C v Secretary of State for the Home Department

The claimant brings this claim for judicial review in order to challenge the legality of his detention under the Immigration Act 1971 (“the 1971 Act”) between 7 April 2008 and 29 March 2011.

The claimant puts his case upon three bases: (i) reliance upon the second and third principles of R v Governor of Durham Prison ex parte Hardial Singh[1984] 1 WLR 704, namely that his detention was unlawful as the period of detention was unreasonable and there was no realistic prospect of removal within a reasonable time; (ii) the defendant has erred in public law in failing to comply with her own policies upon mental illness and torture; (iii) breaches of the Disability Discrimination Act 1995, the Equality Act 2010, Article 14 together with Articles 5 and 8 of the ECHR. These grounds were not actively pursued on behalf of the claimant, the view being taken that they added little to the Hardial Singh and policy arguments before the court.

In essence, the claimant’s case is that the length of the detention, the unlikely prospect of removal, the deterioration in the mental health of the claimant together with independent evidence of torture, were all factors which would lead to a conclusion that the claimant’s detention was unlawful, even taking account of an absconding risk which, when properly examined, was not of the highest.

In summary, reflecting the final position taken on behalf of the defendant, her case is as follows:

Detention between 7 April 2008 and 9 September 2008.

The defendant no longer disputes that the mental illness policy contained within Chapter 55 of the “Enforcement Instructions and Guidance” (“Chapter 55”) was engaged when there was objective evidence of sufficiently serious mental health issues, as identified in the report of Dr Natasha Gordon dated 26 August 2008. The report was commissioned on behalf of the claimant and was seen by a representative of the defendant at a screening interview on 5 September 2008 or, at the latest, on 8 October 2008. Further, it is not disputed that the Secretary of State did not apply her amended policy correctly when she decided that the claimant’s condition could be satisfactorily managed in detention, relevant to the period 20 January 2011 to March 2011.

By the latter stage of this hearing, the defendant did not dispute that in September 2008 there was independent evidence of torture in the form of Dr Gordon’s report. There is no evidence to suggest that there was any attempt by the defendant to engage with the contents of Dr Gordon’s report still less to commission her own report. It is not disputed that the defendant ought to have taken this step and considered the “torture policy” as contained in Chapter 55.

The defendant does not dispute that the failure to engage with the Chapter 55 policies relating to mental illness and torture rendered the detention of the claimant unlawful, Lumba, Anam v Secretary of State for the Home Department[2009] EWHC 2496 (Admin). However, the defendant contends that the claimant would have been detained had the power to detain been lawfully exercised by the application of lawful published policies and in conformity with the correct principles, and accordingly he is entitled to only nominal damages for his unlawful detention.

It is the defendant’s case that the claimant was detained for only a reasonable time, the claimant having contributed to the length of his detention by falsely claiming to be Liberian. It was not until April 2009 that the defendant made a decision that the claimant was not Liberian and began instituting moves to effect his removal to the Ivory Coast. Further, the defendant relies upon the fact that the claimant represented a high risk of absconding, a medium to high risk of reoffending, in terms of sexual assault towards females, and a medium risk to the public. By reason of these risks, there were exceptional circumstances which would justify the continued detention of the claimant.

On 10 May 2004, the claimant entered the UK, and claimed asylum as a national of the Ivory Coast under the name Issouf Coulibaly. His claim for asylum was unsuccessful.

Between 2004 and 2007 the claimant was convicted of the following offences:

21 December 2004: sexual assault and failing to surrender to bail; the claimant was sentenced to 4 months’ imprisonment and required to register as a sex offender for 7 years;

19 April 2005: theft; the claimant was conditionally discharged for 12 months and ordered to pay compensation of £15;

18 January 2006: failing to comply with the initial notification requirement as a registered sex offender; the claimant was sentenced to 2 months’ imprisonment;

18 May 2007: for a public order offence, the claimant was bound over for 6 months in the sum of £30;

2 January 2008: possession of a false instrument; the claimant was sentenced to 12 months’ imprisonment for this offence.

On 2 April 2008, the defendant served the claimant with a decision to make a deportation order, the order was made on 23 April 2008. On 7 April 2008, the claimant entered immigration detention. On 28 April 2009, the defendant refused to revoke the deportation order in force against the claimant. The claimant’s appeal against the refusal was dismissed, his application for reconsideration was refused. On 12 May 2009, the defendant refused the claimant’s request for temporary admission.

The claimant was refused bail on six occasions between 29 July 2008 and 17 November 2010. On 29 March 2011 he was granted bail.

On 21 February 2011, the claimant issued judicial review proceedings challenging the legality of his detention. On 20 April 2011, the claimant was granted permission to apply for judicial review of the legality of his detention between 7 April 2008 and 9 September 2008. On 12 December 2011, at a hearing, the claimant was granted permission to apply for judicial review of the legality of the remainder of his detention.

The following is taken from the account which the claimant gave to Dr Natasha Gordon in August 2008. The claimant told Dr Gordon that he was born on 3 July 1979 in Monrovia, Liberia where he lived with his mother, father and siblings. In December 1989 civil war began in Liberia. Soon after this the claimant returned home to find his house had been burnt down, he never saw his family again. Following the outbreak of war, the claimant said that he was subjected to a number of arrests and attacks due to what was described by Dr Gordon as his ethnicity and religion. When in detention at a police station the claimant said that he was raped and beaten by the police. Subsequent to further arrests the claimant alleged that his back had been electrocuted, on another occasion his back was burnt with a hot piece of iron. The claimant was sent to a refugee camp in Liberia where he stayed for two years. At the camp, he was frequently attacked by other Liberians due to his ethnicity, religion and homosexuality. The attacks included the use of sticks and bottles. During one such attack the claimant’s left arm was broken, during treatment the radius was not aligned correctly, as a result the claimant has had limited use of his left arm with pain at the left elbow. In 1992 the claimant went to a refugee camp in the Ivory Coast called Danane, further problems ensued.

In his witness statement prepared for these proceedings the claimant provided further information. By 2003 the claimant was under pressure in the Ivory Coast by reason of political problems and abuse, as a result he returned to Monrovia. The claimant’s time in Monrovia was difficult. Generally, he was in hiding, he felt he had to leave. The claimant was told by an aunt that his mother was alive in America, he made contact with her. On 9 May 2004 the claimant left Liberia and came to London. In London, he used a “made up Ivory Coast identity” because he was frightened of being sent back to Liberia. The claimant thought that he would have more chance of being granted leave to remain as there were political problems in the Ivory Coast. The only documentation which the claimant possessed was a Red Cross ID card which showed that he was a Liberian and not a national of the Ivory Coast.

The claimant was initially detained at the Oakington Detention Centre. Following his release in May 2004 he moved to an asylum support address in Hull. Shortly thereafter the claimant was arrested for the sexual assault offence. Following his release from prison, the claimant had difficulty finding accommodation. For a period he was street homeless which is the reason he said he had difficulty reporting. Further, in 2005 when living at an asylum support address in Leeds, the reporting centre was some four miles distance. The claimant was in receipt of £35 worth of vouchers a week, he was given no reporting money which meant that he had to walk to and from the reporting centre, this caused difficulty in reporting. As to the claimant’s failure to register his address as a sex offender, he said that he had forgotten the separate notification requirement. The conviction on 22 January 2008 for false documentation related to the finding by the police of a passport with another person’s name and photograph in it at the place where the claimant was residing.

At a nationality interview on 3 July 2008 the claimant confirmed to the UKBA that he was Liberian. As to the contention that he was not co-operating with the removal process by claiming variously to be a national of Liberia, America and the Ivory Coast, the claimant stated that he is a Liberian national but has lived longer in the Ivory Coast than in Liberia. He claimed asylum as a national of the Ivory Coast because he was travelling on documents from the Ivory Coast and was frightened of telling the truth. His mother was Americo-Liberian. The claimant believed that as she had managed to obtain papers to reside in the USA she must now be an American national. He gave this information to the Home Office because he hoped he might be removed to America and reunited with his mother.

The power of the Secretary of State to detain is contained in paragraph 2(3) of Schedule 3 of the 1971 Act which permits detention pending removal pursuant to a deportation order. The principles to be applied by the court in assessing the legality of any detention were identified by Woolf J, as he then was, in R v Governor of Durham Prison ex parte Hardial Singh, summarised in R(I) v Secretary of State for the Home Department[2002] EWCA Civ 888 and Lumba. In R(I) Dyson LJ, as he then was, at [46] summarised the position:

Dyson LJ identified a number of circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to Paragraph 2(3) of Schedule 3 of the 1971 Act [48]:

As to the risk of absconding, Dyson LJ said that the relevance of the likelihood of absconding should not be overstated [53]. Carried to its logical conclusion, it could become a trump card to carry the day for the Secretary of State in every case where such a risk was made out regardless of all other considerations, not least the period of detention. That would be a wholly unacceptable outcome where human liberty is at stake. However, in R (on the application of A) v Secretary of State for the Home Department[2007] EWCA Civ 804 [54], Toulson LJ identified the risk of absconding as being important because it threatens to defeat the purpose for which the deportation order was made.

During the period of detention there must remain a reasonable (and reasonably imminent) prospect of removal taking place: R (Khadir) v Secretary of State for the Home Department[2005] UKHL 39.

The courts in this country have declined to set any kind of “tariff” for reasonableness. However, within EU law, the Returns Directive (Directive 2008-115-EC) sets a limit upon detention pending removal and deportation of 18 months (6 plus an extension period of a further 12 months). The UK and Ireland have opted out of the Returns Directive, Ireland sets itself a limit of 2 months.

It is common ground between the parties that the assessment of the legality of the detention, pursuant to the Hardial Singh principles, is for the court to determine on an objective basis. The assessment is not limited to a review of the Secretary of State’s decision on Wednesbury grounds, R (A) v Secretary of State for the Home Department[2007] EWCA Civ 804.

There is an issue between the parties as to the correct approach in respect of the claimant’s second ground, namely the failure to comply with published policy. When assessing whether such a failure gives rise to an entitlement to more than nominal damages, the claimant first accepted that the approach set out in R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909 (reaffirmed following the hearing in R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597) bound this Court, but later submitted that such an approach should not be followed by reason of R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804 and (post-hearing case) R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521.

As to compliance with published policy: in R (Kambadzi) v Secretary of State for the Home Department [2011] 1 WLR, the court held that in addition to complying with established principles governing the exercise of the statutory power to detain under Schedule 3 of the 1971 Act, the Secretary of State was under a public law duty to give effect to a published policy which was sufficiently closely related to the authority to detain so as to provide a further qualification to the statutory power; that continued and indefinite detention was not authorised by the initial decision to detain, the published policy was fundamental to the propriety of continued detention in that it narrowed the power to detain by requiring regular reviews to determine whether there were still good grounds for continuing to detain.

The Secretary of State’s published policy as to the circumstances in which individuals will be detained is contained within “Enforcement Instructions and Guidance”, Chapter 55 of which is relevant to detention. Section 55.10 was amended on 26 August 2010.

“those suffering from serious medical conditions or the mentally ill – in CCD cases, please contact the specialist Mentally Disordered Offender Team;

those where there is independent evidence that they have been tortured;

those suffering serious mental illness which cannot satisfactorily be managed within detention (in CCD cases, police contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act;

those where there is independent evidence that they have been tortured;”

The policy contained in Paragraph 55.10 was considered by Cranston J in Anam[2009] EWHC 2496 (Admin) [52-55] where he held that the policy has to be considered by the defendant:

The following is not intended to be an exhaustive chronology of the period, it does no more than identify relevant events or reports.

15 August 2008

Undated, likely to be around 18 August 2008

19 August 2008

26 August 2008

September/October 2008

31 October 2008

1 November 2008

4 November 2008

20 November 2008

28 November 2008

5 December 2008

6 January 2009

28 April 2009

18 June 2009

29 September 2009

6 January 2010

2 April 2010

7 January 2011

10 March 2011

In assessing what is reasonable as a period of detention, account has to be taken of the risk of absconding and of reoffending which can result in harm to the public, Lumba. Further, non-cooperation by the detainee in the process of documenting him for removalcan be relevant, Sino v Secretary of State for the Home Department[2011] EWHC 2249 (Admin).

The defendant contends that the claimant presented a high risk of absconding. He had failed to report in the past. He was convicted of a failure to surrender to bail, a failure to comply with the initial notification requirements as a registered sex offender and possession of a false passport. The claimant had no leave to remain in the United Kingdom but was intent on remaining here. All these factors pointed to a risk of the claimant concealing himself from the immigration authorities if released, particularly as he had no close ties in the UK.

The claimant submits that in the context of a deportation order case absconding relates to defeating the purpose of the deportation order by disappearing, A v Secretary of State for the Home Department [54]. The claimant makes a distinction between failing to report and disappearing. What is said on behalf of the claimant is that he never disappeared, at all times the defendant knew where he was. The defendant has never been put in a position where she could not take deportation or other enforcement action, this particularly applies to the period since the claimant’s release in 2011. The claimant’s failure to report was caused by the difficulties which he was encountering in living from day to day.

As to the risk of reoffending, the defendant placed that as being in the medium to high bracket as identified in a pre-sentence report dated 16 January 2008. The defendant described the claimant as a persistent offender, further relying upon the fact that his behaviour in detention was poor, including aggression to visiting female solicitors, verbal abuse to a doctor and racism towards a Pakistani national. It is said this gave the defendant a legitimate concern that the claimant might not behave upon release.

On behalf of the claimant it is accepted that he leads a “chaotic lifestyle”. He has been dishonest, including in relation to his true identity. He has offended and, on occasion, has failed to comply with court orders and reporting requirements. What is said is that this has to be assessed against a background of an extremely troubled upbringing, involving significant trauma, sexual assault and forced international migration from war torn states at a young age with resultant mental health problems. Further, the claimant has been through three years of unpredictable and apparently indefinite immigration detention and when in the community, has existed with subsistence level support. Put simply, his life has been extremely difficult.

It is accepted that the offending of the claimant has to be taken seriously, what is said is that it has remained at a relatively low level. The period of imprisonment imposed for the sexual assault would appear to indicate that the nature of the assault was at the lower end of the offending scale, the offence took place shortly after the claimant’s arrival in the UK. In refusing bail, judges have referred to the repeat nature of the claimant’s offending. In scrutinising the written decisions, this would appear to be a comment made by one judge which has been adopted by subsequent tribunals. When properly scrutinised, there is no evidence to demonstrate that the claimant is a repeat sex offender.

It is the defendant’s case that the claimant did not co-operate in the process of documenting him for removal. Initially, he did not tell the truth about his nationality and used a false name. His claims to be Liberian or American have been proved to be unfounded. They prolonged the period of the claimant’s detention for which the defendant cannot be held responsible.

It is accepted that the claimant used a false identity on arrival in the UK which he maintained until shortly after he entered detention. The point now made on his behalf is that even with the defendant having had the claimant’s true details for some years, removal has still not proved possible. Accordingly, the necessary causation as identified in Lumba is not present.

It is the defendant’s case that there was a realistic prospect of the claimant’s removal within a reasonable period of time throughout his detention. Until 16 May 2008, the defendant’s efforts were directed at removing the claimant to the Ivory Coast. On that date the claimant claimed to be Liberian and sought asylum as a purported Liberian national. On 26 June 2008, the claimant had a nationality interview. On 3 July 2008 it was decided that the claimant was Liberian, as a result the defendant sought to document the claimant for removal to Liberia. The application which had been made to the Ivorian authorities for emergency travel documents (“ETD”) was withdrawn. On 19 August 2008, an application for ETD was sent to the Liberian authorities. On 12 January 2009, the claimant had an interview at the Liberian High Commission who decided that the claimant was not Liberian.

On 9 February 2009, the claimant claimed that he was an American citizen and wanted to be removed to America. On 10 February 2009 the defendant sent a letter to the claimant requesting documentary evidence that he was an American citizen, no such evidence was forthcoming.

On 28 April 2009, the defendant refused the claim for asylum made by the claimant as a purported Liberian national and decided that the claimant was not Liberian but Ivorian. On 13 May 2009, the defendant sent another application for ETD to the Ivorian authorities. On 13 October 2009, the claimant’s case worker contacted the Returns Group Documentation Unit (“RGDU”) for an update on the claimant’s Ivorian ETD application and was advised that “it will take time due to there being no supporting evidence.” On 16 March 2010, an RGDU business expert for Africa informed a member of the CCD that historically the Ivorian authorities “do not give us documents in cases without supporting evidence” and that without such evidence “it is likely that your case will remain unresolved.” In respect of this information, it is the defendant’s case that the business expert did not state that there was no underlying prospect of the claimant’s case being resolved without supporting evidence, only that it was unlikely.

On 14 June 2010, the claimant’s case was “added to the review list which was sent to the Embassy requesting for an outcome of the ETD”. Thereafter, it is the defendant’s contention that she regularly sought to obtain information about the progress of the claimant’s ETD application from the Ivorian authorities and by 3 November 2010 the claimant’s case was included on a priority review list that was sent to the Ivorian authorities for an update.

In summary, it is the defendant’s case that notwithstanding the above, and also the unrest in the Ivory Coast at the end of 2010, it did not become apparent prior to the claimant’s release on 29 March 2011 that the Ivorian authorities would not issue the claimant with ETD. It is contended that the Ivorian authorities could have issued the ETD at any moment, whilst they did not do that, it is said it was not apparent that they would not issue an ETD at all during the currency of the claimant’s detention.

It is the claimant’s case that there was very little prospect at any time of the claimant being removed. Reliance is placed upon the fact that the defendant has not submitted any witness statements identifying why she thought such a prospect existed. Emails and entries in detention reviews consistently state that without supporting evidence, the Ivorian Embassy was unlikely to grant emergency travel documents. It is, and always has been, the claimant’s case, that by reason of the transient nature of his childhood, he has no supporting evidence other than the Red Cross documents. It is of note that an email dated 5 March 2010 from the claimant’s case worker to the Business Expert Africa of the RGDU stated:

By a reply dated 16 March 2010 from the Business Expert, it is said:

The spirit of the reply for the Business Expert is consistent with the evidence provided by the London Detainee Support Group which states that undocumented Ivorians are effectively irremovable.

The defendant has elected to serve no witness statements seeking to explain or justify beliefs held or decisions made. On behalf of the defendant, Mr Singh fairly and realistically dealt with the evidence contained in the plethora of records.

By the conclusion of the hearing, save for a short period between 9 September 2008 and the end of that year, the only real issue to be determined by the court was whether, in respect of any period of unlawful detention, the claimant was entitled to more than nominal damages.

I have approached this matter in the order proposed by the claimant. Firstly, and applying the Hardial Singh principles, I have considered whether it was reasonable in all the circumstances for the defendant to detain the claimant. When the claimant was taken into immigration detention in April 2008, no independent evidence of mental illness or torture existed. The defendant was entitled to take account of the risk of reoffending and absconding presented by the claimant in assessing the need to detain.

I accept that the claimant did present a risk of absconding and reoffending. As to absconding, the claimant had used a false identity, he had been found in possession of a false passport, he wished to remain in the UK and had no ties in this country. In his favour, when in the community, he had never sought to abscond. I accept that the conditions in which he existed would not have assisted compliance with reporting.

As to reoffending and with it the risk of harm to others, the two offences which stand out are the sexual assault in December 2004 and possession of a false instrument in January 2008. I would not seek to minimise the seriousness of the two offences identified, however, when the offending history is scrutinised, the nature of the offending is not at the highest level and there is no pattern in the nature of the offending. That said, there is clearly a risk of reoffending.

Upon the basis of the two risks identified, I find that it was reasonable for the defendant to detain the claimant from April 2008 whilst seeking to remove him from the UK.

The position had materially changed by September 2008 when Dr Gordon’s report was produced. By the end of August 2008, the defendant had received the Rule 35 report alleging torture. By early October, at the latest, the defendant had seen the report of Dr Gordon which provided independent evidence to substantiate the claimant’s allegations of torture. Further, Dr Gordon made a diagnosis of PTSD and recommended the obtaining of a psychiatric opinion. The defendant did nothing.

I find that the defendant should have considered and acted upon Dr Gordon’s report, she could have instructed an expert of her choice. Such a report could have been provided and considered by the defendant by the end of 2008. Given the content of Professor Katona’s report, I find that it is likely that had a psychiatric report been commissioned, it would have supported the findings of Dr Gordon. I accept the defendant’s point that the two later incidents of assaults/altercations in which the claimant was a participant contributed to Professor Katona’s final diagnosis but that reinforces rather than undermines Dr Gordon’s diagnosis.

By January 2009 there was objective evidence of torture and mental illness. Were there ‘very exceptional circumstances’ to justify continued detention? Of itself, the PTSD diagnosed in 2008, was not at the highest level. However, the diagnosis could not be viewed in isolation. The independent evidence of torture was compelling. The history of torture was a causative factor in the claimant’s mental illness, further detention was likely to exacerbate the PTSD, as proved to be the case.

As at January 2009 what were the prospects of removal? I find that the claimant did not cooperate in the process of documenting him for removal. His false identity and varying claims to nationality did nothing to assist the process. His claim in May/June 2008 that he was a Liberian caused the defendant to change tack until April 2009 when the decision was once again made that removal should be to the Ivory Coast. From that point the absence of any supporting documentary evidence in the possession of the claimant was going to make removal difficult if not impossible. I note that the defendant has filed no evidence to support the contention that removal would have taken place within a reasonable period. Accepting, as I do, that the claimant did not assist the process of documenting him for removal, the reality of the position as at January 2009 is that there was no reasonably imminent prospect of removal.

By January 2009, the claimant had been in custody for 8 months. In the period September to December 2008 the defendant had ample opportunity to evaluate the evidence of torture and mental illness. I find that the defendant, in particular, those acting on her behalf within the CCD, took no or no real action to properly consider these serious matters. At the end of this period did “very exceptional circumstances” exist sufficient to justify continued detention? I am unable to find that they did. The claimant’s risk of absconding and of reoffending were not of sufficient magnitude to provide a sound basis for continued detention when balanced against the independent evidence of torture and mental illness. Put shortly, it was no longer reasonable for the defendant to detain the claimant.

Accordingly, I find that the claimant is entitled to damages to be agreed or to be assessed to reflect the period of unlawful detention from 1 January 2009 to 29 March 2011. By reason of this finding, it is not necessary to consider the further grounds relied upon by the claimant.