Agyeikum, R (on the application of) v SSHD

This is a claim for judicial review of decisions under paragraphs 353 and 353B of the Immigration Rules and a decision to detain the claimant from 26 June 2012 onwards (he was released from detention, pursuant to an order of Mr Charles George QC sitting a deputy judge of this court, on 4 February 2013). The claimant is a man now in his early 30s who claims to have been tortured in his home country of Ghana; there is strong evidence that he suffers from psychiatric conditions, though his claim to be a victim of torture was rejected by the Asylum and Immigration Tribunal and is not accepted by the Secretary of State. For the reasons that I give in this judgment I hold that he is entitled to a fresh consideration of his case under Immigration Rules 353 and 353B, and to damages in respect of his false imprisonment between the point in time at which the Secretary of State ought reasonably to have considered evidence of torture that was supplied to her in late November 2012 and his release.

The date of the claimant’s arrival in this country is uncertain. The first recorded instance of his coming to the attention of the authorities is in April 2006, when he was arrested on a charge of common assault that was not ultimately pursued. He told the police that he had worked as a labourer since his arrival in 1998. (He has also said that he entered with a six month visitor’s visa, though the Home Office has no record of the visa or the entry.) He claimed asylum on the day of his arrest and was granted temporary admission. The asylum claim was rejected in May 2006, on the grounds of the claimant having failed to complete a statement of evidence form. The claimant subsequently ceased to comply with his reporting conditions and the Home Office were out of touch with him until he was arrested in January 2007. He received a caution for affray and was subsequently convicted by a Magistrates Court of common assault and failure to surrender to custody. Following his arrest he was detained by the United Kingdom Border Agency (“UKBA”) until March 2007, when he was released on temporary admission subject to reporting conditions.

In February 2007, following his second arrest, the claimant appealed against the refusal of asylum; his appeal was dismissed in April 2007. The claimant’s evidence to the Immigration Judge had been that his father, who was a local Chief, had been deposed by a rival group who came en masse to his father’s palace, fatally wounded the claimant’s father and tortured the claimant; a traditional priest tended both their wounds but the claimant’s father died. The claimant stayed for several months with a friend of his father; at one point the group came to the friend’s house asking about the claimant’s whereabouts. His father’s friend brought him to England in 1998 and he claimed asylum at that time. If he returned to Ghana the police, who were under the influence of the rival group, would ensure that he returned to his home area, where he would be at risk from the members of the group.

The Immigration Judge dismissed the appeal on the grounds, in summary, that there was no evidence that the claimant had claimed asylum before 2006; he had made no attempt to substantiate the facts supporting his claim to asylum, which he had only made as a result of coming to the attention of the authorities; the judge rejected the claimant’s account of having placed the matter with solicitors in 1998, the claimant having by his own account done nothing to follow up the alleged claim. The judge did not believe the claimant’s account of ill-treatment nor his claim of officialdom being under the influence of the rival group, which was undermined by his having been able to leave the country via an airport using his own passport without being caught and handed to the group.

The UKBA lost contact with the claimant again from August 2007, when he ceased to report, until August 2008; he was then detained for about six weeks pending removal (his second period of detention), in the course of which he was uncooperative as regards obtaining an Emergency Travel Document from the Ghanaian authorities for the purpose of returning to Ghana. He was released from detention in October 2008, the file note recording that in order to continue with the travel documentation process another interview would be required and a further Form IS 35 served, giving the claimant sufficient time to seek legal advice. However, the claimant’s “inconsistent and uncooperative behaviour indicate that he is not going to comply with the ETD process” and that “in any event, there is little prospect ultimately of removing [the claimant]”. It continued “therefore please release on T[emporary] R[elease] with monthly reporting. I consider it unlikely that he will comply (and therefore that detention would be justified) but am minded of the use of limited detention space for enforcement action”.

The claimant was uncooperative in a documentation interview in March 2009, but in July 2010 he made an appointment with the Case Resolution Directorate (“CRD”) of the UKBA in Liverpool, at which he produced further information in support of his asylum claim. By letter of 28 March 2011 the Glasgow office of the UKBA (the claimant was then living in Glasgow) rejected the further submissions and decided that they did not amount to a fresh claim within the meaning of rule 353 of the Immigration Rules; the Border Agency also declined to grant leave to remain under rule 395C. The claimant submitted further representations to the CRD in Liverpool in person in May 2011 but these too were rejected, in a letter from the Glasgow office of 16 August 2011, as not amounting to a fresh claim or affording grounds not to remove him under rule 395C.

The claimant was detained again on 25 October 2011 (the third period of detention), against a background of further failure to co-operate with arrangements for his removal. In late 2011 the solicitors then acting for the claimant commissioned a medico-legal report from Dr Teresa Wozniak MA MB BChir MRCGP DRCOG. This set out a reported account of the claimant’s torture in Ghana (different in certain respects from the account given to the tribunal) and of an attempt to commit suicide by hanging himself whilst in Colnbrook IRC in 2008. It stated that the claimant had no significant medical history apart from the torture and some injuries in a scuffle with IRC officers in Harmondsworth IRC in October 2011, and that he had never taken illegal drugs or drunk alcohol to excess. The doctor conducted an assessment for depression, in which she found the claimant to be severely depressed; she conducted a physical examination in which she discovered various scars, many of which she found to be highly consistent with the injuries that the claimant said he had suffered under torture. She opined that there was a reasonable likelihood that he had been subjected to torture. She also diagnosed the claimant as suffering from post-traumatic stress disorder. She gave the opinion that the claimant’s mental health was likely to deteriorate significantly if he were deported to Ghana and that there was a substantial risk that he would attempt suicide.

The claimant’s then solicitors made further submissions to the UKBA on the basis of Dr Wozniak’s report. By a letter from the Glasgow office of 9 January 2012 these were rejected and found not to amount to a fresh claim for asylum or humanitarian protection. In respect of the claim of torture the decision-maker found marked inconsistencies between the account of the torture recorded by the doctor and that previously given to the AIT; these undermined the credibility of the claim and outweighed the doctor’s evidence that the claimant’s scars were consistent with torture, the doctor accepting that they could have another cause. Even if the account was true, the decision-maker shared the Immigration Judge’s view of the claim that the Ghanaian authorities were under the influence of the rival group, and considered that a new immigration judge would conclude that the claimant could safely relocate to another part of Ghana. As regards the claimant’s medical condition, the decision-maker considered that a new immigration judge would conclude that psychiatric treatment and the medication that the claimant was receiving were available in Ghana. Removal was again found to be appropriate under rule 395C. The decision-maker did not explicitly take a position on whether the claimant was suffering from depression or PTSD. I have not seen the representations, but it appears that Dr Wozniak’s report was relied on to support a claim for asylum and/or under article 3 of the Human Rights Convention, rather than under article 8. There has been no challenge to the January 2012 decision.

In early 2012 the claimant’s then solicitors commissioned a forensic psychiatric report on the claimant from Dr Amlan Basu BSc MBBS MRCPsych, seeking an opinion on the psychiatric treatment the claimant required, where it would best be provided, the risk posed to his mental health by removal and the risk of suicide because of his detention or in the event of his removal. Dr Basu reported that the claimant was suffering from depression and PTSD, for which he required pharmacological and psychiatric treatment; removal to Ghana, where the claimant felt himself in danger, would exacerbate his PTSD and depression, resulting in an increase in his risk of suicide, which was already moderate if it was true that he had written a suicide note to the UKBA. Learning that he was to be removed would also increase his suicide risk, though Dr Basu added “I do not believe it is possible to assess his suicide risk any more definitively than this”. The doctor did not specifically comment upon the effect of detention upon the claimant’s suicide risk, but referred to academic literature which suggested that continued detention was likely to worsen the claimant’s mental state.

On 2 March 2012 further submissions (which I have not seen) were made on the basis of Dr Basu’s report, to the effect that the claimant’s removal to Ghana would infringe article 3 and also article 8 of the ECHR. These were rejected in a letter of 14 March 2012 from the Glasgow office of the UKBA. Prior to finalising the letter, the decision-maker had written by fax to Harmondsworth IRC saying (with the passage relied on by Mr Declan O’Callaghan on behalf of the claimant emphasised):

The decision, contained in a letter of 14 March 2012, again did not take a position on whether the claimant had PTSD or depression. It rejected the suggestion that the claimant’s mental health would be detrimentally affected by fear of living in Ghana, since the claimant could live safely in another part of the country; it noted that Dr Basu had professed himself unable to comment on the accuracy of the claimant’s account of his experiences, nor to explain the discrepancies between the claimant’s accounts to the Immigration Judge and to the two doctors, and concluded that even if the claimant had PTSD, that did not support the credibility of his earlier accounts. The decision excluded the possibility of a new immigration judge accepting the claim that the claimant would not receive treatment in Ghana, given the evidence considered in the January 2012 decision letter; Dr Basu’s report did not add any weight to the claim, as the treatment he recommended was available in Ghana. There was no realistic prospect of a new immigration judge concluding that the claimant’s removal to Ghana would infringe article 3 of the Convention on the grounds of a risk of suicide, which had already been considered in the January letter; Dr Basu’s opinion was predicated on the claimant’s fear of returning, which had been found not to be credible, and on an account of a suicide note addressed to the UKBA, of the existence of which there was no evidence. As far as article 8 was concerned, a new immigration judge would conclude that the interference with the claimant’s private life consequent upon his removal would be proportionate to the aim of maintaining effective immigration control, given the availability of medical treatment in Ghana. The letter then considered whether there were exceptional circumstances making removal inappropriate in accordance with the new Immigration Rule 353B, and concluded that there were not.

The claimant had made an application to the First-tier Tribunal for bail. A UKBA file note of 28 March 2012 stated “Due to ongoing mental health issues and Subject’s continuous non compliance with the ETD process and Nationality enquiries, Sub[ject] is no longer suitable for detention. SEO … authorises that we do not oppose his IJ Bail application”. Bail was granted by the First-tier Tribunal on 30 March.

Progress appears to have been made with obtaining an Emergency Travel Document from the Ghanaian Embassy, which was received on 21 June 2012. The claimant, who then lived in Cardiff, was detained on 26 June whilst reporting at Cardiff Police Station in accordance with his bail conditions; this is the detention challenged in these proceedings. On 27 June removal directions were set for 5 July. The claimant was first held at the Police Station and then moved to Harmondsworth IRC. He has reported to his legal representatives that while at the Police Station he attempted to choke himself with a plastic spoon; this is not accepted by the Secretary of State, who maintains that if the incident had occurred the information would have been passed on to Harmondsworth.

The reasons given for his detention were as follows:

A Detainee Healthcare Record made at Harmondsworth on 27 June recorded the claimant as taking Amitryptiline, being calm and mentally stable, having been diagnosed with depression but having no history or current thoughts of self-harm or suicide. However, a GP assessment dated 28 June recorded the claimant as having PTSD and depression with past self-harm and current thoughts of but no active plans for self-harm (‘yes’ having been changed to ‘no’ on the form); his attitude was negative, his mood low and his demeanour anxious. A report from (presumably the same) Detention Centre doctor under rule 35 of the Detention Centre Rules 2001, also dated 28 June 2012, recorded the claimant as stating that he suffered from depression and PTSD with a history of self-harm by self-strangulation and that he was “on-off considering” (presumably) further self-harm. In the ‘details’ box on the report form the doctor wrote “self harm. Kept changing story in consultation”, “to open ACDT to monitor” and “no active plans but is at risk in view of impending R[emoval] D[irection]s”. (‘ACDT’ is a reference to Assessment Care in Detention and Teamwork, a UKBA strategy to reduce self-harm among detainees.)

On 3 July Dr Basu supplied a further report to the claimant’s then solicitors. It dealt with the UKBA decision letter of 14 March 2012, whether the claimant’s mental health was likely to have deteriorated since being detained again, his suicide risk and his ability to access mental health treatment in Ghana. This report was not supplied to the Secretary of State until much later; Dr Basu had not seen the claimant again and was reliant on matters reported by the claimant via his solicitors, which included the plastic spoon incident and a report that he had significant suicidal ideation. The doctor reiterated that he considered the claimant’s PTSD to be real and not feigned, and found the reports of suicidal ideation to be consistent with his previous findings, but was unable to do any more by way of independent opinion as to the claimant’s current mental state or suicide risk. The doctor expressed a hope that the claimant had reported his suicidal ideation to the detention centre authorities so that they could take special precautions; Mr Bilal Rawat for the Secretary of State points out that this implied that the risk could be managed in detention, adding that neither Dr Wozniak nor Dr Basu’s first report had said that the claimant was unsuitable for detention.

Also on 3 July 2012 a UKBA decision-maker in the Cardiff office wrote to the claimant saying that the rule 35 report fell to be treated as a further submission by way of a fresh claim for asylum and human rights protection. He decided that it did not amount to a fresh claim under Immigration Rule 353. The letter referred to the 14 March 2012 decision that the issues which were raised again in the rule 35 report did not make his removal to Ghana contrary to articles 3 or 8 of the ECHR; the issues had been considered previously and the rule 35 report did not contain any fresh information that justified departing from those conclusions. The letter went on to consider points under article 8 which the writer regarded as not having been previously considered, applying the approach in R (Razgar) v SSHD [2004] UKHL 27. In that connection it noted the absence of evidence of family life of the claimant in the UK; as he had been encountered in this country in 2006 it was accepted that he had established a degree of private life here, but that there was no evidence of its depth or quality; removal would interfere with it, but was in accordance with immigration law and in pursuit of the aim of maintaining effective immigration control, given that the claimant’s private life had been established whilst he had no right to reside in the UK and could be re-established in Ghana. The letter went on to consider Immigration Rule 353B and found that there were no exceptional circumstances; the letter referred in this connection to the claimant’s criminal history.

On 4 July 2012 Professor Cornelius Katona MD FRCPsych saw the claimant at the request of Medical Justice. He was provided with the AIT decision, the 14 March 2012 decision of the Secretary of State, the report of Dr Wozniak and first report of Dr Basu and the rule 35 report. According to Professor Katona the Claimant presented as extremely frightened; he confirmed the account of torture that he had given to the other doctors. The claimant told the Professor that he had lived rough in this country and drunk heavily (in this respect contradicting what he had said to Dr Wozniak and Dr Basu). His periods in immigration detention had worsened his symptoms of PTSD; he felt increasingly suicidal and had attempted self-harm; the Professor mentioned reported attempts to harm himself with a plastic spoon and to hang himself after writing a suicide note to the UKBA. The claimant had said that if sent back he would kill himself first. The Professor reported that the claimant had PTSD and was severely depressed. He also had significant cognitive impairment as a result of alcohol abuse, with particular difficulties with recall and calculation. His presentation was clinically plausible and he did not appear to be feigning or exaggerating. His fear of return to Ghana was genuine, whether or not it was objectively well-founded. Professor Katona was concerned that the factors underlying the claimant’s difficulties in giving a clear account of his experiences – PTSD and memory difficulties caused by alcohol abuse – had not been fully taken into account. The Professor was also concerned about the claimant’s high risk of suicide, he having made potentially fatal suicide attempts in the past. He would be unable to support himself in Ghana or avail himself of mental health services. The Professor urged postponement of the removal directions so that the claimant could be referred for full mental health assessment.

On 5 July 2012 (the day of the claimant’s scheduled removal) the claimant’s solicitors wrote to the UKBA at Harmondsworth, purportedly under the Judicial Review Pre-action Protocol. The letter raised issues about: the Legacy programme; the refusals to accept representations as fresh claims; the claimant’s removal constituting an interference with his private life contrary to article 8 and being unlawful in view of his mental health; and his detention being unlawful. The letter set out some law and policy relating to Immigration Rules 353 and 395C and the Legacy programme. It sought disclosure of documents and for the claimant to be released and granted leave to remain or proper reasons for a refusal of leave, with a right of appeal. A copy of Professor Katona’s report was included.

Later the same day (5 July) an official in the UKBA’s Operational Support and Certification Unit replied. The letter (written in understandable haste) referred to previous decisions of 14 March and 3 and 5 July, but it is common ground that there was no other decision of 5 July. The letter referred to the claimant’s status as a failed asylum seeker whose appeal rights were exhausted, his past failure to establish grounds for a grant of leave under rule 395C and the consideration of his medical condition in the letters of 14 March and 3 July. Professor Katona’s report was “not accepted as conclusive evidence that your client is not fit to travel and that his life would be in danger when returning to his home country” and it was “not considered that the information submitted in connection with your client’s current medical condition is truly exceptional so as to warrant cancelling your client’s removal directions. The UK BA remains satisfied that removing your client to Ghana would not engage our obligations under Articles 3 and 8 of the European Convention on Human Rights”.

The letter went on to refer to the changes to Immigration Rules approved by Parliament on 19 June and due to come into force on 9 July; though they did not apply to the present case, account had been taken of Parliament’s general view of where the public interest lies. Removal was proportionate under the existing rules and in line with Parliament’s view of where the balance should be struck in the public interest. Some points in the solicitors’ submissions had been considered in the past; the remaining points, when added, did not create a realistic prospect of success. In accordance with the Enforcement Instructions and Guidance, removal would only be deferred in compliance with an injunction.

Hamblen J granted an injunction on an application by telephone, restraining the claimant’s removal pending the outcome of a judicial review application which the claimant’s solicitors undertook to lodge the next day. The solicitors duly made an application for permission on 6 July 2012, which was transferred to the Upper Tribunal. The grounds were the Secretary of State’s alleged failure to consider the claimant’s case under the Legacy programme and failure to acknowledge a fresh claim based on suicide risk upon return. On 16 August Upper Tribunal Judge Kekić refused permission, finding that no further decision on leave to remain fell to be taken under the Legacy programme and that the Secretary of State had been entitled not to regard the representations about suicide risk as a fresh claim given the implausibility of the account of torture in Ghana, the monitoring of the claimant during detention and the availability of medical care in Ghana.

In draft amended grounds dated 17 September 2012 the claimant abandoned the ground of judicial review based on suicide risk and added a ground based on the unlawfulness of his detention. Upper Tribunal Judge Southern accordingly re-transferred the case to the High Court, directing a timetable for an application to amend the grounds, and continued the stay on removal. At an oral hearing on 24 October in these proceedings and other judicial review proceedings concerning the provision of a bail address to the claimant, Mr Mark Ockelton gave permission to amend the grounds and the Secretary of State’s summary grounds of defence. On 26 October Judge Blandy refused bail in the First-tier Tribunal on the grounds that there was a substantial risk that the claimant would harm himself if granted bail, that the claimant’s mental health was so poor that he could not be relied upon to answer to bail and that there was a serious risk that he would abscond in order to avoid removal.

On 1 November 2012 Mr Timothy Brennan QC granted permission for judicial review on amended grounds but refused an application for an interim order for the claimant’s release from detention; he dismissed the separate judicial review proceedings with no order for costs, the matters complained of having been addressed in the meantime. Mr Brennan also gave directions for an expedited trial of this case, including a timetable for further evidence.

The claimant was detained at Harmondsworth from June 2012 until November 2012, when he was transferred to Brook House IRC and subsequently (on 26 December 2012) to Morton Hall IRC. Both counsel relied on entries in the IRC records as supporting their respective cases on the legality of the claimant’s detention. These indicate as follows. On 30 September 2012 the claimant threatened to kill himself by eating linoleum from the floor. In October 2012 the claimant’s room-mate at Harmondsworth (a fellow Ghanaian) died. At his induction interview at Brook House the claimant said that he would kill himself there. On 16 November a Brook House nurse recorded him as stating that he had no suicidal or self-harming intentions but had depression and PTSD and nightmares and flashbacks due to the room-mate’s death. On the same date he reported his distress at being moved back to the room in which the death had occurred; he also reported having tried to choke himself with pieces of floor covering and having tried to jump from a second floor landing while at Colnbrook in 2007.

On 17 November a Brook House doctor reported the claimant as saying that he was distressed by the death; he slept well on Amitryptiline but had attempted self-harm in the past; at Harmondsworth he had jumped over a stairwell, falling two floors. He was prescribed Amitryptiline. He did not appear to the doctor to have any current plans for self-harm. On 19 November he told another doctor of his sleeping difficulties and nightmares, asking for a room on his own; he was given a single occupancy room. On 20 November he told a nurse that he did not have thoughts of suicide. On 23 November he reported to a nurse that he was not eating or sleeping well, but said he had no current plans for self-harm. On 19 December 2012 a Brook House doctor recommended that the claimant remain in a single room because he had panic attacks if he shared a room. At his health assessment on reception at Morton Hall the claimant reported an incident of self-harm at Brook House when he had tried to injure his mouth with a knife. On 4 January 2013 he was attacked by a group of other detainees, causing head wounds which were cleaned and dressed; he said he was scared as a result.

The claimant was placed on ACDT three or four times: between 26 June and 6 July, between 30 September and 3 October and for periods commencing on 14 and 15 November 2012 (these appear to overlap, though are separate sets of ACDT paperwork). On the first occasion he was put on ACDT by the Harmondsworth doctor because of fears of his self-harming; he was to be observed three times per shift and conversed with three times per shift. On the second occasion the ACDT was because of his threat to kill himself by eating linoleum; he was put initially on constant watch, reduced later the same day to hourly observation; on 2 October he was recorded as saying that he had no thoughts of self-harm and had claimed to have them out of frustration and anger. Supervision was reduced to one observation and one conversation per shift. On the third and fourth occasions the ACDT resulted from his statement at the Brook House induction interview that he would kill himself there and felt at risk from other detainees.

As part of the evidence to be filed on behalf of the claimant, his solicitors commissioned a further report from Professor Katona, in which the Professor was asked to give his opinion on a number of matters, including: the type and level of care required by the claimant; whether he would be better cared for in the community than in Harmondsworth; whether his detention could have a serious long term detrimental effect on him; whether certain patterns of behaviour were consistent with his condition – these were lack of concentration, inconsistent instructions, inconsistent and suddenly changing behaviour and certain particular instances of inconsistencies in the claimant’s accounts of his past that had been noted in the UKBA decision letters and the Secretary of State’s grounds of defence, together with his lack of cooperation with the emergency travel documentation process; whether various propositions in the Secretary of State’s grounds of defence were justified; and whether the claimant’s condition fell into either of two categories mentioned in paragraph 55.10 of the Enforcement Instructions and Guidance, namely those suffering from serious mental illness which cannot be satisfactorily managed in detention and those where there is independent evidence that they have been tortured.

The Professor reported that the claimant was suffering from PTSD and severe depression and at a high risk of suicide, requiring treatment by specialist mental health services; it would be in his best interests for the treatment to be given in the community and not at Harmondsworth; detention exacerbated mental health problems, creating an increasing risk of the claimant’s condition becoming chronic and resistant to treatment. In the Professor’s view, lack of concentration and inconsistent instructions and behaviour were consistent with the claimant’s condition; it was not surprising that he mentioned some aspects of his story to one clinician and some to another. It was, however harder to explain his providing contradictory factual information, though it might be a case of confabulation due to his alcohol-induced memory impairment; his non-compliance with residence and reporting conditions and his lack of cooperation with the travel documentation process may have reflected memory and cognitive difficulties and PTSD-related fear of removal. The Professor insisted that he had not merely relied on the accounts of the claimant or other doctors but on his professional assessment of the claimant.

As regards the matters in paragraph 55.10 of the EIG, the Professor gave his opinion that the claimant’s severe mental illness was being aggravated by his continuing detention and that he therefore fell within the category of people suffering from serious mental illness which could not be satisfactorily managed in detention; the claimant’s recent traumatic experiences of living rough and of detention could not account for his PTSD; the Professor concluded that the claimant’s symptoms of PTSD were caused by the trauma of the torture he described and that he had indeed been tortured.

Professor Katona’s report was lodged with the court on 22 November 2012 (a Thursday) with a copy being served on the Treasury Solicitor; Mr Rawat has told me on instructions that it was received by fax in the course of that evening and was forwarded to the UKBA on 26 November (a Monday). On 17 December the claimant’s solicitors made an application for an interim order for the claimant’s release; the grounds of application quoted passages from Professor Katona’s report regarding the best mode of treatment of the claimant’s mental condition and referring to his mental illness and paragraph 55.10 of the EIG. The grounds did not refer to passages in the EIG or in Professor Katona’s report regarding torture, nor contain any reference to torture.

On 21 December 2012 the application came before Mr Charles George QC on the papers. The deputy judge ordered the Secretary of State to provide the claimant with a bail address, to notify the claimant’s release to a suitable mental health crisis resolution and home treatment team and to give the claimant’s solicitors details of the reporting police station and the mental health team. The claimant was then to be released on condition that he resided at the bail address with daily reporting and co-operated in his mental health treatment. The judge’s reasons were that he was persuaded by the evidence of Professor Katona that the claimant had serious mental illness which could not be satisfactorily managed in detention, and that community treatment was available. He considered that the treatment and the reporting condition should minimise the risks previously identified by Judge Blandy. The procedural steps ordered by Mr George were subsequently varied on 7 and 15 January 2013 by orders of Mr Ockelton and HHJ Seys Llewellyn QC and finally by a consent order submitted to the court on 24 January. The Secretary of State declined to release the claimant until receiving the sealed consent order; this arrived on 31 January and on 1 February (a Friday) the Secretary of State directed that the claimant be released on the following Monday, 4 February.

The claimant’s amended grounds challenge (1) the Secretary of State’s decision to seek to remove the claimant without making a lawful pre-removal decision on leave to remain under the Legacy programme, the decisions of 3 and 5 July 2012 not being such decisions, (2) the failure of the Secretary of State to consider, in accordance with the law, the claimant’s representations of 5 July 2012 in relation to article 8 of the ECHR and (3) the detention of the claimant from June 2012 (it is common ground that detention began on 26 June).

Ground 1 is essentially directed at those parts of the decisions of 3 and 5 July 2012 that dealt with Immigration Rule 353B whilst Ground 2 is directed at the decision of 5 July in the context of rule 353. Mr O’Callaghan’s reference in Ground 2 to an ongoing failure reflects the agreed fact that there has been no further consideration under rule 353 since the decision of 5 July. There is a degree of overlap between the partiers’ respective cases on Grounds 1 and 2.

As regards issue 1, the claimant’s grounds referred to the Home Office’s so-called ‘Legacy Casework Programme’ for dealing with old cases and the decision in R (Hakemi) v Secretary of State for the Home Department [2012] EWHC 1967 (Admin); while acknowledging that there are ‘relatively few published criteria’ for dealing with such cases, they relied on evidence that there was a policy of granting indefinite leave to remain ‘all other things being equal’ in cases of 6 years’ past residence; they asserted that the decision letters of 3 and 5 July 2012 were wrong to describe the claimant as having criminal convictions and, as regards his non-cooperation and breaches of reporting requirements, had insufficient regard to his mental condition.

The grounds concluded that the claimant satisfied many of the criteria for a grant of ILR and that it was more probable than not that the adverse decisions were based on the false belief that he had two convictions for violence. In response the Secretary of State produced an antecedents report indicating that the claimant had convictions on 29 January 2007 for common assault in April 2006 and failing to surrender to bail in December 2006 and a caution on the same date for affray in January 2007.

Mr O’Callaghan’s skeleton argument on Ground 1 criticises the decision of 3 July 2012 for considering only the rule 35 report and ignoring the reports of Drs Wozniak and Basu; it refers to the ‘concerning approach’ of the 14 March 2012 decision-maker, citing her fax message to Harmondsworth of 9 March which I have quoted at paragraph 10 above (which had in the meantime been disclosed by the Secretary of State as part of the disclosure in the action); it described the fax as suggestive of a closed mind approach to the medical evidence. It criticises the decision of 5 July for failing to consider the ‘Legacy casework issue’. In this connection it refers to Immigration Rule 395C, to CRD training slides detailing various factors to be considered under that rule and to the claimant’s lengthy residence, his compliance with reporting conditions and his vulnerability. It is said that there has been a consistent failure by the Secretary of State to consider adequately her criteria for Legacy cases, that no true consideration was given to the claimant’s compassionate circumstances arising out of his mental state, and that her approach to the claimant’s criminality was unreasonable, ignoring the fact that under the Rehabilitation of Offenders Act 1974 the claimant’s convictions had become spent on 29 January 2012 and his caution immediately upon being given. In relation to the length of the claimant’s residence the skeleton argument criticises the decision for identifying the claimant as being resident since 2006 and failing to consider properly the Immigration Judge’s finding that he had been resident since 1998. It submits that the claimant’s mental condition explains his non-compliance in obtaining travel documentation.

In oral submissions Mr O’Callaghan showed me internal e-mails of 31 August and 1 September 2011 within the Case Assurance and Audit Unit (“CAAU”), which had taken over Legacy cases from the CRD in March 2011, advising caseworkers that the most appropriate way to apply rule 395C was to use a lower limit of four years’ residence for single applicants (three years for families) and to accept any reporting activity within the previous 12 months as sufficient evidence of compliance: the claimant had complied with reporting conditions from October 2010 to October 2011.

Recognising that the decisions taken prior to July 2012 had not been the subject of judicial review proceedings, Mr O’Callaghan concentrated his attack on the letters of 3 and 5 July; he nevertheless submitted that, since these assessed new material against the background of the earlier decisions, their soundness depended on that of the earlier decisions on which they were founded. Mr Rawat realistically accepted that that was correct. In relation to the decision of 14 March Mr O’Callaghan submitted that the decision-maker had a closed mind, evidenced by the attitude displayed in her fax of 9 March; that she acted unfairly; and that she acted in a general way unreasonably, in that she failed to give adequate weight to the expert opinion of the doctors.

In relation to the decision of 3 July, Mr O’Callaghan submitted that the Rule 35 Report that had triggered it was perfunctory, did not take into account the opinions of Drs Wozniak and Basu and took an unreasonable approach to the issue of the claimant’s self-harm in that it failed to deal with the incident of the claimant’s attempted self-harm with the spoon two days earlier and relied unreasonably on the claimant’s changes of story regarding his intentions towards self-harm. It was no defence, he said, for the Secretary of State to say that the 3 July decision-maker relied on the Harmondsworth staff, since they too were her servants or agents.

The letter of 5 July, he submitted, was unlawful in that it dealt inadequately with the evidence of Professor Katona; it made only a brief reference to the Professor’s report and applied to it a test of whether it was ‘conclusive evidence’ rather than that of whether it created a realistic prospect of success.

Mr O’Callaghan placed at the forefront of his oral argument a submission that it was unlawful for a decision in a Legacy case not to be taken within the CAAU. Mr Rawat objected (it seems to me, correctly) that this had not been pleaded, but I allowed Mr O’Callaghan to advance the argument. The basis of it was that CRD and CAAU staff were specially trained, particularly as regards Immigration Rule 395C; Mr O’Callaghan showed me some of the presentation slides from the CRD training workshop, which were intended to ensure that caseworkers understood rule 395C and the factors relevant to it, took a holistic approach and were equipped to take a reasoned decision under it. A further copy with speaker’s notes was supplied to me in the interval between the two days of hearing of the case. Mr O’Callaghan stressed passages in the slides referring to a holistic approach to rule 395C, enjoining caseworkers to place significant weight on delay in cases where it had contributed to residence of 6-8 years, saying that leave should not be granted in cases of ‘particularly serious’ crime, and dealing with compassionate circumstances.

Mr O’Callaghan’s position was that it was not objectionable for a caseworker outside CRD/CAAU to apply rule 353 to any case; such caseworkers also had the power to apply rule 395C, and there was no objection to their doing so in a non-Legacy case. It was, however, objectionable for them to apply rule 395C in a Legacy case; CRD and CAAU had been specially created to take decisions under rule 395C in Legacy cases, and staff had had special training. He did not rely on any statutory provision, submitting that it was a matter of which UKBA staff were authorised to take the decisions; as a matter of legal principle it was only those who were trained to take the decision who were so authorised. In that connection he referred to the witness statement of Emily Miles on behalf of the Secretary of State in R (FH) v Secretary of State for the Home Department [2007] EWHC 1571, which referred to CRD caseworkers being retrained and to ‘end-to-end casework’, involving cases being progressed to a conclusion within the CRD. In the present case, the claimant had had an interview with the CRD in 2010 and had made further representations to the CRD in 2011, but all the decisions about him had been taken outside the CRD.

In response Mr Rawat supplied, during the interval between the hearing days, a witness statement of Mr Miles Matthews on behalf of the Secretary of State. Mr Matthews testified that there was no policy that ‘Legacy’ cases be only considered by caseworkers within CRD or CAAU; nor did such caseworkers apply different law or policies. Nor, he said, were CRD caseworkers based exclusively in Liverpool. In the case of the claimant, who had been living in Scotland, the decision of 28 March 2011 was taken by a decision-maker doing CRD work in a Case Resolution Team (“CRT”) in Glasgow; the decision of 16 August 2011 was taken by a Glasgow caseworker who had worked in the CRT and was then working in the Removals Casework Team, as were the decisions of 9 January and 14 March 2012. More generally, Mr Rawat submitted that rule 395C had been considered in the decisions taken while that rule was still part of the Immigration Rules. The matters raised by Mr O’Callaghan were really matters of weight.

The overlap between the arguments on Grounds 1 and 2 arises because the claimant’s case on Ground 2, as set out both in the Amended Grounds and Mr O’Callaghan’s skeleton argument, relied heavily on the argument that the claimant had a realistic prospect of success under article 8 because the decision to remove him was not in accordance with immigration policy and accordingly disproportionate. The report of Professor Katona, with which Mr O’Callaghan submitted that the 5 July decision-maker had dealt inadequately, strengthened the argument and created, he said, a realistic prospect of success for rule 353 purposes.

In the interval between the hearing days I canvassed with counsel matters relating to the fax message of 9 March 2012, to which I have referred in paragraph 10, that were troubling me. These were whether the decision being taken was one that was required to be taken employing anxious scrutiny and, if so, whether the attitude displayed in the fax message was compatible with the decision-maker employing anxious scrutiny; I asked to be directed to any relevant authority. At the resumed hearing both counsel showed me R (YH) v Secretary of State for the Home Department [2010] EWCA Civ 116. Mr O’Callaghan repeated his submission that the fax message indicated that the decision-maker approached the March 2012 decision with a closed mind; Mr Rawat repeated his submission that what the decision-maker was referring to in using the expression ‘argue against this’ was the allegation of inadequate treatment at Harmondsworth rather than the existence of the medical conditions.

It is convenient to deal first with ground 1 and Immigration Rule 353B. I reject Mr O’Callaghan’s submission in respect of the identity of the decision-makers. I accept that it could theoretically be unlawful for decisions in Legacy cases to be taken by caseworkers who had not received training in Legacy casework if either this was done in violation of a policy that only such caseworkers could take such decisions or if Legacy cases were the subject of different substantive rules or policies in which only certain caseworkers had received training. I see no reason not to accept the evidence of Mr Matthews that there has been no policy that only such caseworkers could take such decisions; even before Mr Matthews’s witness statement was supplied to me, Mr O’Callaghan had not succeeded in persuading me that any such policy had existed. In fairness to him, his case had not so much been based on the existence of such a policy as on the proposition that only CRD/CAAU caseworkers were trained in the special approach to be taken to Legacy cases.

Mr O’Callaghan has not, however, succeeded in persuading me that the policies applying to the determination of Legacy cases were different from those applying to other cases – it being undisputed that the same set of Immigration Rules applied. The closest he has come to doing so is with the e-mails of August and September 2011 referred to at paragraph 38 above; these, however, seem (despite not having the same senders) to be in the same terms as an e-mail of 31 August 2011 discussed at paragraphs 9 and 15 of the judgment of Burton J in R (Hakemi) which, it is clear from Burton J’s judgment, related to a particular group of 4,800 ‘active’ CAAU cases in which an urgent decision was required. The claimant’s case was not of that type.

I therefore turn to the intrinsic lawfulness of those decisions insofar as they concerned Immigration Rule 353B.

I start with this decision because the fax message sent by its author on 9 March has consistently troubled me. I do not accept Mr Rawat’s interpretation of its controversial passage as referring to the allegation of inadequate treatment at Harmondsworth; the decision-maker was not primarily concerned with defending the standards of care at Harmondsworth but with determining the claimant’s further submissions in support of a claim for leave to remain. Though the March decision was not originally challenged by way of judicial review, that was before the fax message came to light. Now that it has done so, it would be wrong for me to ignore it. The decision-maker’s stated wish to ‘argue against’ the claims that the claimant suffered from PTSD and depression suggests a state of mind inconsistent with the role that the decision-maker was charged with performing, which was to assess the merits of the claim rather than to ‘argue against’ aspects of it. While I do not accept Mr O’Callaghan’s characterisation of the decision-maker as having a closed mind – which would suggest that she had decided that she would reject the claim whatever its merits – the letter suggests a state of mind of wishing to reject it. Any such state of mind will have developed as a result of reading the file and the representations; Mr O’Callaghan’s disavowal of a charge of bias accepts realistically that there is no reason to accuse the decision-maker of being actuated by any extraneous motives.

It is very important that people subject to the immigration system, and the public at large, should have confidence in immigration decision-making. The letter may well have been written in haste and certainly does not establish that the decision-maker took the decision, five days later, on the basis of an improper approach, but its terms are such as to leave the reader in doubt as to whether the decision-maker approached the decision in a properly impartial frame of mind.

I do not, however, need to reach a concluded decision on whether the decision was vitiated in law as a result of what the decision-maker had written on 9 March because I have concluded that it is in any event vitiated by the decision-maker’s taking into account the claimant’s spent convictions and caution.

Immigration Rule 353B required the decision-maker to consider whether, taking into account among other things the claimant’s character and conduct, there were exceptional circumstances making removal no longer appropriate. In that connection the decision-maker took into account a number of matters adverse to the claimant, in particular his caution and convictions, illegal working and breaches of immigration control. She did not take into account his mental state – a matter of which Mr O’Callaghan complains – reserving her position on whether the claimant had PTSD and not stating an explicit conclusion on whether he had depression. I do not need to decide whether the reference to ‘character’ in rule 353B includes a compassionate factor based on mental illness; I accept Mr O’Callaghan’s submission that it was unlawful to take into account spent convictions or a spent caution. I can find nothing in the Rehabilitation of Offenders Act 1974 or the Order made under it that excludes the effect of the Act from immigration decision-making.

I reject most of Mr O’Callaghan’s criticisms of the letter of 3 July and his criticisms of the rule 35 report that triggered it. His criticisms of the report treat it as though it ought to be a comprehensive review of the claimant’s mental condition, taking all the evidence into account. That was not its purpose or function. Rule 34 of the Detention Centre Rules requires every detained person to be given a physical and mental examination within 24 hours of his admission by the medical practitioner appointed pursuant to rule 33. Rule 35 requires the medical practitioner to report to the manager, with a copy to the Secretary of State, on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention, or whom he suspects of having suicidal intentions, or who he is concerned may have been the victim of torture. The report is clearly intended to be based (as it was in this case) on the rule 34 medical examination, not on other materials of whose existence the medical practitioner is unlikely to have been aware.

As regards Immigration Rule 353B, however, the decision repeated the error of taking the claimant’s spent convictions and caution into account. The error has not been cured by any subsequent decision, since the consideration of exceptional circumstances in the 5 July letter partially relied on previous decisions. Whilst Mr O’Callaghan’s submission that the caution and convictions might have been decisive in the decision-makers’ adverse decisions under rule 353B seems an optimistic one, I cannot rule out the possibility that decision-makers who had properly directed themselves as to the spent convictions and caution might have reached a different decision without embarking on speculation as to how the Secretary of State’s discretion might have been exercised.

The letter of 5 July is in a number of respects not well expressed; this is no doubt attributable to the haste in which it will have had to be written, given that Professor Katona’s report was only made available to the writer on the day set for the claimant’s removal. As I have already noted, the letter makes erroneous references to another (but non-existent) decision of the same date. The letter alternates between consideration of fresh claim issues under rule 353 and exceptional circumstances issues under rule 353B; it was principally a decision not to withdraw the claimant’s removal directions, in which capacity it has been overtaken by subsequent events.

The letter’s consideration of discretionary leave is principally in paragraphs 6 (referring back to previous decisions under rule 395C) and 10, which baldly states that no issues had been raised which would give rise to a grant of leave. Paragraph 7 refers also to the decisions of 14 March and 3 July, though principally in the ECHR context. Its consideration of rule 353B relies on previous adverse decisions under rule 395C; the decisions of 14 March and 3 July were under rule 353B. Whatever the merits of earlier decisions under rule 395C, the rejection of the claimant’s representations of March 2012 had given rise to an obligation of the March decision-maker to consider rule 353B, which she did not lawfully carry out because of, at least, her taking into account of the claimant’s spent convictions. Because the 3 July decision had the same flaw, the claimant remained entitled to a decision under that rule. The 5 July decision was not a self-standing full consideration of rule 353B; I do not consider that it would be right to regard the defect in the March and 3 July decisions as having been cured or overtaken by its (understandably) rather brief consideration of that rule.

As I have mentioned, the claimant’s grounds contend that the new material placed before the decision-maker created a realistic prospect of success in an appeal on the basis that he satisfied the requirements for a grant of leave under the Legacy Casework programme, a matter relevant to whether his removal was proportionate under article 8. Reliance was placed on AG and others (Policies; executive discretions; tribunal’s powers) Kosovo [2007] UKAIT 00082. It was argued that the further material evidencing deterioration in the claimant’s mental health strengthened the conclusion that removal was not proportionate.

The argument derives some assistance from AG and others. The relevant part of that decision was, however, to the effect that “A policy that in all the circumstances of the case would apparently be exercised in the claimant’s favour and contains no elements that genuinely would leave the decision open is relevant in the assessment of proportionality because it goes to the issue of the importance of maintaining immigration control in similar cases” (summary, point (3), my emphasis). The policy that the claimant relies on here is one that (as put in paragraphs 39 and 40 of the Amended Grounds) “encourages caseworkers to grant leave to those who had been in the United Kingdom for 6 to 8 years”, as the claimant had. The Home Affairs Committee report quoted at paragraph 42 of those Grounds describes the relevant guidance as allowing caseworkers to “consider granting permission” under rule 395C to applicants in that category, but leaving the decision a discretionary one in which the other factors enumerated in rule 395C needed to be considered. The e-mails referred to in paragraphs 38 and 48 above were also relied on but I do not consider that they applied to the claimant, for the reasons that I have given.

Because I have concluded that the consideration of rule 353 in the 5 July decision letter was inadequate in itself, I do not need to reach a conclusion on whether it was additionally flawed on the grounds of resting on an inadequate foundation in the form of the 14 March and 3 July decisions. I have mentioned my concerns about the 14 March decision. R (YH) v SSHD, at paragraphs 22 to 24 indicates that the requirement of anxious scrutiny is not (or at least, not so much) a requirement as to the decision-maker’s internal frame of mind – which will be unknowable unless information about it comes to light fortuitously in the course of disclosure, as in this case – as a particular requirement as to reasoning in asylum and article 3 decisions; I nevertheless consider that it is again implicit that a decision-maker must adopt an impartial frame of mind. As regards the decision of 3 July, I have already indicated that I do not accept the majority of Mr O’Callaghan’s criticisms of the decision or the rule 35 report that triggered it.

In addition to the material that was before the 14 March and 3 July decision-makers, the 5 July decision-maker had the further representations of 4 July and Professor Katona’s first report. The Professor’s report added to the evidence of the claimant’s depression and PTSD and corroborated the other doctors’ accounts of what the claimant had said about his experiences in Ghana. It introduced new evidence of alcohol-induced cognitive impairment and testified to the genuineness (though, as the Professor acknowledged, not the well-foundedness) of his fear of returning to Ghana. It also reported the Professor’s concerns, expressed more strongly than in the previous medical reports, about the claimant’s “high” risk of suicide in Ghana, where his distrust of the authorities would in the Professor’s view prevent the claimant availing himself of the necessary specialist mental health services.

I am satisfied that the hurriedly written decision did not approach rule 353 correctly. The claimant’s solicitors’ letter of 5 July, notwithstanding its arrival at the eleventh hour, amounted to ‘further submissions’ within the meaning of rule 353, so that the decision-maker had to decide whether they amounted to a ‘fresh claim’ in accordance with that rule. Though paragraph 13 of the letter refers to the rule 353 test of a realistic prospect of success, the reference in paragraph 7 to the lack of ‘conclusive evidence’ that the claimant’s life would be in danger in Ghana, and the description of the evidence as ‘not exceptional’, at the very least casts doubt on whether the test in WM (Democratic Republic of Congo) v Secretary of State for the Home Department [2006] EWCA Civ 1495 was applied. In addition, paragraph 9 shows that the decision-maker took account, in assessing proportionality, of new immigration rules which Parliament had said did not apply to cases determined before 9 July.

Mr O’Callaghan has therefore made out his case that there has been a failure to consider the material in accordance with rule 353. I cannot conclude that the outcome would have been bound to be the same if in any event. Whilst Professor Katona’s report did not significantly advance the claimant’s claim for asylum, his psychiatric evidence did advance the claimant’s case under article 8. Though rule 353 derives from case-law about the United Kingdom’s obligations under the Refugee Convention, the rule includes a reference to a human rights claim without, so far as I am aware, limiting that to a claim based on prospective ill-treatment abroad. On the material available to me, I cannot rule out the possibility that, if the Secretary of State had not applied to the Professor’s evidence a test of whether it was ‘conclusive’ she would have acknowledged a sufficient prospect of success in an appeal to the tribunal on the basis of article 8 to cross the modest threshold identified by the Court of Appeal in WM.

The relief sought by Mr O’Callaghan is an order requiring the Secretary of State to consider the further representations. I hold that she must do so. Given that she now also has the second reports of Dr Basu and Professor Katona, she should consider those as well. I do not, however, consider that she must apply rule 395C on the basis of R (Mohammed) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin), as Mr O’Callaghan contended. That was a case where a flawed decision had been taken while rule 395C was in force; the judge held that the decision must be re-taken under that rule. In the present case all the challenged decisions were taken after rule 395C had been revoked.

The claimant contends that his detention from June 2012 to February 2013 was unlawful from the outset or, alternatively, became unlawful. Mr O’Callaghan submits, first, that the detention was unlawful from the outset because it was premature: the Secretary of State had still to give lawful consideration to the representations made in March; alternatively, the Secretary of State being under a duty to keep the appropriateness of detention under review, it became unlawful as a result of subsequent events. These were (1) the rule 35 report of 28 June, (2) the grant of permission for judicial review on 1 November 2012, (3) theserving of Professor Katona’s second report on 22 November 2012 or (4) the agreement on 24 January 2013 of the final order fixing the details of the claimant’s release pursuant to the decision of Mr George QC – it being unreasonable of the Secretary of State to insist on awaiting a sealed order.

Mr O’Callaghan relies – both as regards the claimant’s initial detention and its continuation – upon paragraph 55.10 of the EIG, to the effect that certain categories of detainee are “normally considered suitable for detention in only very exceptional circumstances”; the categories include “those suffering from serious mental illness which cannot be satisfactorily managed within detention” and “those where there is independent evidence that they have been tortured”. He submits that the Secretary of State had from the outset evidence that the claimant had PTSD and depression and, at least from her receipt of Professor Katona’s second report, evidence that he had been tortured. He points out that the claimant’s mental condition had previously been taken into account in her decision not to oppose bail in March 2012.

As to the applicable legal principles, the parties referred me to R (AM (Angola)) v Secretary of State for the Home Department [2012 EWCA Civ 521 and R (LE (Jamaica)) v Secretary of State for the Home Department [2012] EWCA Civ 597. In R (AM), a case concerning detention in the face of independent evidence of torture, the Court of Appeal proceeded on the basis (see paragraph 26 of the judgment) that the decision on the lawfulness of detention was for the court itself, while in R (LE) a differently constituted Court of Appeal, aware of the decision in R (AM), preferred the view that the question for the court was whether detention was reasonably open to the Secretary of State, directing herself correctly in accordance with her policy. In these circumstances I consider that I should follow R(LE).

I do not consider that detaining the claimant was unlawful. The obtaining of an emergency travel document, enabling removal directions to be set, made the situation very different from previously. Mr O’Callaghan submitted that the Secretary of State could not lawfully decide to detain the claimant pending removal when she had yet to reach a lawful decision on whether to grant him leave to remain. I have found in his favour that the 14 March decision was not a lawful decision under rule 353B. I am not persuaded that the vulnerability of that decision to being set aside necessarily rendered subsequent detention unlawful, but the 14 March decision was not in any event a decision to detain the claimant. That decision was taken on 26 June; I have set it out at paragraph 14 above. Mr O’Callaghan’s only comment on it was an acceptance that his client’s removal was then imminent. Whilst Mr Rawat did not rely on the decision as a decision under rule 353B, it clearly amounted to a decision on the (by then revoked) rule 359C and seems to me to deal adequately with the issues under rule 353B, which reads, so far as material to the present case:

The latter part of the 26 June decision is clearly dealing with the appropriateness of the claimant’s removal, as can be seen from the repeated references to detention and removal. The choice of subheadings indicates that the decision-maker had in mind the former rule 395C rather than rule 353B, but as it was part of Mr O’Callaghan’s argument that his client’s case should continue to be examined under rule 395C, which in any event sets a lower hurdle, he could not object to that. As regards the claimant’s character, conduct and associations, the decision refers (whether rule 353B would require it to or not) to his depression, and treats him as a man without a criminal record. As regards compliance with conditions, it refers to his previous non-compliance.

As regards length of time in the United Kingdom, it treats the claimant as having arrived in 2006 and not (as the claimant has claimed) in 1998; if this is an error it is not in my judgment material, since the period which rule 353B requires to be considered is the period since submission or refusal of a human rights or asylum claim; the claimant’s asylum claim was submitted and refused in 2006. I consider it to be implicit in the rule that it is not merely the length of that time that needs to be taken into account but the effect of that time having passed; the decision-maker was therefore entitled to consider the development or otherwise of ties.

I also note the statement that the claimant had not made representations based on article 8. That is not accurate in that the claimant had made an article 8 claim based on a need for medical treatment, but the context in which article 8 is referred to shows that what the decision-maker had in mind was a claim based on the establishment of ties to the United Kingdom; I have not seen any evidence that such a claim had been made.

I add for completeness (Mr O’Callaghan not having argued the contrary) that the flaws in the treatment of Immigration Rule 353B in the decision of 3 July did not in my judgment cause the claimant’s initially lawful detention to become unlawful. Since the decision was not in response to a further submission from the claimant (but, rather, the internal Rule 35 Report), rule 353B did not expressly require the Secretary of State to consider exceptional circumstances afresh. Leaving that somewhat technical point aside, inadequate consideration of exceptional circumstances following a further submission from a person who is in detention pending removal does not in my judgment make continued detention ipso facto unlawful. It might become unlawful if the Secretary of State persisted in an intention to detain the person and effect the removal without correcting the error after it had been pointed out, but that is not what happened here: the directed removal had been stayed by Hamblen J’s injunction before any challenge to the 3 July decision had been brought. The inadequate consideration of rule 353 in the 5 July decision did not render the detention unlawful for similar reasons.

Though the Secretary of State had evidence that the claimant suffered from PTSD and depression, she could rationally conclude, in accordance with her policy, that his mental condition could be managed in detention. He had been in detention shortly before, and there is no evidence that that his mental condition had not been managed then, or had worsened. There was a claim by the claimant that he had been tortured, which gained some support from the reports of Drs Wozniak and Basu, but the Secretary of State had not found the claim credible. Given their terms, she was entitled to regard those reports as not amounting to independent evidence; the contrary was not argued. The decision of 26 June did not refer to paragraph 55.10 of the EIG, but did refer to the claimant’s depression and the fact that he took medication for it. It is implicit in this that the claimant’s condition was controlled by the medication, which was a view that the Secretary of State could rationally take.

Secondly, Mr O’Callaghan submits that detention became unlawful on account of the claimant’s condition either when the rule 35 report was received on 28 June, or alternatively at a point between then and the end of October 2012 when his condition deteriorated. I do not agree. The report did not contain any recommendation that the claimant was unsuitable for detention or that his condition could not be managed in detention; rather, it recommended ACDT within the IRC. The Secretary of State was entitled to maintain detention despite the report. There were subsequently the various incidents and further periods of ACDT that I have summarised above; whilst referring me to the incidents, Mr O’Callaghan did not submit that there was any precise moment in time at which, or any particular incident in the light of which, the Secretary of State could not rationally maintain the claimant’s detention on account of his mental condition.

Thirdly, Mr O’Callaghan submitted that the claimant’s detention became unlawful on Hardial Singh principles (R v Durham Prison Governor ex p Hardial Singh [1984] 1 WLR 704) once he obtained permission for judicial review from Mr Brennan QC on 1 November 2012; he in effect invokes the second and/or third of those principles as stated by Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at paragraph 22. Since the obstacle to removal was litigation the claimant was pursuing, the discussion at paragraphs 111 to 121 of Lumba is relevant here: in brief summary, the fact that the obstacle was the claimant’s litigation does not make the consequent delay irrelevant; the weight to be given to the delay is fact-sensitive; the merits of the claim are relevant, but the risk of absconding is of paramount importance. Counsel were also in agreement that the issue under Hardial Singh is not whether the Secretary of State could rationally maintain detention; I must decide for myself, on the information available to her, whether the principles were infringed.

In my judgment, the factors known to the Secretary of State that militated in favour of continued detention were first that the claimant presented as a man posing a high risk of absconding: he had no ties to any particular place in this country; he had shown determination not to return to Ghana; he had ceased reporting while on temporary release on earlier occasions, although not during the most recent period. Secondly, Mr Brennan QC (who had refused to order the claimant’s release) had expedited the judicial review, setting a timetable with a view to listing on the first open date after 28 November 2012 (though the hearing was subsequently set for a date in February 2013). Thirdly, on 26 October Judge Blandy had refused bail; moreover, I respectfully agree with the judge that the claimant’s mental condition appeared such as to jeopardise both his welfare and his compliance with temporary release conditions if released. The factors militating against continued detention were that: the claimant had already been in the current period of detention for slightly over four months; while the information available as to his mental state did not (as I have found) preclude his detention, he had by 1 November 2012 required two periods of ACDT; and the claim for judicial review has in the event succeeded. Mr O’Callaghan also invoked the fact that the claimant had been released by the Secretary of State, or his release not opposed, on earlier occasions. I have set out above the Secretary of State’s recorded reasons, in the light of which I do not find that those matters colour my assessment.

Weighing the considerations in the balance, I find that as at 1 November 2012 the claimant’s continued detention was compatible with the Hardial Singh principles. Viewed against the background of his determination not to return to Ghana, the claimant’s recent compliance with reporting conditions certainly did not guarantee future compliance; since then he had come within hours of boarding a flight. There was a considerable risk of his disappearing. His mental state was being managed in detention and it was not obvious that it would be satisfactorily managed if he were at liberty.

Fourthly, Mr O’Callaghan submits that the claimant’s continued detention was contrary to policy once Professor Katona had given his second report, in which he concluded that the claimant “has a severe mental illness which is being aggravated by his continuing immigration detention. I therefore believe that his condition falls within the category of people ‘suffering from serious mental illness which cannot be satisfactorily managed in detention’” and that the claimant’s “clinical presentation ... indicates that he has been profoundly traumatised. I do not think that his more recent traumatic experiences (of living rough and of immigration detention) can account for his core PTSD symptoms. My clinical conclusion is therefore that they were caused by trauma of the nature he described. I therefore think it likely that he has indeed been tortured”. In both of his reports, Professor Katona had also said that the claimant’s continued detention was aggravating his mental condition.

Paragraph 55.10 of the EIG says, so far as material:

I do not need to decide whether the Secretary of State was obliged to conclude from Professor Katona’s report that the claimant suffered from serious mental illness which could not be satisfactorily managed within detention; I am satisfied that she was obliged to conclude that the report amounted to independent evidence of torture. Mr Rawat submitted that it did not, since it was based on what the claimant had told Professor Katona, but Mr O’Callaghan retorts that that submission conflicts with the approach of the Court of Appeal in R (AM).

In that case the claimant arrived in the United Kingdom in 2007 and unsuccessfully appealed against the rejection of her claim for asylum, acting in person. In April 2008 she was detained pending removal. She had by then consulted solicitors and in October 2008 she was the subject of two reports by Ms Lucy Kralj of the Helen Bamber Foundation. The main report concluded that the claimant was suitable for treatment at the Foundation (which treats survivors of torture), while a report on the claimant’s scarring found her burn scars to be highly consistent (in the Istanbul Protocol terminology) with torture and said that it was inconceivable that other scarring, which the claimant attributed to slicing with a razor blade, could have been caused otherwise than by a very sharp and hard object; other scars were consistent with deliberately inflicted injury. Rix LJ, with whom the other members of the Court of Appeal agreed, concluded

Professor Katona’s second report in the present case contains a clear statement of the Professor’s belief – described by him as his ‘clinical conclusion’ – that the claimant had been tortured. Elsewhere in the report the Professor had insisted that his previous report had not been based merely on what the claimant or another doctor had said, referring to his having paid close attention to the claimant’s expression, tone of speech, gestures and behaviour, his use of standard, well-validated rating scales and interview techniques and to the unlikelihood of the claimant having successfully feigned or exaggerated his symptoms. Whilst the Professor’s conclusion was based entirely on the claimant’s psychological symptoms and not, as in R (AM), examination of physical scars, it amounted in my judgment to independent evidence of torture for reasons similar to those given by Rix LJ: it was not merely a repetition of the claimant’s account but a medical diagnosis based on symptoms of (in this connection) PTSD leading the Professor to conclude that the claim of torture was likely to be true.

Mr O’Callaghan’s submission is that the Secretary of State unlawfully failed to consider Professor Katona’s evidence under paragraph 55.10. In addition to submitting that the Professor’s report did not constitute independent evidence of torture (a point on which I am against him), Mr Rawat submits that if there was a failure to follow policy, it did not affect the outcome; applying the policy, the decision would have been the same.

Mr O’Callaghan’s reliance before me on the evidence of torture sits somewhat awkwardly with the earlier failure to rely upon or even mention it in correspondence or the application to Mr George QC that was founded on the report (I should add that different counsel was instructed on behalf of the claimant at that time). Nevertheless, it follows from my conclusion that the report did amount to independent evidence of torture that the Secretary of State – whose policy is to keep detention under continual review – ought to have considered the report in the light of that part of the EIG. It follows that her failure to do so within a reasonable time was a public law error giving rise to the tort of false imprisonment, as explained at paragraph 88 of R (Lumba). The next question for me is whether damages should be substantial or nominal, which depends on whether I find that the claimant would or would not have been detained if the public law error had not been committed. In deciding that issue I apply normal principles of tort (Lumba at paragraph 93); it therefore seems to me that I should decide the question on the balance of probabilities. I note that at paragraph 95 Lord Dyson described it as ‘inevitable’ that the appellants in Lumba would have been detained, but I take that to be a statement of the factual position in their cases, not a statement of the test to be applied.

I do not need to decide whether the Secretary of State could rationally have decided to continue detention in the face of the Professor’s second report. I am not sufficiently persuaded that the Secretary of State would have continued the claimant’s detention if she had recognised that evidence of torture had emerged. The then current period of detention had not been trouble-free (I have discussed it earlier in this judgment) and various reports reported the claimant saying that detention was reviving memories of torture.

I acknowledge that the Secretary of State maintained her decision to detain the claimant in the face of the representations that were made on the basis of Professor Katona’s report, to which she responded in a letter of 19 December 2012; it is apparent that she regarded the claimant’s continued detention as being in the public interest and adopted the view of Immigration Judge Blandy that release would not work satisfactorily, pointing out in addition that the claimant was currently on ACDT and would have difficulty accessing the required care over the Christmas period and suggesting that release would conflict with her duty of care towards him. In any consideration of Professor Katona’s conclusion about torture she would have been entitled to note that it was not being relied on in support of the case for release. Nevertheless, her policy in the case of evidence of torture is that normally very exceptional circumstances are required to justify detention – a more demanding test than in cases of mental illness. I have some doubt as to whether she could rationally conclude that the circumstances were very exceptional; at all events, I do not find it probable that she would have so concluded. On that basis, she could only have decided to maintain detention if she found that the claimant’s case was not ‘normal’ on the basis that he had been managed in detention so far. Whether or not she could rationally have come to that view, I do not consider it more probable that she would have done so, given the history of the detentions and the evidence of the claimant’s complaints that the detention was reviving memories of his torture. Her policy seems to me to recognise that a person who has suffered torture is likely also to have been held in confinement and that confinement in immigration detention is likely to revive memories of the past experience.

Mr O’Callaghan’s final submission was that the claimant’s detention was unlawful between 29 January 2013, when the terms of the order consequent on Mr George’s decision had been finally agreed, and the date of his eventual release on 4 February. It follows from what I have already held that the detention was by then already unlawful, making it superfluous to consider that it later became unlawful on this additional ground. I merely observe that, while her insistence upon awaiting the sealed order might seem pedantic – the likelihood of a judge declining to approve the order being slim – I do not consider that the attitude of only releasing the claimant once the formal court order was in existence was in itself so unreasonable that no reasonable Secretary of State could adopt it. In circumstances where her decision had been to continue detention – she arguing that it could even be against the claimant’s interests to release him – she was obliged to defer to the judgment of the court but was entitled to do so in accordance with the terms of a formally existing order.

The claimant is nevertheless entitled to damages for false imprisonment in the period from the date on which he should reasonably have been released in the light of Professor Katona’s report until the date of his actual release. Having set out the chronology in paragraphs 31 and 32 above, I consider that the Secretary of State ought to have reached a decision by at latest Tuesday 27 November 2012, and that his release should have been effected not later than the next working day. The period is thus from 28 November 2012 until 4 February 2013. Subject to any representations from the parties, I propose to direct that the damages be assessed by a Master of the Queen’s Bench Division.

For the reasons given earlier in this judgment, the claimant is also entitled to a fresh consideration of his representations under paragraphs 353 and 353B of the Immigration Rules.