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

In this case the Claimant, Tendai Rangwani, seeks judicial review in relation to what he contends was his unlawful detention by the Defendant, the Secretary of State for the Home Office (SSHD), over the period of his administrative detention beginning on 19/06/09 and ending with to his voluntary return from the UK to Zimbabwe on 3/04/10. His primary complaint is that he should not have been detained and should have been released; his fallback position is that if he was lawfully detained then he should have been detained in an Immigration Removal Centre (IRC) rather than in prison. Because he is no longer in detention, the case is really about whether he has a claim for damages against the Defendant and, if so, on what basis.

In short, the position is as follows:

So far as these proceedings are concerned:

By the time of the hearing on 2/02/10, the issues had been clarified and refined, so that they may now be stated to be follows:

It is convenient to begin by referring to the legislative background, the relevant case law and the applicable policy in force in the period with which this case is concerned, before turning to the facts, considering the arguments and expressing my conclusions.

There is no controversy in this case as to the relevant legislative background which can, therefore, be stated relatively shortly.

The power to make a deportation order on conviction arises under ss.3 and 5 Immigration Act 1971. The power to detain pending removal or departure on a person against whom a deportation order is in force is conferred by paragraph 2(3) of Schedule 3 to the 1971 Act.

Since the Claimant had been sentenced to a term of imprisonment in excess of 12 months, it is common ground that the Defendant was obliged under s.32(5) UKBA 2007 to make a deportation order against him unless one of the exceptions in s.33 applied, including the case where removal would breach his Convention rights: s.33(2). Accordingly, under s.36, the Defendant was required to exercise his power of detention under paragraph 2(3) of Schedule 3 against the Claimant unless, in the circumstances, he thought it inappropriate to do so.

Under the Immigration (Places of Detention) Direction 2009 the Defendant directed, as he was entitled to do under paragraph 18(1) of Schedule 2 to the 1971 Act, that persons detained under paragraphs 2(2) or (2) of Schedule 3 to the 1971 Act or s.36 UKBA 2007 may be detained in, amongst other places, prisons: see paragraphs 3(1)(f) and 3(2). Under paragraph 18(4) of Schedule 2 to the 1971 Act, when read with paragraph 2(4) of Schedule 3 to the 1971 Act, a person so detained is 'deemed to be in legal custody'.

It is also not controversial that there are limits on the lawfulness of continued deportation, under principles stated in the case of R (Hardial Singh) v Governor of Durham Prison [1984] 1 WLR 704, and followed ever since. The principles were summarised by Dyson LJ in R (I (Afghanistan)) v SSHD [2002] EWCA Civ 888 as follows:

On a number of subsequent occasions the Court of Appeal has revisited the Hardial Singh guidelines and subjected them to further consideration, most recently in the case of R (MH) v SSHD [2010] EWCA Civ 1112.

It is common ground that there are a number of relevant circumstances to be considered when deciding whether the length of detention is reasonable.

It is clear from the authorities that the burden is on the Defendant to satisfy the court on the balance of probabilities that the Claimant is being properly detained pending removal, so that the court must make up its own mind on this issue rather than limit itself to conducting a public law review of the Defendant's decision to continue to detain.

The prospects of securing the detainee's removal within a reasonable time is of course an issue of fundamental importance. It is however clear from the authorities that there is no requirement that the removal be 'imminent', nor that a specified date for removal can be identified. Further, there is no set time limit beyond which detention will automatically become unreasonable; everything depends on the facts of the individual case. Equally, however, the longer the period of detention the more anxiously the court will scrutinise the reasons put forward as justifying the continued detention.

The authorities show that the risk of absconding if not detained is a relevant consideration. Mr Karnik referred me to the judgment of Dyson LJ in I (Afghanistan) where he said that the risk of absconding is not a 'trump card' which always justifies continued detention, no matter the circumstances. Ms Anderson accepted this but observed that nonetheless it may be a factor which carries considerable weight. For example in R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804, Toulson LJ and Keene LJ attached considerable significance to the risk of absconding.

The authorities also show that the risk of re-offending if not detained is a relevant consideration. Mr Karnik submitted that since the primary purpose of administrative detention is to effect deportation, although the risk of re-offending is a relevant consideration it is nonetheless a secondary consideration. In my judgment this is a matter of semantics; the risk of re-offending is clearly a relevant consideration, but the weight to be attached to it in an individual case depends on the circumstances. As Ms Anderson submitted, it is not merely the risk of re-offending which is relevant but the likely type of offending. As Simon Brown LJ said in I (Afghanistan), 'if one could predict with a high degree of certainty that upon release the detainee would commit murder or mayhem that to my mind would justify allowing the Secretary of State a substantially longer period of time within which to arrange the detainee's removal abroad'.

In considering the risk of absconding and the risk of re-offending, the court is entitled to have regard to, but should not defer to, the reasons given by an Immigration Judge ('IJ') in dealing with any application by the detainee for bail. As has been observed in the cases, IJs are naturally extremely experienced in this area and, also, often have the advantage of hearing the detainee give evidence before them. Mr Karnik however referred me to paragraph 50 of the decision of Burnett J in R (Ibrahim & another) v SSHD [2010] EWHC 764 (Admin) in support of his submission that the court should not be over-influenced by the fact that – as in this case – the detainee had, and had exercised, a right to make two bail applications whilst in administrative detention, all unsuccessful. He submitted that the IJ hearing the individual bail application is making an interim decision pending the determination of the appeal to the AIT, whereas the court at this stage is being asked to conduct a fundamentally different enquiry, and cannot abdicate its responsibility to decide on the overall lawfulness of continued detention to the IJ. I agree with this submission, and have regard to the records of the bail applications and the reasons given for refusal, but do not regard them as in any way determinative of the issues I have to decide.

The authorities demonstrate that the detainee's conduct in relation to his removal is also relevant. A court can, in an appropriate case, take into account that the detainee could have returned to his home country voluntarily but has chosen not to do so, both as a relevant factor in its own right and also as a consideration relevant to the risk of absconding. However the Court of Appeal has cautioned that this cannot be used as a justification for, in effect, an indefinite period of detention of someone who, for good reason or bad, it is not willing to repatriate voluntarily. A court can also in an appropriate case take into account that the detainee has failed to co-operate with his removal, whether by physically refusing to submit to forced removal or by mounting unsuccessful legal challenges against removal. Again however this cannot justify an indefinite period of detention. Nonetheless in the case of R (WL (Congo) & Others) v SSHD [2010] EWCA Civ 111 the Court of Appeal held (paragraph 102) that it was relevant to the assessment of the legality of continued detention that the period of detention had been increased by the pursuit of applications for asylum or leave to remain, appeals and judicial review proceedings, 'particularly if his applications and appeals are obviously unmeritorious'. They continued:

Ms Anderson submitted that the prospects of removal within a reasonable time, the risk of absconding, the risk of re-offending and the detainee's conduct in relation to his removal are the only decisive factors. Mr Karnik disagrees, saying that other relevant factors would include for example the effect of the continued detention upon the detainee and the conditions of detention. In that respect he relied upon paragraph 48 of the judgment of Dyson LJ in I (Afghanistan), and he also referred me to the decision of the ECHR in Massoud v Malta, a decision delivered on 27 July 2010. He submitted that the latter case made clear that the exception to the right under Article 5.1 ECHR not to be deprived of liberty applicable to foreign nationals (5.1(f - detention in the immigration context) only applied so long as the deportation proceedings being taken were being prosecuted with 'due diligence': paragraph 60. He submitted that Article 5 operated to prevent an individual from being detained arbitrarily, that in this context detention justified under national law could still be arbitrary, and that to avoid being arbitrary it must be carried out in good faith, be closely connected to the ground of detention relied upon, the place and conditions of detention should be appropriate, and the length of detention should not exceed that reasonably required for the purpose pursued: paragraph 62. He relied on the reference to the 'place and conditions' of detention as justifying his submission that when considering the legality of continued detention, the fact that it was in prison as opposed to an IRC was a relevant consideration.

I accept his submission that that the Court must have regard to all relevant circumstances when considering the Hardial Singh principle as well as the Article 5 obligation and, in that context, may in an appropriate case have regard to the place and conditions of detention.

This point was considered by the Court of Appeal in R (SK (Zimbabwe)) v SSHD [2008] EWCA Civ 1204, where it was concluded that breach of the obligation imposed by the Detention Centre Rules 2001 and the Operations Enforcement Manual to undertake regular reviews of detention and provide written reasons for the continued detention would not in itself render continued detention unlawful, because it is an application of the Hardial Singh principles which determines the legality of detention. The point was also considered in WL (Congo), where it was concluded that the application of an unlawful unpublished policy did not in itself render detention unlawful, but only where the unlawful policy was applied to the detained person and was a material cause of the detention (paragraph 89).

Finally, and most recently, the point was considered in R (Anam) v SSHD [2010] EWCA Civ 1140. In that case Black LJ considered the earlier decisions in some detail and held (at paragraph 52) that it had been determined authoritatively by the earlier Court of Appeal authorities that when deciding whether or not a person's detention is unlawful a causation analysis is required, and further (at paragraph 57) that the legality of detention is to be determined according to Hardial Singh principles.

Whilst the decisions in both SK (Zimbabwe) and WL (Congo) are the subject of appeals to the Supreme Court, whose judgment is awaited, those decisions are of course binding on me as matters currently stand.

Black LJ went on to consider whether the causation analysis required the court (a) to consider whether or not the detainee would inevitably have been detained notwithstanding the error, or (b) to conduct its own analysis of whether the detainee should have been detained had the policy been correctly complied with, having regard to all relevant circumstances. She considered (paragraph 77) that the latter approach was the correct one. Longmore LJ agreed with this, although he also considered that on a proper analysis of SK there was no need to apply a causation analysis in any event, because a proper application of Hardial Singh principles decides the issue by itself. Maurice Kay LJ was of the view, given the pending appeal to the Supreme Court, that it was unnecessary to decide the point since, on the facts of that case, on either analysis the outcome would have been the same.

The history of the published policy of the Home Office in relation to the continued administrative detention of time served FNPs is detailed in the introductory section of the judgment of the Court of Appeal in WL (Congo). In addition to the policy contained in various White Papers, the Home Office also issued detailed operational guidance to its employees engaged in this process, originally known as the Operations Enforcement Manual (OEM) and then from 19/06/08 in the Enforcement Instructions and Guidance (EIG). As described on the current UKBA website:

The EIG has been the subject of a number of revisions since then, and is now it appears in version 10.1. As appears from the judgment in WL (Congo), it was altered in September 2008 in relation to FNPs, and altered again following the judgment at first instance in WL (Congo). The most recent alteration took effect on 26/10/10. I have been provided with the versions in existence as at 2/03/10 and as at 26/10/10. It has not been said that there were any material alterations between 19/06/09 and 2/03/10, so that the case has proceeded on the premise that it is the pre-26/10/10 version in front of me which was in force when the Claimant was first detained under administrative powers.

Before turning to section 55.10.1, headed 'Criteria for detention in prison', which is in many ways at the heart of this case, I should also refer to various other sections relevant to FNPs, and in so doing I repeat with gratitude the summary of certain relevant sections by Black LJ in the Anam case:

Provision is made in section 55.6 for approved forms to be used when following the procedures provided for by the EIG. In relation to CCD cases such as the present: (1) IS91RA Part A CCD is the form used by CCD for recording the assessment of the risk posed whilst a person is in detention; (2) IS91RA Part B is the form used by DEPMU for assessing risk and deciding on the appropriate detention location; (3) ICD 1913 is the form recording the reasons for detention, which must be served on the detained person.

Returning to 55.10.1, in the version of 2/03/10 it provides as follows:

It is clear, therefore, that there is a requirement for a specific risk assessment, and reasons must be given for refusing a transfer to an IRC if one is requested. Where someone who has committed a serious sexual offence requiring registration on the SOR, the risk assessment must focus on the specifics of the offence and behaviour whilst in custody, but is likely to result in a conclusion that they should not be transferred to an IRC.

Delay

For the Claimant Mr Karnik's primary focus was his submission that the Defendant had been guilty of unreasonable delay. He made this submission both on a general level, namely that it had taken from 14/07/09 (when he submitted the Claimant had exhausted his appeal rights and was willing to co-operate in his removal) to 3/04/10 to remove the Claimant, and that this was an unreasonably long time, and also at a specific level, primarily by reference to the computerised case note records (referred to as GCID) disclosed by the Defendant. Ms Anderson disputed that the Defendant had been guilty of unreasonable delays, whether one looked at the time taken overall or at the specific history. She submitted that it is not appropriate to subject the case to a minute examination and also that in any event the criticisms are misplaced. She further submitted that even if the Defendant had been guilty of delays that did not of itself render the Claimant's continued detention unlawful.

Although Mr Karnik began by referring me to entries from 2008 identifying that the Claimant would have been open for inclusion in the Early Removals Scheme (ERS), he realistically accepted that once the Claimant had made his asylum application that was no longer appropriate. He therefore concentrated his fire on the position from July 2009 onwards, and submitted that:

He submits that delays were caused by the Claimant being in prison as opposed to an IRC. He focuses on the evidence of the Claimant's solicitor, Mr Speight, who refers to the difficulties in communications in prison when compared with an IRC. He refers to the Claimant's suggestion in the GCID that he had been misinformed about the FRS by a prison liaison officer. He refers to the history of difficulties in producing the Claimant first for the ETD interview, second for the initial abortive bail application, and third for the ZHC interview.

In response, Ms Anderson submits that overall the removal took place within a reasonable time and there is no basis for criticism of the Defendant, in the context that one cannot expect everything to be done immediately. So she submitted that it would not have been reasonable to move to arranging an ETD as soon as it was reported that the brother had alleged he could not find the passport, that inevitably it takes time to arrange an ETD interview and process an application to be accepted onto the FRS, that inevitably it takes time to arrange an interview with the appropriate foreign country representative, and to proceed to removal. She also refers me to the witness statement of Mr Richardson who confirms in terms that there is no delay introduced by a detainee being held in prison as opposed to an IRC, because there is the same point of contact system, and no difference in the progress of the FRS application. She disputes the suggestion of Mr Karnik, made orally, that there is evidence of a systemic failure in relation to progressing removals from FNPs held in prison. She refers to the audit inspection of HMP Wakefield itself to show that there is no such criticism made in that document.

In my judgment the Claimant's criticisms are largely unfounded. Thus apart from what appears to have been some delay within the period from mid August 2009 (when the Defendant was first informed that the passport was lost) to mid November 2009, when the ETD interview took place, it does not seem to me that the evidence discloses that the Defendant failed to act with reasonable or due diligence. Even if one assumes that the ETD interview could have been arranged within a month, the delay is no more than two months at most. Although there is some evidence of 'interface' problems as between UKBA and the Prison Service, particularly in relation to the communication of the latter's security requirements which undoubtedly did cause some difficulties and delays, I do not consider that they can fairly be said to be systemic or to have led to serious problems or significant delays. There is no satisfactory evidence that the Claimant was misinformed about his eligibility for the FRS, and even if he was: (a) the monthly review letters sent to him explained that he was eligible; (b) on his own case that was not a bar to his voluntary removal, so that he could always simply have said at any time that he was willing to leave voluntarily without the benefit of the FRS.

Accordingly, I reject the submission that the Defendant was guilty of failing to progress this case overall with reasonable or due diligence.

Risk of absconding

Ms Anderson submitted that the Claimant was an overstayer, since he failed to apply to extend his 6 months' leave within the period of its currency. That appears to be strictly correct, although of course there is the mitigating factor that he was already in custody by the time his period of leave expired.

Ms Anderson also submitted that in circumstances where the Claimant had committed a very serious offence, had unsuccessfully claimed asylum, and would have had no settled address on his release other than what was offered by the probation service, there was inevitably a risk of absconding if the Claimant had been released pending removal.

Although Mr Karnik pointed to the absence of any specific evidence to suggest there was a risk of absconding, in my judgment there clearly was such a risk given the circumstances which are identified by Ms Anderson. Although Mr Karnik also submitted that the existence of licence conditions would minimise that risk, I do not accept that this meant that there was no or no more than a minimal risk in this case.

Risk of re-offending

Unsurprisingly, this featured heavily in the Defendant’s submissions.

In seeking to deal with this point Mr Karnik referred me to the evidence that in June 2009 the probation service had put in place a risk management plan for the Claimant and in December 209 had found acceptable accommodation for the Claimant. He suggested that this showed that they believed he could safely be released. He also referred me to the Offender Assessment System (OASys) process that was undertaken in March 2009, which assessed his risk of reconviction as 'low'.

Ms Anderson submitted that since the probation service were obliged to take steps to plan for the Claimant's release regardless of their view (whatever it was) as to his risk level on release, the fact that they had done so, and in particular that they had located accommodation which they considered suitable, was irrelevant. I agree with that submission.

So far as the OASys is concerned, Ms Anderson submitted that its conclusion could not be binding either on the Defendant or on this court. She also observed that it assessed the risk of reconviction for ‘other offences’ (ie non-sexual and non-violent) as low, whereas it assessed the risk of reconviction for sexual offences within 2 years of release as ‘raised’. It also assessed the level of risk to children if the Claimant was in the community as 'high',. It also recorded the extremely disturbing elements of the index offence, being that: (a) the offence was committed against a 13 year girl who lived with her family next door to the address at which the Claimant was staying with his brother at the time; (b) he had on his own account been attracted to her, but not asked about her age, and had previously invited her for a date; (c) the incident occurred when he had been invited to attend a barbecue at the neighbour's house; (d) the offence involved forcible anal rape and, unsurprisingly, caused the victim real physical and psychological trauma; (e) initially the Claimant had falsely denied that there had been intercourse, subsequently he falsely alleged that the intercourse was consensual, thirdly he falsely denied that there had been anal penetration, and had only pleaded guilty at the Pre-Trial Review; (f) notwithstanding his guilty plea the Claimant had persisted in maintaining post-conviction that he had only had consensual vaginal sex; (g) whilst in prison he had made no progress in addressing the risk factors which had led him to commit the index offence and which would – therefore – involve a risk of re-offending on release. As Ms Anderson submitted, even if the OASys was correct to assess the risk of reconviction as low, the consequences of further offending of the same kind as the index offence were extremely serious.

I accept Ms Anderson’s submissions. The evidence clearly discloses in my judgment that there was at all times a significant risk of the Claimant committing further serious sexual offences if released, and the consequences of his so doing would undoubtedly be extremely serious for any victim. Accordingly I have no doubt that this is a highly material factor when considering the appropriateness of the decision to detain and the reasonableness of the overall length of detention.

Other relevant circumstances

Ms Anderson submitted, in my judgment correctly, that there clearly was a good prospect of removal within a reasonable period.

I do have regard to the fact that the Claimant has been detained in prison, in conditions which are clearly much more constrained than the conditions he would have been subjected to had he been transferred to an IRC. However, for reasons which I state in the following section of this judgment, I am satisfied that the decision to detain in prison rather than transfer to an IRC is one which cannot be challenged. Furthermore, the conditions of detention were no worse than those suffered by any other prisoner in the position of the Claimant.

Conclusions in relation to challenge to detention

Applying the Hardial Singh principles to the facts of this case, I am satisfied that both the initial detention of the Claimant and his continued detention over the period until he was removed were lawful. I am satisfied therefore that there is no basis for the complaint made in this regard and that the Claimant is not entitled to the relief which he seeks. Accordingly this limb of the claim must be dismissed.

The Defendant’s argument is that where there is a statutory authority for detention, then that provides the legal justification for the detention so that there can be no claim for damages for false imprisonment, even though the courts would retain their jurisdiction to quash an unlawful decision not to direct release. Ms Anderson relied upon the decision of the Court of Appeal in WL (Congo) at paragraphs 88-90, which referred to the position under sub-paragraph 2(1) of Schedule 3 to the 1971 Act, and on the subsequent first instance decision of Blake J in R (MXL) v SSHD [2010] EWHC 2397 (Admin), where at paragraph 29 he applied that principle to an automatic deportation case, where s.36 UK Borders Act 2007 provides for detention unless the Secretary of State considers it inappropriate. Ms Anderson submitted that this applied not just to cases where the decision could be impugned under public law principles, but also to cases where the detention is rendered unlawful under Hardial Singh principles.

In contrast, Mr Karnik submitted that:

Ms Anderson appeared to accept that in principle damages could be awarded under Article 5, although she emphasised that in accordance with the applicable principles established for the award of damages in such cases they would only be awarded where necessary to do so to give just satisfaction to the injured party, and that they should be modest.

Given the conclusion which I have reached it is not strictly necessary for me to express an opinion on this point. Furthermore, since this particular area of the law is in the process of consideration by the Supreme Court, with the decision expected next month, there seems little to be gained in my venturing an opinion. Accordingly, I limit myself to saying that if I had concluded that the Claimant's detention had been rendered unlawful under Hardial Singh principles then I would have been satisfied that he would have been entitled to an award of modest damages under Art 5, on the basis that it was necessary to do so to render just satisfaction, but I would not have been satisfied that he was entitled to damages for the tort of false imprisonment.

Ms Anderson accepts, in my judgment correctly, that a decision about whether or not to transfer to an IRC is one which is in principle susceptible to judicial review on public law grounds. She does however submit that it is an operational decision made by persons with expertise in this area, and that the court should not be too ready to overturn the judgment of such persons. I am not convinced by this argument. I accept of course that where a qualified professional conducts a risk assessment based on specified criteria and applying their own professional expertise a court should be slow to second guess that conclusion. However it does not seem to me that this is what the relevant DEPMU officer was doing in this case. They are considering the evidence of risk which is available to them, and making an assessment based on that evidence. It does not seem to me an exercise of professional skill and judgment or, for that matter, an operational decision. I do however accept that, unlike the position where one is applying the Hardial Singh principles, the only basis on which the court could interfere would be on established judicial review grounds, so that the court is not permitted to substitute its own decision for that of the Defendant.

I have already observed that before me the challenge on the basis of the application of an unlawful secret policy was not pursued. That is not surprising, given that the evidence discloses that it was not until April 2010, after the Claimant had left the UK, that any internal adjustment to the policy as set out in the EIG was implemented. It is therefore unnecessary for me to say any more about this, since it was fully addressed in the judgment I have already given in the associated case, AE (Libya) v. SSHD [2011] EWHC 154 (Admin).

The challenge to the EIG policy regarding transfers

If and insofar as there is maintained a challenge on the basis that the policy as contained in the EIG was irrational or unlawful, I reject it, for the following reasons.

In WL (Congo) the Court of Appeal held, at paragraph 48(2), that:

It is common ground between the parties that conditions in prison, at least in closed conditions such as those where the Claimant remains, are far more restrictive than those in IRCs. The Claimant relies on this as supporting his submission that the decision to detain him in prison is unreasonable and unlawful. The Defendant relies on this as supporting his submission that it is justified to adopt a general policy of refusing, save in exceptional cases, to transfer those who have committed serious sexual offences requiring registration on the SOR to IRCs. In particular, the Defendant argues that IRCs are designed to allow detainees as much freedom as possible whilst preventing absconding, so that detainees are able to use mobile phones and access the internet, there is complete freedom of movement and association, and visitors – including the families of other detainees - are both encouraged and when visiting not limited to specified visiting areas. She contends that to transfer a convicted child sex offender such as the Claimant to an IRC would pose unacceptable risks to children visiting the IRC, and would present a risk of 'grooming' via mobile phone and/or internet. The Defendant's case is that the IRC regime is intended to be very different from the prison regime, which makes it completely unsuitable for serious sex offenders such as the Claimant save in exceptional circumstances, which do not apply here, and that if IRCs were used to house serious sex offenders such as the Claimant that would subvert the regime established in the IRCs.

Mr Karnik submitted that it is wrong to consider IRCs as a bloc, when – as is common ground – there are male only IRCs. He submits that the risks posed by persons such as the Claimant could be controlled within male only IRCs. Ms Anderson accepted that there are indeed male only IRCs, but submitted that even in these female and child visitors are allowed, and there is no restriction on mobile phone / internet usage. Thus she submitted that there is no evidence that the Claimant could be transferred to an IRC where the conditions are such that the risk posed by serious sex offenders such as the Claimant could be controlled. Although Mr Karnik submitted that there are male only IRCs where the conditions in which female and child visitors are controlled, so that the risk of inappropriate contact could be controlled, he was unable to point to any evidence to support this contention and it would, in my judgment, run counter to the ethos behind IRCs if that were to be implemented. In any event, as Ms Anderson submitted, this would not deal with the risk of grooming via the internet.

In my judgment there can be no successful challenge on the grounds advanced by Mr Karnik to a published policy which holds that those convicted of serious sexual offences requiring registration on the SOR should, save in exceptional circumstances, remain in detention as opposed to an IRC, where that published policy does require an individual risk assessment of all detainees at the outset, so that the question as to whether there are exceptional circumstances is considered at the outset, and where a request by a detainee for a transfer must be considered and, if rejected, reasons provided.

The procedural and substantive challenges

Mr Karnik identified the following non-compliances with section 55.10: (1) the failure to conduct an initial risk assessment so as to decide whether or not the Claimant should be transferred to an IRC, or to notify the Claimant as to the result of that assessment / decision; (2) the failure to deal with the Claimant's repeated request, through his solicitors, for a transfer to an IRC; (3) the failure to provide reasons for rejecting the request.

Ms Anderson had to accept that on Ms Ouseley's own evidence there was a delay from 19/06/09 to 27/09/09 in there being any assessment as to whether the Claimant should be kept in prison or transferred to an IRC. Ms Ouseley says that she assessed the Claimant 'in accordance with the accepted criteria'. She says that she considered the risk which the Claimant posed to female visitors, especially young female visitors, to an IRC, and also to women and children outside the IRC on the basis of internet availability. She says that she also considered the Claimant's licence conditions, one of which was that he should not enter or reside in the same household as any child. She says that she had regard to his good behaviour in prison. She says that nonetheless she considered it inappropriate to assess him as suitable for transfer to an IRC. She says that she reviewed his case on a monthly basis, and again on 20/03/10 when as a short term expedient to facilitate removal she authorised his transfer to Colnbrook short term IRC.

I am troubled by the fact that there is no documentary record of the assessments apparently undertaken by Ms Ouseley. I am also troubled by the fact that there is no record of any letter to the Claimant, whether via the Governor or in response to his solicitors, which communicates the decision reached by Ms Ouseley. I am also troubled by the fact that there was no reply at all to repeated correspondence until 16/12/09, when in a lengthy letter replying compendiously to a number of previously unanswered communications it was said in response to this issue, only that:

Indeed the letter also erroneously mis-quoted the Claimant's solicitors' correspondence, in which they had said that he did not want to be transferred to an IRC outside the Midlands, which they quite inexplicably misread as a request not to be transferred at all.

Ms Anderson submitted that: (a) section 55.10 did not require any particular form to be used to conduct the internal risk assessment or to notify the result of that, so that it was not necessarily surprising that Ms Ouseley was unable to produce one; (b) there is no reason to disbelieve what she has said in her signed witness statement; (c) indeed there is confirmation in the GCID since the entry for 13/10/09 records the CCD caseworker being advised by DEPMU (ie the department for whom Ms Ouseley works) that the Claimant is a 'protocol case' (which, it is known, is a reference to the protocol in place between UKBA and NOMS which carries into force the EIG guidance) and 'his location is reviewed regularly', and then relaying this to the relevant probation officer at HMP Wakefield; (d) although the delays in replying was indeed regrettable, the letter of 16/12/09 does expressly refer to section 55.10 of the EIG, and can be properly and reasonably read as saying that given the Claimant's conviction the circumstances are such that he should remain in prison. She submits that the fact that the Claimant had been of good behaviour whilst in prison is really of limited relevance in a case such as this, where the offending behaviour is serious sexual offending against a young female, especially where there is no evidence that during his custodial sentence his offending behaviour has been addressed. She submits that no other factors were at the time, or have been in the course of this case, been identified to rebut the presumption.

I consider that there was a failure by the Defendant to follow the EIG then in force in failing to conduct an initial risk assessment / decision prior to 19/06/10 and – it follows – to inform the Claimant that he had been assessed as unsuitable for transfer to an IRC. I am also satisfied that there was a further failure in failing to give timely reasons for the rejection of the request for a transfer. I am however satisfied on the evidence that Ms Ouseley did indeed conduct a proper section 55.10 assessment on 27/09/09; this is because although I am unimpressed by the apparent failure either to document or to retain a copy of the result of the assessment on the appropriate form IS 91 RA Part B, I consider that Ms Ouseley’s evidence is consistent with the contemporaneous GCID records and that there is no proper basis for me to disbelieve what she says in her evidence submitted to this court. I am satisfied on Ms Ouseley’s evidence that in substance the requirements of the EIG were followed, so that consideration was given to the Claimant's individual circumstances (i.e. a blanket policy was not adopted). I am also satisfied that the letter of 16/12/09 was an adequate – albeit a belated – response – to the request; although the reasons are extremely shortly expressed, in a case such as this involving the commission of a serious sexual offence against a female child, where behaviour in custody is not a sure guide to behaviour in an IRC and where there are no exceptional circumstances either asserted or identified before me, there is no need in my judgment to set out a fully reasoned articulation of the decision. I do not consider that the decision can be attacked on the basis of the misreading of the Claimant’s solicitors’ letter; that was plainly only an additional point rather than a central point. I am also satisfied that the decision itself cannot be attacked as contrary to the policy or as irrational or unreasonable. In my judgment it is a decision that anyone in Ms Ouseley’s position would have been entitled to arrive at, for the reasons I give in the next paragraph. Although it does appear that the point she makes about the licence conditions is irrelevant, in that it is difficult to see how being in a male only IRC could involve a breach of the requirement not to enter or reside in the same household as any child, again I am satisfied that this was only an additional rather than a central point. I am also satisfied that any procedural non-compliances have had no causative impact, because whether the test is inevitability or materiality or something else, the position is that no conscientious decision maker, applying the EIG properly to the facts of this case, could have concluded it was appropriate to transfer this Claimant to an IRC.

Thus I do not consider that there is any evidence that the risks presented by the Claimant could be controlled by his transfer to some specified IRC. I accept the Defendant's evidence that the conditions in IRCs are not designed or intended for such the purpose of controlling the risks posed by a serious sexual offender. I consider that the Defendant was entitled to consider that these risks are present even in a male only IRC, where the Claimant would have the opportunity to come into contact with young female visitors and either commit some serious sexual offence against them or, alternatively, to 'groom' them. I consider that what is revealed about the Claimant from the circumstances of the index offence and his response to it both at the time and subsequently whilst in prison thoroughly justified a decision that he should not be permitted to transfer to an IRC pending his removal.

Conclusion in relation to challenge to place of detention

For the reasons I have given, this challenge must also fail.

Although not strictly necessary in the light of my previous conclusions to deal with this, since it has been fully argued I should express my conclusions on the point.

The issue is whether, if the Claimant could not establish that he had been wrongfully detained, but could establish that he had been unlawfully detained in prison as opposed to an IRC, he could make a successful claim for damages on that basis.

Mr Karnik's submission is that such a claim can succeed, either under the tort of false imprisonment, on the basis that even if one accepts – as one must at this stage in the argument – that the Claimant was lawfully detained per se, nonetheless he still has a residual liberty protected by the common law, and that such right is infringed if the Defendant wrongfully detains him in a prison as opposed to an IRC, since the conditions in prison are much more confined that those in an IRC, and since those more confined conditions amount to an unlawful interference with his residual liberty. He refers me to Clerk & Lindsell on Torts 19^th edition paragraphs 15-36 and 15-37, and submits that although it is not possible, as a result of s.12(1) Prison Act 1952, for a serving prisoner to succeed in an action against the prison governor for false imprisonment where he is confined in unauthorised places or conditions, nonetheless it was accepted by the House of Lords in R v Deputy Governor of Parkhurst v Hague [1992] 1 AC 58 that he still retains a residual liberty. The example that was given was that a prisoner could sue a fellow prisoner who locked him in some confined space, even if he could not sue the Governor if one of his staff did the same thing. It followed, he submitted, that since there is no similar statutory protection afforded in the case of administrative detention of those subject to removal, the Defendant here would be liable in damages for wrongfully detaining the Claimant in prison as opposed to in an IRC.

Ms Anderson's submission is that where, as here, detention is authorised by statute, there is no residual liberty which the Claimant can assert against the Defendant and, thus, there can be no successful claim for false imprisonment by someone such as the Claimant who contends that he should have been confined in one place of detention as opposed to another. She submits that although the Administrative Court retains its jurisdiction to grant relief where the decision to detain in prison as opposed to an IRC is vitiated on public law grounds, that jurisdiction does not extend to awarding damages for false imprisonment. She relies upon the first instance decision of Kenneth Parker J in Rashford v SSHD [2010] EWHC 2200 (QB) where the judge, founding himself upon SK (Zimbabwe), held at paragraph 14 that even if there had been a procedural impropriety in relation to the Claimant's transfer from an IRC to prison, that could not found a claim for damages for false imprisonment, because the detention was and remained lawful throughout.

Seeking to counter this, Mr Karnik submits that in that case Kenneth Parker J was only dealing with the position where there was some procedural irregularity, not with the position where had the procedure been properly followed the detained person should and would have been transferred to an IRC. However I note that an argument along similar lines, although in a different context, was advanced by the appellant in the Anam case but rejected: see paragraphs 53 – 55.

In my judgment the position here is that if there is a procedural irregularity, then the causation test means that the Claimant cannot succeed anyway in a claim for damages for false imprisonment. However I also consider that even if the Claimant could overcome the causation requirement in such a case, or even if I had concluded that the Claimant acted irrationally or perversely in failing to transfer the Defendant to an IRC, nonetheless the Claimant faces the same problem in my judgment that his detention as such was lawful, and that the Defendant was lawfully entitled to detain him in a prison under the 2009 Direction, so that although the Claimant can obtain appropriate relief on public law grounds he cannot obtain damages for false imprisonment. I therefore, respectfully, agree with and follow the approach of Kenneth Parker J in Rashford and conclude that it applies not only in cases of procedural irregularity. Although Mr Karnik submitted that this would be an unjust result in a case such as the present, where by the time the case is tried there is no continuing detention in prison, I do not consider that this compels a different conclusion. The Claimant is entitled to public law remedies to ensure that he is not wrongfully detained in prison, and if his detention is ended or he is transferred before the case reaches a final hearing he may still, in appropriate cases, be entitled to declaratory relief and/or an appropriate costs order.

That then leaves the claim founded on Article 5 ECHR. Ms Anderson's submission was that Article 5 was concerned with deprivation of liberty, not with deprivation of residual liberty, and that in any event was not breached in circumstances where the Claimant's detention in prison fell within Article 5.1(f) and was in accordance with a procedure prescribed by law. She submitted that detention in prison in such circumstances could not be regarded as arbitrary.

Although I was not referred to the case in submissions, the passage in Clerk & Lindsell to which I was referred made reference to the decision of the House of Lords in R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58. In that case the claimant was a mental patient, detained in Ashworth high security hospital, who complained that his seclusion in accordance with the policy adopted by the hospital breached his rights under Articles 3, 5 and 8. The majority of the House held that in circumstances where the claimant was lawfully detained the complaint under Article 5 could not succeed. They also held that the policy was not contrary to Articles 3 and 8. It seems to me that the same reasoning compels the same answer in this case, namely that there would be no breach of Articles 3, 5 or 8 in circumstances where the most that the Claimant could say would be that had section 55.10 EIG been properly applied he should have been detained in an IRC as opposed to being detained in prison, but in circumstances where is detention was lawful and where the conditions under which he was detained in prison were no different from other prisoners held in such conditions, and about which they would have no valid complaint under private law, public law or the ECHR.

Finally, I agree with Ms Anderson that even if any of these Articles were engaged and breached, then in accordance with the proper approach to the award of damages in HRA cases any damages awarded would have been modest.

Accordingly, I am satisfied that there is no basis for a claim for damages in relation to the claim for wrongful detention in prison as opposed to an IRC, and these claims must fail.

The Claimant's claim for judicial review must be dismissed. Indeed one cannot help wondering about the practical utility of continuing these proceedings once the Claimant had voluntarily returned to Zimbabwe, in circumstances where in my judgment there was never any realistic prospect of a successful challenge on Hardial Singh principles, so that even if the Claimant could have succeeded on the second ground (i.e. detention in prison as opposed to an IRC) unless he could also have established a right to damages for false imprisonment (which seems to me always to have involved significant difficulties) there was never any realistic prospect of recovering any substantial damages, given the jurisprudence as to the availabity of damages under Article 5 ECHR.

Finally, I express my gratitude to counsel for their full and helpful submissions.