Anam, R (on the application of) v Secretary of State for the Home Department (No. 2)

The claimant, Mr Ruhul Anam, has now been held in immigration detention for more than 4 years. It began in April 2008 and has continued ever since. The Secretary of State for the Home Department, who is the defendant in these proceedings, says that authority for that detention is found in paragraph 2 of Schedule 3 to the Immigration Act 1971, which has the force of law under section 5 of that Act. That paragraph permits detention pending removal from this country when a deportation order is in force, or notice of intention to make such an order has been given.

It was said by Lord Atkin in Liversidge v Anderson [1942] AC 206, 244 that it has always been one of the principles of liberty that the judges are alert to see that any attempted encroachment on liberty is justified in law. That principle is exemplified by the decision of Woolf J in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704, where in the context of immigration detention four specific principles were identified. They are known as the Hardial Singh principles, and are encapsulated in R (I) v Secretary of State for the Home Department [2003] INLR 196 as follows:

(1)

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

(2)

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

(3)

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, [the secretary of state] should not seek to exercise the power of detention;

(4)

The secretary of state should act with reasonable diligence and expedition to effect removal.

I shall refer to them as Hardial Singh principles 1, 2, 3 and 4 respectively. Likewise, I shall refer to the questions which they raise as Hardial Singh questions 1, 2, 3 and 4 respectively.

There can be little doubt that those who drafted article 5 of the European Convention on Human Rights had well in mind Lord Atkin’s principle as to the role of judges where there is an attempted encroachment on liberty. Article 5 states:

Article 5 – Right to liberty and security

1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court;

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)

the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)

the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e)

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2.

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.

Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

The Human Rights Act 1998 in section 1 defines “Convention rights” so as to include article 5. It provides in section 3 that, so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights. Under section 6 it is, subject to certain exceptions, unlawful for a public authority to act in a way which is incompatible with a Convention right.

Mr Anam brought these proceedings more than 3 years ago in order to challenge his detention. He relied upon the Hardial Singh principles, upon general principles of public law – among them a principle that published policy must be complied with in the absence of good reason not to do so – and upon Article 5 of the European Convention on Human Rights. He achieved part of what he sought in October 2009, when Cranston J granted a declaration that the secretary of state had unlawfully failed to consider the implications for Mr Anam of departmental policy as regards detention of those who are mentally ill. That remained all that he had achieved in October 2010, when the Court of Appeal dismissed his appeal on issues which Cranston J had decided in favour of the secretary of state. However Mr Anam achieved more of what he sought in November 2011, when the Court of Appeal set aside its previous order and granted a declaration that his detention to 14 August 2009 was unlawful.

Neither of these partial successes, however, gave Mr Anam his liberty. As regards the period of detention to 14 August 2009, the Court of Appeal’s order of November 2011 would ensure that he was entitled at least to nominal damages, but left over for consideration by the Administrative Court the question whether he was entitled to substantial damages. As regards the period from 14 August 2009 it left over for consideration by the Administrative Court questions whether at any time his detention was unlawful, and if so whether he is now entitled to his liberty and to substantial damages. In this judgment I examine those questions. For reasons given below, I conclude that:

In order to explain my conclusions I must discuss two recent decisions of the Supreme Court. They are Lumba, reported as R (WL (Congo)) v Home Secretary [2011] UKSC 12, [2012] 1 AC 245 and Kambadzi, reported as R (SK) v Home Secretary [2011] UKSC 23, [2011] 1 WLR 1299. I must also discuss subsequent decisions of the Court of Appeal in OM (Nigeria), reported as R (OM (Nigeria)) v Secretary of State for the Home Department [2011] EWCA Civ 909 and LE (Jamaica), reported as R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597. Before doing so I give a brief overview of events relevant to the present case.

In 1984 Mr Anam, who is a national of Bangladesh, was given leave to enter and live here. Thus it was that he came to this country with his mother and 9 siblings at the age of 13 to join his father who was already here. Mr Anam’s mother and siblings are all now UK citizens. His father has died.

Mr Anam was married at the age of 24. His wife and children live here. However he is separated from his wife and has not had contact with his children for some time. He was first diagnosed with psychotic illness in 1991, the same year in which he was first convicted of criminal offences. They were offences of assault and theft, for which Mr Anam received a conditional discharge. There were subsequent convictions for criminal offences in 1995, 1997, and every year thereafter until 2007.

The convictions in 1995 involved shoplifting and deception and resulted in a total sentence of 4 months imprisonment. Those in 1997 concerned assault occasioning actual bodily harm and perverting the course of justice, and resulted in a total sentence of 12 months imprisonment. In 1998 there were convictions for making off without paying and for obstructing the police, resulting in a total sentence of 7 days imprisonment. In 1999 a conviction for shoplifting resulted in a fine of £175. Convictions in January 2000 for shoplifting, failure to surrender to bail, failure on two occasions to surrender to custody, and attempted deception led to community orders. Those orders were later to be revoked in consequence of subsequent convictions. In May 2000 convictions for deception and assault with intent to resist arrest resulted in imprisonment for 6 weeks. In December 2000 convictions for deception and shoplifting resulted in a total sentence of 18 months imprisonment. A conviction for shoplifting in 2001 led to a conditional discharge. In 2002 Mr Anam was fined £40 for being drunk and disorderly. In February 2003 a conviction for deception led to a community order, but in March that year a conviction for attempted deception resulted in 6 weeks imprisonment, as did a further conviction for deception in July that year. A conviction for deception in 2004 resulted in imprisonment for 2 months. In January 2005 convictions for failure to surrender to custody and being drunk and disorderly were dealt with by fines, as was a further conviction in February 2005 for being drunk and disorderly. In August 2005 convictions for 3 offences of shoplifting, an offence of deception, and two failures to surrender to custody resulted in a total of 36 weeks imprisonment. Mr Anam was convicted of shoplifting in February 2006, resulting in imprisonment for 3 months. Convictions in April 2006 for theft, disorderly behaviour, and failure on two occasions to surrender to bail resulted in a total sentence of 43 days imprisonment.

There were no convictions for drug offences. However it was, or would later become, apparent that drug abuse underlay some, at least, of these offences. It would also be suggested that the drug abuse may, at least in part, have been a response to Mr Anam’s mental illness.

Prior to 2007 Mr Anam’s offending had been dealt with in the Magistrates’ Courts. In that year, however, he made his first – and only – appearance in the Crown Court, where he was convicted by a jury after trial on indictment of two offences of theft and an offence of robbery. He was sentenced to a total of four years imprisonment. The sentencing judge remarked that Mr Anam had been found guilty of a persistent and premeditated course of conduct in stealing money from Ladbrokes, and noted that the robbery had caused great distress to the young woman whom he had attacked and hit in the stomach. As to Mr Anam’s psychiatric condition, the judge said that he understood that the claimant had a very serious mental illness, but it was being properly treated in prison:

“[N]onetheless you decided to part company with your defence team and you tried to pretend that you were ill when I was quite satisfied that you were not ill.”

Subsequently the secretary of state made a deportation order. In April 2008 the secretary of state issued directions for Mr Anam’s removal to Bangladesh. When his prison term came to an end Mr Anam remained in custody under immigration detention. Mr Anam made representations against removal and was eventually enabled to pursue an out of time appeal against the decision to deport him. After that appeal failed he was eventually enabled to pursue an in-country appeal against a refusal to revoke the deportation order. I shall refer to the proceedings concerning these matters as “the immigration proceedings”.

It is a regrettable fact that the immigration proceedings have had a protracted history and have yet to be finally determined. In the meantime Mr Anam has remained in immigration detention. Detention has been reviewed by officers of the Criminal Cases Directorate (“CCD”), usually every four weeks. On each occasion the outcome has been a decision to maintain detention, and that outcome has usually been notified to Mr Anam in a monthly progress report. Applications for bail by Mr Anam either failed or were withdrawn.

The present claim for judicial review was begun on 17 February 2009. The substantive hearing took place on 19 August 2009 before Cranston J. Judgment was reserved and in due course handed down on 13 October 2009: see R (Anam) v Secretary of State for the Home Department [2009] EWHC 2496 (Admin).

In his judgment Cranston J referred to departmental policy as published in chapter 55 of a document entitled “Enforcement Instructions and Guidance.” I shall refer to this document as “EIG”. It provided that persons suffering from mental illness should be detained under immigration powers only in “very exceptional circumstances”. Cranston J held that it was for the court objectively to determine what this meant. He concluded that Mr Anam’s mental health issues were such that the policy in this regard was engaged. Yet the detention reviews had hardly touched on his mental health up until the point when the hearing before Cranston J was imminent. This, as it seems to me, was plainly a reference to the period prior to a detention review on 13 August 2009, leading to a decision on 14 August 2009 to maintain detention. That review made mention of Mr Anam’s mental illness and referred to “very exceptional circumstances”. The process leading to the decision included a comment on the review which made reference to “exceptional circumstances”.

At the hearing before Cranston J the secretary of state relied upon a witness statement by Mr Kennedy, an official in CCD who had been Mr Anam’s caseworker for much of the period of his detention. Mr Kennedy noted that the detention reviews and progress reports provided to Mr Anam did not expressly refer to Mr Anam’s mental illness or to the policy at chapter 55.10 of EIG. Nevertheless, in his witness statement Mr Kennedy said that he could “confirm” that he was aware of and took account of Mr Anam’s condition in considering whether detention was reasonable. Cranston J accepted the submission of Mr Goodman, then appearing for Mr Anam, that this gave the appearance of an ex post facto rationalisation and was unsupported by the contemporary records, and even if one gave credence to it Mr Kennedy was not the responsible decision maker: more senior officials had authorised detention.

Accordingly Cranston J found that the secretary of state had unlawfully failed to consider the implications for Mr Anam of departmental policy as regards detention of those who are mentally ill. A declaration was made to that effect.

However Cranston J considered that as a matter of law detention would only be unlawful if non-application or breach of policy had caused the detention. As to that, Cranston J concluded that Mr Anam’s detention was not in breach of the policy. Accordingly the unlawful failure to consider the policy did not make the detention itself unlawful. Other grounds for asserting that detention was unlawful were considered and rejected by Cranston J.

Mr Anam appealed. At this stage the secretary of state admitted that during the period to 14 August 2009 there had been an unlawful failure to consider the implications for Mr Anam of departmental policy as regards detention of those who are mentally ill. Thus there was no cross-appeal as regards Cranston J’s finding against the secretary of state in that regard.

In the Court of Appeal Mr Macdonald QC and Mr Sadat Sayeed appeared on behalf of Mr Anam, and Mr Waite (rather than Mr Payne, who had appeared below) appeared on behalf of the secretary of state. On 19 October 2010 the Court of Appeal dismissed Mr Anam’s appeal against Cranston J’s decision: see R (Anam) v Secretary of State for the Home Department [2010] EWCA Civ 1140. By that time, however, it was known that the Supreme Court would be examining relevant principles of law in the cases of Lumba and Kambadzi. The Court of Appeal accordingly decided to permit Mr Anam to defer an application for permission to appeal until after the Supreme Court had given judgment in those cases.

The present case came back before the Court of Appeal on 21 November 2011. In the meantime the Supreme Court had given judgment in Lumba and Kambadzi. It was common ground that in the light of those judgments the appeal should be reopened. That was duly done and the order of 19 October 2010 was set aside. In its place a declaration was granted that Mr Anam’s detention was unlawful “from its inception in May 2008 to 14 August 2009”. Such a declaration was inevitable because the secretary of state did not challenge Cranston J’s ruling as to the failure to have regard to departmental policy prior to 14 August 2009, and the judgments of the majority in the Supreme Court meant that this failure of itself made detention unlawful. All questions of damages in respect of that period were remitted to the Administrative Court. Permission was granted to argue that any period of subsequent detention was unlawful. As regards damages the Court of Appeal declined an invitation by the secretary of state to hear argument on whether damages would be no more than nominal. All questions of bail were remitted to the Administrative Court.

There does not appear to have been any discussion at the Court of Appeal hearing on 21 November 2011 as to precisely what was meant by referring to detention being unlawful “to 14 August 2009.” Cranston J’s judgment records Mr Anam’s argument that the decision of 14 August 2009 itself was taken without regard to the policy. However he made no finding on that question. Thus in my view the declaration made by him that detention was unlawful covered the period prior to the decision of 14 August 2009. Indeed, if he had concluded that the decision of 14 August 2009 was unlawful then, when the position was revisited in the light of Lumba, the logical consequence would have been that detention continued to be unlawful not just on 14 August 2009 but at least until the next decision to maintain detention on 23 September 2009.

An application for bail came before Mr Clive Lewis QC, sitting as a Deputy Judge of the High Court, on 12 March 2012. In a careful judgment he noted that the presumption is generally that bail will be granted unless there are strong reasons justifying the refusal to grant bail. Quite apart from that presumption, he identified particular reasons which favoured the grant of bail. Mr Anam had been detained for a very lengthy period of time. He had been given permission by the Court of Appeal to argue that his detention was unlawful, so he had an arguable case that he should not be detained at all – although of course the final decision on those matters would be for the court hearing the substantive remitted issues. Moreover in the case of a person with recognised mental health conditions such as that which Mr Anam has, detention of people suffering such mental illnesses should normally only occur in very exceptional circumstances. Nonetheless, the judge identified other factors which led him to conclude that it would not be appropriate to grant bail at an interim stage before the question whether detention was unlawful had been resolved. There was a very high risk that Mr Anam would abscond from bail, something which would render the whole purpose of the proposed deportation ineffective. That risk appeared strongly from Mr Anam’s past history, as did a further very high risk of reoffending. It was said that there was now a reason or an incentive for Mr Anam to comply with bail conditions, but the scale of the problems over the years with failure to surrender to bail and failure to cooperate with immigration authorities and repeated offending were such that there were exceptional reasons for refusing bail. In recognition of the length of time that Mr Anam had been in detention, however, the court on that occasion gave directions to ensure that the substantive hearing was fixed as soon as possible, and that an orderly timetable for submissions and evidence was laid down.

In these circumstances I heard argument on the substantive issues on 17 and 18 May 2012. Mr Macdonald QC and Mr Ranjiv Khubber appeared for Mr Anam. Mr John-Paul Waite appeared for the secretary of state. I am indebted to both sides for their oral arguments and for written submissions which were lodged after the hearing.

As noted in section A above, the power of detention relied upon by the secretary of state arises under paragraph 2 of Schedule 3 to the Immigration Act 1971. Paragraph 2 has been amended at various times. At all times relevant to the present case paragraph 2 has included sub-paragraphs (1), (1A), (2) and (3) as follows:

(1)

Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court, he shall, unless the court by which the recommendation is made otherwise directs, or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the secretary of state directs him to be released pending further consideration of his case or he is released on bail.

(1A) Where—

(a)

a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and

(b)

he appeals against his conviction or against that recommendation,

the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.

(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 (1) or (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).

Legal principles governing the exercise of this power, and the consequences of non-compliance with those principles, were discussed in detail by Lord Dyson JSC in Lumba. On each of his conclusions a majority of the Supreme Court agreed with him, although it was not always the same majority. As to the legal principles governing exercise of power under paragraph 2 of Schedule 3, his judgment confirms that the Hardial Singh principles continue to apply.

The Supreme Court in Lumba was concerned with two foreign national claimants, Mr Lumba and Mr Mighty, both of whom had committed criminal offences here and had been sentenced to terms of imprisonment. On release from prison they had been detained by the secretary of state under paragraph 2 of Schedule 3 pending deportation. At the time of the detention decisions there was a published policy on the circumstances in which foreign national prisoners (“FNPs”) would be detained. However, an unpublished policy of a “near blanket ban” on release pending deportation was applied. A majority of the Supreme Court held that the claimants had been unlawfully detained because the secretary of state had breached public law duties in exercising the power of detention, in particular because a decision-maker had to follow published policy unless there were good reasons for not doing so. The secretary of state was held by this majority to have committed the tort of false imprisonment because she had to prove lawful justification for detention; and could not do so by showing that, although the decision to detain was tainted by public law error, a decision to detain free from legal error could and would have been made.

Turning to the damages recoverable for false imprisonment, Lord Dyson JSC held that if the power to detain had been exercised by application of a lawful policy, and with the proviso that the Hardial Singh principles had been properly applied, it was inevitable that the claimants would have been detained. Here, too, a majority of the Supreme Court agreed with him. Indeed Lord Phillips PSC points out at paragraph 314 that all members of the court agreed that, had the decision-maker applied the published policy, each of Mr Lumba and Mr Mighty would have been detained. The result was that, subject to the proviso, they suffered no loss or damage for which compensatory damages could be awarded. All members of the court agreed that exemplary damages were inappropriate. A minority would have awarded non-compensatory damages to mark the abuse of power which had occurred. However Lord Dyson JSC and a majority held that no such damages could be awarded. It followed that, subject to the proviso, Mr Lumba and Mr Mighty were entitled to nominal damages only.

As to the proviso, Mr Mighty’s detention had lasted just over 26 months, and the first-instance judge’s finding of compliance with Hardial Singh principles was not challenged. Mr Lumba’s detention was continuing; at the time of the Supreme Court’s decision it had lasted 54 months. While at first sight this seemed to have been an unreasonable duration the question whether it was in breach of Hardial Singh principles was remitted to the High Court for reconsideration.

In argument before me, both sides agreed on an important feature of the Hardial Singh principles as confirmed in Lumba. This is that it is for the court, and not the secretary of state, to decide whether in the circumstances of the case the Hardial Singh principles were complied with.

Even where those principles are complied with, both sides agree that it is open to a claimant to assert that detention was nevertheless unlawful by reason of public law errors which bore upon and were relevant to the decision to detain. This, too, follows from the decision of the majority in Lumba, with the consequence that where such an error has been made, the claimant is entitled to a declaration that detention was unlawful for the period covered by that error. It is said by the secretary of state that, in contrast to the position noted above as to deciding whether detention was Hardial Singh compliant, on this aspect the court adopts a conventional approach to determining whether there was a public law error which rendered the claimant’s detention unlawful.

As to liability for unlawful detention, a majority of the Supreme Court in Lumba decided that the tort of false imprisonment is actionable without any need for the falsely imprisoned person to show that the false imprisonment caused harm. Accordingly where there has been unlawful detention it is no answer for the defendant to say that the person in question would have been lawfully detained in any event. That principle works in tandem with the administrative law principles identified above. If there has been a breach of the Hardial Singh principles, or there has been some other public law error which bore upon and was relevant to the decision to detain, then the person detained will be entitled to a declaration that the detention was unlawful. It follows from this that the tort of false imprisonment will have been committed, and those responsible for that tort will be liable in damages.

In Lumba what emerged was that during the period to 9 September 2008 the secretary of state had acted unlawfully by maintaining an unpublished policy which, contrary to the published departmental policy, involved a “near blanket ban” on the release of foreign nationals who had been imprisoned in this country and who were to be deported. Mr Macdonald submits that the “near blanket ban” must have applied in Mr Anam’s case just as much as it did in other cases during the period to 9 September 2008. Mr Waite does not seek to controvert that submission. Thus during the period to 9 September 2008, in addition to the admitted failure to apply the published mental health policy, Mr Anam’s detention during that period was also unlawful by reason of the application of a general policy inconsistent with the published departmental policy.

The Supreme Court’s decision in Kambadzi applied the Lumba principles to a case where the failure to comply with published departmental policy concerned a procedural requirement. The public law error in question must meet the Lumba test: it must have been one which bore upon and was relevant to the decision to detain. If it met that test then it did not matter that the policy concerned a procedural, rather than a substantive, requirement. On the facts of Kambadzi the Supreme Court did not hold that the amount of damages would be nominal only. Instead it gave directions for a determination of the amount of damages.

The approach to be adopted in deciding whether nominal or substantive damages should be awarded in respect of a public law error rendering detention unlawful was considered by the Court of Appeal in OM (Nigeria). O had entered the United Kingdom illegally with her son (S) and unsuccessfully claimed asylum. She suffered from mental illness. O admitted offences of child cruelty against S, who had suffered multiple injuries soon after arrival in this country. O was given bail, but failed to attend a hearing fixed for February 2005 and she absconded for a period of over 2 years. During that period, in July 2005, she gave birth to a daughter, M. In September 2007 she was arrested and detained in connection with a further offence, namely the possession of a false instrument (a false identity document used in an attempt to open a bank account). She was convicted of that offence and was sentenced in December 2007 to 9 months' imprisonment. Her link with the earlier offence was established only at a later date and resulted in her being brought back before the court. On 21 July 2008 she was sentenced to 12 months' imprisonment for that offence and to a concurrent 3 month sentence for breach of bail. On completion of the custodial part of her sentence she was released into detention pending deportation. Care and placement orders were made with a view to M’s adoption. Very limited contact was ordered between O and M prior to the adoption. In judicial review proceedings at a stage when O had been detained for two years the judge found that during the period to 28 April 2010 the secretary of state had failed to take into account published departmental policy on mental illness. He concluded that this had not caused the detention since O would have been detained had the policy been properly applied. The secretary of state subsequently conceded, in the light of Lumba and Kambadzi, that detention during this period had been unlawful because of the failure to consider the policy.

However the secretary of state did not concede that O was entitled to substantial damages. In this regard O’s appeal to the Court of Appeal was dismissed. It was held that the failure to consider the policy relating to mental illness had not caused O any loss: she would in fact, and could lawfully, have been detained in any event. It would have been open to a reasonable decision maker, correctly taking account of the policy, to detain O in the circumstances. There was a weighty balance of factors in favour of detention sufficient to displace the strong presumption in favour of release; the factors included the risks of re-offending and absconding. The secretary of state had delayed in responding to fresh claim representations, but that did not render detention unreasonable from that time, although that was a factor in the reasonableness of the overall period of detention. As she had suffered no loss, O would be awarded only nominal damages.

The leading judgment was given by Richards LJ, with whom Ward and Hughes LJJ agreed. He concluded that the use of the word “inevitable” in Lumba was not intended to lay down a legal test of inevitability: the word had been used because it reflected the particular facts of that case. Richards LJ continued:

23.

… It seems to me that on normal compensatory principles it would be for a claimant to prove his loss on the balance of probabilities. It well may be that in circumstances such as these the burden shifts to the defendant to prove that the claimant would and could have been detained if the power of detention had been exercised lawfully, but again I see no reason why the standard of proof should be anything other than the balance of probabilities.

24.

In reality, however, the debate is academic in this case. Irrespective of where the burden of proof lies and whether the standard of proof is balance of probabilities or inevitability, I am satisfied that the appellant would in fact have been detained during the first period if account had been taken of the paragraph of the policy relating to mental illness. That is clear from what happened in practice in the second period, from 29 April 2010, when the secretary of state did take the relevant paragraph of the policy into account: the decision to detain the appellant was not only maintained but was defended vigorously in the judicial review proceedings. The question whether the appellant could lawfully have been detained is a matter of legal assessment in relation to which the burden and standard of proof are of no materiality. The assessment has two separate strands to it. The first, concerning the policy itself, depends on normal Wednesbury principles: would it have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case? The second requires the lawfulness of continued detention to be assessed by reference to Hardial Singh principles.

The Court of Appeal referred to the period up to and including 28 April 2010 as “the first period.” When considering whether during the first period the secretary of state could reasonably have concluded that detention would be in accordance with the policy Richards LJ said this:

37.

Taking everything together, I take the view that it would have been open to a reasonable decision-maker, directing himself correctly in relation to the policy, to detain the appellant in the circumstances of the case. There was a very weighty balance of factors in favour of detention, sufficient to displace the strong presumption under paragraph 55.10 in favour of release.

From 29 April 2010 onwards detention reviews made explicit reference to the policy. Mr Khubber sought to persuade the Court of Appeal that during this second period there had nonetheless been a failure to act in accordance with public law principles. Richards LJ said in this regard:

39 As to the second period, during which the secretary of state did take paragraph 55.10 of the policy into account, Mr Khubber submitted that the reasoning actually deployed in the detention reviews did not engage sufficiently with it, failed to take all relevant considerations into account and took into account an irrelevant consideration, namely the risk of suicide or self-harm. I accept that the reasoning in the detention reviews was not perfect but I am not persuaded that there was any error of sufficient materiality to render the continuing detention unlawful. Due consideration was given to the application of paragraph 55.10. In so far as the risk of suicide or self-harm was taken into account, it was either linked with the risk of harm to the public (and I have referred above to the impossibility of drawing a clear-cut line between the two) or was considered from the point of view of whether the appellant could be managed appropriately in detention. In any event, for the reasons already covered, it was reasonably open to the secretary of state to decide in favour of detention in the lawful application of the policy, so that even if there was some material error in the actual reasoning it would be of no practical consequence: as in relation to the first period, the appellant would have suffered no loss.

Turning to the question whether Hardial Singh principles had been complied with, Richards LJ said this:

46 It is helpful to review the position by reference to the four points in the summary in R (I) v Secretary of State for the Home Department :

(i)

It is not in dispute that the secretary of state intended to deport and exercised the power to detain only for that purpose.

(ii)

I do not consider that a total period of two years was a longer period than was reasonable in all the circumstances.

(iii)

At no time was it apparent (nor should it have been apparent) to the secretary of state that it would not be possible to effect deportation within a reasonable period. Although the cumulative effect of the successive steps taken by the appellant resulted in the event in an extended timetable, deportation within a reasonable period remained a sufficient prospect at every stage – pending the decision of the appeal tribunal, pending the outcome of the care proceedings, pending a decision on the “fresh claim” representations and pending the outcome of the judicial review proceedings. It was not necessary for the secretary of state to identify a finite time by which removal could reasonably be expected to be effected: see R (MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 , at [64]-[65].

(iv)

Although the secretary of state should have responded sooner to the “fresh claim” representations, that delay had only a minor effect overall (at most, delaying the time when the claimant's judicial review proceedings were brought) and did not in my view constitute a failure to act with reasonable diligence and expedition to effect removal, or at least it did not constitute a failure of sufficient seriousness to render continued detention unreasonable.

The Court of Appeal in LE (Jamaica) was concerned with a Jamaican national (“E”) who had entered the United Kingdom as a visitor and was later granted indefinite leave to remain as the husband of a British citizen. The marriage broke down and E was charged with drug offences. E breached bail conditions and attempted to flee the country on a false passport. He was diagnosed as a paranoid schizophrenic and found unfit to plead. On release from a hospital order, E was convicted of conspiracy to kidnap and conspiracy to blackmail and sentenced to seven years' imprisonment. E was released early on licence in contemplation of a decision to detain him pending deportation.

The leading judgment was given by Richards LJ, with whom Maurice Kay and Kitchin LJJ agreed. He rejected a contention that the decision to detain had not involved consideration of the risk of absconding. At paragraph 27 onwards he turned to the role of the court:

27.

Mr Southey also took issue with the judge's finding that, having regard to the risk of absconding, the decision was a rational one. There were two aspects to this line of argument. The first was one of principle, that the judge was wrong to analyse the matter in terms of the rationality of the decision to detain: the court is not limited to applying a Wednesbury test but is required to act as primary decision-maker in deciding on the evidence before it whether detention was in accordance with the policy. The second was case-specific, that the judge was wrong on the facts to find a strong risk of absconding.

28.

I can deal shortly with the second point. …

29.

Mr Southey's submission that the judge was wrong to apply a Wednesbury test in determining the lawfulness of the decision to detain the appellant requires somewhat fuller consideration:

i)

It is common ground that the construction of the policy is a matter for the court rather than being subject to a Wednesbury test (see, for example, R (MD (Angola)) v Secretary of State for the Home Department [2011] EWCA Civ 1238 at [12]). But on this aspect of the case, unlike the issue considered next concerning the application of the policy to those with a mental illness, no question arises as to the construction of the policy: it is not contended here that the decision-maker misunderstood the meaning of the policy.

ii)

It is also common ground that the power to detain is limited by the Hardial Singh principles, in particular that detention is lawful only if it is for a reasonable period, and that it is for the court itself to determine whether a reasonable period has been exceeded. This was spelled out in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804, most clearly by Keene LJ at [71]-[75]. Although Mr Southey placed considerable weight on that authority, it does not appear to me to be directly in point since the reasonableness of the period of detention and the application of the Hardial Singh principles are not in issue here.

iii)

Subject to the limits imposed by the Hardial Singh principles, the power to detain is discretionary and the decision whether to detain a person in the particular circumstances of the case involves a true exercise of discretion. That discretion is vested by the 1971 Act in the Secretary of State, not in the court. The role of the court is supervisory, not that of a primary decision-maker: the court is required to review the decision in accordance with the ordinary principles of public law, including Wednesbury principles, in order to determine whether the decision-maker has acted within the limits of the discretionary power conferred on him by the statute.

iv)

That accords with the approach taken in R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909. In that case the detention was held to be unlawful for failure to take into account the paragraph of the then current policy relating to mental illness, but the court held that if due consideration had been given to the policy the appellant could and would lawfully have been detained and that she was entitled only to nominal damages. In my judgment, with which Ward LJ and Hughes LJ agreed, I said at [24] that the question whether the appellant could lawfully have been detained was a matter of legal assessment which had two separate strands to it …

Although that analysis was applied in a context where detention had already been found to be unlawful and the issue was one of damages, I can see no basis for adopting a different approach when determining whether the initial decision to detain was itself a lawful one. Mr Southey was not able to point to any sensible point of distinction.

v)

I accept that there are observations in the judgment of Black LJ in Anam v Secretary of State for the Home Department [2010] EWCA Civ 1140 (a case considered further below in relation to the issue of mental illness) that run counter to the views I have expressed. In particular, at [77], Black LJ took a broader view of what was said in R (A) v Secretary of State for the Home Department, treating it as "binding authority that the court must assume the role of primary decision maker when considering the lawfulness of detention rather than simply reviewing the decision of the Secretary of State along traditional public law lines", and she went on to indicate that this involved the court "attaching appropriate weight in its deliberation to matters such as government policies, risk assessments, and the evidence as to likely time-scales for the deportation of the individual". All this arose in the context of deciding on the correct approach of the court to determining the lawfulness of detention in circumstances where the decision-maker had failed to have regard to the published policy. The other members of the court (Longmore LJ and Maurice Kay LJ) agreed with Black LJ's conclusion that the appeal should be dismissed but gave reasons of their own for that conclusion. In any event, the decision pre-dated the decisions of the Supreme Court in Lumba and Kambadzi, and it appears from R (Moussaoui) v Secretary of State for the Home Department [2012] EWHC 126 (Admin) at [98] that the appeal in Anam was re-opened following those decisions and that the appeal was then allowed. Although that may not directly undermine what Black LJ said in Anam about the role of the court as primary decision-maker, it does suggest the need to approach the case with a degree of caution.

vi)

Our attention has also been drawn by counsel to the judgment of the Court of Appeal in R (AM) v Secretary of State for the Home Department [2012] EWCA Civ 521, handed down after the hearing of the present appeal. The case related to the appellant's detention in alleged breach of the policy in paragraph 55.10 of the Enforcement Instructions and Guidance (considered below in the context of mental illness). Applying the principles in Lumba and Kambadzi, the court held that the detention had been contrary to the policy and unlawful, in that there was independent evidence that the appellant had been tortured and there were no very exceptional circumstances why detention should have been maintained. It was common ground between the parties that the decision on such questions was for the court itself and did not depend on the application of Wednesbury principles: see [23] and [26]. The authorities referred to for that proposition were R (A) v Secretary of State for the Home Department at [71] per Keene LJ, and Anam v Secretary of State for the Home Department, at [77] (mistakenly attributed to Maurice Kay LJ). I have considered both those authorities above. R (AM) v Secretary of State for the Home Department does not take the matter any further, since the court proceeded in it on the basis agreed between the parties and did not engage in any reasoned consideration of the point.

vii)

Accordingly, I see nothing in the decided cases to cause or require me to depart from the views expressed above or in R (OM) v Secretary of State for the Home Department.

viii)

In summary, it seems to me that in submitting that it is for the court to determine as primary decision-maker whether detention was in accordance with the policy, Mr Southey has elided the question whether the decision-maker directed himself correctly as to the meaning of the policy (a matter on which the court is the ultimate decision-maker) and the question whether, if so, the decision-maker acted within the limits of his discretion when applying the policy to the facts of the case (a matter in relation to which a Wednesbury test applies).

ix)

Whilst I have thought it right to set out at some length where I stand on this issue, a decision on it is not necessary for the purposes of the present case. That is because it makes no difference on the particular facts whether the court adopts a Wednesbury test or makes its own independent assessment of the justification for detention. …

In LE the Court of Appeal also discussed observations by Cranston J in the present case to the effect that, although EIG did not expressly say so, mental health issues only fall to be considered under Chapter 55 where they are of sufficient seriousness to warrant such consideration. As I explain below, there was later a change in the wording of EIG 55.10 in this regard.

Passages from judgments in numerous cases were cited to me where the court applied the Hardial Singh principles prior to the decisions of the Supreme Court in Lumba and Kambadzi. I have considered them all. I do not set them out here. Certain of the passages in question were mentioned in Lord Dyson JSC’s judgment in Lumba. In so far as they contained propositions of law relevant to the present case, many of those that were not mentioned in that judgment were passages whose general tenor was to the same effect as what was said in that judgment. The remainder were inconsistent with that judgment.

Below I set out passages from Lumba on certain aspects of the Hardial Singh principles. This is not an exhaustive list: it represents a selection from what was cited to me, in which I identify passages which seem to me of most relevance to the present case.

Lord Dyson JSC in Lumba stated:

103.

A convenient starting point is to determine whether, and if so when, there is a realistic prospect that deportation will take place. As I said at para 47 of my judgment in R (I), 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. I deal below with the factors which are relevant to a determination of a reasonable period. But if there is no realistic prospect that deportation will take place within a reasonable time, then continued detention is unlawful.

104.

How long is a reasonable period? At para 48 of my judgment in R (I), I said:

“It is not possible or desirable to produce an exhaustive list of all the circumstances that are, or may be, relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view, 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.”

105.

So far as I am aware, subject to the following qualifications, the relevance of these factors has not been questioned. The qualifications are first that the relevance of the risk of offending on release is challenged on behalf of the appellants in the present case. Secondly, “the nature of the obstacles” begs two questions that have been raised on this appeal, namely what is the relevance, if any, of delays attributable to the fact that a detained person (i) is challenging the decision to deport him by appeal or judicial review and will generally not be deported until his challenges have been determined; and (ii) has refused to return voluntarily to his country of origin?

I turn below to the two qualifications referred to by Lord Dyson JSC in paragraph 105. Before doing so I note that my citation above from the judgment of Richards LJ in OM above includes a point of relevance to the present case: it is not necessary for the secretary of state to identify a finite time by which removal could reasonably be expected to be effected.

I have set out in the preceding section of this judgment the quotation by Lord Dyson JSC, in paragraph 104 of his judgment in Lumba, of what he had said in R (I) at paragraph 48. It includes a passage which makes it clear that the effect of detention on the detainee will be relevant to deciding whether a reasonable period for detention had been exceeded. In my view there can be no doubt that this includes the psychiatric condition of the detainee.

If there were any doubt, it would be resolved by the emphatic words of Baroness Hale JSC at paragraph 218 of Lumba:

When considering what was a reasonable period for which to detain Mr Lumba in accordance with the Hardial Singh principles, however, I would stress that his psychiatric condition must be among the factors to be taken into account.

Lord Dyson JSC in Lumba stated:

107.

… It seems to me that it is possible to construe the power to detain either (more narrowly) as a power which may only be exercised to further the object of facilitating a deportation, or (more broadly) as a power which may also be exercised to further the object which it is sought to achieve by a deportation, namely, in the present case, that of removing an offender whose presence is not conducive to the public good. The distinction between these two objects was clearly drawn by the Court of Appeal in R (A) v Secretary of State for the Home Department [2007] EWCA Civ 804. Toulson LJ said at para 55:

“A risk of offending if the person is not detained is an additional relevant factor, the strength of which would depend on the magnitude of the risk, by which I include both the likelihood of it occurring and the potential gravity of the consequences. Mr Drabble submitted that the purpose of the power of detention was not for the protection of public safety. In my view, that is over-simplistic. The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and whose continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because he has a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure.”

Para 78 of Keene LJ's judgment is to similar effect.

108.

I acknowledge that the principle that statutory powers should be interpreted in a way which is least restrictive of liberty if that is possible would tend to support the narrower interpretation. But I think that the Court of Appeal was right in R (A) to adopt the interpretation which gives effect to the purpose underlying the power to deport and which the power to detain is intended to facilitate. Perhaps a simpler way of reaching the same conclusion is to say, as Simon Brown LJ said in R (I) at para 29, that the period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee re-offending is “an obviously relevant circumstance”.

109.

But the risk of re-offending is a relevant factor even if the appellants are right in saying that it is relevant only when there is also a risk of absconding. As Lord Rodger pointed out in argument, if a person re-offends there is a risk that he will abscond so as to evade arrest or if he is arrested that he will be prosecuted and receive a custodial sentence. Either way, his re-offending will impede his deportation.

110.

The risk of re-offending is, therefore, a relevant factor.

…

121.

… The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place.

…

144.

… There must come a time when, however grave the risk of absconding and however grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation.

Lord Dyson JSC in Lumba stated:

127.

It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) or treatment contrary to article 3 of the ECHR . Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return.

128.

What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a “trump card” which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in R (I), “the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation.” If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R (I) and Keene LJ in R (A) and I agree with them.

…

144.

… The courts below … appear to have taken into account Mr Lumba's refusal of voluntary return without making it clear how this is relevant to the assessment of a reasonable period. As I have said, it is of limited relevance as a free-standing reason (see paras 122-128 above). It would be legitimate to infer from the refusal of voluntary return that there is a risk of absconding.

Lord Dyson JSC in Lumba stated:

121.

… If a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person. Indeed, Mr Husain does not go so far as to submit that there is any automatic rule, regardless of the risks of absconding and/or re-offending, which would compel an appellant's release if the appeals process lasted a very long time through no fault of the appellant. He submits that the weight to be given to time spent detained during appeals is fact-sensitive. This accords with the approach of Davis J in Abdi and I agree with it. The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one.

…

144.

… in certain respects the courts below have not applied the Hardial Singh principles correctly. In particular, they have wrongly regarded the fact that Mr Lumba has been able to delay his deportation by pursuing applications and appeals which, thus far, have been unsuccessful as being relevant to the assessment of a reasonable period of detention. It has not been suggested by the Secretary of State that any of these applications or appeals have been hopeless and abusive. For the reasons given above, the fact that the applications and appeals delayed the deportation should have been regarded as irrelevant. …

Applications and appeals are likely to have been preceded by the making of representations to the secretary of state. It seems to me that the principles set out by Lord Dyson JSC concerning applications and appeals will also have relevance to the making of representations.

Lord Dyson JSC in Lumba stated:

118.

… Paragraph 29 of Schedule 2 to the 1971 Act gives the First-tier Tribunal power to grant bail pending an appeal, but this is subject to the restrictions stated in paragraph 30. Paragraph 30(1) provides that an appellant shall not be released under paragraph 29 without the consent of the Secretary of State if removal directions are currently in force. There is nothing in the schedule which requires the tribunal to apply the Hardial Singh principles in deciding whether or not to grant bail and, in particular, to have regard to the past and likely future length of a detention. Bail is not a determination of the legality of detention, whether at common law or for article 5(4) purposes.

Mr Waite submitted that, in contrast to the court’s task when deciding whether detention is Hardial Singh compliant (where the court adopts a position equivalent to that of a primary decision maker), the court adopts a conventional supervisory jurisdiction in deciding whether, notwithstanding compliance with Hardial Singh principles, there was a public law error which rendered detention unlawful. Mr Macdonald acknowledged that this proposition was consistent with what was said by Richards LJ in OM (Nigeria) and LE (Jamaica). Nonetheless he submitted that I could and should adopt the alternative approach favoured by Black LJ on the first occasion that the present case came before the Court of Appeal, and adopted by the Court of Appeal in AM.

There is an insurmountable obstacle to Mr Macdonald’s submission. It is that this court must apply the law as determined by the Court of Appeal. Mr Macdonald is entitled to point out that the observations of Richards LJ on this aspect in LE (Jamaica) were not necessary to the decision. However in OM (Nigeria) it seems to me that the proposition identified by Mr Waite was an essential part of the reasoning of the court, rejecting argument to the contrary. By contrast in AM, as pointed out by Richards LJ in LE (Jamaica), the court simply adopted an approach which was common ground between the parties. In these circumstances I must and do apply the proposition identified by Mr Waite.

At one point Mr Macdonald’s submissions appeared to suggest that Richards LJ’s approach would deprive a detainee of the ability to rely upon elementary public law obligations, for example those which arise from the need properly to understand the law governing an exercise of power. I do not understand Richards LJ to be making any such suggestion.

Nor do I understand Richards LJ to be saying that a detainee’s mental health is irrelevant. An adverse impact of detention on mental health may give rise to a public law challenge on ordinary principles. Importantly, however, for the reasons I have given above that impact additionally falls to be considered by the court at the Hardial Singh stage. In that regard the detainee has the benefit of a more stringent approach, for the court will be looking at the matter as if it were a primary decision-maker.

The court will always make its own findings as to Hardial Singh questions 1 and 4: only the court can decide a contested issue as to the secretary of state’s intention or purpose, or as to whether there was or was not reasonable diligence and expedition in a particular respect. My understanding of what is said in OM (Nigeria) is that the court’s role as primary decision-maker on Hardial Singh questions 2 and 3 ends when it turns from examining whether a reasonable period has expired, and it if not whether it will expire before deportation is effected, and looks at any public law challenge which is separate from those questions – for example, whether, once the court has objectively decided what published policy means, the decision-maker could reasonably have concluded that detention would be consistent with that policy.

As pointed out by Baroness Hale JSC in Lumba at paragraph 199, it does not follow that, because detention would be permissible under article 5(1)(f), it is also permissible under United Kingdom law. Conversely, however, it will usually be the case that detention which would be impermissible under article 5(1)(f) would be likely as a matter of domestic law to give rise to an action for damages. The reason was expressed in this way at paragraph 206 of Baroness Hale JSC’s judgment:

The common law is just as respectful of the liberty of the person, and just as distrustful of arbitrary and secret decision-making by officials acting on behalf of Government, as is the Convention.

Thus in general an article 5 claim will be unnecessary, for it will add nothing to what will be recoverable in England & Wales in an action for false imprisonment. Mr Macdonald submitted that a recent decision of the European Court of Human Rights meant that article 5 could assist Mr Anam even where the law concerning false imprisonment, unless modified by reference to article 5, would not. The case in question was Mathloom v Greece (Application No. 48883/07, judgment dated 24 April 2012). At paragraph 71 the court, when finding that the applicant’s detention pending expulsion had exceeded the reasonable time necessary for the purpose, noted that relevant provisions of Greek law did not set a maximum duration of such detention and did not respond well to the requirement of foreseeability.

Mr Macdonald commented that it would be consistent with established case law on the need for precision and foreseeability to require national authorities to set out a maximum period for administrative detention. If Mathloom had indeed required that domestic law set a maximum duration of such detention then the law concerning false imprisonment as currently understood, which involves no such requirement as regards detention pending deportation, would fail to comply with article 5. In my view the decision in Mathloom does not go that far. The court merely noted the absence of a maximum duration in Greek law: it did not say that article 5 required that such a maximum duration be specified by law. I do not detect any respect in which, as regards the present case, there is scope for saying that article 5 would add anything to remedies which are available independently of article 5.

To my mind the Court of Appeal in OM (Nigeria) has clearly identified the test for whether damages will only be nominal. It is this: if during a period of unlawful detention the secretary of state could and would have lawfully detained Mr Anam then – in the absence of any basis for claiming exemplary damages – the damages recoverable for that period will be no more than nominal.

Mr Macdonald submitted that, despite what was said in this regard in OM (Nigeria):

This concession [that Mr Anam’s detention to 14 August 2009 was unlawful] is a significant one in terms of materiality of the error. As such it requires a considerable step by the Defendant to then conclude that damages should only be nominal because she would and could have detained; if so a finding, as important as illegality of detention, would be rendered otiose;

In this case, if the Claimant can show greater illegality of detention than that conceded by the Defendant (albeit that the burden is in fact on the Defendant in this speculative stage) then he clearly establishes an entitlement to more than nominal damages;

I can detect no support for this submission either as a matter of principle or by reference to authority. A finding of illegality is important in itself, vindicating the claimant’s complaint and condemning the wrongdoer. As a matter of principle compensatory damages are awarded for harm done: but if Mr Anam could and would have been lawfully detained then no harm resulted from the unlawful detention. As a matter of authority the majority of the Supreme Court in Lumba has held that in the absence of harm compensatory damages will be no more than nominal, and that in the absence of an entitlement to exemplary damages no other basis for substantial damages exists.

Two aspects of departmental policy during the period to 26 August 2010 call for mention. The first concerns the general policy concerning detention and temporary release. Changes in the published policy in that regard were described by Lord Dyson JSC in Lumba:

12.

Chapter 38 of the Operational Enforcement Manual (“OEM”), which was a published document in force until April 2008, stated in its introductory section that the 1998 White Paper confirmed that “there was a presumption in favour of temporary admission or release and that, whenever possible, we would use alternatives to detention”. Para 38.3 stated:

“1.

There is a presumption in favour of temporary admission or temporary release.

2.

There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.

3.

All reasonable alternatives to detention must be considered before detention is authorised.”

13.

Identical wording was contained in Chapter 55 of the Enforcement Instructions and Guidance (“EIG”) which replaced Chapter 38 of the OEM and came into force on 19 June 2008.

14.

On 9 September 2008, Chapter 55 of the EIG was amended. With regard to FNPs, para 55.1.2 stated:

“Due to the clear imperative to protect the public from harm and the particular risk of absconding in these cases, the presumption in favour of temporary admission or temporary release does not apply where the deportation criteria are met. Instead the person will normally be detained, provided detention is, and continues to be lawful.”

15.

The EIG then gave guidance to caseworkers as to the factors which might make further detention unlawful. In particular, it stated that the presumption of detention “will be displaced where legally the person cannot or can no longer be detained because detention would exceed the period reasonably necessary for the purpose of removal.” Following the decision of Davis J in the current proceedings, on 22 January 2009 this policy was changed again so as to replace a presumption in favour of detention with a presumption in favour of release from detention.

During the period to 9 September 2008 the published policy described above was displaced by the unpublished policy described in section C1 above. A detailed account of this appeared in the judgment of Davis J in Abdi (No. 1), reported as R (Abdi) v Secretary of State for the Home Department [2008] EWHC 3166 (Admin), and handed down on 19 December 2008. The unpublished policy is not explicitly referred to in the judgment of Cranston J, although Abdi (No. 1) is cited at paragraph 38. At paragraph 44 Cranston J noted that there were revisions to EIG in September 2008 and January 2009, but no explicit reference is made in the judgment to the substantive content of these revisions. The argument before Cranston J appears to have proceeded by reference to the published policy in the form that it took at the time of the hearing. This was, as I understand it, in all material respects the form that it had taken from 22 January 2009 onwards.

The second aspect concerns the meaning of the policy. A full description of the published policy at the time of the hearing was given by Cranston J at paragraphs 43 to 48 of his judgment. That published policy remained unchanged until 26 August 2010. Neither side dissented from Cranston J’s account of it, which I set out at Annex 1 to this judgment.

Both sides accepted what Cranston J held to be the objective meaning of the part of the policy which concerned detention of the mentally ill. This was as follows:

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.

EIG para 55.10 was amended with effect from 26 August 2010 by the addition of the words “which cannot be satisfactorily managed in detention” after the reference to mental illness. The amendment appears to me to be immaterial to the present case. By 13 August 2009 at the latest it had been accepted by the secretary of state that in Mr Anam’s case the policy in relation to mental illness was engaged. That remained the case irrespective of the change in published policy on 26 August 2010. In any event, my conclusion as described above means that I do not have to consider this amendment to the policy or its consequences. Arguments which were addressed to me in that regard will, in my view, be best considered in a case where they have practical importance.

The submissions as to Hardial Singh made on behalf of Mr Anam have focussed upon the second and third of the Hardial Singh principles. Thus it has been urged that at particular stages in the history Mr Anam had been detained for a period that went beyond what was reasonable in all the circumstances. Alternatively it has been submitted that if at the time in question a reasonable period had not expired, nevertheless it had become apparent that deportation would not be able to be effected within a reasonable period and accordingly the power of detention should not have been exercised. In the course of oral argument Mr Macdonald submitted that as regards particular events there had been a failure to act with reasonable diligence and expedition to effect removal in breach of Hardial Singh principle 4. Mr Waite objected to this, as no notice had been given of any allegation of that kind. I upheld this objection. If notice had been given of an allegation that on a particular occasion there had been a failure to act with reasonable diligence or expedition then it would have been possible for the secretary of state to assemble witness statements directed to that allegation. Without such notice it would not be fair for the court to make a specific finding of that kind. I observed, however, that the matters relied upon might go to the question whether there had been a breach of the second or third Hardial Singh principles.

In written reply submissions on behalf of Mr Anam it was said that virtually all of his past convictions, other than the index offences, had become spent under the Rehabilitation of Offenders Act 1974. I am prepared to assume that this is so. It was not suggested that it was impermissible by reason of the 1974 Act for the secretary of state to have regard to spent convictions, nor that this court would need to exercise its discretion under section 7(3) of that Act before reference could be made to them in the proceedings. If it were necessary I would exercise my discretion for that purpose. It was suggested that spent convictions should be given reduced weight in comparison with past convictions that were unspent. However in my view the weight to be given to a past conviction depends on its relevance to the consideration in question. This is unlikely to turn on whether the conviction is spent or not.

Information about Mr Anam’s mental health prior to immigration detention was set out by Cranston J in his judgment at paragraphs 12, 13, 16, 17 and 18. Neither side has disagreed with what is said in those paragraphs, and I have set them out at Annex 2 to this judgment.

Other aspects of the background history are summarised in section B above. In addition, there were findings by the Asylum and Immigration Tribunal that Mr Anam had returned to Bangladesh soon after arriving in this country and had lived with an uncle and aunt for a year, and that at around the age of 21 he had again returned to Bangladesh for a period of one and a half years. As noted by Cranston J, those findings were disputed by Mr Anam. He continues to dispute them, and has given detailed grounds for doing so.

A date which may have some importance is 16 May 2006. It was on this date that Mr Anam was apprehended in the course of committing an offence of theft. He was arrested that day and has remained either under arrest, in prison, or in immigration detention ever since. That offence of theft was one of the three offences dealt with by the Crown Court in 2007, the others being an earlier offence of theft and the robbery. When sentencing Mr Anam on 14 February 2007 the judge noted that he had been told that Mr Anam had spent 271 days in custody during the period to 14 February 2007. On that basis the judge directed that those 271 days should count towards the total period of four years imprisonment imposed by the court.

In relation to immigration detention during this period I must, for the reasons given above, examine whether Mr Anam could and would have been lawfully detained. I set out a detailed account of this period in annex 3. It is on the basis of that account that I turn to consider whether Mr Anam could and would have been lawfully detained during this period.

There are two preliminary matters to mention here, one concerning Mr Waite’s submissions and the other concerning those of Mr Macdonald.

As to the first preliminary matter, when this case was first before the Court of Appeal in July 2010 it was conceded on behalf of Mr Anam that detention during the period to 14 August 2009 had complied with Hardial Singh principles. Before me Mr Waite submitted that it would be improper or inappropriate for Mr Anam to be allowed to go back on that concession. I am not persuaded that this was intended by the Court of Appeal to be a consequence of the order made at the second hearing on 21 November 2011. On the contrary, it appears from page 3 of the transcript that the intention of the Court of Appeal was to give Mr Anam “a clean slate.” There had been a number of developments since the previous Court of Appeal hearing in July 2010. In the light of those developments it seems to me that the Court of Appeal, having made a declaration that detention during the period to 14 August 2009 was unlawful, intended that the legal team for Mr Anam should be permitted to deploy such arguments in support of an award of substantial damages for detention during that period as they thought appropriate.

For these reasons I reject Mr Waite’s contention that it would be improper or inappropriate for Mr Anam to be allowed to go back on the concession that detention during the period to 14 August 2009 had complied with Hardial Singh principles. For the same reasons it seems to me that my task is to start afresh. Submissions were made to me to the effect that I should or should not take the same view as Cranston J on the weight to be given to particular matters. It will be seen that I have adopted Cranston J’s summaries of certain documents or events. However it does not seem to me to be productive to frame my task as being to decide whether in the light of Lumba or any other subsequent event I should accord a particular factor more or less weight than Cranston J did. The preferable course is for me simply to start afresh on the basis of the facts as I have found them to be.

That task is not an easy one in a case like the present where a major part of what the court has to do is to put itself in the position of the primary decision-maker at points of time in the past. In Hardial Singh itself the court was assessing the position at the time of the hearing, with the advantage that the court can ask questions of the advocates about particular aspects and may well receive answers based on instructions there and then. Grappling with a large quantity of paper over a period of more than 4 years, in order to reach a notional decision as to the position in the past, is much more difficult. That is especially so where, as here, the forensic documents prepared by the parties do not analyse the detail and do not respond to each other on factual points.

As to the second preliminary matter, it can be seen from sections C1 and D above that until 22 January 2009 the departmental policy applicable to Mr Anam differed from that set out by Cranston J at paragraphs 43 to 48 of his judgment (see Annex 1). First, during the period to 9 September 2008 there was an unpublished policy of a “near blanket ban” on removal. As noted in section D above, a detailed account of this was published on 19 December 2008, when the judgment of Davis J in Abdi (No. 1) was handed down. Nevertheless neither Mr Kennedy’s witness statement nor any of the contemporaneous documents produced at the hearing on 19 August 2009 made any reference to it. In fact in March 2008 (see paragraph 17 of the judgment of Lord Dyson JSC in Lumba) caseworkers had been issued with amended guidance known as “Cullen 2”. It told them that for FNPs who had committed any one of a long list of offences, including robbery, “release from immigration detention … will not be appropriate.” When the time came for the preparation on 13 May 2008 of Mr Anam’s first detention review, Cullen 2 had the effect that in Mr Anam’s case the decision was a simple one: he had committed an offence on the list and accordingly release was not appropriate. Yet neither the caseworker when writing the detention review, nor the senior executive officer who authorised continued detention, made any reference to this. On the contrary, the detention review of 23 August 2008, despite saying that Mr Anam’s case had been considered “under current detention criteria”, put a question mark against the recommendation to “maintain detention”. The higher executive officer when authorising continued detention listed numerous factors - which on the basis of Cullen 2 were irrelevant - before concluding that continued detention was “in line with current detention criteria.”

Nor did the monthly progress reports to Mr Anam mention the actual policy during this period. Each of the May 2008, June 2008, July 2008 and August 2008 reports claimed that after review it had been decided that he should remain in detention for three reasons: in order to effect removal from the UK, because he was likely to abscond if given temporary admission or release, and because there was a risk of further re-offending. That decision was said to have been reached on the basis of three factors: his refusal to return voluntarily, his previous failure or refusal to leave the UK when required to do so, and his unacceptable character, conduct or associations. It is difficult to see how, if the decision-maker was applying Cullen 2, these assertions in the monthly progress reports can have been correct.

As was noted in Abdi (No. 1), on 9 September 2008 the published departmental policy was changed so that as regards FNPs for whom deportation criteria were met, among them Mr Anam, the presumption in favour of temporary admission or temporary release did not apply. Instead such individuals would normally be detained, “provided detention is, and continues to be lawful”. After this date detention reviews continued to state that Mr Anam’s case “has been considered under current detention criteria.” However neither the detention reviews, nor the comments on them, made any reference to there having been a change in the published policy. Thus, even after amendment on 9 September 2008 of the published policy, detention reviews continued to be prepared, and comments on them continued to be made, without any express reference to the fact that in Mr Anam’s case departmental policy was that there was no presumption in favour of temporary admission or release. As to the monthly progress reports issued to Mr Anam between 9 September 2008 and 22 January 2009, each recorded that after review it had been decided that he should remain in detention, and identified the same three reasons and the same three factors as had been identified in earlier monthly progress reports.

In Abdi (No. 1) Davis J held that the policy as published on 9 September 2008 was unlawful as Schedule 3 to the 1971 Act did not create a presumption in favour of detention. This led to the substantive change in published policy on 22 January 2009. It meant that there was a real need to consider whether the presumption in favour of release was outweighed by other factors. This substantive change was not explicitly mentioned in the 13 February 2009 detention review. Nor was it mentioned by the senior executive officer who authorised continued detention on 16 February 2009. In March 2009, however, while the 13 March 2009 detention review made no explicit reference to the presumption in favour of release, it was expressly addressed by a higher executive officer in comments on that detention review.

There is no dispute that during the period to 9 September 2008 Mr Anam’s detention was unlawful not merely for failure to consider the published departmental policy on mental illness but also for applying an unpublished “near blanket ban” on release. Mr Macdonald did not advance any point specifically relying upon the changed policy during the period 9 September 2008 to 22 January 2009. He submitted that attempts to categorise Mr Anam started with the reference in the 12 June 2008 detention review (which in fact was a repetition of similar remarks in the 13 May 2008 detention review) to Mr Anam’s appeal and representations being no more than a delaying tactic. Various matters were submitted to be symptomatic of inadequate liaison between CCD and other parts of the department. Among them was an alleged failure to recognise promptly after the decision of the Court of Appeal in BA (Nigeria) that the decision not to revoke the deportation order gave rise to an in-country right of appeal. I would add that it might be thought that during the period from 26 August 2008, up to and including the decision to continue detention on 9 July 2009, the errors and misunderstandings identified in Annex 3 could be deployed in support of an assertion of public law error which bore upon and was relevant to the decision to detain. That, however, as it seems to me would miss a crucial point, and it is not the purpose of annex 3, which aims simply to set out the detail necessary to understand how it was that so little progress occurred during the period up to the decision to continue detention on 9 July 2009.

Mr Macdonald submitted that examination of the period from August 2009 onwards showed “a wooden way” in which the department had acted, and accordingly there was no chance that in the period up until then Mr Anam would have been lawfully detained. This, too, seems to miss the same crucial point, and for the same reason.

The crucial point in question is that on the facts of this case, as Mr Macdonald’s “wooden way” submission in effect acknowledges, if those responsible could lawfully have decided to continue Mr Anam’s detention they would have done. The consequence is that entitlement to substantial damages during the first period depends on whether at any point during that period either (a) detention contravened the Hardial Singh principles or (b) detention would necessarily have involved a breach of a public law obligation which bore upon and was relevant to Mr Anam’s detention. If either of these is found to have been the position at some point in the past, there will be an entitlement to substantial compensatory damages from that point onwards. If neither of them apply, then a lawful decision could and would have been taken to detain. There might well have been not just one but two, three or more different reasons why at particular times detention became unlawful but, on the footing that neither (a) nor (b) applies, that does not change the position in principle: for the reasons given in section C8 above the task for the court is to ask whether the decision-maker both could and would have lawfully decided to continue detention, and the answer to both questions in the present case would be yes.

With those preliminaries I shall first consider whether by the decision maintaining detention on 9 July 2009, or at an earlier stage, the Hardial Singh principles were breached. Deportation had been held up during this period by one or more of (1) the appeal from the deportation decision, which ultimately failed on 29 October 2008, (2) the representations of 24 July 2008 accompanied by Professor Katona’s July 2008 report, allied with their rejection and on 3 July 2009 the appeal against refusal to revoke the detention order, and (3) the two judicial review claims which Beatson J on 29 May 2009 had directed be dealt with together on the footing that if Mr Anam were still in detention the hearing was to be expedited. Putting myself in the position of the decision-maker, subject to one exception, the material now before me does not enable me to say that I would have regarded any of these challenges as hopeless or abusive. The exception is that I would have said that the point about the failure to specify the correct name in the deportation order (which appears to have been raised in JR/12/2009) was hopeless. But I would not have regarded it as causative of delay: the two judicial review cases largely overlapped in time. Moreover the present judicial review claim, raising the issue about failure to consider departmental policy on detaining the mentally ill, I would have regarded as highly meritorious. Applying Lord Dyson JSC’s observations described in section C5.7 above, I would have regarded the fact that these three matters delayed deportation as being a fact which had no adverse effect on Mr Anam’s claim that a reasonable period for detention had expired.

Mr Macdonald submitted that there was no real excuse for the delay between March 2009 and June 2009 in affording an in-country right of appeal despite the decision of the Court of Appeal in BA (Nigeria). I am not persuaded that this complaint is justified. During that period the decision of the Court of Appeal was itself under appeal to the Supreme Court. That court eventually heard argument on 30 July and gave judgment on 26 November 2009 upholding the Court of Appeal. The decision of the chief caseworker on 15 May 2009 to grant Mr Anam a full in-country right of appeal against a refusal to revoke the deportation order was advantageous to Mr Anam: it meant that his appeal was not delayed until the outcome in the Supreme Court was known. Accordingly, subject to other points below, this factor would not have led me to conclude that a reasonable period was exceeded in the first half of 2009. Nor, again subject to other points below, would this factor have led me to conclude that – even allowing for the onward process of review – the time needed to determine such an appeal would mean that deportation could not be effected within a reasonable time.

Turning to Mr Anam’s psychiatric condition, one aspect of Professor Katona’s report of 19 July 2008 had been considered by the AIT, namely whether inability to obtain Risperidone in Bangladesh would significantly impact on the ability to provide effective treatment for Mr Anam’s condition. On that Professor Katona’s 19 July 2008 report had been found not to be particularly helpful. I would have attached significance to Professor Katona’s view that during the period prior to his report Mr Anam’s mental health was likely to have deteriorated because of reluctance to take anti-psychotic medication. However Professor Katona had noted that Mr Anam was prepared to restart on the medication. The information available from medical assessments in November indicated that by the end of that month Mr Anam, while reporting himself “more paranoid” nevertheless “appeared more relaxed, cooperative and coherent.” Professor Katona’s thoughts as to how Mr Anam was most likely to improve rested on the ability to secure “a supportive environment with close mental health monitoring”, either “initially in a psychiatric in-patient setting” or possibly in the community if he were able to rejoin his family (by which Professor Katona must have meant Mr Anam’s mother and any siblings living with her or nearby). Applying the principles described in section C5.3 above, the material before me as to the period up to and including 9 July 2009 suggests that detention was likely to be having some adverse effect on Mr Anam’s mental health, but it is difficult to quantify how great that was or how confident one could be that Professor Katona’s proposed courses of action would be available and would be successful.

Weighing heavily in the balance, to my mind, would be a very high risk of reoffending and of non-compliance with restrictions if Mr Anam were to be released. Mr Anam’s convictions prior to those in 2007 amounted to a string of relatively minor offences. Assuming that they were spent under the 1974 Act, they nonetheless had relevance by way of background and because they involved deception and failure to comply with bail requirements. The robbery was a major escalation, leading to an obvious concern that re-offending would involve violence of the kind he had inflicted on the victim of the robbery – or worse. As at 9 July 2009 there was very little to suggest that Mr Anam appreciated how serious this was. His repeated bail applications had failed or been withdrawn. The failure of bail applications does not count against him, for the criteria are different (see section C5.7 above) but repeating them in an abusive pattern suggested poor thinking skills and an impulsive series of responses when he did not get what he wanted. The risks of re-offending and of absconding are matters of paramount importance, although there will always be a time when, however grave the risk of absconding and however grave the risk of serious offending, it ceases to be lawful to detain a person pending deportation: see section C5.4 above.

At 9 July 2009 it could be expected that, with the benefit of Beatson J’s order for expedition, the judicial review claims would be dealt with promptly. The material before me does not enable me to say that on 9 July 2009, even if I had been aware of the lodging of the appeal on 3 July 2009, I would have regarded the appeal as something that could not be resolved within the next few months.

For these reasons I conclude that at the time when the 9 July 2009 decision was taken the Hardial Singh principles had not been breached. It would follow from this that detention until a further decision taken within the next 28 days would be Hardial Singh compliant in the absence of some unexpected development – “unexpected” in the sense of something not taken account of in the discussion above.

I turn to whether it was the case, during the period up to and including the taking of the decision on 9 July 2009, that detention would necessarily have involved a breach of a public law obligation which bore upon and was relevant to Mr Anam’s detention: see section C6 above. The only realistic candidate here concerns the question whether, in the light of the objective meaning of the departmental policy concerning those with mental illness, the decision-maker could reasonably have concluded that detention would be consistent with that policy.

On the facts of the present case that question becomes whether a reasonable decision-maker could on 9 July 2009 conclude that detention was justified by “very exceptional circumstances” in the sense described by Cranston J in his judgment. The conclusions I have reached above, especially as to the significant weight to be given to the risk of absconding and re-offending, and the difficulty of assessing the practical impact of Professor Katona’s report of 19 July 2008, are relevant here. They show, in my view, that a reasonable decision-maker could have concluded on 9 July 2009 that a decision to detain would be justified by very exceptional circumstances in accordance with the policy.

It is for these reasons that I am not persuaded that Mr Anam is entitled to substantial damages for the first period of his detention.

A detailed account of the course of events following the 9 July 2009 decision to detain will be found in Annex 4. It stops at 1 July 2010, as a detailed explanation of what happened until then suffices to set the context for my conclusion that Mr Anam could not lawfully have been detained after close of business on Thursday 11 February 2010.

By the time of the 14 August 2009 decision to maintain detention Professor Katona’s second report dated 22 July 2009 was available to the secretary of state. As Mr Macdonald points out, neither the detention review of 13 August 2009 nor the comments on it make any reference to Professor Katona’s 22 July 2009 report.

Professor Katona’s second report contained important features that needed to be addressed when considering whether to maintain detention. In particular, it said:

Within CCD there seems to have been a belief that in the light of Cranston J’s judgment there had been “no material error” in the decision of 14 August 2009 and that all that needed to be done as regards Mr Anam’s mental health was to secure confirmation from the relevant detention centre that Mr Anam’s health needs were being appropriately met and that he was fit for detention. Consideration of Cranston J’s judgment, and what it said about Professor Katona’s 22 July 2009 report, would have shown that Cranston J did not examine the challenge to the 14 August 2009 detention decision – and did not need to. Cranston J made his own assessment, in the light of Professor Katona’s report, that during the period up to the time of the hearing before him there were, within the meaning of the policy, very exceptional circumstances justifying detention. This did not mean that it had been lawful for the decision-maker on 14 August 2009 to have proceeded in apparent ignorance of Professor Katona’s report.

There seems to have been a further misconception about Cranston J’s judgment, which was relied upon by the caseworker as demonstrating not merely in August 2009 that the department had done sufficient in relation to Mr Anam’s mental health issues, but as showing that this remained the case whenever Mr Anam asked about it later. It is not clear whether this misconception was shared by the decision-makers, but what is clear is that neither in the detention reviews they were considering, nor in the comments made on those detention reviews, was any reference made to Professor Katona’s 22 July 2009 report.

Consideration of Professor Katona’s 22 July 2009 report would have made it apparent that if that report were to be gainsaid it was not enough for CCD merely to receive assurances from the detention centre that Mr Anam’s health needs “are being appropriately met and he is fit for detention”. Accordingly it is my view that the failure to consider Professor Katona’s 22 July 2009 report was a failure which bore upon and was relevant to the decision to detain. It follows that the decision of 14 August 2009 did not bring to an end the unlawfulness of detention, although it was from the time of that decision onwards unlawful for a different reason.

Mr Macdonald suggested that the failure by the Director on 14 August 2009 to refer to the policy as regards mental illness had the consequence that detention continued to be unlawful for the same reason as before. I am not persuaded of this. The director was taking the decision on the basis of the detention review, which made clear reference to the policy and explained why the caseworker considered that detention would be in accordance with it. In any event subsequent decision-makers made express reference to the policy.

The next question to arise is whether, and if so when, detention ceased to comply with Hardial Singh principles. Mr Macdonald submitted, first, that there had been a breach of the second Hardial Singh principle. Far from there being any increased justification for detention, the chances of removal had decreased. The High Court order of 2 June 2010 had the consequence, under the transfer of functions pursuant to the 2007 Act, that there would need to be a reconsideration by the Upper Tribunal. This would underline an important incentive for Mr Anam to comply with any conditions imposed for the purposes of release. What could be seen in the detention reviews was no more than a cut and paste formula. The review of 1 July 2010 made no attempt to discuss what reconsideration would actually mean, and made no mention of what time might be needed in order to complete the process.

Second, as regards the third Hardial Singh principle, Mr Macdonald submitted that insufficient account had been taken of the time that would be likely to be needed to deal with matters. Among other things, once the High Court had ordered reconsideration on 2 June 2010 it was clear that there was going to be an issue as to whether Mr Anam could be removed within a reasonable period of time.

It was further submitted by Mr Macdonald that there had been a failure to consider the adverse impact of continued detention on Mr Anam’s mental health. On that issue greater weight had been given to static matters (risk of reoffending and absconding) at the expense of developing matters, by which Mr Macdonald referred to “the ongoing adverse impact of immigration detention on the Claimant’s mental illness” and developments in the appellate litigation. In fact, submitted Mr Macdonald, those involved in CCD had not applied their mind to these developing matters.

Mr Waite put at the forefront of his argument statements to the effect that the risks of absconding and reoffending are always of paramount importance, as they frustrate the deportation and it is in order to prevent the deportation from being frustrated that the power to detain exists. It was acknowledged that Mr Anam had been detained for an extensive period, but at each stage there had been a justified belief that removal would take place within a reasonable period. In August 2009 the only outstanding obstacle in the path of removal was the appeal to the AIT against the refusal to revoke the deportation order. That appeal had been dismissed in December 2009 and removal directions set for January 2010. Removal did not proceed because Mr Anam sought statutory review of the AIT decision. It was not until 2 June 2010 that the application for statutory review was decided in Mr Anam’s favour. Thereafter, submitted Mr Waite, the secretary of state entertained the reasonable belief that the proceedings in the Upper Tribunal would be dealt with promptly.

Mr Waite observed that unlike the vast majority of cases of this kind, the delays had not arisen because of practical obstacles to removal. There had been an unusual series of delays in ensuring judicial determination of points raised by Mr Anam. Such a determination had always been fairly near. All parties had seen it to be there and reasonably believed it to be there. Each time as the relevant judicial determination was approached it became something of a mirage. That did not mean that those involved had lacked a reasonable and honest belief that the end was in sight. It was very unusual for an appeal to take so long after a decision letter had been served in June 2009. In the present case there was an overwhelming public interest in successful deportation. The risk of deportation being frustrated was one to which the court should give great weight. Clearly whatever support Mr Anam had had in the past was inadequate to prevent offending. It was reasonable to ask whether there was sufficiently reliable evidence of a change in his circumstances that would safeguard against further offending. No reliable conclusion could be drawn from failure to offend while Mr Anam was in detention. Thus, putting all these matters together, they included a lack of reliable evidence of change in circumstances, a constant appearance on the horizon of an end to the appeal, and successive decisions that Mr Anam should remain in detention for a further short period. Mr Waite urged that the court should not allow the appellate process to be mischaracterised. The Upper Tribunal would need to consider psychiatric evidence on the issue whether deportation to Bangladesh would involve risks to Mr Anam’s mental health and the seriousness of those risks. It was simply not possible to say whether the appeal had merits or not. Thus there had been, Mr Waite submitted, no breach of either the second or third Hardial Singh principle.

As to the complaint that there had been a failure to have regard to the impact of continued detention on Mr Anam’s mental illness, Mr Waite said that there had been a failure to describe any such impact, or what evidence it was said that ought to have been considered but was not considered.

Returning to the impact of detention on Mr Anam’s mental health, the factors identified by Professor Katona had engaged the published departmental policy. Professor Katona’s reports had not – submitted Mr Waite – demonstrated a significant and progressive deterioration in Mr Anam’s condition since detention began. Moreover, as regards the position if Mr Anam were released, the reports predicated that in that event Mr Anam would be in a supportive environment. Mr Waite submitted that there was, however, very little reliable evidence that that was so.

In my view during the period up to 11 February 2010 the concerns identified above when discussing the application of Hardial Singh principles to the first period continued to have sufficient force to make it appropriate to maintain detention, even bearing in mind the points made in Professor Katona’s 22 July 2009 report. As regards whether detention would necessarily have involved a breach of a public law obligation which bore upon and was relevant to Mr Anam’s detention, the challenge concerning failure to take account of Professor Katona’s report would not necessarily succeed: that particular element of unlawfulness, to the extent that it was separate from the Hardial Singh questions, could be remedied. On the question whether, in the light of the objective meaning of the departmental policy concerning those with mental illness, the decision-maker could reasonably have concluded that detention would be consistent with that policy, this would I think have been possible for much the same reasons as I have discussed above in relation to Hardial Singh. The consequence is that as regards the period prior to close of business on Thursday 11 February 2010 Mr Anam is entitled to no more than nominal damages because during that period those responsible could and would have taken a lawful decision to detain him.

However the factors that I have described were, as Mr Macdonald submitted, not static. They were, on the facts of this case, of diminishing force over time. There came a stage during February 2010 when, in my view, the continued detention of Mr Anam involved a breach of the second Hardial Singh principle. By that time Mr Anam had been in immigration detention for almost two years. He had been deprived of his liberty since May 2006, a period which now extended to more than three and a half years. He had effectively served the equivalent of a seven year prison sentence. His past offending had culminated in the serious crime of robbery associated with two thefts, but it was not at the most serious end of the spectrum. Moreover the risk of reoffending called for re-examination. There was strong evidence that Mr Anam had calmed down. He was no longer making repeated bail applications. While Cranston J had held that one of Mr Anam’s judicial review applications had been utterly without merit, it would not in my view have been reasonable to treat Mr Anam’s main complaints as obviously unmeritorious. While the AIT had dismissed his appeal on 9 December 2009, it was not obvious that the decision would be able to withstand criticism. On 21 January 2010 it had survived scrutiny by a Senior Immigration Judge, but in the event that survival proved to be only temporary. As would eventually be pointed out in the High Court’s order of 2 June 2010, there was no explanation of how it was fair to deny the request for an adjournment to obtain additional expert evidence. The conclusions of the Tribunal were briefly expressed, leaving paragraph 35 of the decision open to the criticism identified by the High Court on 2 June 2010. A particular feature here was the account given by the Tribunal of the important evidence of both Mr Anam and his mother, yet there was a failure to mention this evidence at all in the part of the decision which dealt with findings of fact.

Quite apart from passages in the AIT decision of 9 December 2009 which suggested a substantial danger that it would not survive scrutiny, what was particularly relevant for present purposes was the light that it shed on factors relevant to the continued reasonableness of detention. The evidence of Mr Anam and his mother, along with the report of Professor Katona, all pointed to a lower risk of absconding and reoffending than had been the case in the past. As described by the tribunal that evidence supported the contention that Mr Anam was a person who had made a determined effort to overcome his problems, who had a real incentive not to abscond or re-offend, and who had a supportive environment within which appropriate medical treatment, unavailable in detention, could be provided. On or before 20 January 2010 directions for Mr Anam’s removal were cancelled on learning that he had sought a review of the AIT decision of 9 December 2009. The next detention review had been prepared by 11 February 2010 and was considered by a senior executive officer and the decision-maker later that day. Whatever the position before then, once the directions for removal on 20 January had been cancelled a careful re-evaluation was called for at the next detention review, which in the event took place on 11 February 2010. By close of business that day, on the material – in particular Professor Katona’s 22 July 2009 report and the AIT decision and reasons of 9 December 2009 – which I would have considered had I been the decision-maker at that time, all the above factors taken together in my view compelled the conclusion that the end of a reasonable period for immigration detention had been reached, that Mr Anam should be released on appropriate conditions, and that if such release were not offered then further detention would be unreasonable.

If I were wrong, I would nevertheless have come to the conclusion that detention after close of business on Thursday 11 February 2010 would have involved a breach of the third Hardial Singh principle. While a determination by a senior immigration judge could be expected reasonably speedily, that would not be the end of the road. It was common knowledge that the Administrative Court at this time was faced with a huge backlog of these cases. There is reference later to the Treasury Solicitor indicating that a decision could be expected “by the summer” and to the Administrative Court stating that it had been hoped to have the matter considered before the Whitsun vacation. There could be little doubt that if the senior immigration judge refused reconsideration Mr Anam would utilise his statutory right to have the matter put before a High Court judge, and that this process would make it likely that a High Court decision would not be made until May 2010 at the earliest.

I have thus reached a conclusion which differs from the decision of this court when considering an interim order for release in March this year. The reason is that, as that decision acknowledged would be the case, at the substantive hearing I have been able to examine the facts in much greater depth.

In these circumstances I do not need to examine whether detention after close of business on 11 February 2010 would necessarily have involved a breach of a public law obligation which bore upon and was relevant to Mr Anam’s detention.

Accordingly I conclude that from close of business on Thursday 11 February 2010 onwards Mr Anam’s continued detention was unlawful not only because there was a failure to give consideration to Professor Katona’s 22 July 2009 report but also because detention was in breach of Hardial Singh principles. From that time onwards, even if a lawful approach had been taken to Mr Anam’s mental health problems, he could not lawfully have been detained without offering release on appropriate conditions, and there is no reason to doubt that if offered appropriate conditions Mr Anam would have accepted them. He is therefore entitled to substantial damages for false imprisonment for the period from mid-January onwards.

For the reasons given above I reach the conclusions set out in section A of this judgment. I will give separate directions for the assessment of damages. I will also give separate directions to ensure that if there is now said to be any impediment to Mr Anam’s release that matter can be addressed in an orderly way.

In section I above I draw attention to the difficulties which can arise when it is necessary to identify a particular point in the past when detention became unlawful. In other cases where such questions arise I recommend that consideration be given to directions which may mitigate these difficulties. It might, for example, be appropriate to give directions which require:

These suggested directions may seem onerous. They do indeed aim to require the parties to shoulder an important burden, for they are designed to force the parties to identify the real issues and to focus on facts and matters which are relevant to them. Of course directions must be tailored to the particular circumstances of the case. Once tailored, the burden involved on the parties will be justified: tailored directions of this kind will advance the overriding objective not merely by saving hearing time and judgment-writing time, but most importantly by requiring the parties to adopt an orderly approach which will promote the interests of justice.

The published departmental policy, as described in paragraphs 43 to 48 of Cranston J’s judgment:

43 The Secretary of State's policy currently in force relevant to the immigration detention in this case is contained within Chapter 55 of the Enforcement Instructions and Guidance. It is to detain persons suffering from mental illness under immigration powers in only “very exceptional circumstances”. That policy derives from the Government White Paper, Fairer, Faster and Firmer, Cm. 4018, 1998. The White Paper stated in Chapter 12 that it was regrettable that detention was necessary to ensure the integrity of immigration control. Whilst there was a presumption in favour of temporary admission or release, detention was normally justified where there was a reasonable belief that the individual would fail to keep the terms of temporary admission or temporary release; initially, to clarify a person's identity and the basis of their claim; or where removal was imminent. In particular, where there was a systematic attempt to breach immigration control, detention was justified wherever one or more of these criteria was satisfied. Paragraph 12.4 read:

“12.4

The Government also recognises the need to exercise particular care in the consideration of physical and mental health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual's asylum claim is being considered.”

The following paragraphs explained that the detention of families and children was particularly regrettable, and that unaccompanied minors should never be detained other than in the most exceptional circumstances.

44 That White Paper evolved into what was Part 38.10 of the Operations Enforcement Manual. Part 38.10 was in force for the first three months of the claimant's immigration detention. From July 2008 the manual was replaced with the Enforcement Instructions and Guidance. That was revised in September 2008 and January 2009.

The policy

45 Chapter 55 of the Enforcement Instructions and Guidance, entitled “Detention and Temporary Release”, refers at the outset to the 1998 White Paper as containing the general policy applicable in the area. Paragraph 55.1.2 refers to cases concerning foreign national prisoners (“FNP”), dealt with by the Criminal Casework Directorate (“CCD”), which are subject to the general policy, including the presumption in favour of temporary admission or release. In such cases, if detention is indicated, because of the higher likelihood of the risk of absconding and harm to the public on release, paragraph 55.1.3, on the use of detention, provides that it is normally appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. If detention is appropriate, a foreign national prisoner is detained until either deportation occurs, the foreign national prisoner wins an appeal against deportation, bail is granted or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful.

“ 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 re-offend, must be considered. Where the offence which has triggered deportation is included in the list at 55.3.2.1, 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. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences” (emphasis in original).

Robbery is a serious offence listed in an annex to Chapter 55. Detention in such cases must be authorised by a senior official in the Criminal Casework Directorate.

46 Decisions to detain in CCD cases are addressed specifically in paragraph 55.3.A. For more serious offences that paragraph provides:

“A conviction for one of the more serious offences is strongly indicative of the greatest risk of harm to the public and a high risk of absconding. As a result, the high risk of public harm carries particularly substantial weight when assessing what period of detention is reasonably necessary. So, in practice, it is likely that a conclusion that such a person should be released would only be reached where there are exceptional circumstances which clearly outweigh the risk of public harm and which mean detention is not appropriate. Caseworkers must balance against the increased risk, including the particular risk to the public from re-offending and the risk of absconding in the individual case, the types of factors normally considered in non-FNP detention cases, for example, if the detainee is mentally ill. Caseworkers are reminded that what constitutes a “reasonable period” for these purposes will generally be longer than in non-criminal cases, or in less serious criminal cases, particularly because the ex-FNP has committed a serious crime or crimes” (emphasis in original).

Among the factors listed influencing the decision to detain are whether the person has mental ill health: paragraph 55.3.1.

• “55.3.1 Factors influencing a decision to detain

• All relevant factors must be taken into account when considering the need for initial or continued detention, including:

• What is the likelihood of the person being removed and, if so, after what timescale?

• Is there any evidence of previous absconding?

• Is there any evidence of a previous failure to comply with conditions of temporary release or bail?

• Has the subject taken part in a determined attempt to breach the immigration laws? (e.g. entry in breach of a deportation order, attempted or actual clandestine entry)

• Is there a previous history of complying with the requirements of immigration control? (e.g. by applying for a visa, further leave etc)

• What are the person's ties with the United Kingdom? Are there close relatives (including dependants) here? Does anyone rely on the person for support? Does the person have a settled address/employment?

• What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which afford incentive to keep in touch?

• Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?

• Is the subject under 18?

• Does the subject have a history of torture?

• Does the subject have a history of physical or mental illness?”

47 Further guidance on detention in CCD cases where a person has completed a custodial sentence is given in paragraph 55.3.2. The paragraph is to be read in conjunction with 55.3.1, with substantial weight being given to the risk of further offending and the risk of harm to the public. With serious offences the exceptional nature of release is reiterated:

“Where a time served foreign national prisoner has a conviction for an offence in the list below, particularly substantial weight should be given to the public protection criterion in 55.3.1 above when considering whether release on restrictions is appropriate. In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling because of the significant risk of harm to the public posed by those convicted of violent, sexual, drug-related and other serious offences. In practice, release is likely to be appropriate only in exceptional cases. This does not mean, however, that individuals convicted of offences on the list can be detained indefinitely. All relevant factors (see 55.3.1) must be considered when assessing whether there is a realistic prospect of removal within a reasonable timescale.”

Release as exceptional is underlined in paragraph 55.3.2.11 because of the seriousness of violent, sexual, drug-related and similar offences.

48 The critical paragraph relied on by the claimant is 55.10, which provides that mentally ill persons should normally be considered suitable for detention only in very exceptional circumstances.

“55.10

Persons considered unsuitable for detention

Certain persons are normally considered for detention in only very exceptional circumstances, whether in dedicated Immigration accommodation or elsewhere. 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.

The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated Immigration detention accommodation or elsewhere:

• unaccompanied children and young persons under the age of 18 (but see 55.9.3 above);

• the elderly, especially where supervision is required; • pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl's Wood);

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

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

• people with serious disabilities;

• persons identified by the Competent Authorities as victims of trafficking (as set out in Chapter 9).”

Paragraph 55.15 deals with detention in national security cases.

The evidence concerning Mr Anam’s mental health prior to immigration detention, as described in paragraphs 12, 13, 16, 17 and 18 of Cranston J’s judgment:

12 Both sides accept that the claimant's mental health has fluctuated. The earliest reference to the claimant's mental state in evidence is to a report of Dr Gandhi in 1991. His diagnosis is mentioned in a later report dated the 18th October 2000 by Dr Joseph. Dr Joseph's report was prepared in relation to the care proceedings involving the claimant's children. In it Dr Joseph agreed with Dr Gandhi's diagnosis that the claimant suffered from paranoid psychosis.

13 In September 2008 Dr Patel prepared a report in relation to the Crown Court proceedings for the robbery. In Dr Patel's opinion the claimant was suffering from a paranoid psychotic illness consistent with a diagnosis of paranoid schizophrenia. He had displayed intermittent psychotic symptoms since 1991. It was likely that the claimant had not received a definitive diagnosis of paranoid schizophrenia earlier as a consequence of co-morbid psychoactive substance misuse, a lack of sustained engagement with mental health services and impaired compliance with prescribed medication. Dr Patel recorded that the claimant had been treated with anti-psychotic medication in prison following Dr Patel's initial assessment of him, and this had resulted in an improvement in his psychotic symptoms and general presentation. Dr Patel did not believe at that time that the claimant's mental illness was of a nature or degree to warrant transfer to hospital for further assessment and treatment. Following release into the community, the claimant would need follow up treatment by a community mental health team to monitor his mental state, compliance with prescribed medication and abstention from the use of illicit substances. Were his mental health to deteriorate, and his risks to become unmanageable, or if the claimant were to become non-compliant with medication, consideration would need to be given to his transfer to hospital.

…

16 There is reference in the claimant's detention records to his mental state. The earliest prison report in relation to mental health is on his reception in March 2007, where there is a reference to his clearly documented paranoid schizophrenia and post traumatic stress disorder, although it is noted that he is stable on Risperidone. A mental health review in May 2007, by Tony Adams, a community psychiatric nurse, recorded the claimant's poor mental health owing to his move to the prison. Later that month Tony Adams noted that the claimant did not feel well and wanted to stop his medication. Mental health reviews in June 2007 recorded that on one occasion the claimant appeared more relaxed, but a few days later he said he was not progressing well, although he was not specific with his description of symptoms.

17 An entry on the 21st June 2007 records that Dr Birmingham was scheduled to see the claimant at a psychiatric outpatient clinic but that the claimant declined to attend. Tony Adams reported in early July that he saw the claimant in the cells after reports of bizarre behaviour and that the claimant declined to restart his Risperidone. Tony Adams reported in October 2007 that there were no significant relapse symptoms evident and in early November that his mental health was stable with no symptoms of illness present. The claimant continued to present without the symptoms in late November. That was also the case in early December when there was a mental health review by Tony Adams, along with Dr Birmingham. The claimant continued to refuse treatment.

18 In mid December 2007 a mental health review by Tony Adams found that the claimant did not appear distracted or thought disordered, although his demeanour changed when Mr Adams attempted to discuss whether his presenting symptoms had changed since his admission in 2005. There was no evidence of thought disorder or hallucinations the following day but there was possible evidence of delusive thinking. A mental health review in late January 2008 found the claimant in a good mood and reporting no concerns about his mental health. Mr Adams and Dr Birmingham saw the claimant on the 20th March 2008 for a routine psychiatric review. The claimant did not want to take any psychotic medicines.

A3-5. Nursing assessments on 25 April and 1 May 2008 are described in paragraph 19 of Cranston J’s judgment. Neither side disagreed with this description, which was as follows:

A nursing assessment at the time of his arrival at a detention centre on the 25th April 2008 briefly reports that he was in touch with a psychiatric hospital and that he appeared paranoid. Sharing a room made him feel stressed. There was a medical health needs assessment on the 1st of May 2008 by a community psychiatric nurse which recorded that the claimant was not complaining of any psychiatric condition and had refused to offer details of his past involvement with or treatment by psychiatric services. Dr Patel's report was available, as were the short reports from Tony Adams. The report writer was not able to perform the full medical health assessment because of the claimant's reluctance to engage. Consequently he was unsure whether the claimant was suffering with a mental health problem. During the session the report writer could not detect any significant levels of emotional disturbance other than being angry at his present situation and facing the possibility of being returned to Bangladesh. The claimant did not complain of any psychiatric condition. There was some uncertainty about his diagnosis.

A3-6. A detention review was prepared by Mr Mellor of CCL2 (Criminal Casework Liverpool Team 2) on 13 May 2008. It gave the date of Mr Anam’s detention as 14 April 2008 and noted, among other things, that Mr Anam had now stated that he was appealing against deportation because he feared for his life if returned to Bangladesh, and because he had mental health problems. Under the heading “Likelihood of removal within a reasonable timescale” Mr Mellor stated:

The timing of Mr Anam’s appeal and representations were made on the day of his planned removal. The timing of these and also of his ‘Out of Time Appeal’, suggest that this is no more than a delaying tactic.

Mr Anam can be removed as soon as the appeal has been heard, if he is unsuccessful, as we have a valid passport (currently with Heathrow removals desk).

A3-13. The 23 August 2008 detention review noted that there were three current barriers to removal. The first was the outstanding asylum claim, which would require further investigation to establish who was dealing with it. The second was the outstanding request for a review of the AIT decision of 12 August 2008. The third was the letter from Mr Anam’s legal representatives dated 24 July 2008 which required a response. Under the heading “Proposal,” the review stated:

Mr Anam’s case has been considered under current detention criteria. Mr Anam… has thwarted two removal attempts. Given his extensive criminal history and the nature of his offence it is considered that he has no incentive to comply with any reporting restrictions placed upon him.

?maintain detention.

A3-15. On 26 August 2008 the 23 August 2008 detention review was countersigned by a higher executive officer. The higher executive officer said this:

Agreed. This man presents a very high risk of re-offending and non-compliance with restrictions if we were to release him. The subject has an extensive criminal history with 41 offences resulting in 26 convictions. He has made a late claim for asylum once removal directions had been set which suggests it is solely an attempt to prevent removal. The subject has been served with a deportation order and has already thwarted two removal attempts. There is therefore little likelihood of him abiding by any restrictions and he poses a high absconder risk. Continued detention remains appropriate and in line with current detention criteria.

A3-20. A detention review dated13 October 2008 noted that Mr Anam’s asylum claim had been refused on 25 September 2008, and said that the refusal did not carry a right of appeal as the decision was subsidiary to the deportation decision. Thus the barriers to removal which remained were Mr Anam’s application to the High Court concerning the AIT decision of 12 August 2008, and his representatives’ letter of 24 July 2008 which required a response. The “proposal” was that the representations of 24 July 2008 should be responded to so that, if the application to the High Court were dismissed, Mr Anam’s removal could be initiated. In other respects the proposal was identical to that made on the previous two occasions. This detention review was countersigned on 15 October 2008 by the same higher executive officer who had dealt with the August detention review. On this occasion when authorising review she commented:

Continued detention agreed. Mr Anam has an extensive criminal history and has thwarted two previous attempts to remove him. He is fully aware of out intention to carry out removal should his High Court review be refused. He has no incentive to abide by any restrictions given the late stage of his case and therefore poses an absconder risk.

Please consider the outstanding representations before the next review.

A3-22. A detention review dated 12 November 2008 noted a number of developments. On 29 October 2008 Mr Anam’s application to the High Court concerning the AIT decision of 12 August 2008 was dismissed, and thus all appeal rights in relation to the decision to make a deportation order were exhausted. On 31 October 2008 a response had been sent to Mr Anam’s solicitors rejecting the representations in the letter of 24 July 2008. On 6 November 2008 CCD had been notified that Mr Anam was due to be transferred to Colnbrook Immigration Removal Centre, but he had refused to be transferred and force had to be used to restrain and transport him. The only barrier to removal which remained was that there was a need, now that the appeal rights against the decision to deport had been exhausted, to obtain a deportation order. It was noted that Mr Anam’s Bangladesh passport was valid until 29 January 2009. The report was countersigned by an Inspector on 13 November 2008. He commented:

It is anticipated that we will in a position to make another attempt to remove this man from the UK in a couple of weeks or so. His passport is only valid until January 2009 so we need to pursue this with some urgency as escorts will be required and Anam will inevitably do whatever he can to prevent his return to Bangladesh. He has committed over 40 offences here, which have resulted in almost 30 convictions. It is clear that he treats our laws with contempt and would not comply with any restrictions. Detention is clearly justified in this case and is proportionate to risk.

A3-26. On 23 December 2008 removal directions were set for 5 January 2009. However on 2 January 2009, three days prior to the planned removal, Mr Anam lodged a further asylum claim. The 14 January 2009 review added that “judicial review and injunction paperwork was also received from the subject’s brother.” In those circumstances removal directions had been cancelled. Under the heading “Proposal” the review stated:

Mr Anam’s case has been considered under current detention criteria. Mr Anam is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. His JR and asylum applications will be dealt with as swiftly as possible and, if resolved, we will try to obtain a new travel document for him. The fact that we are in possession of his Bangladesh Passport, which will by then have expired, should expedite this process.

A3-28. There does not appear to have been a detention review or monthly progress report in December 2008. The reviews and reports in November 2008 and January 2009 make no reference to medical reports from the immigration detention centres. There had been such reports during November 2008, which were summarised in paragraph 19 of the judgment of Cranston J as follows:

On the 2nd November 2008 an assessment recorded his past psychiatric history and that he was suffering from paranoid psychotic illness and possible post traumatic stress disorder. On the 18th November 2008 the previous diagnosis of paranoid psychosis is recorded. A report on the 24th November 2008 found the claimant reporting himself more paranoid but he appeared more relaxed, cooperative and coherent.

A3-31. A detention review dated 13 February 2009 said that Mr Anam’s judicial review claim of 2 January 2009 “has been allocated to a case worker and an outcome is anticipated shortly.” Meanwhile on 6 February 2009 a letter responding to the representations of 2 January 2009 had been issued, “with a refusal to revoke the deportation order”. Mr Anam had applied to the AIT for bail on 5 February 2009 and the application had been refused on 9 February 2009. He had submitted another application for bail to the AIT, for which there was to be another hearing on 17 February 2009. The review continued:

Mr Anam’s Judicial Review will need to be addressed prior to re-arranging his removal. Unfortunately his passport was only valid until 28 January 2009 so, due to the JR claim, expired after removal directions were cancelled. We will obtain an Emergency Travel Document from the Bangladesh Authorities and this should be a simple process due to the fact we have his expired Passport as supporting evidence. I will request that an application be submitted this week in anticipation of the JR being refused.

Proposal

Mr Anam’s case has been considered under current detention criteria. Mr Anam is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. He is a prolific offender who has employed the use of at least 20 aliases prior to his imprisonment. He has clearly shown that he has the ability to deceive both Immigration and Police Authorities.

?Maintain detention.

A3-39. A “twelve month” detention review was prepared by Mr Kennedy on 11 May 2009. This again made no explicit reference to the judicial review claim form issued on 17 February 2009. As regards the judicial review claim issued on 2 January 2009, while a redrafted decision letter had been prepared, clarification had been sought from lawyers regarding “certification and appropriate appeal rights in this case.” Both Mr Kennedy and an assistant director who considered the matter on 13 May 2009 described the proposal as “?maintain detention.” On 14 May 2009 the director of CCD stated:

Based on the presumption to release, I have considered whether the continued detention is lawful. In light of their risk of further offending and harm that this may cause, as well as the likelihood of absconding, I consider these additional factors outweigh the presumption to release, I therefore authorise their detention for a further 28 days.

A3-42. A further detention review was prepared on 29 June 2009. This was the first of the detention reviews to contain an explicit reference to the fact that two judicial review claims had been brought. It described the orders that had been made by Beatson J, adding:

Permission has been granted on the second JR because the courts have said that there is evidence that the Claimant suffers from a mental illness and no explanation from the SSHD as to why he is being detained.

A3-47. The 6 July 2009 detention review also noted that an application to the AIT for bail was due to be heard on 8 July 2009. The review then stated:

Proposal

Mr Anam’s case has been considered under the presumption of liberty. He is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. He is a prolific offender who has employed the use of at least 20 aliases prior to his imprisonment. In doing so he has clearly shown that he has the ability to deceive both Immigration and Police Authorities.

He has, as yet, failed to lodge any grounds to oppose his asylum refusal and has only one more day to do this. He has, however completed an application for AIT bail since being served with his Refusal to Revoke a Deportation Order.

Should he fail to lodge any appeal grounds, Mr Anam will be removable from the United Kingdom as soon as the travel document is agreed and, as he has repeatedly shown that he is willing to employ any method at his disposal to avoid this end; he is likely to abscond if released.

We have lots of supporting evidence to demonstrate Mr Anam’s Bangladesh nationality and obtaining a travel document should take only a few weeks.

?Maintain detention

A3-48. On 7 July 2009 the senior executive officer noted that if Mr Anam did not lodge grounds of appeal removal might be possible within the near future. Even if that were not the case, however, she recommended that detention be maintained:

The subject has committed a variety of offences and has used 20 aliases. He clearly has a propensity to deceive and cannot be relied upon to comply with any reporting. I have considered the presumption of liberty but believe it is outweighed by the risk of absconding and reoffending.

Maintain detention?”

A3-49. On 9 July 2009 the review was considered by a deputy director. The deputy director does not appear to have inquired as to whether grounds of appeal had been lodged. Nevertheless the deputy director agreed with the recommendation that detention be maintained, adding:

There is a long criminal history which outweighs the presumption of liberty. There is supporting evidence for an ETD and removal should be possible within a reasonable timescale.

A4-2. As regards appealing against the refusal to revoke the deportation order, the 5 August 2009 monthly progress report stated that:

Nothing was received in our office but a letter from the Asylum and Immigration Tribunal, received 28 July 2009, states that they have accepted your appeal as “in time” and will allow it to proceed.

A4-4. In the meantime on 22 July 2009 Dr Katona had prepared a second report. In his judgment at paragraph 15 Cranston J summarised it in this way:

15.

… Dr Katona prepared a second report, dated the 22nd July 2009, for the current proceedings. He confirmed his previous diagnosis of paranoid schizophrenia. The main differences between the claimant's presentation then and his presentation the previous year was that his delusional beliefs were less prominent, presumably as a result of the anti-psychotic medication he was then taking, and that by July 2009 he had quite prominent depressive symptoms, a reaction to his prolonged detention. That depression did not alter the primary diagnosis of schizophrenia. He was now on regular anti-psychotic medication, Risperidone, but was not receiving any psychological treatment and was not in a rehabilitative environment, both of which were key components of treatment in care of people with schizophrenia. Dr Katona reiterated his recommendation for a supportive environment, and noted that family members had now expressed a willingness to provide such support. In Dr Katona's view continued immigration detention was causing the claimant considerable stress, which was likely to worsen his psychotic and his depressive symptoms.

A4-7. Reference was made in the 13 August 2009 detention review to the letter of 16 June 2009 conferring an in-country right of appeal against the refusal to revoke the deportation order. It was said that this letter had been served on Mr Anam “on 30 May 2009”. This seems to have been a repetition of the mistake in the 6 July 2009 detention review noted in annex 3, and should have read “30 June 2009”. The detention review went on to note that on 28 July 2009 a letter had been received from the AIT stating that Mr Anam had now submitted grounds and that his appeal would be allowed to proceed. Under the heading, “Changes in circumstances (include full details of notified Human Rights factors)”, the review stated:

Mr Anam is known to have mental health issues which are under constant assessment at Brook House IRC Healthcare Unit. They have confirmed that there has been no change in his condition and he remains fit for detention.

A4-8. Under the heading “Proposal,” the review said:

Proposal

Mr Anam’s case has been considered under the presumption of liberty and in accordance with the current detention criteria. He is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. He is a prolific offender who is known by Police to have employed the use of at least 19 aliases prior to his imprisonment. In doing so he has clearly shown that he has the ability to deceive both Immigration and Police Authorities.

He has lodged an appeal against the Decision not to Revoke a Deportation Order and that was due to be heard at Hatton Cross AIT on 10 August 2009. Unfortunately the hearing had to be adjourned and has been re-scheduled for 16^th September 2009. I spoke to Feltham Presenting Office who assure me that all our documents will be submitted to the Tribunal in time for the hearing. Should this hearing rule in his favour we will no longer be able to pursue deportation. If his appeal is dismissed we will arrange for him to be removed.

His appeal grounds appear to have been submitted beyond the deadline for doing so but the AIT had agreed to allow him to proceed.

Mr Anam has also lodged an unlawful detention JR which was due to be heard on 11 August 2009, but was adjourned to 19 August 2009. Arrangements will be made for Mr Anam to be produced at court in good time for this hearing.

We have lots of supporting evidence to demonstrate Mr Anam’s Bangladesh nationality and are in possession of an expired Passport. The Bangladesh authorities have now amended their criteria and have agreed to issue travel documents in cases such as these without the need for an interview. We have contacted RGDU and asked them to expedite the application if possible. With Mr Anam’s co-operation it would have already been issued but his non-compliance will not longer be a factor preventing us from obtaining and Emergency Travel Document. We anticipate that we will be able to obtain an ETD within the next month.

Mr Anam has repeatedly shown that he is willing to employ any method at his disposal to avoid removal and, given his history of deception; he is likely to abscond if released. It is also probable, given that he appears to have never been lawfully employed, that the subject will return to criminality in order to support himself.

Should Mr Anam’s JR against his current detention be successful he will be released. This will not affect the deportation order and if his appeal is unsuccessful we will still pursue deportation.

Mr Anam is known to have mental health issues that were taken into consideration pre-sentencing; and as part of his asylum claim. I have spoken to John Howgate who is the Nursing Manager at Brook House IRC. Mr Howgate confirmed that Mr Anam was assessed upon arrival at Brook House and is in contact with their unit on “an almost daily basis”. He also has a copy of the subject’s healthcare file which details the medical assessments that have been conducted on the subject prior to his arrival at the centre. Mr Howgate confirmed that all Mr Anam’s health needs are being appropriately met and that he is fit for detention. Mr Anam was moved to Harmondsworth IRC on 13 August 2009. Itr had been recognized that Mr Anam required a room to himself and had a two-bed room to himself at Brook House. It was felt to be a better use of bedspaces to move him to Harmondsworth where there are single-occupancy rooms. There is no reason to believe that Mr Anam’s health needs will not be catered for at Harmondsworth. I have asked that I be notified of any changes in the subject’s condition.

In light of our policy to only detain those with mental health issues under ‘exceptional circumstances’ I have weighed the presumption of release generally and in light of his mental illness against the number, and serious nature, of his offences. I have also considered his prior use of deception and his propensity to abscond.

Under the circumstances, I am of the view that Mr Anam is a very exceptional case and in accordance with our policy, his detention should be continued. In particular, he poses a high absconder risk and is clearly capable of avoiding Police and Immigration Authorities for long periods. His healthcare needs are being met and we are in the latter stages of obtaining a travel document for him. The only barriers to removal are his appeal against deportation, which will he heard on 16^th September 2009, and the absence of a travel document which we expect to be issued in a matter of weeks.

We will pursue deportation regardless of the outcome of his unlawful detention JR hearing on 19 August 2009. It is anticipated that this hearing will conclude all of his current judicial review challenges and no further hearing is expected. Although we must accept that if his presence is required for further hearings this may constitute a barrier to removal and his Article 6 rights will be considered in this regard.

Action Points

It is not possible to specify certain action points other than pursuing the ETD until the outcome of his appeal and JR are know.

? Maintain detention.

A4-9. On 14 August 2009 the senior executive officer forwarded the report to the Director, commenting:

The barriers to removal in this case are threefold. The first is the ongoing JR, the second is the appeal before the AIT and the third is the lack of an ETD. If all three are resolved in our favour, Mr Anam should be removable sometime in either October or November. The ETD should now be relatively straightforward to obtain within the next month, whilst the JR hearing is scheduled for 19 August 2009 and the AIT hearing is now set for 16 September 2009. We have considered Mr Anam’s ongoing mental health issues and we are satisfied that risks of harm, re-offending and absconding posed by him are sufficient to make this an exceptional case which warrants continued detention.

Do you agree?

A4-10. The decision of the Director, also on 14 August 2009, was set out at the end of the detention review as follow:

Comments:

Based on the presumption to release, I have considered the whether to continue the detention of the detainee. In light of their risk of further offending and the harm that may cause, as well as their likelihood of absconding I consider these additional factors outweighs way the presumption to release. I therefore authorise their detention for further 28 days.

A4-17. The 19 November 2009 report then repeated the history of events given in earlier reports before returning to the judicial review proceedings. Cranston J’s judgment on the main judicial review claim was dealt with in a single sentence:

He [the judge] found that, although the UKBA had failed to follow its own policy to the letter, there was no material error in the decision to maintain your detention and your continued detention was deemed lawful.

A4-19. The 19 November 2009 report noted that a travel document had now been received from the Bangladesh High Commission. The current barriers to removal were identified as being the need to await the outcome of the deportation appeal, the need to issue an amended deportation order, and (if the deportation appeal failed) the need to consider Article 6 rights to ensure Mr Anam would have access to legal representation once returned to Bangladesh. The report stated that CCD were aware of Mr Anam’s mental health issues and had been assured that all his health requirements were being met. It continued:

You have asked for proof of this. We provided the court with proof as part of your Judicial Review hearing. This is discussed in the determination and you have been issued with a copy.

A4-22. Under the heading, “Medical Reports” the Tribunal noted in paragraph 19 that the only report of recent origin was from Professor Katona. The reports of Dr Patel in September 2006 and Dr Joseph in October 2000 were briefly summarised. At paragraph 20 the Tribunal said this:

20.

As we say there is a more up to date report from Professor Katona dated 22 July 2009. Professor Katona also has an impressive list of qualifications in psychiatry. He too diagnosed the appellant as suffering from a complex set of persecutory beliefs. In summary he was suffering from paranoid schizophrenia which, to some extent, was kept under control as a result of the anti-psychotic medication the appellant was taking. Most of his previous offences took place when he was either not being treated with such medication or was non-compliant with the medication prescribed for him. Without a background of family and social support it was likely that in its absence his psychotic symptoms would almost certainly worsen.

A4-24. In their reasons the Tribunal set out in some detail what had been said by Immigration Judge Brenells and Mr A J Crag CMG in August 2008 when dismissing Mr Anam’s first appeal, and referred to this as “the Brenells decision”. Under the heading “Material findings of fact” the Tribunal made no findings of fact of their own. They said that they adopted paragraphs 13 to 25 of the Brenells decision. The remainder of the Tribunal’s determination and reasons comprised three paragraphs only, which appeared under the heading “conclusion”. I set them out in full:

34.

We agree with the carefully reasoned conclusion of the Brenell’s decision as set out in paragraphs 14 to 30 thereof. We further adopt paragraphs 31 to 37 thereof and 38 to the end. The argument before us was that the appellant having been in the United Kingdom for a long time and having special links in terms of support with his family, he should be allowed to remain both in terms of private life and family life. We agree with Ms Rhind that the case law from Strasbourg that she cited in her skeleton argument is relevant as is the important decision of the House of Lords in Beoku-Betts [2008] UKHL 39. We also agree that we must take account of the facts and matters raised by Ms Rhind in paragraphs 16 to 18 of her skeleton argument. But, in our judgment, the appellant’s offences greatly outweigh contrary arguments directed at his remaining in the United Kingdom. We are at one with paragraphs 39 to 40 of the Brenell’s decision in this respect.

35.

We are aware that the manufacturers of the drug Resperidone, on which the appellant depends, have said that it is not available in Bangladesh. But there are alternative therapies to which the appellant could turn. Professor Katona said that the appellant has not been as well established on other drugs than on this one. To take steps that would deprive him of Risperidone would risk a worsening of his psychotic symptoms. That fact alone would not, in our judgment, engage Article 3 of the ECHR. There is no duty upon the Crown to ensure that the appellant takes his medication.

36.

In short, we think that the appellant has no claim to remain under Articles 3 or 8. Ms Rhind did not seriously advance an asylum claim. The actions of the respondent in removing the appellant to Bangladesh would be a proportionate response under Article 8(2) to the appellant’s offending. We dismiss this appeal.

A4-27. Also on 11 February 2010, following comments by a senior executive officer that day, a deputy director gave authority to maintain detention, stating:

I have reviewed detention in the light of the presumption of liberty but I am satisfied this is outweighed by the factors set out in the review. I note the long criminal history, the risk of reoffending and the harm Mr Anam presents. Also, I consider that his use of multiple identities makes him a significant absconding risk. I agree there are exceptional circumstances warranting detention despite his mental health issues. If the appeal is dismissed he can be removed and time scales are reasonable.

A4-28. The recommendation by the senior executive officer on 11 February was “Maintain detention?” It was prefaced by a comment that the “exceptional circumstances” noted by Mr Logue seemed to warrant continued detention, based on reasoning as follows:

The outstanding barrier to removal is an appeal against deportation which should be heard in the next couple of months. If the appeal be rejected removal could be effected in a reasonable time scale as we have already secured an ETD.

A4-29. A monthly progress review was prepared by Mr Logue on 11 February 2010. It gave an account of the cancellation of removal directions which had been set for 20 January 2010, and of the decision of the Senior Immigration Judge in relation to the “filter” process prior to that date. In other respects it was similar to earlier monthly progress reports. It identified the same three reasons for remaining in detention as had been identified earlier. The decision in that regard was said to have been taken on the basis of the same three factors as had been identified earlier, with the addition of a fourth:

You have shown a lack of respect for United Kingdom law as evidenced by your 26 convictions.

A4-30. On 11 March 2010 Mr Logue signed a detention review which noted that on 11 February 2010 Mr Anam had applied for a High Court Review (under the filter procedure). In other respects the 11 March 2010 detention review was similar to that of 11 February 2010. Also on 11 March 2010 an acting assistant director gave authority to maintain detention, commenting:

I authorise continued detention based on a clear risk of harm, reoffending and of absconding, which I believe outweighs the presumption of liberty. Hopefully we’ll have an outcome to the High Court application within the next month or two. If the result does not go in the subject’s favour, he will be removable.

A4-32. A detention review prepared by Mr Logue in April 2010 was commented upon by an assistant director. There is some confusion as to the dates: Mr Logue’s review is dated 8 April 2010 and the assistant director’s comments are dated 7 April 2010. Mr Logue’s review added nothing to what had been said in the March 2010 review: the position remained that the outcome of Mr Anam’s application to the High Court was awaited. The assistant director noted that it was expected that “the hearing” would take place before the summer, and thus that removal was likely to occur within a reasonable period. On 8 April 2010 the director gave authority to maintain detention, commenting

Based on the presumption to release, I have considered whether the continued detention is lawful. In light of the risk of further offending and harm that this may cause, as well as the detainee’s likelihood of absconding, I consider these additional factors outweigh the presumption to release, I therefore authorise their detention for a further 28 days.

A4-34. On 6 May 2010 Mr Logue prepared a detention review which was in materially identical terms to the April detention review, recording the earlier advice from the Treasury Solicitor that the “appeal” should be heard “before the summer”. On the same day an assistant director gave authority to maintain detention, commenting:

I have noted the likely time scale to removal and am satisfied that taking this factor into account alongside the risks of re-offending, harm and absconding, the presumption of release is currently outweighed.

A4-37. In the section of the 3 June 2010 detention review headed “Proposal” Mr Logue noted that the healthcare team at Harmondsworth IRC were satisfied Mr Anam was fit to be detained. This formed part of 3 paragraphs as follows:

Mr Anam’s case has been considered under the presumption of liberty and in accordance with the current detention criteria. He is aware of our intention to remove him to Bangladesh and has now thwarted three removal attempts. He is a prolific offender who is known by Police to have employed the use of at least 19 aliases prior to his imprisonment. In doing so he has clearly shown that he has the ability to deceive both Immigration and Police Authorities. Given his history of deception, he is likely to abscond if released.

Mr Anam is known to have mental health issues that were taken into consideration pre-sentencing and as part of his asylum claim. In light of our policy to only detain those with mental health issues under ‘exceptional circumstances’ I have weighed the presumption of release generally and in light of his mental illness against the number, and serious nature, of his offences. The Healthcare Team at Harmondsworth IRC are satisfied that Mr Anam is fit to be detained.

Under the circumstances, I am of the view that Mr Anam is an exceptional case and in accordance with our policy, his detention should be continued. In particular, he poses a high absconder risk and is clearly capable of avoiding Police and Immigration Authorities for long periods. His healthcare needs are being met and a travel document has been agreed.

A4-40. Although the Administrative Court had not been able to complete the High Court review prior to the Whitsun vacation, it was in fact able to ensure that the application was put before His Honour Judge Pelling QC, sitting as a judge of the High Court, during the vacation. On 2 June 2010 he ordered that the Tribunal should reconsider its decision of 9 December 2009. His reasons were as follows:

An application was made to the Panel for an adjournment. That was refused. This issue is addressed at Paragraph 12 of the Adjudication. The description of the basis of the application as being “… because [the Applicant’s representative] wished to instruct an expert…” was a wholly inadequate description of the basis of the application if what is said in the application for reconsideration is correct. A critical issue in the case is whether the Applicant’s paranoid schizophrenia can be treated in Pakistan. On 5^th August 2009 an application for an adjournment was made and granted so as to enable the Applicant to obtain appropriate medical evidence. That medical evidence had been sought but was not available at the date of the hearing. The application for a further adjournment having been refused by the panel, the panel then addressed what was on any view a critical issue by reference to evidence that had been placed before a precious tribunal which that tribunal had expressed reservations about. In my judgment to refuse an application for a short adjournment in the circumstances was an error of law. This issue was not addressed at all by the SIJ. The only basis for refusing reconsideration in such circumstances would be a conclusion there was no realistic prospect of a different outcome if reconsideration was ordered. I am not able to reach that conclusion. The mental health issue, the availability of appropriate treatment and the risks associated with its non-availability were fundamental to the Article 8 issue – see Bensaid. The reasoning at Paragraph 35 of the Determination is wholly inadequate in my judgment as a basis for addressing this issue. It is likely it would have been better informed had the relevant evidence been before the panel. In those circumstances there must plainly be a reconsideration of this case.

A4-42. Also on 1 July an assistant director gave authority to maintain detention, commenting:

This case is moving through the judicial process and there is no further caseworking action necessary at this stage. Should the HCR be dismissed, we will be looking at removal within a reasonable timescale.

In reviewing detention, I too have attached due weight to the presumption of release, and the mental health issues. I have noted that the latter have not caused medical staff to conclude that the subject is unfit for detention.

On balance, I have concluded that the presumption of release currently is outweighed when all relevant factors are taken into consideration.