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

The Claimant has been in immigration detention since 21^st December 2010, when his twelve month custodial sentence for robbery came to an end. On 15^th December 2010 he was served with a deportation order to Algeria and he has lodged no appeal against that order. By an application dated 5^th March 2012 the Claimant sought judicial review of the Defendant’s ongoing decision to detain him and also of his detention since 16^th May 2011. The length of the period of his detention in immigration detention was over 14 months when the claim was issued on 5^th March 2012 and 17 months at the date of the hearing.

The hearing was listed for a rolled up hearing by order of Mr Justice David Lloyd Jones 23 April 2012. Prior to that, on 5^th March 2012, Mr Justice Coulson refused an application that the Claimant be released from detention but noted within his reasons that

“the time is fast approaching when the Defendant has to decide either to deport the applicant or release him from detention. The present impasse cannot go on for very much longer”

I was informed at the outset of the hearing on 25^th May 2012 that a further review of the Claimants’ detention was to be undertaken during the morning. With this in mind and having had the benefit of comprehensive skeleton arguments together with an opportunity to consider all the documentation I was able at the outset of the hearing to give a preliminary indication as regards my view upon the continued detention of the Claimant. After a short adjournment I was informed that it was accepted that the Claimant should no longer be held in detention and the only delay to his immediate release was the finding of suitable accommodation and administrative arrangements for tagging which might take four to six weeks. I indicated again as a preliminary view that I saw no reason why this should not be achieved within two weeks. As matters turned out it was not necessary to hear argument as to the time required for release as the parties were able to agree an interim order by consent.

As a result the hearing was then not concerned with the Claimant’s future detention rather his detention during the last year from May 2011.

It is the Claimant’s case that his detention has been unlawful since 16^th May 2011, when the Algerian Embassy refused to accept him for return. Further, that no significant progress has been made in the intervening twelve months.

There were three overarching points within the submissions advanced on his behalf by Mr Jacobs. Firstly, that an “impasse” developed after the Algerian authorities rejected the initial application for travel documentation by reason of an incorrect address. The impasse was re-affirmed some months later despite the acceptance that the Claimant was from Algeria, as the Embassy took no effective steps to facilitate the travel documentation apparently whilst investigating his identity.

Secondly, that this impasse and consequential delay had to be considered by the Defendant in the light of the Claimant’s mental health condition. This was because the Defendant had ample evidence his continuing detention and the lack of progress in relation to his return to Algeria was having a seriously detrimental effect upon his mental health. Indeed it has not been in dispute that the Claimant has attempted suicide or serious self harm on at least four occasions since April 2011. He has at times been on constant watch, placed in anti-ligature clothing and prescribed medication for depression. Eventually, on 7^th April 2012 he was transferred from Colnbrook IRC to Brook House IRC which has 24 hour medical care and mental health nurses. Mr Jacobs submitted that given this medical condition the Claimant could only have been lawfully detained in exceptional circumstances due to the content of the Defendant’s own guidance.

Thirdly, Mr Jacobs submitted that there had been a lack of urgency in the attempts to secure removal. The defendant had failed to act with reasonable diligence and expedition to effect removal since May 2011.

In line with these points and the evolving history of the detention, Mr Jacobs’s submissions were set out against time periods. His analysis was as follows;

Firstly, there has not been a realistic prospect of removal since 16^th May 2011;

The summary grounds of defence set out that the claim for judicial review was “unarguable given the Claimant’s repeated history of absconding and serious offending”. Reference was made to what is said to be “a remarkable history of criminal offending and absconding”. Specifically, that in the nine months between July 2009 and April 2010 the Claimant absconded three times, fled the country and was returned and was then convicted twice for offences of exposure and then later robbery. It is also stated that he has exhibited violent behaviour whilst in detention. As a result it was said that he presented a clear and present risk of re-offending or absconding such that detention prior to removal was clearly reasonable.

It was stated that the only barrier to removal was the issuing of the relevant emergency travel documentation; an “ETD” by the Algerian authorities. The original application for an ETD was sent on 18^th January 2011, but with an address that the Algerian embassy would not accept. This despite the fact that the Claimant confirmed it as correct.

There was then a period during which, at the Claimant’s request, enquiries were made of the Belgian authorities as to the possibility of his removal to Belgium and also steps were taken to bolster the ETD. Eventually, the Defendant was able to send further evidence including birth certificates for the Claimant and both of his parents on 3^rd November 2011 in support of a second application for an ETD. Thereafter, at the conclusion of the telephone interview on 12^th January 2012 the Algerian Consul informed the Defendant’s officer that the Claimant was indeed Algerian and as set out in the summary grounds

“ those authorities have confirmed informally that the Claimant is Algerian and the Defendant is only awaiting a formal decision and the issue of an ETD”

It was also set out that since 12^th January 2012 “the Defendant has made regular inquiries of the Algerian Embassy” but that no ETD has yet been issued.

In respect of the length of time that the process has taken to date, reliance was placed upon the provision by the Claimant of incorrect information as contained on the original application for an ETD sent on 18^th January 2011 and his inconsistent accounts of his immigration history. Further, his request to be removed to Belgium was only rejected in October 2011 when the Belgian authorities could not match the details given with their records.

It was also submitted that where copies of identification documents have been supplied, as was the case with the November 2011 application, a decision could be expected approximately 3-6months from the submission of the application. At the time of the application for Judicial review the relevant period was only one week over six months; which did not indicate any kind of impasse. It was entirely reasonable to assume that at ETD would be supplied in due course now that correct information had been provided.

As for the issue of the Claimant’s mental health it was not disputed that the Defendants own guidance which required detention of those suffering mental illness only in very exceptional circumstances applied as any date after 9^th May 2012. However, it was submitted that it did not apply before this date as prior to the receipt of the report of Dr Katona, which had been commissioned on behalf of the Claimant by his solicitors, the Claimant was subject to adequate ongoing medical care and attention which had not led to the diagnosis of a mental condition. As a result it was not until the receipt of the report of Dr Katona on 12^th April 2012 that the Defendant was in possession of sufficient objective evidence of the Claimant suffering from a serious mental illness. Further on receipt of Dr Katona’s report further investigation was necessary. This was principally because that the report of Dr Katona was complied when the Claimant was detained in Colnbrook IRC whereas by the time of the receipt of the report he had been moved to Brook house IRC with better medical services available. As the ability to manage his mental illness was crucial to the issue of whether the defendants own guidance at EUG 55.10 was engaged further medical assessment was required. It was only when the reports of Drs Anderson and Thomas were received that it was recognised that the policy in EIG 55.10 was in fact engaged.

Once EIG 55.10 was engaged the Claimant’s continuing detention could only be justified in very exceptional circumstances. However, it is the Defendant’s case at the commencement of the hearing that continued detention was justified by such circumstances in particular the risk or absconding or re-offending. However, as I have indicated this stance was not maintained during the hearing.

In light of these respective cases, I turn to the relevant facts.

The Claimant, who was born on 1 January 1990, is a citizen of Algeria. He arrived in the United Kingdom on 7 July 2009. He was arrested in London on 11 July 2009 and applied for asylum. He underwent a screening interview on 15 July 2009 and was transported to Liverpool. However, he absconded (1^st absconding) and was arrested in Cambridgeshire on 13^th August after being found in the back of a lorry with three other people. He absconded again (2^nd absconding) and was arrested in Rotterdam after which he was returned back to the UK under the Dublin Regulation on 21^st September 2009 .

The Claimant underwent a further screening interview in September 2009 and subsequently absconded again (3^rd absconding) on 22^nd September 2009 and failed to turn up to report on 24^th September. He did turn up, as a UKBA letter states, on 27^th September. He then failed to turn up for a substantive asylum interview scheduled for 5th October.

On 29^th October 2009 the claimant was arrested on suspicion of assault. He was then convicted of an offence of exposure and held at Feltham YOI from 23^rd December 2009 to 17^th March 2010. On 25 March 2010 the Claimant attended an Asylum Screening Unit. On 7 April 2010 the Claimant stated that he had been the victim of a stabbing.

On 22 April 2010 the Claimant was arrested on suspicion of robbery and on 10 August 2010 he was convicted and was sentenced at Wood Green Crown Court to 12 months’ imprisonment. On 3 September 2010 the Defendant sent a letter informing the Claimant of her intention to issue a deportation order against him.

On 18^th October 2010 the Claimant informed an immigration officer that he had previously been in Belgium for three years and had a wife and a child there. The Claimant was further interviewed by an immigration officer in relation to his asylum claim on 21 October 2010 and made representations claiming his fear of persecution by extremists. Sometime around 3^rd November 2010 he referred to the attacks on him being due to his homosexuality. He had a further interview in relation to his asylum claim on 24 November 2010 and maintained that he had been involved in a dispute with his father and step mother and that he had been involved in an altercation whilst sleeping rough. Those assertions were not believed to engage the Refugee Convention, and the asylum application was refused. The Claimant lodged no appeal against the refusal.

On 10 December 2010, the Defendant signed a Deportation Order against the Claimant with reasons for refusing his asylum claim. This decision carried a right of appeal which was not exercised by the Claimant.

The Claimant’s early release date in respect of his term of imprisonment was 21 December 2010. However, he was kept in detention under schedule 3 to the Immigration Act 1971.

On 5^th and 14^th January 2011 the Claimant made further representations to the Defendant’s officers to the effect that he had previously been a resident in Belgium and that he had a wife and child there. He stated that he used a different identity, his true identity, whilst in Belgium, his name being Cifyan Haje Arbe with the date of birth of 6^th October 1992. The Claimant confirmed that he was happy to return to either Belgium or Algeria.

The detention review dated 17^th January 2011 stated that the Claimant had in country appeal rights, although the Claimant never in fact lodged an appeal, and also set out that an ETD was required and that removal was not imminent.

On 18^th January 2011 an ETD application was sent to the Algerian Embassy. It did not contain any identification documents but the address provided by the Claimant had been checked by the Defendant’s officers using Google and found to exist.

The detention reviews dated 14^th February 2011, 14^th March 2011 and 11^th April 2011 wrongly continued to state that the Claimant had in country appeal rights. However, these reviews correctly stated that an ETD was required and that removal was not imminent.

In April 2011 the Claimant became eligible to be transferred to an Immigration Removal Centre and on 7 April 2011, he was transferred from HMP Elmley to Colnbrook IRC. On 13 April 2011 the Claimant again stated that he was happy to be returned to Belgium or Algeria.

The detention review dated 10 May 2011 stated that an ETD was required and that

“currently the time scale for obtaining an ETD is 12 months. Therefore removal is not imminent”.

It was also noted that even if the Belgian authorities did have records they may also be able to assist in obtaining an Algerian ETD. So it appears that from this date there was a dual purpose for the pursuing enquiries with the Belgian authorities. The reference to a timescale of 12 months is repeated in the subsequent detention reviews dated 7 June 2011 and 5 July 2011.

On 16 May 2011 the Claimant’s case was withdrawn from the weekly review list by the Defendant as the Algerian Embassy refused to accept him as an Algerian national stating that the address provided in Algeria was incorrect.

As I have set out it is the Claimant’s case that from this time there was no prospect of the Secretary of State being able to effect the deportation of the Claimant within a reasonable period and he should have been released from detention. It was submitted that the refusal decision by the Algerian embassy took the prospect of the Claimant’s removal well beyond the ‘usual’ period of 12 months.

On 20 May 2011 the Claimant confirmed the address he provided the Defendant was correct and also stated that he would like to be sent to Belgium where his wife and son were residing (the Claimant states that he has a daughter and that this entry incorrectly recorded what he said). He made the same assertion on 25 May 2011 and stated that he was happy to sign a disclaimer. On 13 June 2011 the Claimant again indicated that he wished to return to either Algeria or Belgium.

On 29 June 2011 Dr Juwanji advised the Defendant, having examined the Claimant, that the stress of the Claimant’s detention, then of seven months duration, and Claimant’s desire to return to Algeria or Belgium were “impacting his mental health markedly”.

Within days this diagnosis and assessment appeared to be accurate as on 2^nd July 2011 the Claimant attempted to strangle himself. As a result he was placed on constant watch and given anti-ligature clothing.

On 14th July 2011 the Claimant completed an ETD interview. On 29^th July 2011 the Claimant again attempted self harm using an undisclosed item which he had concealed in his mouth. On 2^nd August a second and further ETD pack was prepared and submitted to the “Work Flow Manager”. However it appears that this was never submitted to the Algerian embassy as it was thought that it contained no fresh information.

On 6 September 2011 the Claimant attempted to hang himself by suspending himself from the rails with a bedsheet. He was rescued semi-conscious and taken to Hillingdon Hospital in an ambulance. The diagnosis of the relevant clinician as contained in the letter of 7^th September 2011 was “suicidal ideation”. It is not in issue that this was indeed a serious suicide attempt.

On 7^th September 2011, after his return from hospital a brief entry was made in the mental health records documentation used by SERCO made by an unknown individual (although there is a signature by the entry).After a reference to his concern for an Arabic room mate or to be sent back to Algeria or Belgium it concludes

“he seems to see suicide as a means to this end . There is no evidence of mental illness.”

There was no more detailed assessment, but he did remain on constant watch; presumably as the note was intended to convey to the reader that the Claimant still intended to commit suicide.

Mr Fisher accepted that this suicide attempt “imposed some sort of obligation” upon the Defendant to undertake some form of medical assessment; but he relied on the note of 7^th September 2011 by an unknown person as meeting and satisfying that obligation. On 8^th September the Claimant was assessed by Dr. Juwanji, who appears to have been a doctor attending at the centre as “intermittently suicidal” and that the length of detention was “very much affecting his mental health”. This entry ties in with a letter from this doctor dated 8 September 2011 which was provided to the UKBA. It requested that the Claimant’s case be made a priority as the Claimant’s detention,

“ has put immense strain on his mental health”.

Dr Juwanji confirmed that

“2 days ago he tried to hang himself and would have been successful it seems were it not for the intervention of other detainees”

and that being

“stuck in limb.. will only worsen his mental health”.

On 9^th September low mood was again noted by Dr. Juwanji and it was noted that the Claimant had “.. agreed to start antidepressants and Promethazine”. Later that day another note records “ risk of self –harm high ; threatened to end it all”.

The incident and the letter of Dr. Juwanji were recorded in the case record sheet on 15^th September as follows “Mr Lamari tried to hang himself the other inmates intervened and saved him”.

As I have stated it was common ground before me that this was indeed a serious attempt at suicide. However, other than the assessment by Dr Juwanji, who I presume is a general practitioner or general physician as there is no reference to greater specialism, there was no detailed medical examination or a request for a report on his mental health. Mr Jacobs submitted, in my view with justification, that at this stage it became “incumbent upon” the Defendant to take adequate steps to determine the nature and extent of any mental illness which was being caused by continued detention and then to take any necessary steps. He referred to rule 35 of the Detention Centre Rules

Special illnesses and conditions (including torture claims)

35.

- (1) The medical practitioner 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.

(2)

The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.

(3)

The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.

(4)

The manager shall send a copy of any report under paragraphs (1), (2)or (3)to the Secretary of State without delay.

(5)

The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.

In my judgment faced with the serious matters contained in such reports as were available and given the suicide attempt, even in the absence of the requirements of rule 35 there was a clear need for further investigation and medical assessment of the impact of future detention.

Dr. Juwanji had confirmed that the Claimant was, as even the brief entry in the records sets out, suicidal and that his mental health had been “affected” and was likely to worsen. Weighed against this the brief entry by an unidentified individual of unknown qualification

“There is no evidence of mental illness”

should have been acknowledged as an inadequate assessment that could not be reasonably relied upon as providing any detailed insight. Further, the Defendant cannot now in effect rely upon any omission to investigate the Claimant’s mental health by submitting that the absence should lead to an inference that the Claimant was not at this stage suffering from a significant or serious mental illness.

Indeed when the Claimant was eventually examined by a consultant psychiatrist, Dr Katona in April 2012 he was found to have a mental disorder. Whilst I have formed the view, as I shall set out in due course, that there is likely to have been some have been deterioration in the intervening period it is my view given the views expressed by Dr Juwanji and the absence an other detailed assessment, that on balance the existence of a disorder would have been diagnosed as at September 2011 as extant or at the least immediately imminent due to deterioration if detention continued.

Returning to the history the case notes reveal that on 16 September 2011 there was a ACDT review and Claimant was noted to be in a very low mood. He stated that he was happy to be removed to Belgium or Algeria. The notes state as follows:

“He states he has called the Algerian Emb on many cases (sic) and they either don’t want to talk to him or he is passed from person to person and then they put the phone down on him. DCO… confirmed this as he has also tried to call for him and experienced the same when he called on Mr Lamari’s behalf.”

The note also recorded the following

“Sonia - as a rule the Algerians do not do face to face interviews but is it possible that it can be done in this case as an exception”.

On 16^th September 2011 the Claimant’s solicitors made detailed submissions with a request that the Claimant be released. On 17^th September the physical care records (SERCO) state that the Claimant was in the health care centre and the record is

“still wants to (illegible) himself /suicide..”

Mr Jacobs submitted that by 16^th September 2011 the Secretary of State was clearly aware of an impasse. He argued that there was no prospect of any removal to Algeria within a reasonable period as the Algerian authorities were not responding to attempts made by both the Claimant and the Defendant to facilitate the Claimant’s removal to Algeria. Further, the Defendant was unequivocally on notice as to the Claimant’s suicide attempt, his mental health and of the likely deterioration with the passage of further time.

The Claimant’s solicitors’ request was refused by the Defendant on 23 September 2011. On 27^th September 2011 there was a further detention review. Under the set question

“Does the individual suffer from any known or claimed medical condition (including mental health issues, or threats of self harm)?”

the wholly unsatisfactory answer of the caseworker is

“Mr Lamari has heart palpations and loss of body hair”.

Indeed there is no reference of any form within the review to the Claimant’s mental health. The same applied to the next review on 18^th November 2011. I shall return to this issue in due course.

On 28^th September 2011 the Defendant took fingerprints from the Claimant as well as the name, date of birth and address of wife and child in Belgium. Significantly, and in direct contradiction to his representations on 14^th January 2011 the Claimant said that his real name was Aziz Lamari and Cifyan Haje Arbe was a false name used for his Belgian ID card.

Mr Fisher stated that this was an example, as was the failure to provide the correct address for the first application, of an intentional lack of co-operation. He relied upon the difference between the information given by the Claimant on 11^th July 2009, when he was claiming to be a minor, which was recorded as

“the subject stated that he arrived in the UK four days ago. He had arrived from Belgium. He had travelled from Algeria to France and then to Belgium. He had left Algeria on a lorry and travelled by sea.”

and

“the subject stated that he had come to the UK because he was ill and had nowhere to live in Algeria. His father got remarried, and he used to beat him. He stated that he had come to England to get treatment…”

as opposed to the information given on 21^st October 2010 that

“he was approached on 11^th October 2008 by some people in his neighbourhood they wanted to kill him as he has had problems with his step mother” and that he had subsequently been stabbed and that a friend visited him in hospital and advised him to leave Algeria”

This in contrast with what he later stated on 20^th May 2011 which was that he had left Algeria when 10 years old.

On 5^th October 2011 the Immigration Fingerprint Bureau confirmed that there was no match. It was noted

“Sonia will request a new ETD be done for Algeria which will be done by Eve when she is in next week”.

The case note also records that a face to face interview with the Algerian authorities was considered. The notes sets out

“This is not something that is usually done but we are running out of options”.

On 7^th October 2011 the notes record that the latest bio-data was being used to see if a new address could be found for the Claimant .

The Claimant committed further acts of self harm on 10 October 2011 (drinking shampoo) and on 11 October 2011 (head butting wall). The Claimant attempted to suffocate himself on 12 October 2011.

On 10 October 2011 the Defendant stated that there is no match to the Claimant’s fingerprints in Belgium and therefore he would not be returned to Belgium. Steps were taken to arrange a telephone interview for the Claimant with the Algerian embassy. This was arranged for 20^th October, but for some reason that cannot be ascertained from the records it did not in fact take place. On 14^th October Interpol Belgium said the prints matched prints taken under other names.

On 21^st October the Claimant was noted to be crying stating that he wanted immigration to send him home quickly. He was told that

“we were not in a position to interfere with the processes of the Algerian HC”

and that

“.. if he had given the information they had required in the first instance we would not be going through this lengthy motion”

On 3 November 2011 the Defendant sent to the Algerian Embassy a further application for an ETD with fresh evidence in support, including a copy of a birth certificate for the Claimant and for both of the Claimant’s parents. It is important to note that this information had been obtained by the Defendant without the assistance of the Claimant. The Defendant must have started the process of obtaining this information some time between May and the end of October 2011. On balance having considered the records I am of the view that the process was probably towards the end of that period.

So, unlike the first application, the November application had supporting documentation. As for a timescale from this point on the information available to the Defendant was stated to be that set out with the witness statement of Mr Hussain, a caseworker in the facilitated return scheme. He stated

“the only time estimate available is the 3-6 months period provided by CROS based on its historical management system”

On 15 November 2011 the Claimant made an application to the Facilitated Return Scheme to be returned to Algeria as soon as possible.

On 9th December 2011 the Claimant was interviewed by the Algerian Deputy Consul for the purposes of confirming nationality and on 15^th December the Algerian Embassy requested a telephone interview

The Claimant was interviewed by telephone on 12 January 2012. At the conclusion of that interview the Algerian Deputy Consul informed the Defendant’s Immigration Officer that

“Mr Lamari was from Algeria but previous checks were unclear.”

It was also said that further investigation was still necessary.

The Defendant states at paragraph 21 of her summary grounds and skeleton paragraph 24 that since the interview of 12 December 2011 she has made regular inquiries of the Algerian embassy. Further, the case notes set out that senior managers were currently in Algeria from 13^th February to 15^th February at a conference to discuss the situation in relation to returns. Mr Hussain covers the attempts made to progress matters form 15^th February 2012 onwards at paragraph 17 of his witness statement.

On 17 February 2012 the Claimant’s caseworker at UKBA informed the Claimant’s solicitor that the Algerian embassy had asked UKBA to stop sending letters and calling them by telephone. This is set out within an attendance note and the witness statement of Iylicia Weston. However, Mr Fisher explained that this was because the Country Returns Operations and Strategy Team was in contact with the Algerian authorities who only wanted one line of communication.

Further, on 5^th March 2012 the same caseworker told the Claimant’s solicitor that the Algerian authorities had not requested any further information and that he did not know what they were waiting for. On this date the Claimant applied for judicial review.

The only evidence as to what is currently holding the process up is contained at paragraph 28 of the witness statement of Tasadiq Hussain. Apparently, the Algerian consulate have given an indication that police checks are taking place and that the copies of birth certificates provided by the Defendant will be referred to the Ministry of Foreign Affairs.

On 6^th March 2012, after the application for judicial review was lodged, and at the instigation of the Claimant’s solicitor Dr Cornelius Katona, a consultant psychiatrist, interviewed and examined the Claimant.

On 7th April the Claimant was transferred to Brook House Medical Centre. This was not, as far as I am aware, as the result of any specific report. Rather in light of the facts that the Claimant drank shampoo in March 2012 and was taken to hospital and then on 27 March 2012 he had tried to jump from the second floor a building, and needed to be restrained by staff.

On 12^th April the medial report prepared Dr Katona, was annexed to a reply to the Acknowledgment of Service in this claim. The report set out that the Claimant was suffering from a mental disorder; a mixed anxiety depressive disorder caused or “driven” by his continuing and indefinite detention and is at high risk of future (potentially fatal) attempts Dr Katona considered but excluded the possibility of exaggeration of symptoms. He concluded that the Claimant was at high risk of future potentially fatal suicide attempts. He stated

“The possible effect on Mr Lamari’s mental health of continuing immigration detention

(a)

Mr Lamari’s mixed anxiety and depression is ‘driven’ by his continued detention and continued separation from his wife and daughter. In my opinion his mental state is unlikely to improve unless he is released from detention and helped to re-establish contact with his family.

(b)

Mr Lamari has made serious suicide attempts in detention and in my opinion remains at high risk of future (potentially fatal) attempts. Mixed anxiety depressive disorder is associated with markedly increased suicidality...... Although steps can be taken to reduce the risk (such as close observation and removal of means) it is sadly the case that people strongly intent on suicide find ways of harming themselves despite all reasonable precautions being taken.

(c)

Mr Lamari told me that he would be willing to comply with any provisions imposed on him on release, including tagging and that he was keen to be returned to Belgium or failing that to Algeria as soon as possible. In my opinion, if Mr Lamari were to be released to a National Asylum Support Scheme or equivalent accommodation and provided with subsistence support (to ensure he was not homeless or destitute) his risk of absconding and of reoffending would be low”.

In light of these conclusions on 3^rd May 2012 there was a medial assessment by Mr Anderson, a medical practitioner at Brook House stated to be a physician. He stated Clamant had low mood and was moderately depressed. However, on 9^th May 2012 Dr Thomas another doctor based at Brook House noted the detailed assessment of Dr Katona and the diagnosis of mixed anxiety depressive disorder and agreed with it.

On 10^th May 2012 the Claimant’s solicitor requested another update from the Defendant and was told that despite reviewing every week and sending out forms to the Algerian embassy there has not been any response.

On 11^th May 2012 Mr Hussain provided a witness statement on behalf of the Defendant and the Claimant provided a witness statement on 17^th May 2012.

There are two documents which were relied upon within submissions.

The Foreign and Commonwealth Office disclosed to the Claimant’s solicitor an agreement dated 11 July 2006 between the Governments of the United Kingdom and Algeria as to readmission between the two countries. Mr Jacobs submitted that the agreement amounted to a statement of the principles by which the countries have agreed to engage in the process of returns.

Article 2 of the agreement states as follows:

“1.

If nationality is not established or shown in a definite way according to Article 1 of the present Agreement (production of passport, ID card), the Competent Authorities of the requested party shall proceed without delay to determine the nationality of the person concerned by means of an interview undertaken in a prison, custody or any other place agreed on by both parties.

2.

If the interview of the person concerned establishes his nationality, the Competent Authorities of the requested party shall issue a laissez passer.

3.

If the interview of the person concerned by the requested party leads to a strong presumption regarding his nationality, a laissez passer may be issued by the competent authorities of the requested party.

4.

If the requesting party possesses other means of evidence that establish the nationality or a strong presumption regarding the nationality of the person concerned, it shall submit them immediately to the requested party. If the latter does not accept these means of evidence of establishing nationality, it shall inform, without delay, the Competent Authorities of the requesting party of this.”

Mr Jacobs submitted that the Algerian authorities had been in breach of the Agreement of 11 July 2006 since accepting that the Claimant was from Algeria and this supported the existence of an impasse. It was the thrust of his submissions that as against the background of this agreement the Defendant could not state what was going to change other than the passing of more time and she had no reliable information upon which to assess when the Algerian embassy was going to progress matters. He stated that specific requests for action are still being ignored and there is a statement that such requests should not be made in future. Mr Jacobs argued that in effect what exists at present, and has existed for some time, is only a hope of progress in the reasonably near future that could not and cannot amount to any reliable or legitimate expectation. Put simply there has been a breakdown in constructive communication and the Defendant cannot say when progress will be made.

Mr Fisher submits that this agreement is of little materiality or value and there has been and is no impasse. He conceded that there had been some difficulties communicating with the embassy. However, as set out by Mr Hussain within his witness statement there was and is no reason to consider that those difficulties represent an impasse. Indeed he submitted there was and remains a realistic prospect of the Defendant obtaining an ETD in a reasonable period of time albeit that a precise date cannot be demonstrated.

As I indicated to counsel during submissions the general description of such difficulties as have undoubtedly arisen as an “impasse” masks the continuing need for more precise consideration of the situation. To my mind impasse means a situation that is so difficult that no progress can be made; literally a road block. In other words a deadlock or a stalemate. However the issue here is not just whether progress can eventually be made but when. It appeared to me that what Mr Jacobs meant by impasse, was more accurately described as problem with no realistic prospect of a solution within a reasonable time frame. Certainly I understood Mr Fisher to accept that to defeat the existence of an impasse, it would not be enough, without more, to establish that it was possible or even probable that at some future stage of unknown duration but quite possibly some years hence, that the Claimant’s case would be addressed by the Algerian authorities.

In my judgment both the Agreement of 11 July 2006, but also the time scales set out by Mr Hussain, have been to date and remain relevant to the issue of whether the Defendant is able to effect deportation within a reasonable period. Mr Hussain provided evidence that as at the time of the second application for an ETD in November 2011 there was a belief based on historical data that removal would be effected by May 2012 (the 3-6 months estimate). I recognise that this was based on historical data and not on any indication from the Algerian Embassy and that such historical data may or may not be reliable depending upon whether and to what extent circumstances have changed. However, this was the evidence before me and was not the subject of any successful challenge as capable of supporting a reasonable belief up to May 2012.

The Claimant has provided evidence that he spoke to an Algerian Embassy Official on 5 March 2012 who told him the embassy was too busy to speak to him and hung up. The Claimant then telephoned the Algerian Embassy on five occasions on 6 March 2012, with the same result. On 27 April 2012 the Claimant made a further call to the Algerian Embassy in the presence of an Immigration Officer. The Algerian Embassy Official informed the Claimant that he was required to wait for an ETD pending further enquiries. There little else the Claimant can now do to assist the court as regards his ongoing application.

By the beginning of May 2012 the six month outer limit of the time estimate had been passed. As at 21^st May 2012 no evidence had been submitted by the Defendant of any confirmation by the Algerian authorities that travel documentation had been issued or was to be issued. Indeed the only evidence of any progress is that contained at paragraph 28 of the statement of Mr Hussain dated 11 May 2012. He states that the Defendant’s Country Returns Operations and Strategy Team (CROS) were informed by the Defendant’s Country Specialist Investigation Team (CSIT) on 25 April 2012 that police checks are still ongoing in Algeria to verify the Claimant’s identity and that the Algerian Consulate will insist on the case being referred to the Ministry of Foreign Affairs in Algeria to verify the copies of the birth certificates provided. This process is described as bureaucratic and no specific timescale has been provided as to how long this verification will take. CSIT have asked the Algerian Consulate to expedite the application. There is no indication of any response to this request.

In light of the length of detention, the expiry of the 3-6 month time frame and the lack of any further assistance as to the potential length of future detention and the medical evidence of Dr Katona and Dr Thomas together with the acknowledgment that the Defendant’s policy at EIG 55.10 was engaged, I felt it proper to give an indication at the outset of the hearing upon continuing detention.

Turning to the second relevant document this is the Defendant’s policy in relation to detention specifically as contained at Chapter 55 of the Defendant’s Enforcement Guidance Instructions. Paragraph 55.3.2.4 of the Guidance states as follows:

Imminence

55.3.2.4 In all cases, caseworkers should consider on an individual basis whether removal is imminent. If removal is imminent, then detention or continued detention will usually be appropriate. As a guide, and for these purposes only, removal could be said to be imminent where a travel document exists, removal directions are set, there are no outstanding legal barriers and removal is likely to take place in the next four weeks. Cases where removal is not imminent due to delays in the travel documentation process in the country concerned may also be considered for release on restrictions. However, where the FNO is frustrating removal by not co-operating with the documentation process, and where that is a significant barrier to removal, these are factors weighing strongly against release.

Paragraph 55.10 of the Enforcement and Instructions Guidance materially states as follows:

55.10.

Persons considered unsuitable for detention

Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.

In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. 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 prisons: ..

those suffering from serious medical conditions which cannot be satisfactorily managed within detention..

.. those suffering serious mental illness which cannot be satisfactorily managed within detention (in CCD cases, please 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;

Mr Jacobs submitted that the effect of the detention on the Claimant’s mental health was such that he was unsuitable for detention, from the summer of 2011 at the latest, notwithstanding the concerns that the Defendant may have held as to risk of re-offending or absconding. He placed particular reliance upon the a letter from Dr Juwanji dated 8 September 2011, the suicide attempt and the content of the report from Dr Katona.

In so far as I can understand the Defendant’s response on this issue it appeared as regards to the period up to April 2012 to largely rest upon a submission that, in light of the brief entry in the medical records there was no objective evidence of mental illness, until receipt of the report from Dr Katona in April 2012. As I have already set out I did not find this an attractive argument.

Further, the Defendant maintained in her detailed grounds of defence that the Claimant’s mental illness was and would be satisfactorily managed by virtue of his transfer on 7 April 2012 to Brook House where he “benefits” from 24 hour medical care and the presence of mental health nurses. As seems quite clear from the medical evidence as it is the very fact of detention that is driving the illness I cannot see how it can be satisfactorily managed in detention. However I do accept that as Dr Katona had seen the Claimant before his transfer it was a reasonable step open to gain a further report to ascertain if there had been any material change.

The Claimant states in his witness statement dated 17 May 2012 that he was informed by an Algerian official at his telephone interview on 12 January 2012 that he must present himself to at the Algerian embassy with two witnesses, whereupon further enquiries will be made, subject to which an ETD may be issued. The Claimant states that he passed the telephone back to Ms Eve Powell of the Defendant so that the Embassy Official could explain the procedure to her. The Defendant has taken no action to facilitate this process. The Claimant also states at paragraph 14 of his witness statement dated 17 May 2012 that he has been told by an Algerian interpreter in the employ of his solicitor that he could be introduced to members of the Algerian community based in London for the purposes of verifying the Claimant’s identity with the Algerian authorities.

The Claimant’s evidence on these points is not accepted.

I heard no direct evidence and ultimately it has not proved necessary to form a concluded view on this dispute as to fact.

Before descending into the detail of my analysis of the respective cases it is necessary to consider the relevant legal principles.

It is sensible to start with the ingredients of the tort of false imprisonment. The decision in R (WL Congo)-v-SSHD [2012] 1 AC 245 (“Lumba”) reaffirmed the rule, as stated by Lord Bridge in R v Deputy Governor of Parkhurst Prison ex parte Hague [1992] 1 AC 58 at p 162c-d, [1990] 3 All ER 687, [1990] 3 WLR 1210, that

“the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it”.

In cases of immigration detention the fact of imprisonment is not in issue. The question is whether there is lawful authority to justify it. The onus is on the Defendant to show that there is.

Lawful authority for the detention of an individual liable to deportation may be provided by, or derived from, the Immigration Act 1971. Section 3(5) of the 1971 Act renders a person who is not a British citizen liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. Paragraph 2 of Sch 3 to the 1971 Act provides inter alia that:

“(2)

Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3)

Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph . . . (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).”

(iii)

The Substantive Limitations On Detention Which May Be Authorised By Or Under Paras 2(2) And (3) Of Sch 3 To The Immigration Act 1971

In R-v-Governor of Durham Prison ex p Hardial Singh [1984] 1 WLR 704 Woolf J (as he then was) set out the principles governing the exercise of these powers. These were reconsidered by Dyson LJ (as he then was) in R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196, at para 46. In Lumba the majority of the Supreme Court accepted Dyson LJ’s restatement of these principles; now commonly referred to as “The Hardial Singh principles”. These are that:

“(i)

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

(ii)

the individual 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 a reasonable period, he should not seek to exercise the power of detention; and

(iv)

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

It is for the court to determine whether these substantive limitations on the detention authorised by these statutory provisions have been exceeded: see Tan Te Lam v the Superintendent of the Tai A Chau Detention Centre [1997] AC 97, [1996] 4 All ER 256, [1996] 2 WLR 863 per Lord Browne-Wilkinson at p 111a-e, 112c-114e; R (A) v the Home Secretary [2007] EWCA Civ 804 at 62, 67, 75.

In light of the submissions in this case it is necessary to consider these principles in a little detail. However, before doing so it must be recognised that, as Lord Dyson stated in Lumba at 115,

“the Hardial Singh principles should not be applied rigidly or mechanically”:

their application is a “fact-specific exercise”.

In Lumba, Lord Dyson said at [103] that a convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. If, though 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 period that is reasonable in all the circumstances, having regard in particular to the time that person has already spent in detention, then continued detention is unlawful.

There is no exhaustive list of the factors which may be relevant in determining what may be a “reasonable period”. But they include at least the length of the 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: see e.g. Lumba supra at 104-105.

The risks of absconding and re-offending are always of “paramount importance”, since, if they materialise, they will frustrate the deportation for which the individual may be detained and the likely reasons for it: see per Lord Dyson in Lumba at 107–110 and 121.

The Supreme Court also considered in Lumba the significance of an individual’s own conduct in contributing to the length of his detention in two respects:

The Supreme Court did not specifically address other ways in which an individual’s own conduct may contribute to the length of his detention. Specifically it did not consider how a refusal by an individual without a valid passport to co-operate in obtaining travel documents to enable him to return should be treated when assessing compliance with the second Hardial Singh principle. Nor did it consider what significance should be given to the supplying of false or misleading information. However, it appears to me that if established such matters may be taken into account, but the significance and weight that may be given are matters on the facts of each case. As result a reasonable period for the detention of an individual who does not co-operate in obtaining a travel document may be longer than it will be in the case of individual who co-operates fully. However, the fact of any such non co-operation is only one of the factors to be taken into account. The Secretary of State may not detain a person pending deportation for more than a reasonable period even in the case of an individual who is deliberately seeking to sabotage any efforts to deport him.

In this case Mr Fisher submitted that having regard to other cases that had been before the appellate courts, the time that had elapsed with the Claimant in detention was “relatively short” and in any event in line with such cases reasonable. He referred to In R(A) (Somalia) v SSHD [2007] EWCA Civ 804. In that case although there was some prospect of enforced removal there was no way of predicting with confidence when this might be, and this was held to be a sufficient prospect to justify detention for a period of some four years when regard was paid to other relevant factors, including in particular the high risk of absconding and serious re-offending if A were released. He also referred to R (MH) v Home Secretary [2010] EWCA Civ 1112 in which the Court of Appeal upheld the decision of Mr Justice Sales that a period of 38 months’ detention was lawful despite the fact that it was (rightly) described as “a very long period indeed” and meriting “the most anxious scrutiny”. However, Richards LJ indicated at [68] that as the period of detention gets longer, the greater the degree of certainty and proximity of removal that is expected to be required in order to justify its continuation.

In my judgment great caution should be taken before taking such a comparative approach. Cases are of course fact specific and relevant underlying factors change so the simple quoting of lengths of detention can be misleading. That does not mean in my judgment that no guidance at all can be obtained from these cases. Indeed, as John Howell Q.C. observed in R (Sino) –v-SSHD [2011] EWHC 2249 absent any such general guidance, decisions on the application of the second Hardial Singh principle would be at risk of being arbitrary, depending on the unguided intuition of the individual judge hearing any particular case. The fact that the application of the second Hardial Singh principle is not rigid or mechanical and that it is a fact-specific exercise does not necessarily mean that nothing can be said generally about its proper application. Thus Lord Dyson, for example, was able to recognise in Lumba that, although there are other factors that may be significant in particular cases, the risks of absconding and re-offending will always be of “paramount importance” without denying the need for judgment in individual cases. So equally judges have recognised that it becomes increasingly difficult to justify continued administrative detention as reasonable after certain periods, even when there is a risk of the individual absconding and re-offending, if the risk to the public if the individual is released is not likely to be the most grave or serious. Such an approach is also consistent with the view of Richards LJ in R (MH) at 63, that

“the period of 38 months detention . . . is a very long period indeed for administrative detention pending deportation. Detention for that length of time merits the most anxious scrutiny”.

In approaching the application of the second Hardial Singh principle in this case, therefore, I have borne in mind the cases to which Mr Fisher has referred and the lengths of time in detention but have also followed the approach adopted by John Howell Q.C. in Sino and also borne in mind that the facts of the Claimant’s case are not identical to the facts of any other case and what may (or may not) constitute a reasonable period of detention pending deportation needs to be considered carefully by reference to the specific facts of his case.

In Lumba, Lord Dyson said at [103] that a convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place.

“there may be situations 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 period that is reasonable in all the circumstances, having regard in particular to time that the person has already spent in detention . . . if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.”

The third Hardial Singh principle is important if individuals are to be protected against unjustifiable detention by the executive. It can never be sufficient simply to look backwards and consider whether the time for which an individual has been detained has at the time of consideration ceased to be reasonable. Consideration must be given to the future prospects of removal. Then this consideration is taken as against the period to date and the question posed whether there is a realistic prospect that that individual will be deported within a reasonable time.

I accept that it is now firmly established that when considering the period there does not need to be a finite time period within which, removal can reasonably be expected to be effected. As Richards LJ put in R(MH) v Home Secretary supra at 65:

“Of course, if a finite time can be identified, it is likely to have an important effect on the balancing exercise: a soundly based expectation that removal can be effected within, say, two weeks will weigh heavily in favour of continued detention pending such removal, whereas an expectation that removal will not occur for, say, a further two years will weigh heavily against continued detention. There can, however, 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.”

However, as Richards LJ also stated at 68(v),

“As the period of detention gets longer, the greater the degree of certainty and proximity of removal I would expect to be required in order to justify continued detention.”

Failure to comply with the first three Hardial Singh principles renders detention unlawful. The legal effect of a failure to comply with the fourth principle is less clear cut. As John Howell Q.C. stated in Sino

“[67] Plainly, if an individual is detained for longer than he otherwise would have been but for a failure by the Secretary of State to act with reasonable diligence and expedition to effect removal, he will have been detained for longer than is reasonable.

[68] But the circumstances may be such that, even if the Secretary of State had acted with reasonable diligence and expedition, an individual would still have been in detention and the period for which he has been detained may otherwise still be reasonable. In such a case the Secretary of State's failure would have no causative effect on the length of such an individual’s detention. As mentioned above, Lord Dyson indicated in Lumba that one of the factors to be taken into account in determining whether an individual has been detained for more than a reasonable period was the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles. This would suggest that any failure by her to act with reasonable diligence and expedition to effect removal would not necessarily of itself in all cases render any further continued detention unlawful. That is also supported by Lady Hale’s statement in SK supra at 64 that “if the Secretary of State is dragging his feet, then the period may become unreasonable”.

It is my judgment, as it was the judgement of John Howell Q.C. that it may well be the case that failure to act with reasonable diligence and expedition to effect removal would not make detention unlawful of itself unless that had had an effect on the length of an individual's detention.

However, it is my view that any earlier failure to act with reasonable diligence and expedition is likely to mean that it is reasonable to expect that the Secretary of State should act thereafter with greater diligence and expedition than she might otherwise reasonably be expected to do. Thus, even if that failure does not itself make detention unlawful subsequently, it may affect what a reasonable period in such a case would be.

Having considered the Hardial Singh principles it is necessary, given the central importance of the issue to specifically consider the impact of mental illness on detention.

The Defendant’s policy has already been subject to careful and thorough analysis and all I shall do is to follow and apply it. Mr Justice Cranston stated in Anam-v-Secretary of State for Home Department [2009] EWHC 2496 (Admin)

Determining the meaning of the policy

49.

The meaning of a policy such as that contained in the Enforcement Instructions and Guidance is an objective matter: R (on the application of Raissi) v Secretary of State for the Home Department [2008] EWCA Civ 72. In that case the Court of Appeal considered how such schemes should be interpreted and referred to Lord Steyn's speech in In re McFarland [2004] UKHL 17; [2004] 1 WLR 1289. Lord Steyn’s speech also goes to the point that persons are entitled to rely on the language of a policy statement.

"[24] … In my view, however, in respect of the many kinds of "soft laws" with which we are now familiar, one must bear in mind that citizens are led to believe that the carefully drafted and considered statements truly represent government policy which will be observed in decision-making unless there is good reason to depart from it. It is an integral part of the working of a mature process of public administration. Such policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the Minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The decision-maker, here a minister, may depart from the policy but until he has done so, the citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy. "

50.

I note that although Lord Steyn’s remarks were couched in terms of citizens, the import of this passage holds true for those such as the claimant, who is being detained by the United Kingdom. (I also note that Lord Steyn’s remarks are especially pertinent in this case, when proceedings were brought by the claimant in person, in reliance on his understanding of the meaning of the policy). The upshot in Raissi was that the Court of Appeal decided that the meaning of a policy was a "hard edged question" which fell to be determined objectively by the courts and not by the minister responsible for administering the scheme.

The meaning of the policy

51.

Paragraph 55.10 provides that those mentally ill are normally considered suitable for detention in only "very exceptional circumstances". To my mind the existence of very exceptional circumstances demands both a quantitative and qualitative judgment. Were this provision to stand in isolation in the policy the power to detain the mentally ill could only be used infrequently, and the circumstances would have to have a quality about them which distinguished them from the circumstances where the power is frequently used. Otherwise effect would not be given to the requirement that the circumstances not simply be exceptional but very exceptional.

52.

There are two points to be made. The first is that in my view mental health issues only fall to be considered under Chapter 55 where there is available objective medical evidence establishing that a detainee is, at the material time, suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. This consideration must be given to the nature and severity of any mental health problem and to the impact of continuing detention on it.

53.

Secondly, the provision that the mentally ill be detained in only very exceptional circumstances does not stand in isolation. The opening part of paragraph 55.10 provides that for Criminal Casework Directorate 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". Paragraph 55.13 indicates, as would be expected that that demands a consideration of the likelihood of the person re-offending and the seriousness of the harm if re-offending occurred. With an offence like robbery, the paragraph specifically requires substantial weight to be given to the risk of further offending and harm.

54.

Absconding as a consideration is introduced by paragraph 55.3A for CCD cases. That provides that in assessing what is a reasonable period of detention necessary for removal in the individual case, case-workers must address all relevant factors, including the risks of re-offending and absconding. That paragraph specifically mentions mental illness when considering more serious offences such as robbery. The relevant passage has been quoted earlier in the judgment: case-workers must balance the risk to the public from re-offending and absconding if the detainee is mentally ill.

55.

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.

As a result the first question to be answered is whether there was available objective medical evidence establishing that the Claimant was suffering from mental health issues of sufficient seriousness as to warrant consideration of whether his circumstances are sufficiently exceptional to warrant his detention. I am in little doubt that the answer is in the affirmative from mid September 2011.

I have already set out my view of the inadequacy of the assessment undertaken and its effects. The decision maker should consider the nature and severity of any mental illness, and the impact of continuing detention on it, in the light of objective, expert medical evidence. If these matters are not considered, then the decision maker cannot properly determine whether there are circumstances which outweigh the impact of detention.

I should add that it is always to be recognised that it is not for this court to weigh one medical opinion against another or to determine whether a particular opinion fell outside the range of responsible medical opinion. However any medical opinion if it is to be reasonably relied upon in the context of continuing detention must be capable of at least rudimentary analysis and evaluation (including assessing the qualification of the person giving it). Against the backdrop of rule 35, what is agreed to have been a serious suicide attempt, and the reports of Dr Juwanji that mental health had been affected and would worsen, the brief entry in the records stating that there is no evidence of mental illness raises far more questions than it answers.

I have already set out my finding as to what is likely to have occurred had there been a reasonable assessment.

Finally, I should add that I found the rigid and restrictive approach to the definition of serious mental illness as advanced by Mr Fisher as inappropriate and contrary to the intended effect of rule 35. Serious suicidal intention or ideation a fortiori continuing after an attempt at suicide must produce a presumption of a significant mental health condition of sufficient seriousness to require adequate investigation. If that investigation produces reliable medical evidence that detention had sufficiently affected mental health to directly lead to the suicidal intention and further that it was likely that deterioration would follow from continued detention that must on any reasonable interpretation trigger the consideration of 55.10 and a presumption in favour of release.

I also did not accept the submissions as to the Claimant’s condition being one which could be satisfactorily managed in detention. The policy is engaged when the Secretary of State is deciding whether or not to detain a person who is suffering from a mental illness. Future detention is the key question. Indeed this may mean that his illness cannot be managed satisfactorily in detention, even if the person is well at the time his case is considered. Here on the information available, there was a clear risk that the Claimant would quite quickly deteriorate as a result of detention. Indeed detention was noted as, in effect ,the driving factor of the mental condition.

Having set out the facts and relevant legal principles I turn to my judgment upon the period of detention . I shall address matters chronologically.

The Claimant has pursued no argument that detention was unlawful before 16^th May 2011.

As at 16^th May 2011, the Claimant’s case was withdrawn from the weekly review list by the Defendant as the Algerian Embassy refused to accept that the Claimant was an Algerian national as the address provided was said to be incorrect.

Mr Jacobs submitted that from this date onwards the Defendant failed to act with the reasonable diligence and expedition to effect removal. He also submitted that removal was clearly not imminent and as a result the Defendant was not able to effect deportation within a reasonable period as the expected timescale for securing an ETD was 12 months before it was refused. Once refused there was no reliable timescale for deportation.

As for the enquiries of the Belgian Authorities Mr Jacobs submitted that these should have been run in tandem with the renewed progression of the ETD. He also referred to the fact that an ETD pack prepared in August was not actually submitted.

As regards reasonable diligence and expedition during this period Mr Fisher stated that delay was due to the Claimant’s own actions and he relied upon;

In assessing the period I have rejected the submission of Mr Jacobs that the Defendant should have ignored the request to be sent to Belgium. I agree with Mr Fisher’s analysis on this point. Further, when considering the gaps that are present within the chronology I must have regard to the qualification of “reasonable” to the obligation.

Having carefully considered the chronology, and all the relevant circumstances I am not of the view that the Defendant failed to act with reasonable diligence and expedition within this period.

Even if I were to be wrong in this analysis as I have already set out it is my view that breach of this principle would not of itself have made the continuing detention unlawful. Further, having regard to all the circumstances I would not have been satisfied that such failures as could be established, given the timescales and surrounding factors, would have had an effect on the Claimant’s detention.

I also accept Mr Fisher’s submissions as to the existence of a realistic prospect of deportation within a reasonable time to either Algeria or Belgium.

As I have set out in some detail by the early days of September 2011 mental health considerations should have become a greater and more urgent consideration, escalating from the incidents and medical reports in June and July 2011. By 9^th September 2011 there was sufficient objective medical evidence to engage the relevant part of the Defendants’ own policy. However there was a failure to apply the policy or to adequately or properly address the mental health issues.

Having made this finding it is then necessary to address the effect of the failure to apply the policy. The relevant questions were set out by Mr Justice Lindblom in R- ( on the application of Mustafa Moussaoui –v- Secretary of State for the Home Department [2012] EWHC 126 (Admin) as follows

Approach

112.

Against the background of the jurisprudence in the Supreme Court's decisions in Lumba and Kambadzi it can be seen that the principal question for the court to resolve in dealing with this issue, as it was in OM, divides into two parts: first, whether the claimant would in fact have been detained if the Secretary of State's relevant policy had been applied; and secondly, whether the Secretary of State could lawfully have detained the claimant if she had properly applied her policy (see para. 24 in the judgment of Richards LJ in OM). OM was a case in which regular detention reviews had been carried out. In that respect it can be distinguished from this case. But I do not think that in practice the distinction makes any difference. It does not bear materially on the application of the Secretary of State's policy for the detention of the mentally ill, because in OM the detention reviews carried out in the first period of detention whose lawfulness was disputed did not grapple with the policy. In paragraph 14 of his judgment Richards LJ referred to the fact that the Secretary of State had failed to take into account paragraph 55.10 of the EIG when considering the justification for the appellant’s detention for a period of more than 20 months from the time when the appellant was first detained. The judge at first instance had held that the failure to take paragraph 55.10 into account did not cause the appellant's detention; the decision to detain her would have been the same if the policy had been properly considered and applied. As the authorities made clear, the court must also be satisfied that the failure to apply or a breach of the policy had in fact caused prejudice to the person detained. In other words, the court would need to be satisfied that, if the policy had been applied, his continued detention could not have been justified. If the strong presumption in favour of release can reasonably be said to have been rebutted by factors such as the risk of absconding and reoffending, the detention would in this respect be lawful.

113.

I should add that I do not accept that the approach adopted by the Court of Appeal in OM was implicitly doubted or departed from by its recent decision to re-open the appeal in Anam. In my view it was not. Indeed, Mr Khubber did not suggest that it was. The Court of Appeal decided OM after, and in accordance with, the Supreme Court’s decisions in Lumba and Kambadzi. The present case too has been argued in the light of that jurisprudence.

The learned Judge then set out the first question to be addressed

Would the claimant have been detained in any event?

114.

In OM, when considering the first question – whether the claimant would have been detained had the policy been applied – the Court of Appeal adopted as the correct test the balance of probabilities rather than the concept of inevitability. Indeed, the court expressly rejected inevitability as the standard of proof (see paras. 22 and 23 in the judgment of Richards LJ), though it was also satisfied that the appellant would have been detained even if the relevant policy had been taken into account (see para. 24 of Richards LJ's judgment).

115.

Mr Auburn submitted that the same conclusion as was reached by the Court of Appeal in OM ought to be reached here; the same factors apply with equal force. I agree. In my judgment, even if Mr Khubber was right in his submission on the standard of proof, the answer in this case would be no different. Whether it is necessary for the Secretary of State to prove that she would inevitably have detained the claimant, or only that on the balance of probabilities she would have done so, my conclusion would be the same. Even if the Secretary of State had consciously applied her policy in paragraph 55.10 at any stage when she did not do that, I believe she undoubtedly would still have detained the claimant for the whole of the period he was in detention. In other words, to make this absolutely clear, she inevitably would have detained him. It follows that I am also in no doubt that, if the test is the less stringent one of the balance of probabilities as indicated and applied by the Court of Appeal in OM, the claimant would have been detained throughout that period.

Mr Fisher submitted that the Claimant would have been detained as upon application of the policy there would have been found to be exceptional circumstances. Given the content of the detention reviews, including the most recent review of 14^th May 2012 after the receipt of the evidence of Dr Katona and Dr Thomas, the weight attached to the risk of absconding/reoffending, the intentional lack of assistance and the belief that deportation could be effected within a reasonable time, I am very sure that he is right. So even if the Secretary of State had consciously applied her policy in paragraph 55.10 at any stage after early September I find that she undoubtedly would still have detained the claimant for the whole of the period he was in detention.

It is then necessary to consider what is in this case the much more difficult second question. Mr Justice Lindblom stated

Could the Secretary of State lawfully have detained the claimant in accordance with her policy in paragraph 55.10?

119.

Having thus concluded that the Secretary of State inevitably would have detained the claimant, I turn now to the question whether she could have done so – that is to say whether she lawfully could. As Richards LJ observed in paragraph 24 of his judgment in OM, this is not a question that involves any debate about a burden and standard of proof. It is simply "a matter of legal assessment". It has two elements. The first element, concerning the Secretary of State's policy, is governed by Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly on the policy, to detain the claimant in the circumstances of this case (see paras. 24, and 28 to 39 of Richards LJ's judgment in OM)? As is well illustrated in the authorities to which I have referred (OM, Anam and MC (Algeria)), and in many others too, this necessarily involves an exercise sensitive to the facts of the particular case. The second element of the question, which arises as issue (ii) in these proceedings, is whether in any event the claimant's detention was consistent with the principles in Hardial Singh.

120.

On the facts of this case I find it impossible to say that, at any stage of the claimant's detention between May and November 2010, the Secretary of State could not reasonably have detained him in accordance with her policy for the detention of the mentally ill in paragraph 55.10 of the EIG.

Unsurprisingly, given his primary case Mr Jacobs submitted that there were no exceptional circumstances in this case and release from detention was required a fortiori the lack of a realistic prospect of deportation. Equally it came as no shock that Mr Fisher submitted that the Claimant could have been lawfully detained as there were exceptional circumstances, which continued up to the decision during the morning of the hearing.

Turning to the detail of their respective submissions Mr Fisher referred to the context in which 55.10 must be considered. Whilst at paragraph 55.1.3. it is states that

“Detention must be used sparingly, and for the shortest period necessary”

it also set out that;

“it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale…… in looking at the types of factors which might make further detention unlawful, caseowners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does reoffend, must be considered. Where the offence which has triggered deportation is indicated in the list at p 63 (as it is here; being one of robbery), the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release.”

Mr Fisher relied upon what was described in the grounds as a remarkable history of criminal offending and absconding. In consideration of the decision as to whether it was appropriate to detain given the content of 55.10 he argued that the decision maker had to consider;

There is no doubt that robbery is a serious offence and the sentence passed means that there was no reason for the defendant to have considered it otherwise. In my judgment Mr Jacobs was quite wrong to describe the offence as one of theft of a watch. It was one of robbery. Without any detailed knowledge of the circumstances I find that the Defendant was quite entitled to consider it a serious offence and to attach particularly substantial weight accordingly.

Mr Fisher submitted that there was medical treatment available, including on transfer, with facilities as good as those available if released. Also the Claimant had started on medication on 9th September 2011.

Further, as at September 2011 he argued that there was a realistic prospect of deportation within a reasonable timescale. He referred to

Bringing these factors together Mr Fisher submitted that the result was that when, pursuant to paragraph 55.10 of the EIG policy, the history and extent of mental ill health was considered and weighed against these factors the Secretary of State could reasonably have detained the Claimant in accordance with her policy for the detention of the mentally ill.

Mr Jacobs relies on what he described as the continuing impasse. Having regard to the belated acknowledgment that the Claimant should not now be detained he posed the question as to what had changed since September 2011 as regards the prospect of deportation. He also submitted that upon any adequate medical analysis the risk of absconding/re-offending would have been found to be very low as the Claimant was in effect a broken and desperate man who would do nothing to risk a return to custody or detention. Put simply there were no exceptional circumstances to weigh in favour or continued detention.

I start my analysis of this question by noting that the burden on this issue is on the Defendant.

Paragraph 55.10 EIG policy sets out that those suffering serious mental illness which cannot be satisfactorily managed within detention are considered suitable for detention in only very exceptional circumstances.

In this case, as set out By Dr Katona in April 2012 and confirmed by Dr Thomas it was and is the very fact of detention that underpins the mental condition. So whilst the facilities within some of the detention centres may be as good as those available when released and in the community that misses the point.

It is also my view that there is fundamental problem with the analysis presented by Mr Fisher as it was based on the risks on release as in effect static and unchanging. Even putting to one side the Claimant’s statement that he had now matured and at aged 22 was able to be responsible, it singularly fails to weigh into the analysis the effect of the extended period of detention upon the Claimant. Indeed it seems to me that the rationale of Dr Katona in arriving at his conclusion as to the very limited risk of re-offending or absconding in this case is clear. This was a young man now broken by the experience of custody. He was and is desperate to avoid further detention. Absconding within the UK, Belgium or any Dublin II country would mean potentially arrest and just such further detention. He hardly had a successful track record of not coming to the attention of the authorities. If this is correct and it appears that Dr Katona accepted as such, the risk of absconding has reduced as the length of detention has increased with consequential effect on mental health.

The Claimant set out within his witness statement in May 2012 that

“ I do not want to be a trouble maker and do not want to face any problems here”

and suggested that he was

“ willing to accept any restrictions imposed on me for my release. I would be willing to be electronically tagged and would accept any further restrictions on me however stringent it may be, as long as I am released from this detention centre”

Save for the important caveat that that there will on balance and in accordance with the opinion of Dr Juwanji have been a deterioration in the Claimant’s condition between September 2001 and May 2012 there is no logical reason to assume that the conclusion that the effect of detention had been to lessen the risks would not have been arrived at had the issue been considered in September 2011.

However, in my judgment there was and indeed still is some risk or re-offending and/or absconding to be weighed into the equation by the Defendant. I do not believe that it is right through a process of elision to take the mental condition in May 2012 as that as at September 2011. In my judgment the risk could properly have been seen as significantly greater than Dr Katona assessed it eight months later.

The likely deterioration also means that it is proper to factor in that the range of reasonable medical options, including in light of the commencement of medication, were indeed probably wider in September than subsequently became the case.

I also accept that the six factors outlined by Mr Fisher could be taken into account and supported the view that there was a realistic prospect of deportation within a reasonable timescale. As for the submission that judged against the length of time held to be reasonable in other cases the time that would have elapsed by May 2012 a fortiori September 2011 could not be said to be unreasonable, I have set out my view as to the proper limits of such comparative approach. However, this submission does lend some support to the overall position that Mr Fisher says could properly have been adopted.

Further I accept that as time passed after 9th September 2011 the belief in imminent deportation strengthened as the ongoing steps to bolster a fresh application for ETD bore fruit and that by late October the 3-6 months timescale could be reasonably taken.

Having considered all available evidence and argument, after anxious scrutiny and upon a fine balance I find that it cannot be properly said that the Secretary of State could not reasonably have detained the Claimant in accordance with her policy for the detention of the mentally ill in paragraph 55.10 of the EIG after September 2011 and before 9^th May 2012.

In reaching this conclusion I have accepted that reliance could reasonably be placed upon the 3-6 month timescale once a fresh ETD application supported by evidence could be submitted. That timescale only expired in early May 2012.

As I outlined at the commencement of this judgment Mr Jacobs submitted, as fall back positions from his primary case, that detention was unlawful

However, in my judgment none of these events materially altered the analysis given that they were within the 3-6 months timescale. The 12^th January 2012 acceptance of nationality served only to underpin the expectation of deportation within this timeframe. As I have set out Mr Hussain has given evidence as to the steps immediately before and after 15^th February 2012 and I accept the clarification put forward by Mr Fisher in respect of the request on 17^th February.

However, whilst the date of the application, being of the Claimant’s choice, could not of itself affect the Defendant’s consideration that was not so for the service of the reply on 14^th April 2012 attaching the report of Dr Katona. This report not only gave a diagnosis but also an indication of how that diagnosis impacted on the risk of re-offending or absconding. It set out that the Claimant was suffering from moderate depressive symptoms as a result of a mixed anxiety depressive disorder and that his detention was a significant factor in his illness. Indeed it was opined that the disorder has been caused and elsewhere in the report “ driven” by his continuing detention. Dr Katona specifically set out his view that the Claimant had not exaggerated his symptoms. He concluded that the Claimant was at a high risk of future potentially fatal suicide attempts.

This report clearly required action.

The justification advanced for the period between the 14^th April and the 9^th May 2012 was that the Claimant had been transferred to Brook House and it was reasonable to require clarification that the change in facility had not resulted in an improvement in his condition. The medical report of Dr Thomas was received on 8th May 2012.

I had doubts as to whether the time period between 14^th April 2012 and 9^th May 2012 itself represented reasonable diligence as regards the obtaining of the second assessment, but without further information on the relevant circumstances, or indeed specific supported attack on behalf of the Claimant as regards this specific period, I find that it was.

As I have already set out by 9^th May 2012 the six month time had been passed with no further understanding as to why or what the future held. Further, paragraph 55.10 was accepted to be engaged and the opinions of Dr Katona and Dr Thomas were available.

Unlike the position in September 2011 no material change was or indeed is on the horizon. If not truly a stalemate there can now be no adequate basis for belief in a realistic prospect of a solution within in a reasonable timeframe. Often in litigation an approaching hearing date focuses the mind of a party. Indeed the risk of an adverse finding can do wonders. Many do not believe that they can jump the fence until they see the bull behind them. In this case Mr Justice Coulson had given a clear warning two months ago. However as at 25^th May 2012, over two weeks after the receipt of Dr Thomas report and facing this hearing no further information has been obtained by the Defendant. It appears to me that the Defendant is effectively powerless to progress matters.

I am afraid to say I could not follow the justification advanced by Mr Fisher for the change from the decision taken on 14th May 2012 that continued detention was justified to that on the morning of the hearing on 25^th May 2012 that it no longer was justified.

In my judgment as soon as the report of 9^th May 2012 was received detention could not longer be justified. Subject to suitable arrangements; of the nature set out within my order made on 25^th May 2012, the Claimant should have been released from detention. This should have occurred at the latest by two weeks i.e. 23^rd May 2012.

By reason of the matters that I have now set out the Claimant has been unlawfully detained since 23^rd May 2012 and he is entitled to damages for his period of unlawful detention: R v Governor of Brockhill Prison Ex parte Evans (No. 2) [1999] QBD 1043 and Thompson v Commission for the Metropolis [1998] QB 498.

I intend subject to further submissions to transfer the issue of damages to the Queen’s Bench Division.

Due to my itinerary this judgment will be delivered in a Court in the South West. The parties need not attend but need to liaise as to the any consequential orders.