OM (Nigeria) v Secretary of State for the Home Department

This case is a challenge to the past and current detention of the Claimant Ms OM. It further challenges the lawfulness of the actions of the Defendant, the Secretary of State for the Home Department (“SSHD”), in refusing to treat recent submissions as constituting a fresh claim giving the Claimant a right of appeal against deportation whilst in the UK, for otherwise she will be deported. Orders have been made for the anonymity of the Claimant and her children but they have been referred to openly in court and I propose to preserve anonymity in respect of her and her male child S born in 2000 and her female child M born in 2005 now aged respectively 10 and 5.

Mr Ranjiv Khubber who appears with Ms Gilda Kiai for the Claimant, and Ms Eleanor Grey who appears for the Defendant both contend that this case is extraordinarily complex in its factual background presenting unique circumstances. Both sides have presented comprehensive and non-tendentious chronologies and skeleton arguments of great sophistication.

On 10 October 2009 a capacity assessment was written by the Claimant’s consultant psychiatrist Professor Cornelius Katona. He concluded that the Claimant lacked capacity to conduct proceedings and certified to that effect. On 16 November 2009 the Claimant’s solicitors indicated that the Official Solicitor had agreed to act for her. Litigation was threatened on 2 December 2009 on the ground that the Claimant’s detention was unlawful. On 14 December 2009 the Defendant’s officials indicated that the Claimant’s fresh claim had been rejected and so these proceedings were issued. A pre-action protocol letter had already been issued on 8 September 2009 challenging the decision to maintain the Claimant in detention. A number of directions were issued for service of documents leading to a decision by Mitting J on the papers on 24 February 2010 refusing permission to apply for judicial review. Directions then were given for expedition by respectively Cranston J and Hickinbottom J. On 13 May 2010 at an extended hearing, permission was given by Mr Ian Dove QC sitting as a Deputy High Court Judge. This substantive hearing was therefore urgent and expedited. I refused an application by the Claimant on the eve of the hearing for it to be adjourned as the original time estimate would certainly be exceeded, for reasons I gave in writing; the hearing went ahead occupying two days with further submissions in the ensuing two weeks.

The Claimant is a Nigerian national born in 1977 who pleaded guilty to two offences for which she was sentenced to 12 months’ imprisonment and recommended by the Judge for deportation. She has a serious mental illness, diagnosed as recurrent depressive disorder and emotionally unstable personality disorder.

The issues fall into two parts: the lawfulness of the Claimant’s detention and the existence of a fresh claim to remain in the United Kingdom. In the first part the issues are

In relation to the fresh claim application under rule 353 of the Immigration Rules two issues arise. Was the Defendant acting unlawfully in rejecting on 14 December 2009 and 26 April 2010 the Claimant’s contention that she was raising a fresh claim

The Defendant’s power to detain following a recommendation for deportation of the court is contained in paragraph 2(1) of schedule 3 to the Immigration Act 1971. This provides:

Where a recommendation for deportation made by a court is in force in respect of any person, … he shall, unless the court by which the recommendation is made otherwise directs,…,be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.

A decision that the Defendant was to make a deportation order was communicated to the Claimant on 5 August 2008 but a deportation order has not been signed or made.

Detention of a person with a mental illness is regulated by section 48 of the Mental Health Act 1983. It is read in conjunction with section 47 which together provide as follow:

47.

If in the case of a person serving a sentence of imprisonment the Secretary of State if satisfied, by reports from at least two registered medical practitioners (a) that the said person is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment; and (b) that the mental disorder from which that person is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and, in the case of psychopathic disorder or mental impairment, that such treatment is likely to alleviate or prevent a deterioration of his condition; the Secretary of State may, if he is of the opinion having regard to the public interest and all the circumstances that it is expedient so to do, by warrant direct that that person be removed to and detained in such hospital…

48… if in the case of a person to whom this section applies the Secretary of State is satisfied by the same reports as are required for the purposes of section 47 above that that person is suffering from mental illness or severe mental impairment of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and that he is in urgent need of such treatment, the Secretary of State shall have the same power of giving a transfer direction in respect of him under that section as if he were serving a sentence of imprisonment.

The person detained also has the protection of rule 35 of the Detention Centre Rules 2001 which provides as follows:

The EIG replaces an earlier manual and is relevant to the circumstances of this case. Paragraph 55 contains a general policy which is “the presumption in favour of temporary admission or release” and that “detention must not only be based on one of the statutory powers and accord with the limitations imposed by domestic and Strasbourg case law but must also accord with this stated policy”. The above are described as “these criteria” which are based upon the principle that detention will usually be appropriate to effect removal.

There are two specific adaptations of the policy; in respect of foreign national prisoners (“FNPs”) and people with a mental illness. For FNP cases paragraph 55.1.2 provides as follows:

Cases concerning foreign national prisoners – dealt with by the Criminal Casework Directorate (CCD) – are subject to the general policy set out above in 55.1.1, including the presumption in favour of temporary admission or release. Thus, the starting point in these cases remains that the person should be released on a temporary admission or release unless the circumstances of the case require the use of detention. However, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the “deportation criteria”) are met, the risk of re-offending and the particular risk of absconding should be weighted against the presumption in favour of temporary admission or temporary release. Due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.

The deportation criteria include conviction for a single sentence of 12 months and it will be noted that this criterion was met irrespective of the Judge’s recommendation. Further guidance is given in 55.1.3:

In CCD cases concerning foreign national prisoners, if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. If detention is appropriate, a foreign national prisoner will be detained until either deportation occurs, the foreign national prisoner (FNP) wins their appeal against deportation (see 55.12.2. for decisions which we are challenging), bail is granted by the Asylum & Immigration Tribunal, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful (see 55.3.2 and 55.20.5). In looking at the types of factors which might make further detention unlawful, caseowners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is included in the list at 55.3.2.1, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public.

As has been set out above, public protection is a key consideration underpinning our detention policy. Where an ex-foreign national prisoner meets the criteria for consideration of deportation, the presumption in favour of temporary admission or temporary release may well be outweighed by the risk to the public of harm from re-offending or the risk of absconding, evidenced by a past history of lack of respect for the law. However, detention will not be lawful where it would exceed the period reasonably necessary for the purpose of removal or where the interference with family life could be shown to be disproportionate. In assessing what is reasonably necessary and proportionate in any individual case, the caseworker must look at all relevant factors to that case and weigh them against the particular risks of re-offending and of absconding which the individual poses. In balancing the factors to make that assessment of what is reasonably necessary, UKBA distinguishes between more and less serious offences. A list of those offences which UKBA considers to be more serious is set out below at 55.3.2.1.

Substantial further guidance is given on factors influencing a decision to detain (55.3.1), the imminence of removal (55.3.2.4) and the risk of absconding (55.3.2.5). There is also provision for monthly reviews of FNPs (55.8).

The second specific category concerns persons considered unsuitable for detention. Paragraph 55.10 provides in relevant part:

Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere. Others are unsuitable for Immigration detention accommodation because their detention requires particular security, care and control. In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention.

The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere: …

•

Those suffering from serious medical conditions or the mentally ill.

A person who claims that her deportation is unlawful may appeal. If that is rejected a fresh claim is permitted but it is subject to paragraph 353 of the Immigration Rules which provides:

353.

When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

i)

had not already been considered; and

ii)

taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.

353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise.

The relevant provisions of the ECHR, incorporated into schedule 1 to the Human Rights Act 1998, and relied on by the Claimant in these proceedings are Articles 3, 5 and 8 which provide in relevant part

Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the SSHD to have regard to the need to safeguard and promote the welfare of children in the arrangements she makes for the discharge of her immigration and asylum functions.

Bail in the hands of the AIT is regulated by Bail Guidance Notes for Adjudicators from the Chief Adjudicator (third edition). This guidance recognises the common law presumption in favour of bail and that the Judge has to be satisfied to a high standard that any infringement of the right is essential (Para 2.5.1). The guidance is based upon the predecessor to the EIG but there is no dispute that it applies today. There is a cross-reference to the Bail Act 1976 to the effect that Judges considering bail should not refuse it unless satisfied “there are substantial grounds for believing that the Defendant, if released on bail (whether subjected to conditions or not), would fail to surrender to custody”. The guidance invokes the judgment of Dyson LJ (at paragraph 2.6.2) in Ex parte I [2002] EWCA Civ 888 as including these factors to be considered.

Written submissions have been made to me by the parties in relation to the provision of financial and other support by the Defendant, social security and local authorities but as I explain below it is not necessary for me to decide this matter formally.

The medical evidence in the case consists of extracts from Dr Adesida’s evidence in the Family Division, substantive reports by Dr Olajubu, several reports by Professor Katona, an assessment prepared by Elizabeth Munday, A&E liaison nurse at Bedford and Luton Mental Health and Social Care Partnership NHS Trust and a report by Dr Ratnayake consultant psychiatrist at the Trust on behalf of its multidisciplinary team. Contemporaneous records of the Defendant’s officials have been presented in the form of monthly progress reports which are made available to the Claimant, and internal detention reports (“DRs”) made available on disclosure in these proceedings. There is further medical and specialist opinion given by Dr Ayonrinde regarding the risk to the Claimant if she were returned to Nigeria.

The relevant judicial pronouncements begin with a determination on 23 July 2004 by Mr D A Pears Immigration Adjudicator in the IAT. This was an appeal against the Defendant’s refusal of the Claimant’s claim of asylum and for breach of her Convention Rights by a letter of 26 April 2004. The decision was made under paragraphs 8 to 10 of schedule 2 to the Immigration Act 1971 relating to the removal of the Claimant for her illegal entry.

The second contains the sentencing remarks of His Honour Judge Bing made on 21 July 2008 at Snaresbrook Crown Court following the Claimant’s plea of guilty to one count of child cruelty and failure to surrender. Thirdly on 4 December 2008 the Asylum and Immigration Tribunal (Immigration Judges J F Pullig and C J Blake; and Mrs VS Street)allowed in part the Claimant’s claim against the Defendants decision to deport her, limited only to the time for family court proceedings to be determined.

Bail was refused in short reasoned judgments given by successive Immigration Judges on 12 January and 17 March 2009.

The family court proceedings referred to by the AIT were completed by HHJ Turner QC in the Family Division on 25 June 2009. After a four day hearing a care order and an adoption order were made in respect of the child M.

Mitting J refused the application for permission to apply for judicial review giving reasons. He rejected the Art 3 and 8 claims and held that the Defendant had done what was required of her in relation to transfer under section 48 in obtaining the opinion of the Claimant’s GP on 3 December 2009.

The decision of the Defendant through the UK Border Agency was given on 14 December 2009. Following further representations, a further decision to the same effect was given on 26 April 2010.

It is appropriate to set out the facts chronologically but four threads are interwoven: the Claimant’s offending; her mental illness and the Defendant’s response to it; her relationship with her younger child M; and her challenges to the Defendant’s decisions on deportation and detention. The Claimant was born in Nigeria on 27 November 1977. Her son S was born on 13 July 2000 and both entered the UK illegally on 18 November 2003. On 22 November 2003 S aged 3 was admitted as an emergency patient to hospital as a result of numerous lesions found on the child’s body. The Claimant was charged with child cruelty. The record is unclear but apparently she pleaded guilty to one charge on 24 August 2004 and her next appearance in court was set for 7 February 2005 at, I assume, Snaresbrook Crown Court. She was released on bail pending that. I cannot tell whether that was the date fixed for trial or sentence but I think it was the former since there is a reference in Judge Bing’s sentencing remarks in 2008 to her “late plea”. She absconded until 26 September 2007 when she was arrested and charged with possession of false documentation with intent to commit fraud. This was to open a bank account with fabricated documents. She was jointly indicted with her former partner, M’s father. It is said in the chronology that she was convicted but I do not know whether that was after a trial or whether she pleaded guilty. In any event on 12 December 2007 she was sentenced at Blackfriars Crown Court to 9 months in prison.

At some stage, but not apparently in time for sentencing at Blackfriars, she was linked to the earlier offence. It may be that the sentencer did not know the offence was committed while on bail.

She then appeared at Snaresbrook Crown Court on 7 April 2008. Reports were prepared so I take it she pleaded guilty to the one offence on the indictment of child cruelty and the other was left to lie on the file. On 21 July 2008 she was sentenced at Snaresbrook by HHJ Bing to 12 months’ imprisonment for the child cruelty offence and 3 months concurrent for the Bail Act offence which she admitted. He recommended deportation. Of significance in the sentencing remarks are acceptance of the medical evidence which included the report of Dr Olajubu on 29 May 2008 diagnosing a recurrent depressive disorder and emotional unstable personality disorder. Secondly the Judge acknowledged the good and loving parental relationship she had with her child M. Deportation was recommended because of the seriousness of the offence. The Judge acknowledged that this was a second offence following the fraud conviction. He gave her credit for the time spent on remand. Effectively she was in prison on remand and sentence for a combination of both the first and the second sentences from 26 September 2007 until her release on 8 August 2008 from HMP Holloway. She was released into detention that day.

On 5 August 2008 the Defendant’s officials decided to deport the Claimant. She appealed on 12 August 2008. The deportation decision and the minute accompanying it reveal material which was available, and on the other hand not available, to the Defendant. This material concerns two other threads in this case.

On 29 January 2004 the Claimant had claimed asylum which was rejected by the Defendant on 26 April 2004. Judge Pears in the IAT on 28 July 2004 rejected her appeal. She was represented by different counsel instructed by Duncan Lewis & Co. Her claim was found to be implausible and not credible. A claim of breach of Article 3 was rejected in respect of her allegedly abusive treatment in Nigeria. Her claim to have established private and family life in the UK since late 2003 was accepted but interference with it under Article 8(2) was proportionate. There is no mention of the abuse of the boy S. On 25 May 2004 the first of the Claimant’s recorded mental illness events occurred when she was diagnosed with psychotic illness and retained in hospital for a week.

On 14 July 2005 the Claimant’s second child M was born to a different father from her first.

Throughout the whole period of her imprisonment and detention the Claimant has demonstrated the effects of her psychotic illness by self harm, difficult relations with others and attempted suicide. The record, summarised in Mr Khubber’s skeleton argument shows events beginning on 1 October 2007, soon after she was remanded in custody, up to 21 June 2010, roughly 30 or so months. Specific knowledge by the Defendant’s officials of the Claimant’s mental illness appears in biodata information recorded on 6 May 2008 at which time I take it she was in Holloway remanded in custody awaiting sentence on the child cruelty indictment. Her representative at the Refugee Legal Centre gave authority to contact it regarding the Claimant’s mental health which the Claimant had pointed out for the purposes of the biodata information. She was to be reviewed every 15 minutes because of risk of suicide. In short the Claimant has been under supervision in prison and detention and has been transferred from both to hospital as a result of self harm throughout the almost three years of her remand, imprisonment and detention.

Dr Olajubu, specialist registrar in forensic psychiatry gave his report on 29 May 2008 for the purposes of sentencing at Snaresbrook. He confirmed his diagnosis of recurrent depressive disorder and emotionally unstable personality disorder but this was not of such a nature as would fulfil the criteria for treatment under the Mental Health Act 1983. He observed that if a community sentence were imposed Dr Mann consultant psychiatrist at The Royal London could continue to carry on the follow up which he had already given to the Claimant but would need to be approached about it. On the other hand, if the Claimant was sentenced to imprisonment “she could continue to receive ongoing psychiatric follow up from the prison “In Reach” team and individual psychological interventions as deemed appropriate”. This report was extant at the time of the deportation decision. The Defendant’s officials plainly knew of it since they cite the Judge’s reference to psychiatric reports and they had the Claimant’s willingness for the Refugee Legal Centre to talk to the officials about her mental condition.

Professor Katona made the first of a series of reports on 30 April 2009. He agreed with the diagnosis of Dr Olajubuand disagreed with findings of previous immigration Judges (see below) refusing bail on the ground that the Claimant is better off in detention. He gave his opinion that her health was likely to deteriorate in response to continued detention. She was not suitable for treatment under the Mental Health Act 1983. By 21 September 2009 her condition had deteriorated considerably and she would now benefit from hospital treatment. He recommended transfer under section 48 of the Mental Health Act. The deterioration was due to detention. On 10 October 2009 his opinion was that the Claimant had significantly deteriorated to the extent that she was no longer able to conduct her proceedings and she should be transferred to hospital under section 48.

Dr Shah acting consultant at Bedfordshire and Luton Mental Health and Social Care Partnership NHS Trust on 21 February 2010 acknowledged the diagnoses previously given of Doctors Mann, Olabuju and Professor Katona. The Claimant was admitted to Dr Shah’s care because she attempted to hang herself. Professor Katona again examined her and gave a report dated 1 March 2010. He noted her continued deterioration due to her continued detention and reiterated his opinion that she should be transferred under section 48.

Nurse Munday examined the Claimant at hospital, where the Claimant was being held. She incorrectly recorded that the Claimant had two children currently in social services care due to child neglect. This was slightly inaccurate as by that stage she had only one although it is true that two had been put into care. She gave her opinion that her health problems could not be met adequately in her current setting i.e. at Yarl’s Wood. She assessed a risk of harming children on grade 3 within a risk of 0 to 3. She was at risk of suicide, deliberate self harm and other offending behaviour at 2 giving her a summary risk to herself of 2 and risk to others of 3. That is why on 15 March 2010 Dr Ratnayake consultant psychiatrist at Bedfordshire leading a team of himself, another consultant psychiatrist and Nurse Munday decided that the Claimant’s needs were met at Yarl’s Wood where she would be under constant observation. Hospital admission would not provide management different to that. She was discharged back to Yarl’s Wood.

On 23 March 2010 Professor Katona considered this report and other materials and disagreed with it to some extent. Professor Katona pointed out that the opinion of Dr Ratnayake as to the best place for constant supervision was disputed by Dr Shah, Mr Kupshnik and Ms Munday all of whom recommended psychological intervention in a secure in-patient setting.

The outcome of the Claimant’s appeal against the deportation decision was given on 4 December 2008. In essence, the AIT dismissed the appeal but concluded by reference to Article 8 that while the care proceedings in respect of child M were extant it would not be proportionate to deport the Claimant. It acknowledged that she had a limited family life with M. It held that there was a limited life with child S but no further issue arises in respect of that aspect of the Claimant’s case.

Before HHJ Turner QC in the Family Division on 25 June 2009 all of the medical material which I have cited pre-dating that was available together with the opinion of Dr Neil Boast of 14 December 2008. The Judge heard evidence and submissions by and on behalf of the Claimant, the father and M’s guardian and indirectly her carer. He acknowledged that M had a good attachment to her mother. In what he described as a realistic assessment a care order was made in respect of London Borough of Tower Hamlets for M. He then went on to consider provisions for a placement under the Adoption and Children Act 2002. Without the consent of the parents who opposed it he made the order in this respect. He considered the convention rights of the parties and concluded in the following way:

69.

In making both a care order and a placement order I have considered the relevant articles of the convention. I am satisfied that the undoubted interference with the mother and father’s family life these orders will constitute is justified in law, pursues a legitimate aim, namely, securing the long term welfare of M, and, in the circumstances, fulfils a pressing social need, the planning for a young child’s future stability. I believe the orders are a just and proportionate response to the very sad and difficult realities this family now faces. Very sadly, neither of these parents is in a position to assume the full time care of their daughter on any acceptable timescale, or in anything approaching acceptably clear circumstances.

On the ground, contact between the Claimant and M is limited to 2 hours every 2 months and it is sought to be reduced. What is in prospect is a single goodbye meeting once the Claimant is deported or M is given to adoption.

Several applications were made by the Claimant for bail while in detention, only two of which proceeded to a hearing. On 12 January 2009 Immigration Judge Khan refused the application citing the following

“I cannot be satisfied that the appellant would not present a risk to herself and others if released on bail into the community. Continuing detention is necessary, therefore, for her own protection and others NASS accommodation, without any effective monitoring and control by outside agencies, is entirely inadequate and no sureties were forthcoming”.

On 17 March 2009 a second immigration Judge also refused bail adopting the reasons given by Judge Khan and holding that continuing detention is necessary for the protection of the Claimant and others.

On 19 June 2009 by a letter from the Claimant’s solicitors a request was made that the decision to deport her should be reversed and if it were refused then it constituted a fresh claim with a right of appeal. Reliance was placed on the report of DrAyonrindein relation to circumstances in Nigeria and the opinion of Professor Katona in relation to mental health. Substantial evidential and legal authority was provided for the claim. It was contended that the Claimant should be granted leave to remain in the United Kingdom alternatively that the material provided fresh evidence in support of her application to remain. The Defendant by the decision on 14 December 2009 rejected the claim. Each of the points made by the Claimant was addressed by the Defendant. On the legal points relevant in this appeal, the Defendant rejected the claim that the Claimant had family life so as to engage Article 8 but if she did her right was affected by the proportionality principle in Article 8(2). Further submissions were received and on 26 April 2010 the Defendant rejected the contention that there was a fresh asylum claim under paragraph 353 of the Immigration Rules. In the course of an extensive response the Defendant identified the issues under Article 8 and paragraph 353 and concluded that she would pursue the deportation decision.

I will consider the arguments and authorities under each of the heads in sequence.

It is not in dispute that the Defendant should follow the EIG. It is not only guidance but an instruction to decision makers. This represents a promise issued by a public authority and a practice which the SSHD will adopt and should be followed see Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 per Laws LJ at paragraph 68. Failure to consider a relevant provision in the EIG constitutes an error of law: D v SSHD [2006] 1 WLR 3 per Brooke LJ at 111 and 132.

It was conceded by the Defendant that there was no specific reference to paragraph 55.10 dealing with mental illness detainees until 28 April 2010. Ms Grey invites me to hold that the references throughout the DRs to “relevant criteria” are to paragraph 55.10. I am prepared to infer that the reference is to “the criteria” in the early part of the policy, paragraph 55.1, dealing with general principles. I reject the contention that attention has been focussed by the officers on the treatment of a detainee who has a mental illness. There is no reference expressly to paragraph 55.10 throughout these DRs until April 2010.

I accept the submission of Mr. Khubber that awareness of this seems to have been awakened by the issue of these legal proceedings and that is when and why specific reference is made. In the period immediately before the Claimant’s release from prison, and while the Defendant’s officials were considering detention, the Claimant had evidence of mental illness. She asserted it herself and referred the officials to those representing her so that further details could be provided. HHJ Bing in sentencing relied upon the psychiatric report but the Defendant’s officials, noting they did not have this material, nevertheless went ahead with detention. At various stages during the latter part of 2008, that is the initial period of her detention, notice was taken of the Claimant’s claim about her mental illness but no steps were taken by the case managers to inform themselves of the material which was available to the Judge when he made his recommendation which triggered the deportation decision. In the language of the claim, the Defendant did fail to engage with her policy set out in the EIG on mental illness.

It follows from the above that it was neither considered nor applied. The presumption in favour of release of a person with a mental illness was not expressly considered until 28 April 2010. I do not accept the Defendant’s submission that there was insufficient evidence before November 2008. The Claimant had been asserting psychotic illness throughout her period in remand and imprisonment and has said as much to the Defendant’s officials. With all this history the Defendant’s officials should have realised she was presenting a mental illness.

It is accepted by Ms Grey that it is a matter for me to decide whether paragraph 55.10 was overlooked and whether the claim that the EIG was not properly applied is made out. I infer from the absence of an express reference to it, from the failure to follow through the reference in Judge Bing’s sentencing remarks, from the Claimant’s own assertions, and from her offer of access to the material through the Refugee Legal Centre, that this was not considered and it should have been.

HHJ Bing recommended deportation. The decision to deport was made by the Defendant in the light of that. The decision to detain was made in order to effect removal from the UK. Detention was authorised pursuant to paragraph 2(1) of schedule 3.

The Detention Centre Rules paragraph 35 may not have been followed or drawn to the attention of the Defendant. EIG paragraph 55.10 was not expressly referred to. But it would be necessary in order to find the decision unlawful so as to quash it that these defects had caused the detention. Similar circumstances obtained in Anam v SSHD [2009] EWHC 2496 (Admin) a judgment of Cranston J. He held (see paragraphs 37, 42) “non compliance with the Secretary of State’s policy does not ipso facto lead to detention being unlawful. It must be shown that but for the breach had a person’s detention been properly assessed they would not have been detained”. He considered that “objective medical evidence” was required to show that the circumstances were sufficiently exceptional to warrant detention (paragraph 52) the presumption that a mentally ill person should not be detained save in very exceptional circumstances “does not stand in isolation”. This means it must be balanced with the other issues relevant to a decision (paragraphs 53,54). The risk of offending is to be assessed on a scale between the average asylum seeker and a high risk terrorist (paragraph 55). The claim was refused.

An appeal in Anam v SSHD was heard in the Court of Appeal on 26 July 2010 and Judgment is awaited. Neither counsel invited me to do anything other than apply the law as contained in Anam, itself applied in three subsequent cases. Mr Khubber of course points out the factual differences, most important being the prolific offences in Anam and the three offences and the medical evidence in our case. There are those differences, but while the incidence of offending is small, the harm done is very serious.

In my judgment the circumstances of this case are different also from those presented in R (WL:Congo) v SSHD [2010] EWCA Civ 111 which related to an undisclosed policy. In our case, the policy was extant, but not considered. Similarly, detention warranted under paragraph 2(1) of schedule 3 is authorised by law even if a decision to detain in any particular case is held to be wrongfully taken: see paragraph 88. This may raise issues as to damages but that dispute is not relevant to my decision.

I accept Ms Grey’s submission that authority for the Defendant to detain the Claimant was given pursuant to the recommendation of Judge Bing under paragraph 2(1). The real issue is whether despite the failureto consider and apply it, specifically paragraph 55.10, the decision to detain the Claimant would have been the same.

From December 2009, the Claimant herself was asserting that she would wish to be detained pursuant to section 48 of the Mental Health Act 1983. This relates to transfer from detention in a detention centre to detention in hospital. The condition necessary for that is certification by two psychiatrists and in principle involving one treating psychiatrist. This was not in place. The evidence of Dr Olajubuwas not in favour of her being released into the community. He was concerned about harm being done by the Claimant. Professor Katona in the report disclosed in 2009 to the Defendant indicated deterioration in the Claimant’s condition by reference to her being detained but did not set en train the conditions for her transfer. His opinion differs from the treating clinical psychiatrist. The Defendant was entitled to weigh the latter. Dr Olajubu, for the purposes of sentencing, was prepared to consider that the treatment which would be available to her in prison would not trigger an order for transfer under the Mental Health Act. The Bedfordshire Trust team regarded it as appropriate to return the Claimant from their care to Yarl’s Wood i.e. to detention. Further, there are references in the internal DRs to the Claimant’s medical condition, albeit not within the context of a presumption that she should be released.

I agree with Mr Khubberthat it was important for the Defendant’s officials to understand the context in which the Claimant’s entitlement under paragraph 55 arose. It is a delicate balance to be considered in sequence. First there is the presumption of release and admission. Secondly, for FNPs, the interest of the public and the risk of absconding are very serious factors, which will weigh in favour of detention. Thirdly, where the Claimant has a mental illness, there is a very strong presumption against detention bearing in mind the other factors.

The monthly progress reports and the internal DRs reveal that the Claimant’s criminal record and the risk of her absconding were considered. The offence to which she pleaded guilty was very serious. I agree with Mr Khubberthat there appears to have been insufficient consideration of the precise circumstances and even a mistaken assumption. The trigger offence for the deportation recommendation in 2008 was committed in 2003. Although it is unclear, it appears the Claimant indicated responsibility in 2004. The 2003 offence was unique, cruelty to her own male child aged 3 who was subsequently removed to Nigeria. There could be no possibility of re-offending in that specific way. Re-offending with her second child M had not apparently occurred during the first 2 years of the child’s life. Thereafter of course the Claimant was on remand, in prison or detained. In any event M was taken into care. All the reports relate to a loving relationship between the Claimant and M although the risk to M. was recognised by Dr Olajubu and Dr Adesida. No specific attention was given to the nature of the offence or the antiquity of it or the improbability of its re-occurrence given the separation of the Claimant from her two children.

The possibility of re-offending under paragraph 55 does not simply mean committing the same offence again. The Claimant had previously been sentenced to 9 months’ imprisonment for false documentation in seeking to open a bank account. This is an economic crime. A question has arisen as to the Claimant’s entitlement to support financially should she be released from detention. Although I am grateful to counsel for their unsolicited arguments on this I do not find it necessary to resolve the dispute. The dispute arises in connection with the assessment of the Claimant as presenting a risk of offending. The offence for which she was sentenced in December 2007 was for fraud committed jointly with the father of M. She obviously was invisible to the authorities and was able to live somehow for two and a half years while she disappeared. I do not regard it as a necessary conclusion that if the Claimant were released and on minimal support, she would be the more likely to commit offences and the less likely if she were receiving support. It is I think arguable either way and I will treat it as neutral. The point is she was assessed to be at risk of offending.

Both immigration Judges considered this matter. I also bear in mind that Judge Turner found that the Claimant was not entitled to receive public housing or receive benefits apart from the basic care provided in detention (see paragraph 5). The decision made by each of them was not challenged nor, I must take it, the assumptions upon which those findings were made. As Ms Grey rightly contends, it is not open to the Claimant to raise new arguments against those decisions and the assumptions upon which they were made. New arguments such as Mr Khubber wishes to raise to the effect that the Claimant was at all times entitled to benefit, cannot be relevant to the judgments made by the two Immigration Judges, and by Judge Turner, on all three occasions when the Claimant was represented albeit by different lawyers.

I do not accept that the Claimant has to be destitute in order to commit such a crime. Plainly if she has no sources of income or support it will make it more likely that she resorts to criminal activity to support herself. But the assessment that the Claimant might re-offend in relation to economic crimes was one to be made by the Defendant. It was. As to the risk of absconding, there was plain evidence. The Claimant disappeared for over two years while on bail awaiting trial on the child cruelty matter. HHJ Turner QC found she played no part in the early stages of the care proceedings and as he put it “absented herself” from them. The risk of absconding prior to her removal from the UK was one to be assessed by the Defendant’s officials. They did.

I accept that the risk of both of those matters ought to remain constant. In other words the risk of offending or absconding is not likely to increase the longer detention goes on. Nevertheless the absence of family and the absence of ties in the UK the absence of home, employment and sources of income were all matters to be considered and they were. I appreciate that the Claimant’s wish to remain in contact with M indicates her inclination not to abscond, but it is only one factor. Judge Turner noted, however, that the Claimant’s motivation in the care proceedings was in part driven by her wish to avoid deportation.

This was a delicate balancing act in respect of the presumptions (release, mental illness) and countervailing policies (FNPs) I have outlined above. No real alternative, notwithstanding Professor Katona, by way of treatment was put to the Defendant. Some support could be given to the Defendant by the decision of the Immigration Judges in the bail applications who considered the medical evidence, and the decision of the AIT. I accept the submission of Ms Grey that it is not open now to the Claimant to contend that they were wrong in their assumptions as to the availability of resources. But even if this is an open question, I hold that it is not decisive one way or another: in my experience economic crimes are committed by the full range of economic classes presenting to the Crown Court.

In this section Hardial Singh is relevant. The principles have been distilled and it is common ground before me that they are contained in R (I) v SSHD [2003] INLR per Dyson LJ at paragraph 46 albeit in respect of paragraph 2 (3) of schedule 2 to the Immigration Act 1971 but that is immaterial:

At first sight, the relationship between the sentence for the crimes which the Claimant admitted and the deportation is wholly disproportionate. On a sentence of 12 months’ imprisonment, which also corresponds to the one of the deportation criteria in the EIG, the Claimant served 6 months and has been detained pending deportation for 2 years, the equivalent of a sentence, depending on the date of the offence, of between 4 and 5 years’ imprisonment. Hardial Singh is there to deal with the reasonableness of the period of detention prior to deportation. It does not expressly consider the relationship between the sentence and the detention. Sadly, the authorities placed before me show that such a relationship is not uncommon. Davis J found it “not uplifting” see R (Abdi) v SSHD [2008] EWHC 3166 (Admin) paragraph 172.

It is clear from the Hardial Singh principles that obstacles to the Claimant’s removal caused by the Claimant’s conduct do not count in the formula. The initial conduct of the Claimant was her commission of the offence on her son. Relevant to the decision to deport and to detain pending deportation were her conviction for absconding and her conviction for fraud. The Claimant’s utilisation of the rights available under the legislation to challenge the Defendant’s decisions allowed her to remain in the UK. In a sense she is rightfully in the United Kingdom while these processes unwind. On the other hand, they are of her choosing since she could repatriate herself voluntarily to Nigeria. Put neutrally as the authorities do, without tendentious issues such as fault, it is her conduct which has caused her to be here. She appealed asylum and deportation decisions, engaged at some stages in the family proceedings and issued a purported fresh claim and judicial review.

One aspect of this matter has caused me some concern and it is the note in the DR of 2 September 2009. This indicates that on 29 July 2009 a decision was made to refuse the request to reconsider the Claimant’s asylum claim. Yet this was not communicated to her formally until 14 December 2009. There seems to have been a difficulty in obtaining the emergency travel document with some material going astray. This is not impressive, but the Defendant’s officials indicate monthly reviews of the situation and approve continued detention in tranches of 28 days. For the reasons I have discussed above and shown in the DRs and the monthly progress reports, even if the decision had been communicated to the Claimant on 29 July 2009, she would still have remained in detention.

Taking an analytic approach to each of the periods following 8 August 2008, her detention has been explicable by steps she has taken, or failed to take e.g. cooperation in relation to emergency travel documents, and the conflicting advice in the hands of the Defendant as to the effect on her mental condition of detention and the ability to treat it while in detention – contrast Professor Katona and the multidisciplinary team including two treating consultant psychiatrists led by Dr Ratnayake in March 2010.

By April 2010 when the Defendant had all this material, the officials made a decision for her further detention. For the reasons I have given I do not consider this to be unlawful.

The fresh claim principles embodied in rule 353 have created a good deal of jurisprudence so that by 2006 the Court of Appeal in WM(DRC) v SSHD and SSHD v AR [2006] EWCA Civ 1495 was able to summarise the correct approach in the following way

The above view was further considered by the House of Lords in ZT (Kosovo) v SSHD [2009] UKHL, 1 WLR 348. There was a discussion as to similarities between asylum claims certified as “clearly unfounded” under section 94 of the Nationality Immigration and Asylum Act 2002 and fresh claims under paragraph 353. Lord Phillips held that the test for whether a claim is clearly unfounded or has no reasonable prospect of success is the same stating

“In short I consider that the Secretary of State should…in all cases, treat a claim as having a realistic prospect of success unless it is clearly unfounded.”

In R (YH) v SSHD [2010] EWCA Civ 116 there is an anxious reflection by Carnwath LJ on what is meant by anxious scrutiny (see paras 22-24) but the point is the court in judicial review makes up its own mind on the issue of whether or not there is a realistic prospect of success in the Claimant’s case before an Immigration Judge.

Since the oral hearing of this case the Court of Appeal has upheld the judgment in ZA (Nigeria) and SM Congo v SSHD [2010] EWCA Civ 926. I have received summary submissions in relation to this. It appears to me the Court of Appeal was indicating that the ZT Kosovo line of authorities remains good law (if that is an appropriately respectful way to describe a decision of the Supreme Court). And so the otherwise uncontroversial summary I have given above as to the level of scrutiny, the low threshold and the role on judicial review by the court remains common ground.

The Claimant’s case under rule 353 is in two parts. The first relates to what is broadly described as the medical evidence. Mr Khubbermade no oral submissions and was content to rely on his skeleton argument, and in response so was Ms Grey. The Defendant’s decisions in December 2009 and April 2010 fully consider the evidence given in relation to the ability of the Claimant to receive medical treatment in Nigeria. They also consider the possibility of abuse when she returns.

The judgment of the ECHR in N v the United Kingdom (App. 2656/05) is applicable. The Grand Chamber observed as follows:

Since the judgment in D v the United Kingdom, the Court has never found a proposed removal of an alien from a Contracting State to give rise to a violation of Article 3 on grounds of the applicant’s ill-health.

In summary, the Court observes that since D v the United Kingdom it has consistently applied the following principles.

Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling. In the D case the very exceptional circumstances were that the applicant was critically ill and appeared to be close to death, could not be guaranteed any nursing or medical care in his country of origin and had no family there willing or able to care for him or provide him with even a basic level of food, shelter or social support.

In my judgment there is no reason not to apply the principles in N v the United Kingdom. I consider there is no reasonable prospect that an immigration Judge would hold in the light of this material that the Claimant’s Article 3 right is engaged or violated, so as to make it a very exceptional case.

As to the Claimant’s medical, social and cultural rights said to flow from the opinion of Dr AyonrindeI form the same conclusion. Medical attention is available to the Claimant in Nigeria and I see no reasonable prospect that an immigration Judge would form a different view applying N v the United Kingdom to this evidence that she is at risk.

As to the Claimant’s Article 8 rights, it is important to recognise that this debate has already been had. It was first had in relation to the Claimant’s rights in respect of her son S, decided in 2004 against her. Article 8 was engaged in respect of the Claimant’s family life albeit for a short period, subsisting between herself and S, but he returned to Nigeria after she abused him. The AIT in 2009 recognised that there was what Mitting J, refusing permission, described as merely a vestigial right in respect of family life as between the Claimant and her child M, at least until the determination of the family court proceedings.

In my judgment determination of that situation was reached by the order of HHJ Turner QC. Practicalapplication of the placement order for adoption has not yet been achieved but what the AIT anticipated was a very short disposal of the family proceedings. During that time the Claimant was entitled to remain in the UK so as to assist the family court, but not thereafter. That time expired in June 2009 on the court’s judgment. M had been in care since the Claimant’s arrest in September 2007, roughly half of her life. Limited access was afforded to the Claimant and by the order of Judge Turner the care order was continued on a limited basis. The evidence before me shows an intention on behalf of M to reduce the amount of contact. HHJ Turner QC fully considered the Article 8 implications for the Claimant of the order he made. He was in the best position to do so: all relevant actors, including the Claimant and M’s guardian, were represented before him. It was expressly submitted on behalf of the Claimant that family life with M would come to an end if adoption were ordered. It was conceded on the Claimant’s behalf that adoption would mean the loss of the Claimant’s “familial bond” (paragraph 38).

Nevertheless, I consider that the Defendant is wrong to hold that Article 8 was not engaged as to family life between the Claimant and M at that time and it was sustained by an order for limited contact.

HHJ Turner QC considered the reports of four consultant psychiatrists directly (and indirectly Dr Mann) namely Dr Olajubu 29 May 2008, Dr Boast 14 December 2008 and (I think) 24 June 2009, Professor Katona 30 April 2009 and Dr Adesida 16 June 2009. Although the specific purpose of the hearing in the Family Division was the future care of M, both Dr Boastand Dr Adesidagave the opinion that in the light of the Claimant’s offending history in relation to S, entrusting M to the Claimant is too risky. Judge Turner accepted that evidence. He specifically held that to commit M to the care of the Claimant or her then partner, the father of M would involve unacceptable certainty and probable physical risk (paragraphs 59, 67 ).

Although the Defendant wrongly considered that Article 8(1) was not engaged, the real issue in this case relates to Article 8 (2). And as to that the real debate about it took place in the Family Division. The Judge considered that it was proportionate to interfere with the Claimant’s family life as between herself and M in the interests and protection of M (see above). The order was for continued care on a temporary basis until the order for adoption could be implemented. Steps were being taken by the local authority to place M for adoption but have up to today been unsuccessful. Mr Khubberaccepts that if it had been achieved, his submissions would be very different. In my judgment, the adventitious fulfilment of the placement order cannot affect the application of Article 8. The only family life the Claimant enjoys is in respect of M. The orders were made after fully considering the interference with the Claimant’s family life with M. Article 8(1) cannot survive judicial interference for the protection of the child. A placement order is the antithesis of family life with the natural family.

I do not consider section 55 of the Borders, Citizenship and Immigration Act 2009 has any relevance. The SSHD can safeguard and promote the welfare of children in the arrangements she makes for the discharge of her immigration and asylum functions by having regard to the orders of the court in child care proceedings. She is entitled to hold that M’s welfare is secured by Judge Turner’s orders. The reality is that separation of the Claimant from M was effected by the adoption not the detention order.

I conclude that the relatively low threshold to be crossed by the Claimant still presents a barrier to her. There is no reasonable prospect that an immigration Judge will uphold the Claimant’s rights as wrongly interfered with under Article 8(2) in respect of family life. The same interference in respect of her private life is justified by the immigration control regime. And I see no prospect of success of a claim under Article 3 in respect of her own health in Nigeria, and risk of persecution in Nigeria. I accept the Defendant’s and reject the Claimant’s written submissions on this.

Throughout the monthly progress reports and the detention reviews, there is reiteration of the perception that there is a risk the Claimant will abscond and commit further offences. Most of this application has been taken up with the mental illness issue. But these two matters must be placed firmly in the balance with the presumption against detention in respect of a patient with mental illness, the policy of detention of a FNP with a conviction for violence and risk to children (see para 55.1.3), all within the general presumption of release and temporary admission. As the Claimant has been held on remand, in custody or in detention for 3 years I can see that it is difficult to obtain differential assessments during any part of that incarceration as to her risk of absconding and committing offences. However the record plainly shows that there is a risk. Instead of attending to be tried at Blackfriars Crown Court in February 2005 she absconded and committed the fraud for which she was imprisoned. She did so while on bail and in breach of her bail conditions. She absented herself from much of the care proceedings. The assessment of that risk was properly undertaken by the Defendant’s officials. The assessment of risk of harm to others and to herself is reflected in the examples given in the chronology of events occurring during her imprisonment and detention. Although Nurse Mundaywas incorrect in the facts relating to the Claimant’s child cruelty charge, she and the treating clinical psychiatric team were aware of the offence, the risk and the treatment.

Part of this case at one stage was the seeking of an assurance that the Claimant would not be deported except on 72 hours’ notice but that matter was resolved in earlier stages of the case and by reference now to the judgment of Silber J in R (Medical Justice) v SSHD CO/4321/2010 handed down 26 July 2010.

Since I agree the Defendant did not engage with her EIG policy on mental illness detainees until April 2010, as she should, and wrongly held Art 8(1) was not engaged, the Defendant does not dispute that that is sufficient to give an entitlement to a declaration of rights for the period August 2008-April 2010. I refuse the application for other declarations and quashing orders.