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

The Claimant, BE (“the Claimant”) is an Iranian national, now aged 50. By this claim for judicial review, he seeks a declaration that his detention, between November 2008 and 1 June 2010, by the Secretary of State for the Home Department (“the Secretary of State”) pursuant to the Immigration Act 1971 ("the 1971 Act") was unlawful and consequentially an order for damages for false imprisonment to be assessed. Further he seeks a declaration that his rights under sections 21B and 49A of the Disability Discrimination Act 1995 ("DDA") have been breached and consequential damages arising from breach of the former section.

These proceedings were commenced on 26 February 2010 at a time when the Claimant was still held in detention. Pursuant to the order of Simon J dated 28 May 2010, the Claimant was released on bail on certain terms, on 1 June 2010. Whilst the Secretary of State does not concede that his detention has, at any time, been unlawful (and thus that the Claimant could lawfully be re-detained now), she accepts that the Claimant will not be re-detained provided he continues to adhere to his bail conditions. Accordingly, the central question that now falls for determination is whether, at any time before 1 June 2010 and if so from what date, the Claimant's detention was unlawful.

The Claimant's case is that his detention, pending deportation to Iran, was unlawful either by reason of what are commonly termed Hardial Singh principles or breaches of Secretary of State's own policy and/or the DDA. The issue at the heart of the case is the length of time for which it is lawful to detain a person pending deportation. In the present case, the Claimant was detained for a total of just over 29 months.

This case has two particular features. First, the Claimant suffers from a serious disability. He has only one leg; his other leg having been amputated, over 40 years ago, as a result of a chronic medical condition. That medical condition continues to give rise to a number of ongoing symptoms. Secondly, at all material times, the Claimant has refused wholly to co-operate with his removal to Iran pursuant to the deportation order made against him. The Claimant frankly and clearly states that he does not wish to be returned to Iran and that he remains determined not to assist the Secretary of State in arranging his removal.

Indeed, this second feature is expressly relied upon both by the Claimant and by the Secretary of State in support of their rival and diametrically opposed contentions. The Secretary of State contends that the Claimant should not be permitted to be released from a detention, which is otherwise justified, by his own conduct in refusing to co-operate with the removal process. On the other hand, the Claimant argues that, given that he cannot be removed to Iran (because of the Iranian requirement for a disclaimer that he will not sign), he cannot be detained for the purpose of effecting a removal which is simply not going to happen. The issue before me is how to cut that Gordian knot: how to reconcile these competing analyses and come to an assessment of whether, and if so at what point, detention was unlawful. My conclusions are at paragraphs 172 to 183 below.

The Claimant has lived in this country since 1980. For much of that time, he had indefinite leave to remain.

On 1 August 1997 the Claimant was sentenced to 33 months imprisonment for offences of supply and possession of class A drugs. On 17 December 2007, just before the date of his release from prison, the Secretary of State decided to make a deportation order under s.3(5)(a) of the 1971 Act. Upon formal release from imprisonment on 23 December 2007, the Claimant was then immediately detained, pending the making of the deportation order, under paragraph 2(2) of Schedule 3 of the 1971 Act. The Secretary of State made the deportation order itself on 12 March 2008. The Claimant appealed unsuccessfully against the order; his appeal rights being exhausted by 2 July 2008. From 23 December 2007 the Claimant was detained at first in prison and then at several different Immigration Removal Centres ("IRCs"). At all times the Claimant has resisted removal to Iran pursuant to the deportation order. This he has done by refusing to sign a disclaimer form which the Iranian authorities require to be signed before allowing return. Since 1 June 2010, the Claimant has been on bail subject to conditions.

The Claimant's case is that his detention was unlawful as of 20 November 2008 because from that date at the latest it was clear that there was no prospect of him ever being removed to Iran. Alternatively, and for the same or similar reason, the Claimant says that the detention became unlawful as at various alternative later dates in 2009. By way of further alternative, the Claimant says that, in late 2009 or at various dates early in 2010, serious issues relating to the Claimant's disability arose which, from those dates, rendered his detention unlawful.

The Secretary of State maintains that the detention remained lawful at all times up to the Claimant's release; it was prolonged by his own failure to co-operate with the process of removal and the disability issues were largely of his own making.

Before expanding upon the facts, it is convenient to set out the relevant legal principles applicable to these issues. I address, first, general principles relating to detention pending deportation, and, secondly, relevant principles of disability law and how they may affect the legality of detention in this case.

Detention for deportation and Hardial Singh principles

The relevant legal background is to be found in Schedule 3 of the 1971 Act and in case law, commencing with the leading case of R v Secretary of State for the Home Department, ex parte Hardial Singh [1984] 1 WLR 704 and as further refined in a number of cases, in particular in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888 (“I (Afghanistan)”); R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 ("A (Somalia)"); and R (WL (Congo)) and Others v Secretary of State for the Home Department [2010] EWCA Civ 111. Most recently, the principles arising from these authorities have been summarised by Richards LJ in R(MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112. These principles are commonly referred to "Hardial Singh" principles. I have also been referred to a number of first instance decisions of this Court, some of which I consider below.

Section 3(5)(a) of the 1971 Act provides that a person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. The relevant power to detain pending deportation is found in paragraphs 2(2) and (3) of schedule 3 to the 1971 Act, which provide that a person may be detained under the authority of the Secretary of State pending the making of a deportation order and, where a deportation order is in force, pending removal from the United Kingdom.

The principles to be applied in determining the length of time for which a person may be so detained were established by Woolf J in ex parte Hardial Singh. In I (Afghanistan), Dyson LJ summarised those principles as follows:

"46.

[T]he following four principles emerge:

(i)

The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;

(ii)

The deportee may only be detained for a period that is reasonable in all the circumstances;

(iii)

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;

(iv)

The Secretary of State should act with reasonable diligence and expedition to effect removal.

47.

Principles (ii) and (iii) are conceptually different. Principle (ii) is that the Secretary of State may not lawfully detain a person ‘pending removal’ for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.”

48.

It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."

Subsequently, in A (Somalia), Lord Justice Toulson formulated the relevant principles in the following terms:

"43.

There is no dispute that the word "pending" in schedule 3, paragraph 2(2) ... and paragraph 2(3) ... simply means "until". ... However, the Home Secretary's exercise of the statutory power to detain a prospective deportee until the making of the deportation order or until his removal or departure is not unfettered. It is limited in two fundamental respects. First, it may be exercised only for the purpose for which the power exists. Secondly, it may be exercised only during such period as is reasonably necessary for that purpose. The period which is reasonable will depend on the circumstances of the case.

44.

Those principles were first established by Woolf J in his judgment in Hardial Singh ... which has been cited with approval in subsequent cases including Tan Te and I. After stating those principles, Woolf J continued:

"What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention.’

45.

In some later judgments that sentence has been treated as a third principle. It seems to me that it is really a facet or consequence of the first and second. Be that as it may, a pertinent question in this case is whether, and to what extent, a risk of the individual absconding and a risk of him re-offending may be taken into account in considering what may be a reasonable time for attempting to bring about his removal or departure. The way I would put it is that there must be a sufficient prospect of the Home Secretary being able to achieve that purpose to warrant the detention or the continued detention of the individual, having regard to all the circumstances including the risk of absconding and the risk of danger to the public if he were at liberty. Counsel for both parties agreed with that approach as a matter of principle." (Emphasis added)

Most recently, in MH, Richards LJ approved this latter formulation of Toulson LJ which he recognised as being "slightly differently expressed" from that of Dyson LJ. At §§64 and 65, Richards LJ added, in relation to Toulson LJ's test of "sufficient prospect", as follows:

"As Toulson LJ said, there must be a "sufficient prospect" of removal to warrant continued detention, having regard to all the other circumstances of the case... . What is sufficient will necessarily depend on the weight of the other factors: it is a question of balance in each case.

...

... There can... be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all. Again the extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise. There must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors." (emphasis added)

In this way, the balancing exercise involves something of a sliding scale. Where there is a high risk of absconding and of serious harm from reoffending a lesser prospect of removal will be sufficient than where the risks of absconding and harm are lower. Moreover, the longer the elapsed period of detention, the greater the prospect of removal required to justify continued detention (see Richards LJ in MH §68 v).

There are certain further general aspects of these principles. First, the burden of justifying the lawfulness of detention is on the Secretary of State. Secondly, it is for the Court to determine the reasonableness of the period of detention to date and of the prospective period within which detention may take place. The Court's role is not confined to reviewing, on Wednesbury reasonableness grounds, the decisions of the Secretary of State actually made from time to time: see A (Somalia) per Keene LJ at §§70-71. Thirdly, as regards the specific factor of the risk of re-offending, it is the risk of harm to the public through the commission of further serious offences (and not just the risk of further offences being committed) which is relevant: see A (Somalia) per Toulson LJ at §55 and per Keene LJ at §77.

As indicated above, a key feature here is the Claimant's refusal to co-operate with the removal process. The decided cases have addressed the position where the detainee fails to co-operate with the process for removal. Absent such co-operation, removal may be very difficult or even impossible. Failure to co-operate in this way is clearly a relevant factor in the balancing exercise under Hardial Singh. However, there has been debate, in the decided cases, as to the weight that is to be given to this factor, and even as to the side of the balance on which it is to be placed.

In this context, section 35 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 ("s.35") gives the Secretary of State power to require a person, liable to deportation or removal, to co-operate in the process of obtaining a travel document necessary for removal. Such required co-operation includes providing information and documents, making an application and attending interviews. S.35(3) and (4) makes it a criminal offence, subject to a maximum penalty of two years imprisonment, to fail to comply with any such required cooperation.

In I (Afghanistan) the members of the Court of Appeal had differing views on the significance of failure to co-operate. Simon Brown LJ (at §§30-32) considered that non-cooperation was a factor (albeit of limited significance in that case) tending towards rendering a period of detention reasonable. Mummery LJ (at §§ 40 to 43) considered that it was a factor of greater weight and decisively adverse to the detainee. Dyson LJ (at §50 and 51) considered that it was a relevant circumstance, but of little weight. Whilst accepting that refusal of voluntary repatriation might be evidence of likelihood of absconding, he rejected the more general submission that, because the detainee would have control over the fact of detention, the mere refusal of voluntary repatriation makes reasonable a period of detention which would otherwise be unreasonable. He foresaw the problem of indefinite detention that would arise from such a submission. In that case, where the relevant offences were indecent assault with a sentence of 3 years imprisonment, the Court of Appeal held (by a majority) that detention became unlawful after 16 months.

In A (Somalia) the Court of Appeal took a view of refusal to co-operate which is more favourable to the Secretary of State. Toulson LJ (with whom Longmore LJ agreed) said:

"54.

... where there is a risk of absconding and a refusal to accept voluntary repatriation, those are bound to be very important factors, and likely often to be decisive factors, in determining the reasonableness of a person's detention, provided that deportation is the genuine purpose for the detention. .... The refusal of voluntary repatriation is important not only as evidence of the risk of absconding, but also because there is a big difference between administrative detention in circumstances where there is no immediate prospect of the detainee being able to return to his country of origin and detention in circumstances where he could return there at once. In the latter case the loss of liberty involved in the individual’s continued detention is a product of his own making."

Keene LJ (at §§79, 82) agreed but commented that, whilst he did not consider refusal to cooperate as wholly irrelevant in its own right or as having a relevance solely in terms of the risk of absconding, he did not accept that such a refusal was of the fundamental importance contended for in that case by the Secretary of State. It is not a "trump card" for the Secretary of State. Nevertheless he added that the detainee had it in his own hands to secure release by choosing to return voluntarily. In that case, the relevant offences were rape and indecency with a child, with the use of a knife and the threat of a gun, leading to a sentence of 8 years imprisonment. There was also a full and current risk assessment concluding that there was a high risk of sexual offending. The Court of Appeal held that 35 months detention was lawful.

In WL (Congo), Stanley Burnton LJ, giving the judgment of the court, stated (at §102):

“In our judgment, the fact that a FNP [foreign national prisoner] is refusing to return voluntarily, or is refusing to cooperate in his return (for example, by refusing to apply for an emergency travel document, as initially did WL) is relevant to the assessment of the legality of his continued detention: see [A (Somalia)]... . ... So is the fact that the period of detention has been increased, and his deportation postponed, by his pursuit of appeals and judicial review proceeding seeking to challenge his deportation order or his application for asylum or leave to remain, particularly if his application and appeals are obviously unmeritorious. In our judgment as a matter of principle, a FNP cannot complaint of the prolongation of his detention if it is caused by his own conduct”. (Emphasis added)

In the present case, the Secretary of State places great reliance upon this last sentence to support the proposition that refusal to co-operate is a very strong (even if not ultimately determinative) factor in favour of the legality of continued detention. In my judgment and as Mr Barnes for the Secretary of State accepts, that sentence does not represent an absolute rule that where a person refuses to co-operate his detention can be maintained indefinitely. Even in such a case there comes a point where the detention cannot be justified and lawful: see King J in HY and Sales J in MH, at paragraphs 29 and 25 below.

These passages from A (Somalia) and WL (Congo) were cited with approval by Richards LJ in MH (at §§33-36) (although he omitted reference to the last emphasised sentence of §102 of WL (Congo). Further, Richards LJ (at §§43, 44 and 68(iii)) cited and upheld the reasoning of Sales J at first instance in MH in relation to failure to co-operate. At §§91 and 93 of his judgment, Sales J had held, in that case, that refusal to sign a disclaimer was "a factor of considerable weight tending (alongside other factors) to justify detention ... ". Sales J continued (at §93), in relation to refusal to co-operate:

"It would undermine fair and effective immigration control and the proper implementation of the Secretary of State's powers to act in the public interest if a person who is for good reason to be removed could, by withdrawing co-operation when it is required for some aspect of the removal process, defeat that process and procure his release from immigration detention".

However, such failure to co-operate was not determinative of legality for all time. Sales J went on:

"That is not to say that detention can be maintained indefinitely on the basis that an individual will not co-operate with the removal process in some necessary way ... . The relative weight to be given to other factors, and in particular the individual's interest in being at liberty, will increase over time and eventually outweigh this factor. ..."

The issue of failure to co-operate has been considered in a number of decisions of this Court. I bear well in mind that such decisions turn on their own facts and provide limited general guidance and, also, the risks in seeking to establish a tariff: see Davies, below, §45 and NAB, below, §§77 to 79. Nevertheless, in the present case, assistance is provided by some of these decisions.

First, the Claimant relied upon R (FR (Iran)) v. Secretary of State for the Home Department [2009] EWHC 2094 (Admin) ("Rostami"), a decision of Foskett J of 7 August 2009 (i.e. before WL Congo and MH). Rostami was an Iranian national who was a failed asylum seeker and who refused to be returned to Iran. He was prosecuted and convicted, on a number of occasions, under s.35 and made subject to a deportation order, only as a result of those convictions. He had been detained for 34 months. Foskett J cited I (Afghanistan) in some detail, but did not cite A (Somalia) in any detail. He concluded as follows:

"70.

... all the evidence of the last 33 months suggests that there is no prospect at all of a change of heart on behalf of the Claimant despite two spells in prison in consequence of having failed to cooperate with the authorities. I am bound to say ... that his position is likely to have become even more entrenched with the recent re-election of the government from the influence of which, I infer, he fled originally in 2005. I think that the only legitimate conclusion I can draw on the evidence is that he has a firmly settled intention not to return to Iran and that he will do nothing to facilitate any process by which that will be achieved.

...

71.

If I apply conscientiously, as I must, the test established by previous cases of whether the Secretary of State has proved on the balance of probabilities that there is a reasonably prospect of securing the Claimant's removal within a reasonable time, then the answer on the evidence before me is clear - the Secretary of State has not established this..."

72.

... I do not reach the conclusion to which I have referred with much enthusiasm given that it is the Claimant's own failure to co-operate that leads to it. ... However as the cases to which my attention has been drawn and to some of which I have referred make clear, that may be the inevitable consequence of applying the test thus established. At least in the Claimant's case there is no basis for thinking that he will represent a threat to the public by the commission of the kind of serious criminal offences that those in other cases have committed.”

Whilst finding detention at the end of 34 months unlawful, Foskett J did not proceed to decide whether, and if so, when, at any point during that 34 month period the detention had become unlawful. At §73, he rejected the argument, of extended logic, that detention becomes unlawful "from the moment he or she indicates a refusal to co-operate", and indicated that, even in the case of a non-cooperative detainee, the Secretary of State should be afforded "a good while in which to see whether arrangements for removal can be made".

Secondly, R(HY) v. Secretary of State for the Home Department [2010] EWHC 1678 (Admin) was decided after WL (Congo) but before MH. The claimant was ordered to be deported to Algeria. He had been convicted of attempted theft and sentenced to 12 months imprisonment. He had a number of previous convictions, mainly for theft and had received three previous custodial sentences, totalling 18 months. He had been detained under the 1971 Act for 45 months. There had been a history of the claimant not cooperating with the ETD process, although more recently he had been more co-operative. On the facts, although it could not be said that there was no prospect of removal, the date of removal was a matter of total uncertainty. King J (at §§18 to 38 of his judgment) addressed the relevant principles to be applied, including I (Afghanistan), A (Somalia) and WL (Congo), and also referred to Rostami. He concluded that refusal to co-operate was not "always determinative" of legality, but rather was a very important factor "likely, often" to be decisive. He rejected any suggestion that §102 of WL (Congo) in any way further qualified A (Somalia). He said (and, in my judgment, notably):

"29.

I do not accept that if it can be shown that non-cooperation in the removal process by refusing for example properly to engage with the necessary application for a travel document is the sole cause of the failure to remove a person, the Secretary of State can lawfully continue to detain him indefinitely. This however is the logical extension of the propositions now put forward on his behalf. As already indicated, I fully accept that non-cooperation in this sense may often be the decisive factor in determining the reasonableness of the period of detention and that such factor will justify a longer period as being reasonable than might otherwise be the case but there must in my judgment come a time when this can no longer be the case. Non-co-operation is still only one of the factors to which the court must have regard in determining this issue. As against this must always be set the length of the detention to date ... and whether it can be predicted when the removal will take place and if so how far into the future this is likely to be."

At §35, he distinguished Rostami on the basis that there on the facts there was no longer any reasonable prospect of removal at all since neither the Iranians nor the detainee would change their position. Further, King J rejected the Secretary of State's reliance upon the claimant's allegedly disruptive behaviour whilst in detention as evidence of the risk of harm from further re-offending. There was evidence that that behaviour had been "due to frustration at being detained for such a long time with no prospect of removal". King J concluded by holding that 45 months detention was unlawful and the claimant was released on conditions. However he accepted that up to that point detention had been lawful on the basis of the claimant's prior non-cooperation.

Thirdly, in R (Davies) v. Secretary of State for the Home Department [2010] EWHC 2656 (Admin), in a judgment dated 1 October 2010 Cranston J reviewed the above authorities (except MH) and concluded:

"19.

Subject to the exception that immigration detention cannot be used to motivate a person to agree voluntary return, non-cooperation by a person subject to removal or deportation in his return is an important, possibly, decisive factor in assessing the legality of his continued detention. Just what bearing it has will depend on the circumstances of the case. But the legal policy is clear: a person cannot complain about the legality of immigration detention if, as Toulson LJ put it in R(A) it is a product of his own making. That is understandable, since the purposes of the legislative provisions could be undermined by a person simply doing nothing to cooperate with his return until it was no longer in prospect. That would frustrate the Parliamentary intention behind the removal provisions"

Finally, in R(NAB) v. Secretary of State for the Home Department [2010] EWHC 3137 (Admin), the claimant was an Iranian national who had been convicted of indecent assault and sentenced to 12 months imprisonment. He was order to be deported and detained. By the time he had been released, he had spent two periods in detention, totalling 55 months, the second period being 23 months. He was "steadfast" in his refusal to sign the disclaimer required by the Iranian authorities. Whilst prosecution under s.35 had been considered, the Secretary of State did nothing for over a year. Irwin J held that detention for the 19 months of the second period was lawful and the last four months was unlawful. At §§39 to 42, the judge recognised the difficulties faced by the Secretary of State in relation to those who refuse to cooperate with removal, and said:

"42.

What the law does not permit ... is an indefinite detention of someone who is never going to consent to deportation, without taking all other steps that might be open, but merely sitting back without at least a plan to obtain the end of deportation."

After referring to I, A and WL (Congo), he concluded:

“74.

Doing the best I can to apply the principles stated by the higher courts, in this case the most important central element in the detention, justifying the detention for a long, long period, was the refusal of this claimant to agree to sign the relevant disclaimer and to return to Iran. The authorities would, without much more, be entitled to regard that as justifying detention because, as was said by Dyson LJ in I, it indicated a high likelihood or a high risk of absconding without other evidence.

75.

In addition, detention was justified for a very long time both by his offending and thus by the realistic fear that he would further offend, and by genuine and reasonable concern that he might abscond based on what happened on his release on licence from prison.

76.

However even given those factors, even given that there was a prospect of rapid deportation of this claimant in the event that he signed the disclaimer, and even given that it was entirely proper to detain him for an extended period while every step was taken to persuade him to agree, or to circumvent his refusal, there must come a time when such a sterile tactic as merely sitting and waiting while repeatedly urging him to change his mind, in the full expectation that he would not, ceases to be detention genuinely for the purpose deportation" .

In summary, in considering whether detention has become unlawful under Hardial Singh principles, the Court must consider the length of detention to date, whether there is a realistic prospect of removal within a reasonable time and whether that prospect is sufficient when set against all other factors, including the length of detention to date, the risk of absconding and the risk of harm from further offending, and any failure to co-operate. Whilst there is no tariff for reasonableness and whilst each case turns on its facts, there will be a sliding scale for the sufficiency for the prospect of future removal, over time and depending on the strength or weakness of other factors.

As regards the specific issue of failure to co-operate, the relevant principles are to be found in A (Somalia) at §§54, 79 and 82 and MH in the Court of Appeal at §§33-36. §102 of WL (Congo) is not authority for any proposition more favourable to the Secretary of State. Failure to co-operate is a strong factor which supports, and in many cases, is likely to be decisive of, the legality of continued detention. Otherwise the detainee could defeat the removal process and procure his release. However failure to co-operate is not determinative of legality for all time. In any detention, there will come a time, even where the failure to cooperate is the sole cause of inability to remove, when other factors (most particularly the length of detention) favouring release will outweigh the failure to cooperate and will render detention unlawful: see HY (§29) and Sales J in MH (at §93, as approved by the Court of Appeal).

Disability

The Secretary of State has her own internal manual for officers dealing with immigration detention, now entitled "Enforcement Instructions and Guidance" ("EIG"). Chapter 55 of EIG deals with detention, and in particular, Ch 55.10 is headed "Persons considered unsuitable for detention" and covers, inter alia, disabled persons (and those suffering mental illness). It provided, at the relevant times, as follows:

"Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention or elsewhere. ....

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. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was 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 ...

- people with serious disabilities."

CCD cases include cases, such as the present one, concerning foreign national prisoners.

The meaning and effect of Ch 55.10 EIG was considered, in relation to detention of the mentally ill, in R (Anam) v. Secretary of State for the Home Department [2010] EWCA Civ 1140 on appeal from Cranston J [2009] EWHC 2496 (Admin). Ch 55.10 is not to be considered in isolation. Chapter 55 in general sets out the Government's policy on immigration detention, and deals specifically with CCD cases. I refer in particular to Chapter 55.1.2, 55.1.3, 55.3.1 and 55.3A. (These are set out in full in Anam by Cranston J at §§45 to 47 and by Black LJ in the Court of Appeal at §§25 to 28.) Whilst, on its wording, Ch 55.10 states that immigration detention for a seriously disabled person would, in any case, be very exceptional, this is not necessarily the case, when all factors including the fact that a case is a CCD case, are taken into account. In Anam, Cranston J (at §§53 to 55) analysed the provisions of Ch 55.10, in the context of the entirety of Chapter 55, and concluded:

“The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy. The phrase needs to be construed in the context of the policy providing guidance for the detention of all those liable to removal, not just foreign national prisoners. It seems to me that there is a general spectrum which near one end has those with mental illness who should be detained only in "very exceptional circumstances" along it – the average asylum seeker with a presumption of release – and near the other end has high risk terrorists who are detained on national security grounds. To be factored in, in individual cases, are matters such as the risk of further offending or public harm and the risk of absconding. When the person has been convicted of a serious offence substantial weight must be given to these factors. In effect paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified.” (Emphasis added)

In the Court of Appeal, Black LJ expressly approved of this analysis: see §§81 and 33. In my judgment, the same approach applies to Ch 55.10 where it applies to the detention of disabled persons. Thus, in the case of a disabled person convicted of a serious offence (of which supply of class A drugs is an example), the effect of Ch 55.10 is that the balancing exercise of factors under Hardial Singh still falls to be undertaken, but that the factors in favour of continued detention have to be that much more compelling than they would otherwise be to outweigh the disability issue. This approach is supported by the inclusion as Hardial Singh factors, by Dyson LJ (at §48 of I (Afghanistan)), of the conditions in which the detainee is kept and the effect of detention on the detainee.

The Detention Centre Rules (SI 2001 No 238) make provision for the regulation and management of detention centres. Rule 35 of those rules is headed "Special illnesses and conditions" and provides as follows:

"(1)

The medical practitioner [at each detention centre] shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention".

Section 49A DDA provides a "general duty" in the following terms:

"(1)

Every public authority shall in carrying out its functions have due regard to

(a)

the need to eliminate unlawful discrimination and victimisation;

(b)

the need to eliminate harassment of disabled persons that is related to their disabilities;

(c)

the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;

(d)

need to promote positive attitudes towards disabled persons;

(e)

the need to encourage participation by disabled persons in public life."

I have been referred to a number of authorities concerning the nature and content of the s.49A duty (and the similar duty under other anti-discrimination legislation), including in particular to the six general principles identified by Aikens LJ in R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin). Most recently, in R (EHRC) v, Secretary of State for Justice [2010] EWHC 147 (Admin) Wyn Williams J cited these authorities and summarised the position in the following terms:

"45.

... the duty to have due regard is a duty which is mandatory; it is also an important duty and one which must be fulfilled prior to the adoption or implementation of the decision, function or policy in question. The duty requires the decision maker to embark upon a sufficient and proper decision making process so as to discharge the duty with an open mind. The question in every case is whether the decision maker has in substance had due regard to the relevant statutory need. In the written material produced by the decision maker he does not have to refer, expressly, to the relevant statutory duties; however, the evidence he adduces in any challenge must show that the substance of the duty was discharged.”

The Claimant submits, and I accept, that the effect of the duty in the present case was twofold. First, the Secretary of State was required to consider generally, and in advance, whether the detention estate as a whole had appropriate facilities and processes for disabled detainees generally. Secondly, in the case of individual disabled detainees, including this Claimant, the Secretary of State was required to conduct an individual assessment before detention and before any transfer within the detention estate.

Sections 21B to 21E specifically address discrimination by public authorities. Section 21B(1) provides that "it is unlawful for a public authority to discriminate against a disabled person in carrying out its functions". Section 21D then sets out two different meanings of "discrimination". Section 21D(1), which is not relied upon here, addresses direct discrimination. Section 21D(2) then provides:

"For the purposes of section 21B(1), a public authority also discriminates against a disabled person if-

(a)

it fails to comply with a duty on it imposed by section 21E in circumstances in which the effect of that failure is to make it

(i)

....

(ii)

unreasonably adverse for the disabled person to experience being subjected to any detriment to which a person is or may be subjected,

by the carrying out of a function of the authority; and

(b)

it can be show that its failure to comply with that duty is justified under subsection (3), (5) or (7) (c)."

Section 21E describes the duty of a public authority to make adjustments, referred to in section 21D(2), as follows:

"(1)

Subsection (2) applies where a public authority has a practice, policy or procedure which makes it-

(a)

...

(b)

unreasonably adverse for disabled persons to experience being subjected to any detriment to which a person is or may be subjected

by the carrying out of a function by the authority.

(2)

It is the duty of the authority to take such steps as it is reasonable, in all the circumstances of the case, for the authority to have to take in order to change the practice, policy or procedure so that it no longer has that effect"

The grounds of justification available to the public authority are set out in s.21D(3), (4) and (5).

In R (Lunt) v. Liverpool City Council [2009] EWHC 2356 (Admin) Blake J identified a six step approach to the duty to make adjustments under ss.21D(2) and 21E. He went on (at §§54 to 60) to consider specifically the meaning of the words "disabled persons" in s.21E(1)(a) and (b) (in contradistinction to the words "disabled person" in s.21D(2)(a)(i) and (ii)). He then cited the judgment of Sedley LJ in Roads v Central Trains [2004] EWCA Civ 1541 who had concluded that "disabled persons" in s.21E(1)(a) and (b) is a reference to a "class of disabled persons" (such as wheelchair users or people with impaired vision) rather than a reference either to the particular disabled person seeking to rely upon indirect discrimination or to all disabled persons. Blake J concluded (at § 60) that "there must be a class of persons rather than mere problems encountered by a single individual".

In WL (Congo) the issue was the effect on particular detainees of the unlawful nature of the Secretary of State's then policy on immigration detention of FNPs. The Court of Appeal held (§§48 and 89) that, even though the policy was unlawful, this did not make the particular detention unlawful unless the unlawful practice or policy was a "material cause of the detention". If the decision to detain was inevitable, the application of the unlawful policy was immaterial, and the decision to detain was not unlawful. (An appeal to the Supreme Court in this case has now been heard and judgment is awaited).

The Court of Appeal in Anam considered the applicability of the WL(Congo) "causation" analysis where the relevant failure was a failure to apply the policy in Ch 55.10 EIG. The Court was not unanimous in its conclusions. Black LJ, who gave the leading judgment held, first (at §52), that, in a case of breach of policy or detention rules, a "causation" analysis is required, but that, secondly, in any event (at §57):

"the legality of detention is to be determined according to whether the Hardial Singh principles have been observed. .... A failure to apply a relevant policy or breach of a policy or even a rule ... will not on its own establish that the associated detention is unlawful."

Thirdly, she went on (at §77) to reject the appellant's argument that, where there has been a breach of, or failure to apply, policy the court can only find detention to be lawful if the person would "inevitably" have been detained, even if the policy had not been breached or had been applied. The Court itself should decide on the legality of detention "on Hardial Singh lines”, attaching appropriate weight to all factors, including government policies. The alternative approach of "inevitability" would be at odds with the principle that the Court itself must determine the legality of detention. Longmore LJ (at §§84, 85 and 88), not only agreed with Black LJ that there was no "inevitability" test for causation, but in fact disapproved of the need for any "causation" test. Relying on the Court of Appeal's judgment in SK (Zimbabwe) he concluded that "on the question of the lawfulness of the detention, the court should apply Hardial Singh principles and that should be that". By contrast, Maurice Kay LJ (§91) favoured what he termed the "materiality or causation approach" which he took to encompass the inevitability test set out in WL (Congo).

The application of WL (Congo) and the effect of Anam is an issue between the parties which I address further in paragraphs 169 to 172 below.

In the course of the proceedings a number of disputed issues of fact have arisen, particularly in relation to specific incidents during the course of the Claimant's detention. As these proceedings commenced and have continued by way of judicial review, there has been no oral evidence and no opportunity to cross-examine witnesses on the evidence given by witness statement. This makes determination of what might or might not have happened on a particular day or in a particular incident more difficult. Where I have found it necessary to make findings of fact, I have done so on the basis of the material before me, taking into account, in particular, contemporary documents, witness statements and independent corroboration of the Claimant's own evidence. In this regard, I adopt the approach followed by Sales J in MH at §10.

The Claimant was born in Iran on 2 July 1960 and lived there for the first twenty years of his life. At the age of 6, he was diagnosed with systemic sclerosis, a degenerative connective tissue disease and from which he still suffers a number of symptoms. From 1969 he made regular visits to the UK for medical treatment. In 1970, at the age of about 10, he underwent surgery at Westminster Hospital, as a result of which his left leg was amputated. Thereafter, throughout the 1970s he made numerous visits to the UK. In 1979 he came to this country to have a prosthetic leg fitted and maintained.

In 1980 the Claimant married a British citizen and came to live in this country, where he has lived ever since. He has thus not lived in Iran since the fall of the Shah. In 1981 he was granted indefinite leave to remain. He relies on the strength and duration of his connection with the UK as the reason why he now resists return to Iran so strenuously. In 1987 the Claimant's marriage ended. Due to his medical condition, he had already been reliant upon painkillers, and, following and due to the end of his marriage, he says that he drifted into more extensive drug abuse.

In the 1990s he was convicted of a series of offences. His first conviction came in February 1989 when, aged 29, he was fined for shoplifting. Overall he had 18 convictions for a total of 32 offences. The vast majority were convictions for offences of dishonesty: theft, including shoplifting, deception, use of electricity. In the main he received non-custodial sentences. Prior to the most recent conviction, he had two previous convictions, in 1992 and 1995, for possession of drugs; and he had received two sentences of imprisonment. On 14 August 1995 he was sentenced to 30 days imprisonment for offences, including theft and drug possession; and on 4 November 1999 he was sentenced to 3 months imprisonment for dishonest use of electricity and for breach of a previous suspended sentence (imposed for theft). He had two convictions for failure to surrender: the first on 15 February 1990 when he was fined £10; and the second on 29 December 2004 when he was again fined by a Magistrates’ Court. It also appears that he also had one previous conviction for supplying Class C drugs in 2002, but for which he was given a conditional discharge and which the sentencing judge (in August 2007) pointed out was a "rather different example" from the supply for which he was imprisoned.

On 29 March 2006 the Claimant committed offences of possession and supply of Class A drugs. He was remanded in custody in April 2006 in HMP Elmley. Eventually on 1 August 2007 he was convicted, on guilty pleas, at Canterbury Crown Court on four counts of supplying, and two counts of possession of, a Class A drug. He was sentenced to imprisonment for 2 yrs and 9 months in respect of the four counts of supply (with lesser concurrent terms for the possession counts). Whilst it is not entirely clear from the materials before me, it appears that the offences involved three counts of supply of MDMA and one count of supply of cocaine; the two counts for possession concerned diamorphine.

The PSR for that sentence had been prepared 8 months earlier on 5 January 2007. It stated that the Claimant felt he had been a victim of the offences and did not equate his situation to be of his own making. It recorded that the Claimant said that he had, by then, become drug free. The risk assessment based on the OaSyS system of factors identified that there was a high risk of reconviction and concluded that the Claimant appeared to be a controlling individual who was concerned with his own financial gains. Towards the conclusion the PSR stated: "The focus of his life over the past ten years has been drugs. .... He is now drug free and says that he intends to remain so on release. .... It is difficult to see how matters will be different on release as he will still have no family support". In this way, the high risk of reoffending is firmly linked to the PSR writer's view that the Claimant was likely to continue his drug habit upon release. In his sentencing remarks, the judge referred to the PSR and to a much more encouraging report of his progress whilst on remand at HMP Elmley, particularly in relation to drug rehabilitation.

Following sentence, he remained at HMP Elmley. The formal date for his release was to be 23 December 2007. On 13 August 2007, the Claimant was served with notice that the Secretary of State had decided that it was conducive to the public good to make a deportation order against him and that he proposed to give directions for the Claimant’s removal to Iran. On 24 August 2007 the Claimant claimed asylum.

On 12 November 2007 the Claimant was interviewed at Elmley for the purposes of obtaining an emergency travel document ("ETD"). At that point, he completed and signed a bio-data form required for the purposes of return to Iran, giving details of his family. He refused to have his photograph taken and refused to complete the application form. When asked "are you willing to attend the Iranian Embassy to sign a declaration stating that you wish to return to Iran", he replied "No, I do not wish to go back to Iran, therefore I am not willing to go to the embassy to sign a declaration. Furthermore I have been living in the UK since I was nine years old". The Claimant maintains that this has been his consistent position ever since.

On 11 December 2007, the Secretary of State gave authority for the Claimant to be detained under Schedule 3 paragraph 2(2) of the 1971 Act, on the grounds that he was likely to abscond and that detention was necessary to effect his removal from the UK. An internal minute recording the decision to detain referred to the risk of absconding and at the same time noted, simply, that the Claimant has an artificial leg. There was no reference to the seriousness of offending nor specifically to the risk of reoffending. On 17 December 2007 the Secretary State decided to make a deportation order (under s.3(5)(a) of the 1971 Act). On 28 December 2007 the Claimant appealed against the decision to make a deportation order.

On 23 December 2007 the Claimant was formally released from imprisonment, and it was at that point that his immigration detention, under the 1971 Act, commenced. However he remained physically in HMP Elmley due to the unavailability of disabled facilities in the immigration detention estate.

I turn now from the particular facts concerning the Claimant to consider what, at the times relevant to this case, was the general position as regards the feasibility of persons being returned to Iran. This is relevant both as regards the context for the Claimant’s own failure to co-operate with his own return and to the issue of whether, even if he had co-operated, his return would have been feasible.

First of all, it is common ground that enforced return to Iran requires a signed disclaimer from the returnee in which the returnee states that he is willing to return. In this way, a detainee can not only decline to return voluntarily, but can block even a forced return to Iran, regardless of other issues.

Secondly, in order to be admitted to Iran, an ETD must be obtained from the Iranian authorities. The United Kingdom Border Agency ("UKBA") must submit an application for an ETD to the Iranian authorities. According to the evidence of Mr Turpin of the Criminal Cases Directorate ("CCD") of the UKBA, in order for an ETD application to be submitted to the Iranian embassy, the following documents must be completed provided: a bio-data form, passport photographs, an Iranian application form and any supporting evidence (in either original or certified copy form) such as ID cards, expired passport, or driving licence.

As regards the general position of returns to Iran, relevant material is to be found in the witness statement of David Gordon of the UKBA Returns Group Documentation Unit ("RGDU") and in the judgment of Mr Ian Dove QC sitting as a Deputy High Court Judge in R (MA and TT) v. Secretary of State for the Home Department [2010] EWHC 2350 (Admin) ("MA") (at §§27 to 33) (which itself is based on evidence from Mr Gordon). According to Mr Gordon, even where a returnee is prepared to sign a disclaimer, relatively few applicants for ETD are actually returned to Iran. In the ten year period from 7 February 2000 to 9 August 2010, ETDs were granted in 119 cases out of 572 applications (i.e. about 20% of applicants). Furthermore, the position has become more difficult in recent times. In the period from 1 June 2009 to 15 July 2010, only 9 out of 143 applicants, (i.e. 6%), were granted an ETD and then removed. Based on similar evidence, in MA Ian Dove QC concluded "the experience of the last 12 months has been that a significantly smaller proportion of applications has been agreed than has previously been the case". I make the same finding. Sue Willman, of Pierce Glynn, in her witness statement says that on 19 April 2010 her firm was told by the International Organisation for Migration that voluntary returns to Iran had been suspended altogether.

The position as regards the Claimant is that the Secretary of State has a copy of the Claimant's expired passport; that the Claimant completed the bio data form, but latterly refused to sign it; and that he refused to complete the Iranian application form or to have his photographs or fingerprints taken. Unless the Claimant has completed all documentation, the UKBA cannot forward the application for an ETD to the RGDU and in this way an ETD cannot be obtained. As regards the copy passport, the Claimant maintains, on the basis of Sue Willman’s evidence, that he could not have been returned anyway, because he does not have an original passport and the copy passport held by the Secretary of State is not certified. By contrast, the Secretary of State refers to the MA case, where Mr Dove QC found that the evidence from Mr Gordon supported the notion that, on occasions, ETDs would be agreed by the Iranian Embassy without supporting documentation (or with only uncertified copies), although he went on to say that such occasions would be "unusual": see MA at §§28, 32 and 33.

On the basis of this material, the Claimant submits that the numbers getting through to Iran are very low. The Defendant submits that, where the detainee signs the disclaimer, although not many get through, there is and has been some prospect of removal to Iran. I conclude that, at any time in the relevant period, few applications for ETDs were granted and, from 2009 to 2010, there was a decreasing prospect of successful application. Further, whilst the absence of a certified copy ID or passport document is not an absolute bar, in the case of a foreign national ex-prisoner, the chances of being returned without such a certified document are low. The absence of such a certified copy will be an additional obstacle further reducing the likelihood of return to Iran.

In summary, the course of the Claimant's immigration detention was as follows. First, he was detained at HMP Elmley for one year and a month, from 23 December 2007 to until 14 January 2009. He was then detained at Harmondsworth IRC for a further year, from 14 January 2009 to 29 January 2010. Then in the course of the following week, he spent approximately two days at Campsfield IRC, then two days at Colnbrook IRC, before being transferred to Brook House IRC. He was then detained at Brook House IRC for 3½ months from 3 February 2010 to 22 May 2010. Finally from 22 May 2010 until his release on 1 June 2010, he was detained, for a second time, at Colnbrook IRC.

The Claimant claims that, whilst at HMP Elmley, he was the subject of much abuse and victimisation at hands of other inmates at Elmley and that this arose, in part, due to his disability. He refers to occasions when his prosthetic leg was stolen and burnt and when his cell was set on fire. He also claims that he made many requests to be transferred to immigration detention, but was told that IRCs did not have appropriate facilities. Eventually, he says, he made a complaint about being kept in prison and was told that he would be moved as soon as suitable accommodation could be found.

During the course of his immigration detention, the Secretary of State, as required, undertook regular monthly detention reviews and progress reports. From the outset, these reviews and reports indicate that the Secretary of State was well aware of the difficulties caused by the Claimant’s refusal to sign a disclaimer. In the first monthly report of 25 January 2008, CCD decided to continue detention due to the risk of absconding which could not be met by conditions attached to temporary release and on the basis of a lack of close ties. At the same time, the Claimant was warned that:

"Failure to co-operate with the Emergency Travel Document (ETD) process is a significant factor in the decision to maintain detention. You should also be aware that case-law in this area has made clear that continued failure to co-operate will remain a significant factor in deciding whether to maintain detention or grant bail in future. While decisions will be considered on the basis of all available factors, you should note that this may result in a prolonged period of detention."

Failure to co-operate was being relied upon by the UKBA as a positive reason to extend the period of detention.

The monthly report for February 2008 recorded, as the reasons for continued detention, not only the same factors as in the January report, but also additionally failure to co-operate with the ETD application process. The February 2008 detention review referred, in addition, to his past offending history and that he was rated as a high risk to re-offend. There was no detailed reference to the nature of his offending. Nevertheless the review stated that the Claimant "poses an unacceptable risk of re-offending" and concluded that "continued detention remains proportionate due to the seriousness of the offences." Whilst from the outset detention reviews referred to the risk of re-offending, it was only in May 2008 that the monthly report referred, for the first time, to this risk as a further reason for continued detention. Significantly, this high risk of re-offending was based wholly on the assessment contained in the original PSR dated January 2007.

Thereafter, and in broad terms, the monthly detention reviews merely repeated these three reasons - absconding, reoffending and failure to co-operate - as justification for continued detention, with continued reliance on the risk assessment from the PSR. There is little evidence of any particular further consideration being given to the Claimant's particular circumstances; for example, the extent to which he was thought still to be dependent on drugs or any reference to his disability. In the May 2008 detention review, the following appeared, for the first time: "All know facts of this case have been considered and there are no compassionate circumstances to prevent detention pursuant to deportation action". This same "no compassionate circumstances" wording was to be used frequently in subsequent reviews.

On 25 February 2008, the Secretary of State refused the Claimant’s asylum claim and on 12 March 2008 the Secretary of State made the final decision to make a deportation order.

Meanwhile on 3 March 2008 there was incident in the Claimant's cell. This resulted in the Claimant being found guilty of assault against a prison officer by kicking him in the chest. The Claimant accepts this, but points out that he was given a suspended punishment of 7 days confinement. He says that it was the prison officer who struck him first. The officer's own witness statement confirms that he pushed the Claimant first, before the Claimant struck him.

On 10 June 2008, the Asylum and Immigration Tribunal dismissed the Claimant's appeal against both the decision to make a deportation order and the refusal of asylum. In the course of it determination, the AIT concluded that the Claimant was not a truthful or reliable witness. Mr Barnes for the Secretary of State relies upon this finding to submit that I should not accept, or that I should treat with considerable caution, the Claimant's evidence on factual matters now in dispute. On 25 June 2008 the AIT refused the Claimant’s application for reconsideration of the decision of 10 June 2008 and by 2 July 2008 the Claimant’s appeal rights became exhausted.

Meanwhile on 12 June 2008 Mr Turpin at the CCD in Leeds had written to the Claimant explaining that he would be moved into the immigration detention estate when “the accommodation becomes available that is suitable to your needs”. The Secretary of State submits that this shows that she was giving proper consideration to the Claimant’s needs as a disabled person.

The June 2008 detention review referred to starting the process for obtaining an ETD by setting up an interview, whilst at the same time recognising that that process still required the Claimant's co-operation in signing documents. In the July 2008 detention review, it was noted that “there is a risk of harm to the public, given the nature of the offences” and urged expedition of the deportation process, now that the Claimant's appeal rights had been exhausted. This is the first reference to such "harm to the public", despite the fact that the evidence to support such a conclusion was no different from that which had existed throughout his detention.

By early August 2008, concerns were being voiced, internally within the CCD, about the Claimant's continued detention. In internal notes, a CCD officer at Leeds records that he received a telephone call from another officer, who was "still concerned about continued detention”. The same officer went on to record:

"I was asked to look at this case after D.D [ ] had spoken with IO [ ] from Bullwood Hall. Mike was querying our decision to continue to detain in view of the subject being Iranian. ... At the next review can we please make reference to the 32 offences committed by the subject".

Indeed in the September 2008 detention review there was specific reference to the fact that he had been convicted of 32 offences and authorising comments that "The subject's criminal history gives rise to public harm and reoffending risks". This was the first time that it is the Claimant's entire offending history (rather than the most recent conviction alone) which was said to give rise to the risk of public harm. No mention is made of the fact that these earlier offences were significantly less serious than the last offence.

On 8 August 2008 the order for the Claimant’s deportation was signed and served on the Claimant. On 3 September 2008 the Claimant refused to sign a bio data form or to complete an ETD application form and once again, to have his photograph and fingerprints taken. As a result the Claimant was warned that his failure to co-operate was an offence under s.35.

By letter dated 15 October 2008 from UKBA in Leeds, the Secretary of State wrote to the Claimant inviting him to co-operate with the ETD process and warned him that if he continued to refuse to co-operate, he would be committing an offence. The letter went on to urge the Claimant to co-operate so as to potentially reduce the time spent in detention prior to removal.

The October 2008 detention review recorded that continued detention was "in line with current detention criteria as published in the EIG". Yet there is no evidence of any consideration having been given to the Claimant's disability; the review maintained the position that there were "no compassionate circumstances". In that review, the HEO at CCD Leeds went on to state:

"efforts are being made to ... persuade him to consider return on the FRS (Facilitated Returns Scheme) but to date he has not been minded to change his stance. We can maintain our efforts but in the longer term another strategy may be necessary"

The detention review of 20 November 2008 is important; this is the earliest point in time at which the Claimant maintains that his detention became unlawful. By this time, the Claimant had been detained for just under 11 months. The review recorded that no response had been received to the CCD's letter of 15 October and that timescales for obtaining an ETD "are not known at this time". In his note to the CCD Deputy Director, the inspector at CCD Leeds noted:

"This is yet another Iranian case where we will be unable to effect deportation unless either he or the Iranian authorities changes their stance, this despite us holding his expired passport. He has lived in the UK for at least 31 years, possibly almost 40, so it is extremely unlikely that he would be tempted by what FRS has to offer. There is absolutely no indication that the Iranian embassy will review their position. So there is effectively no prospect of removal at all in this case.

However ... it is believed that there is a high risk of him re-offending, were he to be released. ... He will not co-operate with the documentation process. On balance I believe continued detention to be justifiable ...? So agree" (Emphasis added)

The Deputy Director of the CCD then authorised maintaining detention, remarking:

"I agree to maintain detention whilst the prospects of removal are slim unless Mr E changes his mind, this is in his hands"

A week later, on 27 November 2008, Mr Turpin of CCD Leeds wrote a further letter seeking co-operation with the ETD process. This time, Mr Turpin stated that failure to comply with the process "will result in you spending the remainder of your time in the UK in detention". In my judgment, this did not accurately represent the position in law and, what is more, could be construed as using detention as a means of motivating the Claimant to co-operate with the ETD process (an impermissible approach per Cranston J in Davies §§18 and 19).

On 5 January 2009, the Claimant made a request for temporary admission addressed to CCD Leeds, relying on his serious medical condition, his disability and his various medical symptoms. This appears to be the first time that the Claimant's medical condition and his needs were expressly raised. This was received by CCD on 13 January 2009. In the meantime, on 6 January 2009 the Secretary of State issued, for the first time, a formal request under s.35 seeking compliance by the Claimant with the ETD process, warning him that if he continued to refuse to co-operate, he would be committing an offence.

On 14 January 2009, the Claimant was transferred to Harmondsworth IRC. (In a letter in February 2009, CCD Leeds informed the Claimant that he had not been moved out of Elmley sooner because of the limited suitable accommodation within the immigration detention estate). The Claimant claims that problems at Harmondsworth began quickly. He fell and his prosthetic leg broke, and thereafter, as described below, there were issues surrounding visits to the limb fitting centre.

On 17 January 2009, Mr Turpin of CCD Leeds wrote to the Claimant refusing his request of 5 January for temporary admission. The letter was addressed to the Claimant at HMP Elmley, even though he was no longer there. Mr Turpin informed him that if he had any medical problems, he should contact the Healthcare Unit, who would report any concerns, leading to a review of his detention, but until then "it is considered that you are fit to remain in detention". The Claimant submits that this letter shows that the Secretary of State was concentrating on issues of narrow medical needs, rather than on disability facilities and further that the Secretary of State was delegating its responsibilities to the Healthcare Unit. The Secretary of State submits that the letter of 17 January was a medical response, because the Claimant's request was based largely on medical matters only.

In the 16 January 2009 detention review the authorising Inspector at CCD noted:

"It would appear that we have virtually no chance of being able to effect this man’s deportation to Iran. Our one remaining hope of securing his co-operation is the threat of s.35 action, but it does not appear to have persuaded him so far. Maintain detention until the deadline for a response is reached (2 days hence) then assess the likelihood of us actually being able to pursue to a prosecution, and review again in that light"

In the next detention review of February 2009, there was reference to the 5 January request for temporary admission. Despite the reference there to his disability and medical condition and despite the reply of 17 January, it was again stated that there were no "compassionate circumstances". Further, in a note to the Deputy Director, the SEO commented:

“Deputy director, this is a difficult case. Essentially our ability to obtain an ETD hinges on whether or not the subject will comply with the process. So far he has refused to do so, even in the face of possible prosecution. The subject is .... is adamant that he does not wish to return to Iran. We will continue to pursue a prosecution and also try to persuade him to co-operate.”

The Deputy Director authorised continued detention, commenting "Removal would be in prospect if we can increase compliance". The Claimant submits, however, that there was no reason to believe that compliance could be increased. Thereafter, subsequent detention reviews did not continue to voice these concerns or difficulties.

An appointment at the limb fitting centre was made for 3 March 2009, but the Claimant refused to attend, because security staff insisted that he should be handcuffed throughout the transport to the centre. In a medical note of 25 March 2009, it was noted that, since the matter was important, he should attend the limb fitting centre "whether handcuffed or not". The Secretary of State submits that this shows that every effort was being made to get the Claimant to the limb fitting centre and that the Claimant should have gone, even if handcuffed. He had been given every chance to go and the only reason he had not gone was because of his own, unreasonable, refusal to be handcuffed. There was no medical evidence to show that handcuffing caused him significant problems, and it was not unreasonable to insist that he should be handcuffed. On the other hand, the Claimant contends that that the medical note shows that attendance at the limb fitting centre was a priority and that there was no reason for him to be handcuffed, and that none had been offered. The prison doctor at Elmley had recognised difficulties of being handcuffed. No consideration had been given to the effect of handcuffing throughout transport on the Claimant with his disability. It caused him considerable discomfort.

I find the Claimant's arguments on the need for handcuffing more compelling, not least because I consider that in the case of a disabled detainee, handcuffing should be specifically justified in each case. Yet there is no evidence that there was specific justification in the case of the Claimant. This conclusion is supported by the observations of HM Inspectorate of Prisons on this issue: see paragraph 126 below.

On 30 March 2009, the case was referred to the Section 35 prosecution team, and on 17 April 2009, the Claimant was taken to Dover IRC for the purposes of a s.35 interview. However Dover IRC refused to accept the Claimant due to his medical needs

In the detention reviews of May 2009 and thereafter, continued detention was finally authorised on each occasion on the basis of a standard formula of words, referring simply to the presumption of release, and that that presumption was outweighed by the risk of offending and absconding.

On 19 May 2009 the Secretary of State sent another formal s.35 request, requiring him to attend at Dover IRC for interview. On 20 May 2009 the Claimant applied for support pursuant to s.4 Immigration and Asylum Act 1999. In this application he stated "I am an amputee and can manage most things as long as I am given first floor accommodation". On 29 May 2009 the Claimant wrote stating that he would not be able to attend the s.35 interview given his disabilities.

On 1 June 2009, the Claimant's solicitors submitted further representations to the Secretary of State under Article 8 ECHR. (These were subsequently rejected). On the same date, the Claimant himself wrote to Mr Turpin at CCD, seeking again temporary admission and complaining about difficulties he was encountering as a disabled person. As the Secretary of State points out, this complaint was confined to the floor layout at Harmondsworth.

On 4 June 2009, the Claimant attended the s.35 interview at Dover IRC, but failed to comply with the request to complete travel documents on the basis that he had a pending application to the European Court of Human Rights (which he had made a week earlier).

On 24 June 2009 the Claimant went to an appointment at the limb fitting centre. He had fallen in April and May and had been told to use crutches until he could be seen at the centre. The Claimant, in his witness statement, states that the security guards were very unpleasant, threatening and intimidating and he felt obliged to tell the prosthetist that the prosthetic limb was ok, when it was not.

In a letter dated 13 July 2009 and headed "Detention Centre Rule 35", Mr Turpin of CCD responded to a report dated 9 July 2009 relating to the Claimant's medical condition. He confirmed that detention had been reviewed and that detention would be maintained.

On 22 July 2009 the Claimant's then solicitors wrote seeking release "as conditions at the detention centre is not suitable for our client given his severe medical condition" and attached a report from a Dr Frank Arnold, a doctor specialising in wound healing. Dr Arnold had visited the Claimant at Harmondsworth. In his report dated 18 July 2009, Dr Arnold stated that it was clear he had been unable to obtain a satisfactory replacement prosthesis and referred to the Claimant's claims that, on 24 June 2009, the escorts had been obstructive at his limb fitting centre appointment. Dr Arnold suggested that these claims "could be confirmed or refuted by the prosthetist". The report did not reach any conclusions as to the impact of the Claimant's medical condition on his ability to cope with detention.

On 5 August 2009, Mr Turpin of CCD Leeds replied stating that the question of whether the Claimant was "medically fit to be detained" was a matter for the Healthcare Centre and that he was awaiting the decision of the Healthcare Centre on that question, in the light of Dr Arnold's report. Two days later Mr Turpin wrote to the Claimant's solicitors, enclosing a letter dated 6 August 2009 from Mr Marshall, the Healthcare Manager at Harmondsworth. In that letter, Mr Marshall indicated that a Dr Kamil considered that there was no reason why the Claimant could not remain in detention. The letter went on (responding to Dr Arnold's suggestion relating to the appointment on 24 June):

"We have spoken to the limb fitting centre who advised that the officers were at all times helpful and did not impede the limb fitting process at all. When Mr [E] left the limb fitting centre the last time the limb was fully functional and fitted"

I accept the Secretary of State's submission that this response provides clear independent rebuttal of the Claimant's allegations of harassment by the escorts at the limb fitting appointment on 24 June 2009. Dr Arnold's suggested question was asked by the Healthcare Centre and a clear answer was given.

The Claimant submits that the Secretary of State's response of 7 August (referring to Mr Marshall's letter) did not address the issues that it should have addressed, namely wider issues relating to the Claimant's disability and the impact of detention upon him, such as facilities, transport, bullying. Rather, the Claimant submits, it addressed the narrower issue, arising under Rule 35 of the Detention Centre Rules, of whether the Claimant was "medically fit" to be detained. However, the letter of 22 July 2009 was based on the report of Dr Arnold and that report of Dr Arnold does not deal with these wider issues relating to disability. It was for this reason that Mr Marshall's letter addressed the narrower issue of medical fitness. In my judgment, in this particular instance, I do not think that Mr Marshall or Mr Turpin can be justifiably criticised for considering only the narrow issue of "medical fitness to be detained"

A further s.35 interview, arranged for 13 August 2009, did not take place as the Claimant refused to leave Harmondsworth. Mr Huw Davies of the UKBA in his witness statement, records that the Claimant refused because he was not prepared to wear handcuffs. In the light of this refusal, in the August 2009 detention review, it was decided to chase the prosecution team regarding a s.35 prosecution and the Assistant Director in his authorising comments stated "Please find out what the prosecutions team intend to do next". Then on 21 September 2009 all s.35 action was suspended, pending the Claimant's application to the ECtHR.

On about 18 September 2009, the Claimant met with Mr Wardop, the head of central services and the deputy centre manager at Harmondsworth and Mr Marshall of Healthcare to discuss the Claimant's ongoing concerns relating, in particular, to his artificial limb, and other health issues, including skin and respiratory difficulties. According to Mr Wardop's written response to the Claimant, he had seen doctors 13 times since arrival and that the Claimant had stated that the level of service in the Healthcare Centre was fantastic. The response continued:

"Mr Marshall and medical practitioners have been asked whether there are any medical conditions which would preclude you from being held in detention. At this point ... these issues are not life threatening or so debilitating that the Centre could not continue to provide adequate medical support. Any medical prognosis on your suitability for detention is only one part of the decision process and the final arbiter to either continue detention or release sits with the Authority and not the Centre"

In my judgment this shows that as far as Healthcare at Harmondsworth was concerned, fitness to detain referred solely to medical issues and demonstrates what the clinicians understood by the notion of "fitness to detain". The Claimant accepts that, at this point in time, he was not complaining that the facilities or bullying at Harmondsworth raised disability issues. However it is said, and I accept, that this evidence does support the view that when, later, the Secretary of State is considering the issue of "fitness to detain", she too is considering these medical issues.

On 22 October 2009 the Claimant refused to attend a further appointment at the limb fitting centre at Gillingham because, he says, security guards initially sought to insist that he travel almost 2 hours in double handcuffs. Mr Wardop, the detention centre manager, eventually agreed that he could travel without handcuffs. However, the Claimant says that by that time it was too late to travel to make the appointment in time. A contemporaneous note made at Harmondsworth broadly confirms this account, although it seeks to suggest that it was the Claimant himself who had decided that it was too late to travel, when it might not have been. In his witness statement, the Claimant says this incident was all part of attitude of guards and security staff to strip him of all dignity. There was no need to handcuff a man with one leg on crutches and the refusal to adjust practices seemed design to humiliate him. He describes the pain of long travel with only one buttock.

In the October 2009 detention review, it was stated that "timescales for obtaining a travel document are not known at this time". On 16 October 2009 CCD advised that s.35 prosecution action should proceed, despite the application to ECtHR.

On 29 October 2009, there was an attempt to transfer the Claimant to Dover IRC. But when he arrived there, Dover IRC would not accept the Claimant because it could not meet his disability needs. In his witness statement, the Claimant says that the reason for the move was because there was a problem with the lifts at Harmondsworth. He says that on arrival he had to wait several hours in the van, and during that time, had to urinate in a bottle in front of the guards. He was then sent back to Harmondsworth. In total he spent around 14 hours in a van, in great discomfort and pain, for no purpose. This account is broadly corroborated by the CID computer records of the event. The transfer was not cancelled "due to transportation problems" (as suggested by the Secretary of State in opposing a bail application in November). The Claimant says that on his return he had to go to the doctor in the Healthcare Centre to deal with symptoms arising from having been confined in the van.

On 8 November 2009, the Secretary of State attempted to move the Claimant to Haslar IRC. As was explained to the Claimant at the time, Haslar IRC is all on one level and so, it was thought, would be more suitable for the Claimant. But the Claimant refused to go, because at the time he was unwell, due, he says, to his experience of the attempted transfer to Dover IRC which "had taken place a couple of days previously". In fact the Dover transfer had taken place 10 days earlier. For that reason, I do not find the Claimant's account here convincing. The Secretary of State submits that this attempted transfer clearly shows that due regard was being given to the Claimant's disability and that he never came back and asked to be moved to Haslar.

On 9 November 2009, the Claimant's new solicitors, Pierce Glynn, wrote a letter before action, addressed to Mr Turpin at CCD, seeking the release of the Claimant from detention - on grounds of medical unfitness to be detained and complained, for the first time, that elements of the Secretary of State’s treatment of the Claimant were in breach of the DDA. The letter referred to severe difficulties moving around the detention centre exacerbated by long periods being left without a prosthetic limb. This in turn had been caused by detention staff insisting that he be transported in handcuffs. On 11 November 2009, CCD Leeds wrote to the Healthcare Manager at Harmondsworth, asking for up to date medical information about the Claimant's condition and his medication and asking for confirmation that the Claimant was "medically fit to be detained". The Secretary of State did not consider or ask questions about wider disability issues. The Healthcare manager responded the next day by letter confirming that the Claimant remained fit for detention until the hospital say otherwise and that he had missed some of his medical appointments because he had refused to go to them. Then, on 19 November 2009, the Secretary of State responded to the Claimant's letter before action, stating that his continued detention was lawful, despite his medical condition, largely on the basis of the risk of public harm from re-offending. As to medical issues, the Secretary of State relied upon the Healthcare manager's letter of 12 November confirming that the Claimant remained fit for detention and also referred to refusals to attend appointments on 3 March and 22 October, and to his refusal to be moved to Haslar. The detention review of the next day similarly recorded that "there is no indication from Healthcare that the subject is not fit for detention".

Also on 19 November 2009, the Claimant applied for, and was refused, bail by the AIT. The immigration judge was not satisfied that the Claimant would surrender and considered that his disability did not mean that he would not abscond. I find that, in making its representations on bail, the Secretary of State did not give a fair account of the attempted move to Dover IRC (see paragraph 105 above).

By letter dated sometime in November 2009, Mr Wardop, the centre manager at Harmondsworth, wrote to the Claimant's former solicitors that the Claimant’s disability had at times proved to be an encumbrance to his ability to participate and that he had found detention troublesome at times which had led to outbursts of frustration. Both the staff and the Claimant had endeavoured to accommodate such outbursts and manage his expectations. "Whilst I fully empathise with his predicament and the additional difficulties his injuries and health are causing him, the decision [to release or detain] rests with the UKBA". In this way, management at Harmondsworth here suggests that detention was a matter for the UKBA. On the other hand, as appears from above, UKBA itself appeared to suggest that the Claimant's detention was a matter for Healthcare at Harmondsworth.

By December 2009 the Claimant had been detained for two years. In the detention review of 18 December 2009, the assistant director authorising continued detention wrote:

"I have considered this case very carefully given the length of detention, the serious medical conditions, the incidence and nature of the offences and the likelihood of removal within a reasonable timescale. I have also taken advice from colleagues at DSPU and borne in mind that we should balance all the relevant factors. Moreover, the fact that we have not been told by Healthcare that the subject is unfit for detention does not mean that we should act any differently in relation to our obligations under Chapter 55 of the EIG.

I am satisfied that detention should be maintained on account of the risks that currently outweigh the presumption of release but wish to discuss with the caseowner with a view to submitting a referral to the Strategic Director." (emphasis added)

The Claimant submits that the italicised sentence shows that the Secretary of State took the line that once the Claimant was assessed as medically fit for detention, there was no further need for consideration of disability issues. The meaning of that sentence, and in particular the reference to Chapter 55, is not entirely clear. Chapter 55 may be a reference either to the whole of Chapter 55 or just the disability provisions of Ch 55.10. Secondly, the use of the double negative in that sentence makes it particularly difficult to understand what is being said. Nevertheless, if, as seems more likely, the reference is to Chapter 55 as a whole, then it does appear that the assistant director is saying, implicitly, that the disability inquiry stops at the issue of medical fitness to be detained, despite the fact that by that time Pierce Glynn had raised with Mr Turpin the wider issues relating to disability.

On 29 December 2009 CCD Leeds, following up on the medical report from Dr Arnold on 18 July made a further inquiry of the Healthcare manager at Harmondsworth as to whether the Claimant was fit to be detained.

On 5 January 2010, Dr Bhatia, a consultant rheumatologist at the Hillingdon Hospital NHS trust wrote a report, addressed to Pierce Glynn, explaining the Claimant's condition and symptoms of systemic sclerosis, that he suffered shortness of breath on exertion, so that "being in detention is not helpful, particularly if he was required to walk long distances, for example to the bathroom or to collect his meals ...also being in an closed environment with others meant that he was more likely to get chest infections."

On 7 January 2010 the UKBA's Strategic Director was reported as saying that detention should be maintained as there was a high risk of re-offending and release would effectively prevent removal. The Strategic Director was concerned by the progress of the prosecution and the S.35 team were asked to treat the case as a matter of urgency.

In or around 27 January 2010, the Claimant became involved in a dispute with another detainee at Harmondsworth. It was this incident which led to the Claimant being moved from Harmondsworth to other IRCs. Drugs were found in the Claimant's room. There are differing accounts of what happened. The Claimant claims that the drugs were planted in his room by a detainee with whom he was in dispute about some money. He says that at the time he was not involved in heroin. He was disciplined for this, but the police decided to take no action. He was placed in an isolation wing, where he could not urinate or defecate. The Secretary of State relies upon this incident as evidence that the Claimant was disruptive and submits that the Claimant's allegation of "planting" should not be believed.

On 29 January 2010, the Claimant was moved to Campsfield IRC in Oxfordshire. According to Mr Davies, the reason for his transfer was that he had been persistently physically and verbally aggressive and had made threats to other detainees at Harmondsworth. It is common ground that Campsfield did not have adequate facilities. The Claimant says he was placed in a shared room with no access to disabled toilet facilities or washing facilities. He was moved but only after his solicitors complained by letter to the Secretary of State of flagrant breach of the DDA. (There is a suggestion in a document that consideration was given to returning the Claimant to Harmondsworth at that time, but I am not satisfied on the evidence that that was considered at the time.)

So on 1 February 2010 the Claimant was taken to Colnbrook IRC (which is nearby to Harmondsworth). However the Claimant says that, again, there were no adequate disabled toilet facilities for him there. By letter dated 2 February 2010, Pierce Glynn complained again to the Secretary of State of further breach of the DDA, describing, graphically, the problems caused by inadequate toilet facilities for a man with only one buttock.

In the early hours of 3 February 2010, the Claimant was transferred again to Brook House IRC, near Gatwick. He was not put in a disabled person's room. Then, under threat of a letter before claim from Pierce Glynn of the same date, the Claimant was moved into what was described as a disabled person’s room.

In summary, the Claimant says that Brook House did not know what to do with the Claimant. They had never seen a detainee like him before. The Claimant maintains that conditions for him as a disabled person were inadequate, even in the so-called disabled person’s room into which he was moved. This room was not suitable for someone with his disabilities. It was a shared room. The toilet and shower facilities were shared and in the room. The toilet had no seat and the shower was unusable, as the water flooded the rest of the room. The room was on the ground floor, and all main facilities (including healthcare and leisure) were on the first floor. He had to go to Healthcare four times a day, up metal stairs on crutches, to get the strong painkillers to deal with his condition. He could not get up those stairs. There were no bath facilities for disabled persons. In a detailed witness statement of 24 February 2010, the Claimant described in great detail the many difficulties he had encountered in his first three weeks at Brook House, including not washing for considerable periods and soiling himself when he tried to use the toilet facilities. He also referred to being subject to bullying by other detainees and an unhelpful attitude from officers.

On 4 February 2010, Pierce Glynn wrote to Mr Turpin at CCD, complaining of the lack of bathing facilities and the fact that facilities were on second floor up metal stairs he cannot negotiate. That letter does state that the Claimant did have access to disabled toilet facilities. The Secretary of State submitted that this demonstrates that the toilet issue had been resolved. In that letter of 4 February 2010, Pierce Glynn requested that by 8 February the Claimant should either be moved to accommodation with adequate facilities or alternatively be released.

On 12 February 2010, the Claimant told the Healthcare unit that he was unable to attend an ETD interview on 16 February because he had not been able to bathe for the last three weeks. On the same day, 9 days after his arrival, he was still in the shared room. Despite claims by the Secretary of State that the toilet issue had been resolved within a day, a report by the clinic nurse, recorded that they were in the process of procuring a raised toilet seat, that he was unable to wash or bathe, because of water spills and that the facilities department were looking at providing a screen for the shower. The nurse told him that he would write a letter to confirm that they were attempting to rectify the situation in order to provide him with a more suitable environment. Then on 16 February 2010, the same nurse reported an incident where the Claimant had fallen in his room whilst attempting to shower, as the Claimant had predicted would happen. The nurse recorded that they were awaiting items and aids that would make his stay safer and more comfortable.

In my judgment, these reports from the clinic nurse provide independent corroborative evidence that at the time the facilities available to the Claimant at Brook House did not meet his needs as a disabled person. In the CID case record sheet for April 2010 maintained on the UKBA's database, someone from Brook House reported that in February Healthcare had been in talks with “facilities” to provide easier access but Healthcare believed that the Claimant's needs were not being met. By February 2010 Healthcare at Brook House believed that the Claimant's disability needs were not being met.

On 16 February 2010, the Claimant was interviewed at Dover IRC. Again, he refused to comply or to complete ETD forms. On 24 February 2010, the Secretary of State sent yet another formal s.35 request. Meanwhile on 23 February 2010 the Claimant fell down the stairs at Brook House and hurt his ankle. This made getting around on crutches even more difficult.

The Claimant commenced these judicial review proceedings on 26 February 2010. In his first witness statement, the Claimant offered to submit to reporting requirements and to electronic tagging. On 2 March 2010 the Claimant was interviewed at Dover IRC by the s.35 prosecution team. He refused to comply or complete ETD forms. On 9 March 2010 the Claimant was advised by s.35 prosecution team that the case would now be fully assessed for prosecution action

On 18 March 2010 the clinic nurse recorded that the Claimant had informed her that the new raised toilet seat was less stable that using the normal toilet. On 22 March 2010 Mr Turpin claims that there was a further incident of disruption, in which the Claimant was said to be a ringleader. The Claimant's account of the incident was that he was the victim of bullying by another detainee. On 31 March 2010 the clinic nurse recorded that the Claimant slipped in the shower and banged his head. (This was a different problem from the earlier problem of slipping after showering).

Observations in reports from HM Inspectorate of Prisons tend to support, at a general level, the Claimant's experience at Brook House. First, in a thematic report on prisoners with a disability dated March 2009, it was reported that prisoners with a disability had a worse experience on transfer, arrival and during the first few days after arrival. Individual needs were mainly dealt with as they arose. More specifically, on 15 to 19 March 2010 HM Chief Inspector of Prisons conducted a full announced inspection of Brook House. Her report of that visit did not paint a favourable picture of conditions within Brook House. She referred to inappropriate use of handcuffs, a high use of force, problems with bullying and a high level of frustration and fear of aggressive behaviour amongst detainees. She went on to criticise specifically the use of handcuffs for medical escorts for two detainees with disabilities - one of whom, it is agreed, was the Claimant. She recommended that "Detainees should only be handcuffed where there is specific information indicating substantial risk". Addressing diversity specifically, she found that issues of disability had not been adequately addressed. She did refer to the Claimant's room conditions which, by the time of the visit in mid-March, had improved somewhat. In conclusion, the report recommended that "detainees with disabilities should be identified and have their needs assessed at the earliest possible stage. There should be care plans for all disabled detainees". I refer in particular to paragraphs HE.4, 1.11, 1.16, 4.7, 4.41 and 4.49 to 4.50, 4.55 of the report.

The detention reviews for February to April 2010 make no reference at all to the substantial disability issues which arose at Brook House. In each of the three reviews, it is stated, as before, that "all known facts have been considered and there are no compassionate circumstances to prevent detention pursuant to the deportation plan". This is a surprising statement. It is accepted that the CCD in Leeds would have been aware of the April GCID report from Brook House and of Pierce Glynn's letters of February. The conclusion I draw from this is that those conducting the detention reviews at the time were either ignoring or failed to have regard to the disability issues which by that time had plainly arisen.

On 8 April 2010 the Claimant attended an interview with staff at Brook House and with G4S security, raising issues about the suitability of Brook House given his disability, including showering facilities. Despite Healthcare's attempts to assist in February, the Brook House report, again recorded in the GCID Case Record sheet, states that he still believed his needs were not being met. The CCD team responsible for Brook House responded internally that the Claimant's medical needs were a matter for detention services and/or healthcare and not a matter for the CCD team. The GCID Case Record sheet of April 2010 is a document which UKBA could reasonably have been expected to have seen at the time. The Secretary of State, in argument, accepted that the UKBA (and CCD in particular) knew or at least had notice of the matters recorded in that document.

On 21 April 2010, the Claimant was taken to the limb fitting centre without handcuffs and his prosthetic limb was fixed. On 11 May 2010 the doctor at Brook House reported that the Claimant was continuing to experience difficulties with showering.

According to Mr Davies' evidence, on 12 May 2010 the Claimant was involved in an altercation with another Iranian detainee. The incident report stated that the Claimant had raised his crutch as if to use as a weapon. On 17 May 2010 it is said that the Claimant threatened and tried to attack another inmate. The Claimant says that it was he who was being bullied by other detainees.

On 20 and 21 May 2010 the Claimant appears to have been involved in incidents with another Iranian detainee, A, at Brook House. According to Mr Davies' statement, the Claimant made an allegation of sexual assault by A. A denied this and made a counter allegation of bullying and threatening behaviour by the Claimant. The Claimant was removed from association. Subsequent investigation found that there was no truth in the Claimant's allegations and the police did not press any charges. When removed from association, the Claimant was abusive and banged his door. The contemporaneous incident report suggests that other detainees said that the Claimant should not be allowed to return to general association, as harm might come to him due to the allegation that he had made against A and the fact that the other detainees had sided with A. Nothing in this report indicates one way or the other who of A and the Claimant was at fault. I note that the duty operations manager's comments were that the Claimant has been removed from association pending a possible transfer for his own protection. The Secretary of State's position is that this was likely to be another example of the Claimant's disruptive and aggressive behaviour. The Claimant said that it was A who should have been removed from association and produced a letter of evidence to support his account.

On the next day, 22 May 2010, the Claimant was transferred again to Colnbrook IRC. Colnbrook had said, in February, that it could not take the Claimant. The Claimant says that he was moved for his own safety. The Secretary of State maintains that it was not so straightforward and that he was moved because of his continuing abusive and aggressive behaviour following his removal from association within Brook House

Upon arrival at Colnbrook, the Secretary of State says that the Claimant was provided with a toilet and a shower and such assistance as he required. Mr Sahni's evidence, for the Secretary of State, was that they moved urgently and sorted things out as soon as reasonably possible. He stated that, on arrival, the Claimant was put into a holding facility which had a built-in toilet and shower. The toilet seat was lower than normal. He was in that facility until 24 May 2010.

The Claimant said, in his application for bail, that he was alone in a small cell, locked up for 23 hours a day with no washing facilities and no toilet. He had to urinate in a sink and could not defecate. Sue Willman said in her witness statement that when she called Colnbrook on 23 May 2010, she was told by a manager that the accommodation at Colnbrook was unsuitable for the Claimant and that he was offering the Claimant access to washing and toilet facilities in the Healthcare Unit so that he could defecate. Due to a shortage of space he could not be moved to another part of the centre. In my judgment, the manager's evidence, relayed by Ms Willman, whose earlier evidence had been commended by Simon J, provides independent corroboration of the unsuitable conditions at Colnbrook.

On 24 May 2010 Pierce Glynn wrote again, complaining of the fact that it had been the Claimant who had been moved. Colnbrook was unsuitable - not least because the Claimant had previously been moved from Colnbrook because it was not suitable for disabled persons. On 25 May 2010 the Claimant applied for interim relief, on the basis that the absence of toilet and shower facilities at Colnbrook meant that he could not maintain his human dignity. On 26 May the Claimant was moved within Colnbrook to accommodation suitable for wheel chair users. Mr Sahni says this was suitable for the Claimant. On 27 May Sue Willman visited and said that the only significant difference in the new cell was that there was one wall handle next to the toilet. The toilet was still low and the Claimant could not sit on it. There were no handles on the bed to enable him to lever himself up. Most of facilities were two flights up and the Claimant could not manage the stairs at all easily.

On 28 May Simon J ordered that the Claimant be released on condition that he was to live and sleep at Barry House, that he should be fitted with a tag, made subject to a night time curfew and report to Dulwich police station once a week. In granting bail, Simon J indicated sympathy with the Secretary of State's position towards the Claimant generally and considered that the Claimant had no substantial complaint other than being disabled. In concluding that the balance came down in favour of bail subject to conditions, the learned judge said:

"Despite my grave misgivings as to what the claimant has been getting up to and how he has been manoeuvring himself to get out of appropriate detention, it seems to me that it is right to approach this case on the basis of due regard to his disability. The difficulty is acknowledged in providing proper accommodation for a man with his disability, but I also bear in mind the possibility of dealing with the Secretary of State's serious concerns in relation to absconding and reoffending."

Since his release, the Claimant has complied with the strict conditions of his release. He was initially released to Barry House, but then had to move. With the Secretary of State's agreement, he moved first to stay with a friend in Southend, and then into local authority accommodation with support. He has reported as required.

First, the Claimant submits that, having regard to Hardial Singh principles (and disregarding disability issues), his detention became unlawful certainly by 20 November 2008. As to risk of reoffending, his past offending had been serious, but was not at the highest end of the scale. The only risk assessment relied upon was out of date and did not take account of the fact that the Claimant had become drug free. Further, the Claimant represented no particularly high risk of absconding. He had no intention of absconding and no history of failing to comply with reporting requirements. Given his medical condition he would have difficulty in absconding. Most particularly, by November 2008, and as expressly recognised in the 20 November 2008 detention review, there was no realistic prospect of the Claimant being removed to Iran, not only because of the Claimant's non-cooperation but also due to the problems with removals to Iran in general. Even if he had signed the disclaimer, the prospects of removal to Iran in general were too remote. In any event, non-cooperation does not render detention lawful for all time. By that time, an impasse had been reached. Unlike the position in MH or NAB, there was no evidence to suggest that Claimant would change his mind.

Secondly, if that point of impasse had not been reached by November 2008, it had certainly been reached by subsequent dates, in particular January or February or June or August in 2009.

Thirdly, and alternatively, the Secretary of State failed properly to have due regard to the impact of detention upon disabled prisoners, and upon the Claimant in particular. The Secretary of State was in breach of disability duties under s.49A and s.21B DDA. She failed to consider, in general, the position of disabled detainees as regards issues of facilities, medication and harassment. Merely considering whether the Claimant was fit to be detained was not sufficient. The Secretary of State failed to consider whether adjustments could be made to the practice of detention for periods of time and whether there were alternatives to detention. In addressing whether the Claimant was "medically fit to be detained", she asked herself the wrong question. Moreover, no consideration to disability issues was given in detention reviews, particularly from January 2010 onwards. The Claimant submits that these breaches rendered the Claimant's detention unlawful because (a) on the WL (Congo) approach, the Secretary of State cannot show that the Claimant would inevitably have been detained, even if she had complied with her policy and/or duties under the DDA; or (b) applying the Hardial Singh balancing approach, the impact of the detention upon the Claimant and his particular disability rendered continued detention unreasonable sooner than it would otherwise have been. Accordingly, the detention became unlawful in early 2010 when the Claimant was subject to repeated transfers or alternatively by the end of February, by which time he had moved to Brook House or alternatively by 22 May 2010, when he was encountering further difficulties at Colnbrook. The Claimant further seeks declarations of breaches of ss.21 and 49A and damages for breach of s.21B. The Claimant accepts that there is no claim for damages for breach of s.49A.

The Secretary of State submits that the Claimant's detention was, at all material times, lawful. First, applying Hardial Singh principles, and disregarding disability issues, detention in this case was clearly lawful and did not even approach a period which might be considered to be unreasonably long. There was a substantial risk of absconding and re-offending, the Claimant pursued unmeritorious legal action and the only obstacle to removal was the Claimant's own refusal to return and his refusal to accept the order for deportation. On this basis, and since there was no substantial disability issues until the Claimant left Harmondsworth at the end of January 2009, on any view, detention until that time was lawful. Secondly, the Secretary of State did not act in breach of the policy in Ch 55.10 of EIG as regards detaining the Claimant as a disabled person. Thirdly, the DDA adds nothing to Hardial Singh principles. In any event, on the facts, the Secretary of State had due regard to the Claimant's disability at all material times, whether the Claimant was at Elmley, Harmondsworth or subsequently. The difficulties encountered by the Claimant from January 2010 onwards after leaving Harmondsworth, both in moving and at subsequent detention centres were temporary, resolved and were in large part brought about by the Claimant's own disruptive behaviour and his refusal to go to Haslar IRC. There was no breach of s.49A nor of s.21B DDA.

I deal first with the position under Hardial Singh principles generally, leaving aside disability issues and then turn to address disability issues and their effect on the overall position. I look at each of the relevant considerations in the round, identifying where appropriate the changing position over time. In my conclusions below, I then assess legality of detention at various specific points in time identified by the Claimant.

Assessment under Hardial Singh principles

There are two two essential questions when assessing, at any particular point in time, whether detention remains lawful: first, is the period already spent in detention unreasonable and secondly, if not, is there a sufficient prospect of removal within a reasonable time? I deal with each of the main factors to be weighed in the Hardial Singh balance in turn.

In my judgment, the Claimant did present a reasonably high risk of absconding throughout the relevant period. I accept that he had no substantial record of failure to surrender to custody or breach of licence terms. It appears that there had been two isolated instances of breach of bail, 14 years apart (see paragraph 52 above). I also accept that, because of his disability, if released, he would have been dependent on health services and benefits, and this would have made it likely that he would have to have been in contact with public services and thus traceable. On the other hand, this would not necessarily mean that the UKBA would be aware of his whereabouts. He had been refused bail on a number of occasions. The fact that his offending history was for offences of dishonesty is also a factor, albeit relatively minor, in increasing the risk of absconding. Whilst I accept that since his release in June 2010 he has fully complied with his conditions of release, I do not think that this sheds much light, one way or the other, on whether he would have complied with any such conditions at earlier stages: see MH per Sales J at §§105-106. As the Secretary of State points out, given his outstanding claims in these proceedings, the Claimant has had an incentive to comply with his conditions of release.

However, it is the Claimant's persistent and resolute refusal to be removed to Iran (and to cooperate with the removal process) which provides the strongest evidence that the risk of absconding was reasonably high throughout the period. I consider that that refusal indicates that, if released at any time between November 2008 and June 2010, there was a real risk that the Claimant would have gone to ground so as to continue to frustrate his removal.

First, although the Claimant had a substantial record of offending, his offending behaviour was essentially confined to, in the main, offences of dishonesty and, to a lesser extent, to drugs and appears all to have been concerned with the drug habit which he had acquired since the end of his marriage. The Claimant has no record for offences of violence. His offending before the last offence was relatively minor and, in my judgment, did not, of itself suggest a serious risk of harm to the public. Secondly, by contrast, the offences for which he was convicted in August 2007 were serious drug offences, giving rise to harm to the public which was serious. They were not at the most serious end of the scale of public harm; this was not a case of violent or sexual offending, as in many of the cases where long periods of detention have been held to be justified. Thirdly, at the various times in question, there was no up-to-date risk assessment available by which to consider the Claimant's risk of reoffending. There was no reference at all to the risk of reoffending in the initial decision to detain the Claimant, and at a later stage, in August and September 2008, there was a conscious decision taken to support the decision to detain by referring to the volume of past offending, without consideration being given to the nature of those offences. The UKBA relied throughout on the OaSyS risk assessment within the PSR, carried out back in January 2007. The OaSyS analysis itself was based only on historical offending patterns and recognised that his offending had historically been driven by his drug habit. That OaSyS assessment within the PSR itself took no account of whether, going forward, he might remain free of drugs. Furthermore, after the PSR in January 2007, no further risk assessment was ever undertaken (by the UKBA or anyone else), and in particular there was no consideration of whether he was still drugs free. The Claimant claims to have been, since his imprisonment at HMP Elmley, free from non-prescription drugs. The Secretary of State accepts that there is no evidence that the Claimant is now using drugs. Although there is some, limited, suggestion of involvement with drugs whilst in detention, this is not proven on the evidence. There is no sufficient evidence to support a finding that during that time the Claimant's drug habit had revived.

If, as appears to be the case, the key element in the early finding of high risk of reoffending was drug dependency, then if he became drug free once in detention, then the Secretary of State should not have continued to rely upon the early assessment showing a high risk assessment without more or without further inquiry. The Secretary of State could not establish, at any time between November 2008 and June 2010 that in fact there remained a high risk of reoffending and of harm from such offending. On the material before me, I find that, at those various times, whilst there was some risk of harm from reoffending, it was, at most, a low to medium risk.

The Secretary of State contends that the Claimant engaged in persistent and repeated disruptive behaviour in the course of his imprisonment and then immigration detention. She goes on to submit that this supports her case that the Claimant presented a high risk of absconding and of re-offending; and further that the Claimant's problems during detention arising from his disability were largely of his own making. She relies upon Mr Davies' statement made shortly before the hearing of the substantive judicial review. (This point was not raised in her original Grounds of Defence). Mr Davies refers to a large number of incidents. The Claimant responded to these matters in his third witness statement of 17 November 2010. The main incidents have been addressed in the factual history above. The Secretary of State also refers to numerous other reported events at HMP Elmley, at Harmondsworth and at Brook House. I do not recite the detail here. Most, if not all of them appear to be relatively minor altercations, involving verbal abuse, aggressive behaviour and minor physical incidents. In response, the Claimant denies that he was a troublemaker whilst at Harmondsworth, pointing to the fact that he had been given three paid jobs whilst there.

I do not propose to make specific findings of fact in respect of each and every alleged incident of disruptive behaviour. In some cases, it does appear that the Claimant was responsible for the incident; in others there is insufficient evidence to ascribe fault. Overall I accept that the evidence as a whole indicates that the Claimant was at times a difficult detainee, using bad language, and engaging in disruptive behaviour. Even though many of the individual incidents were relatively minor, overall there was a build up of a pattern of disruptive behaviour and this persistent conduct indicated that he was difficult to manage. Nevertheless I accept that this behaviour can be explained, at least in part, (even if not necessarily excused) by the combination of the Claimant's serious disability and the indefinite nature of his detention. Some of his disruptive behaviour can be put down to understandable frustration. I also accept that the Claimant's complaints from time to time about disability issues, in turn caused the detention centres to perceive him as a troublemaker, thereby increasing the tension and frustration. Of course it is right that the indeterminacy of his detention was of his own making or at least that he could have improved his position by co-operating with the ETD process. He undoubtedly had very strong feelings about being returned to a country where he had no lived for 30 years, but he had no legitimate basis for challenging the correctness of the decision to deport him. To this extent, I accept the Secretary of State's case that the Claimant was disruptive.

But, even if the Claimant was responsible for reprehensible conduct, I am not satisfied that this is substantially material to the issues which fall for decision. First, I do not accept that misbehaviour whilst detained is indicative of misconduct upon release, by way of increasing risk either of re-offending or of absconding. The Claimant did not try to escape from detention, he did not commit any serious offences whilst in detention, and - most significantly given his history of offending - there is little, if any, evidence that he was involved with drugs whilst detained. Secondly, misconduct by the Claimant in detention does not justify or excuse any failure on the Secretary of State's part to have due regard to disability issues, either generally or under s.49A. It might explain why the Secretary of State was required at times, to act on the spur of the moment, but it does not justify or excuse failures, on the part of the Secretary of State, to plan or assess in advance, nor spending weeks to arrange showering or toileting facilities. I do not accept the Secretary of State's submission that the problems related to disability facilities that the Claimant encountered within the immigration estate were of his own making.

There are two aspects: the Claimant's own failure to co-operate and the likelihood of removal to Iran in any event,

The first issue is at the heart of the dispute.  Throughout the relevant period, the Claimant has consistently refused to sign the disclaimer form required by the Iranian authorities. Whilst at times he has given information for the purpose of the bio-data form, he has also consistently refused to have his photographs and fingerprints taken. His stance throughout has been that he is not willing to return to Iran and that he will not cooperate with the removal process. The Claimant submits that this establishes that there was, at the relevant times, no realistic prospect of removal within a reasonable time, and, applying Hardial Singh, detention was not lawful. (In fact, given the Claimant's refusal from the outset, the logic of the Claimant's position might be that detention was never lawful; although the Claimant disavows any such argument). The Secretary of State submits, to the contrary, that the refusal to co-operate was the sole cause of non-removal and that it is a very strong factor in favour of the legality of detention. Further, as a matter of policy, a detainee should not be able to defeat the process of deportation and procure release, by his own failure to co-operate: see Sales J in MH §93.

The high water mark of the Claimant's case here is its reliance upon the decision of Foskett J in Rostami. However, I do not think that, ultimately, Rostami assists the Claimant. I make the following observations. First, it is distinguishable on the facts. In substance, the claimant there was a failed asylum-seeker, and not a foreign national prisoner. There was no risk of harm to the public from re-offending. Secondly, Foskett J's analysis was not based on the up-to-date statement of the law to be found in A (Somalia) (as now supported by WL(Congo) and MH). Thirdly, and in any event, Foskett J ruled only that a period of 34 months was unreasonable on the facts of that case. He accepted that, even in that case, the Secretary of State would have had a "good while" before detention became unlawful. The Claimant also places reliance upon NAB. But on the facts there, the judge only found detention unlawful after a total of 51 months.

In my judgment, refusal to co-operate with the ETD process cannot, of itself, be a reason to detain pending deportation. There must be other reasons justifying detention, such as risks of absconding and harm from reoffending. To the extent that certain of the letters, detention reviews and s.35 requests might be said to indicate that the reason for continued detention was the refusal to co-operate, then that would not be a proper approach.

On the basis of the approach, adopted in HY and MH and set out in paragraph 35 above, at each relevant stage, I consider whether there is a sufficient prospect of removal, when considered with all other relevant factors, and in particular whether the time has been reached when other factors favouring release outweigh the refusal to cooperate and other factors favouring detention. In general, whilst certain detention reviews, most notably the November 2008 review, do express the view that there is no prospect of removal, that does not necessarily mean that this will always be the position. In my judgment, a blanket refusal to co-operate at any particular point in time does not necessarily mean that the detainee will always refuse. There might well be a reasonable hope or expectation that the Claimant will co-operate in the future. The issue is whether there is a future prospect of a change in the mind from the Claimant.

The Claimant says, additionally, that the refusal to co-operate was not the sole cause of his non-removal. Even if he had co-operated with the ETD process, he would not have been removed to Iran (a) because the copy of his passport was not certified and (b) because very few applications for ETDs were being granted by the Iranian authorities. On this issue, I have found that (a) absence of a certified copy document would have made removal more difficult, but not impossible and (b) up until mid 2009 there was some prospect of a successful ETD application, and from mid 2009 to mid 2010 that prospect was reduced, albeit it was more than minimal.

As regards the pursuit of unmeritorious appeals, although formally raised, the Secretary of State did not place much emphasis on this point. In my judgment, it does not add anything specific to the balance of factors in this case, one way or the other. Even if it were appropriate to discount a period for the course of those appeals, that would not alter my assessment, in the conclusions below, of matters, either before or after the main disability issues came to the fore.

The Claimant suggests further that the Secretary of State did not take sufficient steps to seek to bring about removal. In particular, the Secretary of State was dilatory in not taking action under s.35 and did not prosecute the Claimant for his failure to comply with numerous s.35 requests for co-operation, a course which was open to her. I accept that, despite repeated references to the s.35 prosecution team, the UKBA was slow to take action under s.35. However, it is by no means certain that such action would have induced the Claimant to co-operate with the ETD process. Mr. Armstrong pointed to the fact that the maximum penalty for a conviction under s.35 is two years. I do not consider that this has any particular relevance to the reasonableness of the period of detention here. In any event, it is most unlikely that such a penalty would have been imposed on a first or even second conviction. I note that in Rostami there were repeat prosecutions under s.35 (and to little avail) and the penalties imposed were relatively low.

Disability

In my conclusions below, I assess, at each relevant point in time, the particular effect of issues relating to the Claimant's disability on the lawfulness of the Claimant's detention. At this stage, I consider certain disability issues more generally.

First, as to "fitness to be detained", I accept that there is a distinction to be drawn between the issue of whether the Claimant was medically fit to be detained and the wider issue of the effect of the Claimant's disability upon his experience of immigration detention. The former relates to an imminent threat to health, whilst the latter covers other aspects, such as increased distress, pressure, loss of privacy and dignity, and embarrassment. Further, I find that, when from time to time, the Healthcare team was asked to consider whether the Claimant was "fit to be detained", it was considering the narrower issue of his medical fitness for continued detention. This can be seen from letters of 6 August 2009, 18 September 2009 and 12 November 2009. This approach is to be expected, given the role of the Healthcare centre in an IRC and the terms of Rule 35. I think it most likely that it was this Rule 35 question of "injurious effect on health" that the Healthcare Centre was addressing, when matters were referred to it.

Further, and more significantly, on a number of occasions, the UKBA, when considering the Claimant's condition, was equally addressing this question of medical fitness to be detained. I refer to the letters of 17 January 2009, 5 and 7 August 2009 and 11 November 2009, the detention reviews of 20 November and 18 December 2009, and the reference to Rule 35 in the heading of the letter of 13 July 2009. Whilst on some occasions the UKBA was addressing medical fitness to be detained because that was the issue that the Claimant or his representatives had raised, on other occasions the issue raised was not so narrow, and encompassed wider disability issues. By responding on those occasions by reference only to "medical fitness", the UKBA was asking itself the wrong question.

Moreover, if and in so far as the UKBA was purporting to address wider disability issues, then in my judgment, by seeking to respond by reference to the views of the Healthcare centres on medical fitness, it was delegating, to others, issues which it should have addressed itself. I refer here to letter of 17 January 2009, and more importantly, to Mr Turpin's response of 19 November 2009 to Pierce Glynn's letter of 9 November 2009, which had raised unambiguously wider disability issues. Indeed the fact that the UKBA consistently referred these matters to the Healthcare centre in the IRCs suggests strongly that at all times it was in substance considering Rule 35 and narrower issues of medical fitness. On the other hand, the management at Harmondsworth recognised the distinction between the two types of issues, when, on more than occasion, it informed the Claimant that the effects of wider disability issues were a matter for the UKBA (see paragraphs 101 and 109 above).

Secondly, there is no reference at all in any of the detention reviews to the Claimant's disability, let alone any suggestion of consideration of the effect of that disability upon his detention. Rather, from May 2008 onwards, many, if not all, of the detention reviews stated, somewhat formulaicly, that there were "no compassionate circumstances to prevent detention pursuant to deportation action". Whilst this statement may well have been justified from time to time, the fact that it was included in reviews even in early 2010 (to which I turn below) do suggest that little, if any, specific attention was being given by the writers of those reviews to the Claimant's disability. The only possible reference to disability issues, in the December 2009 detention review itself, suggests that consideration was confined to the issue of medical fitness to be detained.

Thirdly, apart from the opaque reference to Chapter 55 in the December 2009 detention review, there is no evidence to suggest that the Secretary of State ever specifically considered Ch 55.10 of her own EIG as it applied to the Claimant as a disabled person.

Fourthly, turning specifically to the duty to have "due regard" under s.49A DDA, on the largely fact specific material before, me, it is not appropriate for me to make an assessment of the Secretary of State’s compliance or otherwise with the duty as regards the treatment of disabled persons in the detention estate in general. As regards the Claimant, I conclude, first that the correct question for the Secretary of State was to ask herself was "can this man's disability be satisfactorily managed in the detention estate?" That question would involve consideration of the broader impact of being disabled upon the Claimant's detention, as regards, facilities, transport and harassment by other detainees. Secondly, there is no evidence, either in contemporaneous documents or in witness statement form, that the Secretary of State did consider this question and certainly not in advance of issues which arose. Thirdly, the mere existence of the policy in Ch 55.10 EIG is not of itself sufficient to constitute compliance with the s.49A duty. Fourthly, as explained below, there was a breach of the s.49A duty vis-à-vis the Claimant, certainly from the end of November 2009 onwards. There may have a breach of s.49A duty earlier than that but I do not need to reach any final conclusion on that point. In general, in the context of detention and my conclusions below, I do not consider that any breach of the s.49A duty materially adds anything to the outcome of this case, particularly since the Secretary of State's failures vis-à-vis the Claimant relating to his disability fall to be considered in the Hardial Singh analysis in any event.

In my judgment, there has been no breach of any duty to make adjustments and, thus no indirect discrimination under s.21B (and 21D(2)) DDA, in the present case.

Here, the relevant "practice, policy or procedure" of the Secretary of State is the practice, policy etc of detaining persons pending deportation pursuant to the 1971 Act. I accept that, absent reasonable adjustment to that practice, that practice would make it unreasonably adverse for disabled persons (or perhaps even particular classes of disabled persons) to experience being subject to the detriment of detention to which persons were generally subject under the practice, pursuant to s.21E(1)(b). Thus the Secretary of State was, and is, under a duty, pursuant to s.21E(2), to make reasonable adjustments to change that practice so that it no longer has that effect on disabled persons or a particular class of disabled persons. It follows from Lunt and Roads (paragraph 45 above) that the words "that effect" in s.21E(2) refer back to the effect on disabled persons described in s.21E(1)(b) (and not to the effect on the individual disabled person described in s.21D(2)(a)(ii)). In my judgment, the Secretary of State has complied with the duty towards disabled persons to adjust her "practice, policy or procedure", by the provision made for disabled persons in Ch 55.10 EIG and by, in general, applying Hardial Singh principles to questions of detention. For this reason, I conclude that s.21D(2) is not engaged in the present case.

The Claimant suggested, eventually, that the relevant "practice, policy or procedure" here was “detention under Schedule 3 in accordance with Ch 55.10 EIG". However that cannot be correct, because if a policy so described is applied then it would not have an unreasonably adverse effect on disabled persons within the meaning of s.21E(1)(b). Moreover, a complaint that the Ch 55.10 policy was not applied, properly or at all, to the Claimant in this case does not fall within the ambit of indirect discrimination in s.21E. On that basis the argument would have to be that the relevant practice was "detaining without regard to the Ch 55.10 policy". But there is no evidence to suggest a general practice of disregarding the Ch 55.10 policy; and merely failing to apply the policy to an individual disabled detainee cannot be described as a "practice, policy or procedure" nor one which affects disabled persons or at least a class of disabled persons.

Mr Armstrong for the Claimant submits that I should apply the "causation analysis" from WL (Congo) to any failure on the part of the Secretary of State to apply Ch 55.10 and/or breach of s.49A DDA. Thus, he says that unless the Secretary of State can show that, even if she had paid proper regard to s.49A and Ch 55.10, the Claimant would "inevitably" have been detained, the Claimant's detention was necessarily unlawful. Mr Barnes submits that detention is unlawful only if, upon taking into account, at any particular time, breach of the policy or the DDA, along with all other factors, the Court would so rule, applying Hardial Singh principles.

In my judgment, whilst the distinction, drawn by Black LJ, between the "causation analysis" and "inevitability hurdle" drawn is not an easy one, the current position following the Court of Appeal judgments in Anam is that the legality of detention is to be determined by the application of Hardial Singh principles, where the breach of (or failure to apply) the policy in Ch 55.10 is to be taken into account, as one of the relevant factors. It is not necessary for the Secretary of State to show that, even if she properly applied the policy in Ch 55.10, the Claimant would "inevitably" have been detained. Further, in my judgment, the same analysis should be applied in considering the effect of a breach of the DDA (if any) upon the legality of detention.

Finally, however, in the context of this case in particular, it seems to me that this contested issue may be somewhat redundant. If the Secretary of State had applied Ch 55.10 properly or had had due regard under s.49A (or more correctly if I apply these considerations to the facts at the relevant time), then the most that this requires is to take account of the disability issues in the balancing exercise under Hardial Singh principles. In view of the approach of Cranston J in Anam, when deciding whether there has been a breach of Ch 55.10 at all, there has to be a balancing exercise. It seems to me that, applying Ch 55.10 properly effectively applies Hardial Singh in any event because Ch 55.10 has to be read in the context of the whole of Chapter 55, which, in turn, is an analysis which is similar to, if not the same as, that under Hardial Singh.

Conclusions

In conclusion, I address in turn the legality of detention at the various points in time identified by the Claimant.

As regards issues relating to the Claimant's disability, I accept the Secretary of State's submission that during his time at HMP Elmley, she was seeking to move the Claimant into an IRC, and that, in general, proper and due consideration was being given to finding an IRC that was suitable for his particular needs. This is evidenced by Mr Turpin's letter of 12 June 2008 (paragraph 73 above). The Secretary of State further submits that in the meantime there were no particular problems arising at Elmley from the Claimant's disability. The Claimant does not substantially dispute this. Whilst the Claimant does say that conditions for him at HMP Elmley were difficult (and to some extent due to his disability) and that he was subject to some bullying, the Claimant does not contend that there was a substantial failure to take adequate account of his disability during this period nor that this had any effect on the legality of his detention.

Disability aside, and applying Hardial Singh principles, I am satisfied that detention as at 20 November 2008 was lawful. First, factors favouring detention were that there remained a reasonably high risk of absconding and some risk of harm from further offending and the Claimant's refusal to cooperate with the ETD process. Secondly, the elapsed period of detention was 11 months and was thus not so extensive as to outweigh these factors. Finally, I do not accept the Claimant's submission that, in the light of the statement in the November detention review, there cannot have been any sufficient prospect of removal to Iran at that point in time. The statement that there was "effectively no prospect of removal at all" was the view of an officer within the UKBA. By contrast, the Deputy Director thought at the time that there were prospects of removal, albeit slim and, further, that the Claimant might change his mind. In any event, the Court must reach its own conclusion based on evidence at that time. Looking at the matter at that point in time (and without the benefit of knowing the Claimant's attitude thereafter), there was a prospect that the Claimant might change his mind and co-operate with the removal process. Moreover at that point in time it was reasonable that the Secretary of State should have further time in which to seek to encourage him to do so: see the "good while" referred to in Rostami (§73) and the "extended period" referred to in NAB (§76).

The Claimant invites consideration of legality at various later points, in particular at January, February, June and August 2009. In my judgment, the balance of factors at those various points in time, although different, remains in favour of the legality of continued detention. The factors in favour of detention remain the same as above. The Claimant continued to refuse to co-operate. On the other hand, the elapsed period of detention increased; up to 20 months by August 2009.

As regards the particular times identified by the Claimant, it was stated in the January 2009 detention review that there appeared to be no chance of removal, suggesting that the position was no better and no worse than in November 2008. Only another two months had passed and at the time it was thought that s.35 prosecution might produce different results. The detention review of February 2009 was to similar effect, with the Deputy Director aiming to persuade the Claimant to co-operate. The refusal to complete travel documents at the s.35 interview on 4 June 2009 was further evidence of continued non-cooperation, although there was by that time a pending application to the ECtHR. By the August 2009 detention review, no prosecution action had been taken and the CCD was still in the process of chasing the prosecutions team. However it appears that, by then or soon thereafter, prosecution action had been suspended as a result of the Claimant's application to the ECtHR. At that point the Claimant was, temporarily at least, blocking prosecution and it can fairly be said that, at that stage at least, the UKBA was not responsible for any delay in prosecution.

Whilst some disability issues first arose in the course of the Claimant's detention at Harmondsworth, I am not satisfied that, when put into the Hardial Singh balance of factors, they were such as to render detention unlawful. Mr Turpin's letter of 17 January 2009 was a medical response to the Claimant's largely medical request. On 20 May 2009 the Claimant indicated that he could handle most things. The disability issue raised in June 2009 was confined to the floor layout at Harmondsworth. The Claimant's complaints about the events on 24 June 2009 are not established. Mr Turpin's response to Dr. Arnold's report of 18 July 2009 does not indicate any failure to address disability issues. In November 2009 a move to Haslar was offered to the Claimant. On the other hand, there were legitimate concerns about the requirement for the Claimant to be handcuffed during transportation, in particular to limb fitting appointments (on 3 March 2009 and 22 October 2009) and the attempted transfer to Dover on 29 October 2009 was plainly a most unpleasant experience for the Claimant. Pierce Glynn raised these matters in their letter of 9 November 2009 and the Secretary of State's response of 19 November 2009 did not, in my judgment, respond adequately to the disability issues raised. By the end of November 2009 the Secretary of State was not having "due regard" to the disability issues vis-à-vis the Claimant. Even though by this time matters were finely balanced, the particular practical problems which had arisen from these disability issues were not sufficiently substantial or persistent to outweigh the other factors justifying continued detention. Accordingly, detention as at the end of November 2009 remained lawful.

However, events of 29 January to 4 February 2010 were on a different scale. Having clearly been put on notice of the Claimant's disabilities and of her duties under the DDA, the Secretary of State failed to take any sufficient steps to ensure that, when he was moved, he would be moved into facilities suitable for his disability needs. He was moved around the detention estate. He went, first, to Campsfield, and then to Colnbrook. Neither centre had adequate facilities, most particular neither had disabled toilet facilities. At Colnbrook the Claimant experienced real indignity. In my judgment, the Secretary of State had made no adequate plans for these moves and should have found out, in advance, whether either detention centre was appropriate for the Claimant with his particular disability needs. Again, when the Claimant was moved to Brook House in the early hours of 3 February, there had been no advance planning, despite the persistent letters from Pierce Glynn. On arrival and for many days thereafter, he was not provided with adequate toilet or bathing facilities. Thereafter conditions at Brook House remained unsatisfactory for some considerable time, and certainly well into March 2010. This was repeatedly raised by staff at Brook House itself, and to the knowledge of CCD in Leeds. Yet, despite this there was no reference to these disability issues in any of the detention reviews for the period. Rather those reviews repeated the "no compassionate circumstances" wording.

As explained above, the fact that the transfer from Harmondsworth may have arisen due to the Claimant's own disruptive behaviour did not absolve the Secretary of State of her duties under s.49A nor under Ch 55.10 and Hardial Singh.

I conclude that, by this time, the Claimant's detention had become unlawful. The prospect of removal remained slim. The period of detention was now more than 2 years and, most significantly, the Claimant was now suffering substantial hardship as a result of his experience of detention and the Secretary of State's breaches of s.49A and its failure to apply its own policy in Ch 55.10. It is this escalation in relation to disability issues which tipped the balance into unlawfulness. I find that in these circumstances the elapsed period of detention was itself unreasonable; and in any event, when set against the increased weight of the factors favouring release, the prospect of removal was no longer sufficient. Continued detention was unlawful.

As to the precise point in time at which detention became unlawful, the Claimant suggests the end of February 2010. Pierce Glynn wrote four letters in quick succession on 1, 2, 3 and 4 February 2010. That last letter suggested that the Secretary of State should rectify the position by 8 February. In my judgment, UKBA should have been allowed a week from 4 February 2010 to address the situation, including, if need be, making necessary arrangements for conditions of release. The Secretary of State conceded in argument that if there came a point in time when she had been unable to find suitable accommodation with appropriate facilities for the Claimant, detention would become unlawful at that time. In my judgment that point was reached by 11 February 2010. Accordingly, I find that the Claimant should have been released, and that detention became unlawful, on 11 February 2010 and that the Claimant was unlawfully detained from 11 February 2010 until release on 1 June 2010

If, contrary to foregoing, I had found that detention at Brook House remained lawful, I would in any event have found that he should have been released on 22 May 2010, the date of his move to Colnbrook. Colnbrook did not have adequate facilities for the Claimant. It was plain, from the facts set out at paragraphs 133 to 136 above, that by then the Secretary of State could not find suitable accommodation for the Claimant and continued detention was therefore unlawful.

Accordingly this application for judicial review is allowed in part. There will be an order for a declaration that the detention of the Claimant from 11 February 2010 to 1 June 2010 was unlawful. Damages for false imprisonment will remain to be dealt with. As regards the relief sought in respect of the DDA, the claim for breach of s.21B DDA is dismissed as is the claim for damages for breach of the DDA. As regards breach of s.49A DDA, I am satisfied that the Secretary of State did breach her duties under s.49A in relation to her treatment of the Claimant. Whilst this breach has been taken into account in my conclusion on the lawfulness of detention, I am not persuaded that any useful purpose will be served by the making of such a self standing declaration, and, in my discretion, I decline to do so. The manner in, and period for, which the Secretary of State was in breach of these duties is apparent from the terms of this judgment.

I will hear submissions on any consequential matters which cannot be agreed, including as to the precise terms of the declaration, as to the appropriate order as to the directions to be made for the determination of the claim for damages for false imprisonment and costs. If need be, I propose hearing argument on these matters immediately following the handing down of this judgment, unless any party requests that they be dealt with subsequently and in which event, I will give further directions as to the procedure to be followed, including for the service of written submissions.

Finally, I should add that I am grateful to both Mr Armstrong and to Mr Barnes for the assistance they have provided to the Court.