter or remain. She committed a criminal offence and has served a sentence of imprisonment for 8 months. She, therefore, is a person who has demonstrated by her conduct a willingness to contravene the law.

In addition, Mr Denholm very properly points out that on refusals for bail on previous occasions, I think prior to this period, the immigration tribunals had held that there was a material risk of absconding.

In those circumstances, it seems to me that it could not be said the Secretary of State ought to have realised that there was no real risk of absconding in this case. On the contrary, this seems to me a case where it would be reasonable for the Secretary of State to consider that there was a risk of absconding, which would be another to take into consideration in deciding whether to terminate detention.

Mr Denholm makes that the point there was only a single conviction, but that is not the only issue. The question is whether or not there had been criminal conduct and indeed whether or not she was here without any form of permission.

So the real issue in this case turns on the question of whether or not there could be the issue of a travel document within a reasonable time. The position was that the Nigerian High Commission accepted that the Appellant was a national of Nigeria, as the Secretary of State contended. That was repeated at a meeting on 24 September 2013. There was no doubt as to the country to which she should be returned.

The issue concerned her health. The Nigerian official on that occasion said that they would not issue the emergency travel documentation until her accommodation and welfare in Nigeria had been sorted out.

That was clearly not a matter for the Secretary of State. It seems to me that it would have been reasonable for the Secretary of State to assume that the Nigerian authorities would attend to that matter. That is confirmed by the very next case conference in which reference is made to the Nigerian official stating that she would discuss the case at a later date.

In fact, the position is this. Mr Denholm particularly relies on the meeting on 24 September 2013. That has really formed the main plank of his case under ground 1.

But the fact is that after that meeting there was a case conference quite quickly on 2 October 2013. At that point, it is clear that the Secretary of State is expecting the Nigerian officials to come back to her. They do not, but the Appellant is in fact released, as we know, some six weeks later. So the matter had not gone away. The Secretary of State clearly did have it in mind that she could not detain the Appellant longer than was reasonable. In my judgment, there would be no real prospect of success in arguing that as of 2 October 2013 the Secretary of State was not entitled to wait for a reasonable period to see what the Nigerian official would revert with.

Likewise, although the listing for the application for permission on 25 October for 5 December occurs in the month of October, it seems to me that, as I have already said, it would not have been reasonable for the Secretary of State to have concluded from that, taken with the other matters, there ought to be immediate release rather than release when the Secretary of State had time to consider the matter, as she did in November.

In my judgment, taking all the factors together, and I do bear in mind that this is getting up to the end of the two year period, there is no sufficient prospect of success on the application for permission on ground 1.

That takes me to ground 2. There is a knock out point here on the basis of Francis v Secretary of State for the Home Department, but assuming that that can be put on one side because it is the subject of an appeal yet to take place in the Supreme Court, there is still an issue as to whether or not it was reasonable for the Secretary of State to conclude that the illness could be managed in detention.

A criticism is made that Underhill LJ dealt with this matter on paper on the basis of a Wednesbury test, but the position is this. The policy of the Secretary of State was only to detain a person in detention whose illness could be satisfactorily managed. The question of whether an illness can be satisfactorily managed has to be judged by someone and this court has said that that is a matter for the reasonable judgment of the Secretary of State.

Obviously, it cannot be an arbitrary judgment. The two relevant considerations that are identified by Underhill LJ were as follows. First, satisfactory management is not the same as optimum treatment. See Re: O at paragraph 48. Secondly, what constitutes satisfactory management is a matter for the reasonable judgment of the Secretary of State. I have dealt with that matter. There was a third matter mentioned by Underhill LJ, but Mr Denholm correctly accepts that is not relevant here.

So the question is what whether or not there is a real prospect of success in saying that the illness could not be satisfactorily managed in this particular period.

Mr Denholm has focused his case on the report of Dr Hartry as a result of a telephone consultation with the Appellant which, is the subject of a very long letter in bundle G which was immediately sent to the Secretary of State. In the course of this letter, Dr Hartry says that there ought to be an urgent psychiatric assessment.

For whatever reason, the matter is considered by the Yarl's Wood medical advisers. They give advice to the Secretary of State in a letter which is at page F374 in the bundles before me. They in response form the view that they are unable to do a psychiatric assessment, albeit on this occasion by a nurse, because of a lack of willingness to co-operate on the part of the Appellant.

They do also go on to consider whether or not the symptoms as presented to them could be dealt with by them in detention. There is a very firm expression of opinion by the nurse who signed the report:

That was on 18 June, nearly a week after Dr Hartry's report to the Secretary of State.

In my judgment, there would not be a real prospect of success in arguing under ground 2 that the Secretary of State ought to have formed the view on the basis of this advice that the condition could be not be satisfactorily managed. She was in fact being advised to the contrary by this letter.

Therefore, in my judgment, there is no prospect of success on ground 2. In those circumstances, I would dismiss this application.

There is an application for permission to adduce further evidence of Dr Katona. It is said that this was necessary for the court to have because sadly the Appellant has been declared incapable of conducting her own claim in these proceedings.

The position is the court did not need the evidence for that purpose because there were proceedings in another jurisdiction to determine that she did not have capacity.

It is said that Underhill LJ referred to Dr Katona's evidence in passing in giving his reasons, but the position is that Dr Katona's report is well after the events in question which are sought to be judicially reviewed.

In my judgment, there was no purpose in this application and I will in those circumstances make no order on it.