FB, R (On the Application Of) v Secretary of State for the Home Department

The Claimant is an Algerian national who entered the United Kingdom in 1997. He has a history of drug abuse, alcohol abuse, mental health problems and offending. He served a prison sentence between November 2008 and June 2009. At the conclusion of the custodial period of his sentence, he was detained for the purpose of deportation on 8 June 2009. In this case he has challenged the legality of his continuing detention and sought an order for his release.

Following a hearing on 12 and 13 May 2011, in an Order dated 20 May, I directed that the Claimant should be released from detention by 4.00pm on Monday 23 May 2011 upon stipulated conditions. That Order does not prevent his subsequent deportation to Algeria. In this judgment I set out the reasons for that Order.

The Claimant was born in Algeria on 29 August 1972. He entered the UK on 20 March 1997 using a false French identity document. On 27 March of that year he claimed asylum on the grounds that he risked persecution by the Grope Islamique Armée [“GIA”]. An Islamist organisation of revolutionary tendencies. The Claimant was recognised as a refugee on 29 September 1997 and granted exceptional leave to remain in the United Kingdom until 29 September 2001. On 28 September 2001, the Claimant made an application for an extension of his leave to remain by a letter dated 5 November 2002 the Claimant was granted indefinite leave to remain in the UK as a refugee.

The Claimant has a long standing history of mental illness with medical referrals dating back to boyhood. It is clear, as a generality, the severity of his symptoms and presentation has tended to fluctuate; moreover, as is often the case, his mental health problems have been intermingled with a complex of other problems: drug and alcohol abuse, criminal offending and social problems.

Between April 2000 and April 2001 the Claimant received a caution and then a conviction for alcohol related offending. In April 2001 he received four months imprisonment for failing to provide a specimen for analysis and failing to surrender to bail. This offending pre-dated his indefinite leave to remain.

In 2003 he was again cautioned twice for being drunk and disorderly.

In early 2004 the Claimant attended the Accident and Emergency Department at University College Hospital following an attempt at self-harm. At around the same time he split up with a long-term girl friend. It was suggested to me in the course of the hearing that his heavy drinking had begun in her company, however it also seems clear that his mental state and abuse of alcohol and drugs worsened after the end of this relationship. On 14 August 2004, the Claimant attended the Accident and Emergency Department at UCH after cutting himself on the neck and left arm whilst drunk. When he was in the A&E Department he attempted to tie a jumper around his neck in a suicide attempt, after refusing a voluntary referral for mental health treatment, he was admitted to hospital under Section 2 of the Mental Health Act 1983 on 15 August 2004. The diagnosis reached at that stage was moderate depression. He was discharged from the Highgate Mental Health Centre on 2 September.

During 2005 and 2006 the Claimant continued abuse of drugs and alcohol and admittedly became involved in petty crime. On 31 May 2005 he was sentenced to a short term of imprisonment for assaulting a police constable and failing to surrender to custody. In August 2005 he was convicted of handling stolen goods and sentenced to 6 weeks imprisonment. On 21 March 2006 he was committed to prison for 2 weeks for failing to surrender to bail and on 11 April 2006 he was sentenced to a short term of imprisonment for assaulting a police officer.

On 11 March 2008 the Claimant received a suspended prison sentence for theft and assault with a drug rehabilitation requirement. However, by 23 April he was sentenced to 22 weeks in prison for theft and breach of the suspended sentence. He acquired further sentences for theft and handling stolen goods in August, a fine in October for a public order offence and on 9 October 2008, he was convicted of theft before the Highbury Corner magistrates’ court. The magistrates committed him for sentence to the Crown Court where on 18 November 2008 he was sentenced to 16 months imprisonment. According to the information before me, he served most or all of that sentence in HMP Stafford. The custodial period of that sentence was due to end with release in June 2009.

On 4 May 2009, the Claimant had self-harmed by cutting himself with glass. He was moved to a safe cell. On 27 May the prison community mental health nurse recommended that he should be referred to Mental Health Services in the future. This event pre-dated the communication to the Claimant that the Home Office took the view he was liable to deportation as a result of his offending, and that the Secretary of State proposed to revoke his refugee status pursuant to Article 33(2) of the Refugee Convention on the basis that he had committed “a particularly serious crime”. That decision was communicated to the Claimant by the Governor of HMP Stafford on 2 June. On 5 June the Defendant wrote to the Claimant to explain it was intended to detain him under immigration powers at the conclusion of the custodial period of his sentence. On the same day, those then representing the Claimant (the Immigration Advisory Service) wrote objecting to the removal of the Claimant on the grounds that his status as a refugee and the risks to him were he returned to Algeria were still compelling.

On 8 June 2009 the Claimant’s period of custody following on his imprisonment ended and he was detained under immigration powers at HMP Stafford.

On the same day, the Claimant was assessed by medical staff in the prison. It is worth observing that the Continuous Clinical Record kept within the prison straddles the period before and after the change from serving as a sentence prisoner to immigration detention. This is one and the same continuous record, available to the Defendant throughout. Records begin in November 2008 with an entry containing the:

Against that background, the assessment on 8 June recorded in the notes reads in part as follows:

Subsequent correspondence reveals that on 24 June 2009 the UK Border Agency [UKBA] requested the Claimant to complete an emergency travel document [ETD] and the Claimant refused as he feared for his life on return to Algeria. The UKBA also noted that on the same day that a call had been received from the Immigration Advisory Service stating that they no longer represented the Claimant and he was thus unrepresented at that point.

The first detention review in this case took place on 7 July 2009. The review made no reference to the Claimant’s mental health or indeed to the Defendant’s established policy in relation to the detainees who were mentally ill. This policy is set out in the current Enforcement Guidance Instructions at [EGI] at paragraph 55.10. I address the content below it follows that there is no direct evidence that the UKBA representatives took any cognisance of the history of mental health problems in this case before the review in January 2011. I return to this point below. The UKBA are required to have detention reviews on a regular basis. The first review was dated 7 July 2009. The review records that:

In my judgment, the comments of SEO Piton constituted a brusque and appropriate reminder that this case required active management, specifically because of the likely delay to be introduced by the Algerian authorities. If that approach had been followed, it is highly likely that the Defendant would have escaped all criticism in relation to this Claimant’s detention.

On 16 July 2009, the Defendant wrote to the Claimant informing him of the intention to remove his refugee status on the basis that the Claimant was no longer at risk in Algeria. A target was set of 6 August for the completion of this step. It was not met.

For perfectly sensible reasons, it was an established practice to seek advice or comment from UNHCR as to the withdrawal of refugee status. There was no statutory duty to do so but, subject to the point I next address, it may be thought an obviously sensible step: the decision to revoke refugee status must inevitably involve a balance between the risk if the person is returned and the desirability of achieving return where the individual has committed criminal offences of a significant kind. UNHCR may often be in a position to make pertinent comments.

A later entry in the case notes suggests that it was inappropriate to make reference to UNHCR here since “this was a period when the UN had stopped providing comments on cessation cases” – see the entry for 20/25 March 2010. It may be that UNHCR had ceased to respond at a certain point to such requests and it may also be that belief they were declining to respond had some effect on the conduct of this file. However, the fact is advice was sought and tendered by UNHCR, but responded to only very tardily by the Defendant. The sequence of events appears to be as follows. UKBA wrote to UNHCR with a proposal for cessation of refugee status on 19 August 2009. UNHCR responded in a letter dated 2 October 2009. At the time of the hearing before me, it was unclear whether that letter had been faxed or not. Subsequent to the hearing a copy of the relevant fax transmission sheet has been produced. It is therefore clear that the letter was faxed to UKBA on 2 October 2009 at 14.52. It appears to have been lost. In any event, the outstanding request for advice was not followed up by UKBA until a telephone call was made on 25 March 2010.

The letter was in any event adverse to the revocation of refugee status. That adverse advice is based both on general arguments relating to all such cases and specific advice relating to the Claimant. The letter reads in part:

However, the letter addresses the specific case of this Claimant:

In the autumn of 2009 and through to the summer of 2010, the UKBA made a number of requests of the Claimant to complete forms so that an emergency travel document (ETD) could be prepared. The Claimant consistently refused to co-operate on the grounds that he feared death if he returned to Algeria. These refusals took place on 19 September, 19 October, 2 November, 13 December and 10 February 2010. It is notable that, as far as I can see, there was no active effort to attempt to get an ETD without the co-operation of the Claimant, something which it appears to me was likely to be achievable with a sensible concentration of minds.

The March detention review led to an authority to maintain detention given by Assistant Director Hamilton on 11 March 2010. It is important to quote the terms in which this was given:

The Detention Review of April 2010 notes that:

The Claimant was transferred to detention at Brook House on 2 September 2009. He was seen for an initial assessment by the clinic nurse on 10 September and it was noted that he had been “transferred from HMP with medical records”. The history of depression since childhood and the current drug being prescribed, including anti-depressant medication, were noted. The Claimant asked for an appointment with the community psychiatric nurse [CPN] and such an appointment was booked. He was assessed by the CPN on the following day and a history taken then, corroborated over the next few appointments, was of episodic depressive illness and included historic self-harm. On 15 November 2009, the Claimant saw the physician and by then was described in quite florid terms and was referred to the psychiatrist. He was assessed by the Crawley Mental Health team on 12 December and a change of psychotropic medication was prescribed.

At the end of 2009 and through the early months of 2010 there were a number of further appointments with physicians and clinic nurses focusing on heroin withdrawal, drug use and abuse and an episode where the Claimant had been assaulted by another detainee.

On 12 December 2009 the Claimant was seen by Doctor Giuseppe Spoto a consultant psychiatrist who diagnosed a recurrent unipolar depressive disorder with evidence of psychotic symptoms. He also concluded that there was a history of alcohol and drug dependence, currently in remission but that the Claimant was showing evidence of benzodiazepine dependence. He concluded that Mr FB was not currently suicidal and that the suicide risk was presently low whilst in custody.

There is no suggestion that over the period through to the spring of 2010, the Claimant was other than properly handled in relation to his psychiatric and medical problems. Nor does the evidence suggest that he was acutely psychiatrically ill. On the other hand, there was a considerable history of mental problems, continuing psychotropic medication and continuing distress. I consider below how far this should have engaged the attention of those responsible for authorising continued detention up to the early part of 2010.

As I have set out above, Assistant Director Hamilton granted authorisation to pursue cessation of refugee status on 4 May 2010. The decision letter was finalised on 12 May and the deportation order was signed on 20 May. Notice of the decision was served on the Claimant on 26 May 2010. On 3 June 2010 the Claimant was served with a deportation order and appeal forms. On the same day there was a further request for an interview with him with a view to obtaining ETD. The Claimant refused to comply.

On 8 June 2010 the Claimant lodged an appeal against the decision to deport. On 8 July 2010, the present claim was launched. The Claimant’s appeal to the First Tier Tribunal was dismissed on 17 September 2010 and no further appeal was sought in respect of that decision.

It follows that from the autumn of 2010, there was no further legal bar to deportation. There did of course remain the practical obstacle that no deportation could be achieved until an ETD had been obtained. It follows that from at least October 2010, when the legal process was exhausted, and when the Claimant had been in immigration detention since early June 2009, a period of about 16 months or so, the absence of an ETD was the only obstacle to deportation. In my judgment, particularly given the history of this case, that should have emphasised the necessity of real activity and urgency in pursuing the process of obtaining a travel document, and perhaps particularly so in the light of the observations of the prescient remarks of SEO Piton recorded in July 2009 and those of AD Hamilton of March 2010.

In the meantime, the Claimant had initiated the current proceedings with a claim lodged on 8 July 2010. Following a number of extensions of time, the acknowledgment of service was lodged on 18 October 2010. Permission to apply for judicial review was refused on paper in October 2010. An application for expedition was filed early in 2011 and permission for judicial review was granted by Supperstone J on 18 February 2011.

A report was obtained on the Claimant’s psychiatric condition from Professor Katona consultant psychiatrist dated 11 November 2010. Professor Katona diagnosed the Claimant as undergoing a “major depressive episode” and concluded that he was at that stage at a high risk of suicide. He concluded that the claimant was “extremely distressed by his lengthy and indefinite continuing detention. His mental symptoms remained severe and disabling”.

It appears that report was made available to the authorities in late November 2010. However the detention review of 18 December 2010 makes no specific mention of the Claimant’s mental health as a factor relevant to continuing detention.

However, in the detention review of 13 January 2011, Deputy Director Gallop who authorised detention noted:

The background to that reference to an ID card appears to be as follows. Sarah Foster of the Criminal Casework Directorate of the UKBA made a written statement in these proceedings on 31 March 2011. She had been the caseworker dealing with the Claimant’s case since 19 July 2010. She recounts the history of attempts to persuade the Claimant to co-operate with an ETD application during the summer and early autumn of 2010. She describes the interview with the Claimant on 29 September where he again refused to co-operate. She then states as follows:

The only inference I can draw from this is that no one had looked, or looked properly, at the existing file held by UKBA to see if there was any identity card, before November 2010.

Ms Foster’s statement continues by detailing further contact with the Claimant in the course of March 2011, in the course of which he asserted the authorities already had his ID card and driving licence. He was threatened with prosecution pursuant to Section 35(3) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 if he continued to refuse co-operation. He did so refuse.

The witness statement continues by summarising the process as understood by Ms Foster of obtaining an emergency travel document from Algeria. The minimum requirements are an application pack including a completed form, submission letter, 6 passport photographs, 2 application forms, a specific Algerian bio-data form and a clear copy of fingerprints. She further states that verification checks are normally carried out in Algeria after receipt of the application pack. However, if the pack contains an original expired passport, ID card or military card the Algerian authorities may consider the application at the consulate in London.

The witness statement continues as follows:

It appears to follow from that evidence that, although the decision was taken in principle to deport this Claimant in June 2009, and although SEO Piton correctly anticipated all the difficulties of obtaining an ETD from the Algerian authorities in her review of the case in July 2009, firstly, no official had searched the files already held to find the existing ID card until around November 2010, and secondly no application for an ETD had even been made by the time Ms Foster made her witness statement on 31 March 2011.

The Claimant’s solicitors made a Freedom of Information Act request in relation to the Defendant’s application for an ETD in early 2011. In a letter of 7 April 2011, the Defendant wrote indicating that no ETD application had been made by then and stating that it was not possible to say how long it would take before an application would be submitted. The letter stated that “we do not require further information to make an ETD application” but also stated that the Claimant’s fingerprints were required to make the application.

The Claimant’s current solicitor Ms Jenna McKinney has made a witness statement in these proceedings dated 11 May 2011. She confirms that in the course of the proceedings she took instructions from the Claimant on 26 November 2010. At that stage he informed her that he had recently seen an immigration officer regarding the emergency document and had informed the officer that they held his original Algerian driving licence on file, which he had submitted when claiming asylum. It therefore seems likely that it was the Claimant himself who drew the attention of the immigration officer to the existence of this document on the file. The Claimant described it as a driving licence whereas as late as March 2011 Ms Foster was describing it as military ID.

Ms McKinney goes on to describe her contact with the Algerian Consulate during the course of March 2011, when she was told in clear terms by the consulate representative that the Algerian authorities would be unwilling to issue a travel document on the basis of an original expired driving licence without reference to the authorities in Algeria given the prevalence of forged driving licences. A military ID card would be a basis for issue of an ETD in London.

In a further relevant passage, Ms McKinney sets out the information given to her by her client on 11 May itself. On that day she was informed by the Claimant that about a week previously he had been seen by representatives of UKBA and been asked to provide his consent to disclose his medical notes, which he did. He informed his solicitor that was the first time his consent had been requested that he had never previously refused to provide such consent. He also stated that on Monday 9 May 2011, he was seen by officers requesting his fingerprints, which he provided. The Claimant’s information to his solicitor was that that was the first time the authorities had requested to take his fingerprints other than when he initially claimed asylum at which stage he had also provided a set of fingerprints.

In the course of the hearing before me it was confirmed that the document held on file was not a military ID but was indeed an old original driving licence. It was confirmed that fresh fingerprints had been provided by the Claimant.

Since the factual position was not finally clear in the course of the hearing, I gave leave to the Defendant to file a further witness statement by 1.00pm on 18 May, with the opportunity for supplementary written submissions from each side dealing with any matter which arose. A witness statement was filed by Andrew McCallum of the Criminal Casework Directorate of the UKBA who has been the caseworker dealing with the Claimant’s case since 1 April 2011, taking over from Sarah Foster.

Mr McCallum confirms that there is no military ID card on Mr FB’s file but that there was and has been a driving licence. Mr McCallum confirms that 5 attempts have been made to interview the Claimant and complete an Algerian application form, including the taking of fingerprints. Mr McCallum states that:

Mr McCallum goes on to describe how fingerprints taken for the purposes of asylum applications are not “kept on the main file” at the UKBA but stored by the Immigration Fingerprint Bureau. The IFB may be able to provide certified copy of the fingerprints held on their database, but fingerprints are destroyed within 10 years of being taken. Hence, the fingerprints taken in association with Mr FB’s asylum application in 1997 are presumed to have been destroyed in 2007, and therefore before they could have been of use in the process of obtaining an ETD for Mr FB.

Another question which arose in the course of the hearing was the question as to whether fingerprints held by the police or the prison service could be made available for the purpose of deporting an individual in the Claimant’s situation. Mr McCallum explains that the UKBA “does not have any arrangement for obtaining fingerprints for use in an emergency travel document from any other agencies”. Provisions of the Police and Criminal Evidence Act 1984 prevent the use of stored fingerprints for any purpose other than the prevention detection or investigation of crime, the conduct of the prosecution or the identification of a deceased person. Rule 42 of the Prison Rules are said to prevent the giving of fingerprints to “any person not authorised to receive it”. Apparently the UKBA are not so authorised. It is also suggested by Mr McCallum, no doubt on advice, that obtaining fingerprints from the police or prison services for the purpose of seeking an ETD would appear to breach the Data Protection Act 1998.

I pause to comment that it does seem extraordinary that the UKBA are not authorised to receive the fingerprints of a prisoner who is liable for deportation by reference to the length of the prison sentence they have received. The prohibition appears to arise from the Prison Rules rather than anything else.

I accept from the evidence of Mr McCallum the Claimant’s refusal to co-operate meant that fingerprints were not obtained and were not available until 9 May 2011. It is not entirely clear from the statement from Mr McCallum that there was a previous express request for fingerprints. What is also clear is that the fingerprints were provided once it was made clear that authorisation had been obtained to gain the fingerprints by compulsion if necessary. It seems likely that, had Mr FB been told that such authorisation would be obtained, his co-operation might well have been forthcoming.

Mr McCallum’s statement carries on to make clear the timetable which actually eventuated in this case. He notes that a final attempt at an ETD application for co-operation of the Claimant was made in a meeting on 3 March 2011, it is said:

Starting from 3 March 2011 the preparations for an ETD application made without the co-operation of Mr FB, including the obtaining of the fingerprints, actually took until 17 May 2011. This included a “pre-verification check” by FCO staff on 10 May “which appeared to show there was sufficient information on the forms to obtain an ETD”. Hence, no doubt under the pressure of litigation, UKBA has been able to move from an acceptance of a lack of co-operation by the Claimant to submission of an application of ETD in under 3 months.

Mr Buley for the Claimant really based his case on two separate propositions of law which he then united by saying they support each other. Firstly he submitted that the inaction of the UKBA constituted a breach of the well-known principles set out by Woolf J as he then was, in R –v- Governor of Durham Prison, ex parte Hardial Singh [1984] 1WLR 704 and approved and restated by Dyson LJ in R (I) –v- SSHD [2003] INLR 196. In particular, the UKBA had failed to act with “reasonable diligence and expedition to effect removal”. These principles have of course been restated and reaffirmed recently in R (Lumba)- v- SSHD [2011] 2WLR 671 [2011] UKSC 21.

Secondly, the Claimant relies on a breach of policy in respect of his detention and in particular a breach of chapter 55 of the Defendant’s Enforcement Guidance Instructions, containing the Defendant’s main published policy on the use of immigration detention. By the formulation in para.55.10 published and in force until 25 August 2010, the Secretary of State had established policy that the “mentally ill” were:

Mr Buley submits that the UKBA did not apply that policy, or did not apply it rationally, and that as a result, following upon dicta in Lumba (supra), the detention was all along unlawful. He further submits following Lumba that the Claimant will be entitled to damages in respect of his detention unless his detention would have been “inevitable” without the error.

Mr Buley finally submits that, even if the detention was not unlawful from the beginning as a result of the failure to apply established policy, the Claimant’s mental illness was relevant to the application of the Hardial Singh principles, meaning that continued detention was only reasonable and lawful if and to the extent that proper expedition was shown to achieve removal.

Mr Kimblin for the Secretary of State, in elegantly presented written and oral submissions, aside from seeking to defend the energy and effectiveness of the UKBA’s steps to achieve deportation, submits strongly that the refusal to co-operate with return remains relevant to continuing deportation. Addressing the principles set out by Lord Dyson in R (Lumba) (supra) [2011] he seeks to distinguish refusal of co-operation with return in such a case as Lumba and that of the instant Claimant. He submits that the refusal in Lumba was a refusal to co-operate in voluntary return. He suggests that it is not authority as to the proper approach to a refusal to co-operate in a case of involuntary removal, or in other words a refusal to obtain the travel documents necessary to give effect to a deportation order, which is itself unchallenged in law.

In relation to a failure to apply a published policy Mr Kimblin relies upon the dictum of Lord Dyson at paragraph 68 in Lumba where his Lordship stated:

Mr Kimblin also relies on the words of Lord Walker at paragraph 193 where his Lordship states:

Mr Kimblin also relies on the reformulation of the guidance from 25 August 2010 which states that those:

Both counsel have referred to the helpful analysis of what is meant by EIG 55.10, in its earlier form, reached by Cranston J in Ruhul Anam –v- SSHD [2009] EWHC 2496. I respectfully adopt the analysis of Cranston J in that case and in particular his exegesis of principle set out in paragraph 55 of the Report.

In my view the instant case does not call for a further parade of legal knowledge.

This Claimant was all along known to be suffering from underlying mental illness which could at any stage have become more active and distressing. There should at all stages have been a strong presumption in favour of release. However, there has at all stages been a strong public interest in preventing absconding and the risk of re-offending. As the Supreme Court has emphasised in the course of Lumba the refusal to co-operate with deportation is indeed relevant to the risk of absconding, and in the case of Mr FB any absconding would have been very highly likely to be accompanied by re-offending. I see no difference in principle between the relevance of non-cooperation for the purposes of detention in cases where a deportation order has been made and other cases.

I conclude therefore that a balancing exercise was appropriate in this case, and that at the end of Mr FB’s sentence, the balance would undoubtedly have fallen in favour of detention despite the level of his mental illness as known to the authorities. However, the application of Hardial Singh principles, whether before or after the change of wording of published policy in EIG paragraph 55, must always have called for reasonable energy and dispatch in achieving deportation. Mr Kimblin was frank enough to acknowledge, albeit to a limited degree, that he could not say that was always demonstrated in the course of the UKBA’s handling of this case.

The Agency knew from the beginning that the obtaining of an ETD to Algeria might be fraught with difficulty and delay. As SEO Piton fully recognised, that meant the case had to be handled with energy. It was not. There was an obligation to prepare the ground for deportation even while there was a challenge by the Claimant to the refusal of asylum. While that challenge persisted it was reasonable to detain, but essential to prepare the ground for the compulsory obtaining of an emergency travel document as soon as those proceedings were concluded. Indeed, there seems no good reason why the 2 processes could not have been handled in tandem. The UKBA should have acted with more energy by reference to the Claimant’s established mental illness, even though the judgment from month to month was that he could properly be detained, in the sense that he could properly be treated whilst in detention.

Even when the First Tier Tribunal determination was promulgated and all appeals were dismissed on 17 September 2010, and even though the instant proceedings had been issued, UKBA did not thereafter proceed with reasonable diligence and expedition to effect removal.

In my judgment, by the time of the review of detention in January 2011, the Secretary of State was fully alive to the adverse effects of detention on the Claimant’s mental health. An assessment of the very limited progress, as well as the very considerable future problems in achieving deportation, should have brought the Defendant to decide to release the Claimant.

Inevitably, it would have been the Deputy Director to whom it would fall to make that decision. It would have taken a few days for that decision to have been put into effect. Deputy Director Gallop authorised continued detention on 13 January 2011 when in my view she should have declined to authorise continued detention. The Claimant should have been released not later than Wednesday 19 January 2011, and accordingly in my judgment his detention was unlawful thereafter.