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

The Claimant is a citizen of India. This is an application for judicial review of the decision of the Secretary of State, acting by her officials, to authorise the detention of the Claimant on 7 November 2011 with a view to her removal from the United Kingdom and to maintain that detention until the Claimant was granted bail by an Immigration Judge and released from detention on 12 January 2012. The Claimant seeks a declaration that all or part of that period of detention was unlawful and claims damages for false imprisonment. The parties agreed that at the hearing before me the court should determine the question of the lawfulness of the Claimant’s detention in that period and whether she had any right to be paid substantial (as opposed to nominal) damages in respect of that detention, with the question as to the quantum of such damages being adjourned (if appropriate) for determination by a Master at a later hearing.

The Claimant arrived in the United Kingdom in March 2004 with leave to remain as an overseas domestic worker, which was renewed from time to time. She worked for the Rahulan family, who are of Indian and Sri Lankan origin. The Claimant later made accusations against the Rahulans that they had treated her very badly, including assaulting her, to such an extent as to amount to her being a trafficked person, as that concept is used in the Council of Europe Convention on Action Against Trafficking in Human Beings (2005).

The Claimant left her employment with the Rahulan family in about June 2008 and presented herself to the relevant United Kingdom authorities, who issued a letter dated 13 June 2008 in which they identified her as someone who had potentially been trafficked.

The Claimant was no longer working as an overseas domestic worker within the terms of her leave to remain. In July 2008 she claimed asylum. On 15 October 2008 her asylum claim was refused by the Secretary of State and certified as clearly unfounded.

The Claimant was detained on 17 October 2008, and removal directions were set for her removal for 23 October 2008. She challenged those removal directions in judicial review proceedings and obtained a stay of the directions. She was then released from detention on 28 October 2008. I refer to this as “the first period of detention.”

Subsequently, in December 2008, the Secretary of State withdrew the removal directions and the “clearly unfounded” certificate. The Claimant was granted temporary admission, subject to a condition of regular reporting. The Claimant brought judicial review proceedings claiming that the first period of detention had been unlawful.

In due course the Asylum and Immigration Tribunal gave a decision in July 2009 upholding the Claimant's claim to asylum. There was a reconsideration, however, by the Upper Tribunal. In a decision of the Upper Tribunal dated 22 February 2010, the Upper Tribunal concluded that the Claimant's asylum claim and appeal against her removal should be dismissed.

Meanwhile, in December 2008/January 2009, the Claimant brought proceedings in the Employment Tribunal against her former employers. For the purposes of those proceedings, an expert report regarding the Claimant’s mental state and the psychological harm she said she had suffered as a result of mistreatment by the Rahulans was obtained on the joint instructions of the Claimant and the Rahulans from a consultant psychiatrist, Dr David Oyewole, dated 26 April 2010.

By a judgment dated 8 July 2010, the Employment Tribunal dismissed the Claimant’s claims as made out of time and declined to grant an extension of time. The Employment Tribunal heard evidence from the Claimant, who was subjected in cross-examination to what the Tribunal described as “a sustained, effective and telling attack” on her credibility, such that the Tribunal “had grave doubts that it had heard honest evidence from the Claimant”.

There was a period of negotiation between the Claimant and the Secretary of State with a view to settlement of the judicial review proceedings she had commenced, but no settlement agreement was reached. In the course of those proceedings, the Claimant sent the Secretary of State a report dated 4 April 2011 by a consultant psychiatrist, Dr Arvind Sharma, prepared on the Claimant’s instructions to assess any psychological damage caused to her by the first period of detention. Dr Sharma’s report was prepared without sight of Dr Oyewole’s report.

In November 2011 the Secretary of State again decided that the Claimant had no good grounds for remaining in the United Kingdom and once more proposed to issue directions for her removal. The Claimant was taken into detention on 7 November 2011 with a view to her imminent removal from the United Kingdom, on grounds that it was feared that otherwise she might abscond. She remained in detention until released on bail on 12 January 2012. I refer to this as “the second period of detention.” It is to the second period of detention that this hearing relates.

During this period, the Claimant’s solicitors sent a series of letters to the Secretary of State presenting additional material to the Secretary of State in support of her contention that she had good grounds for saying that a fresh claim had been made for the purposes of the Immigration Rules. These included a letter dated 22 November 2011, which enclosed a copy of Dr Sharma’s report. In letters dated 13 December 2011 and 22 December 2011, the Secretary of State considered the new material and came to the conclusion that it was not properly to be considered as giving rise to a fresh claim.

The Claimant brought a second set of judicial review proceedings against the Secretary of State, claiming that the second period of detention had been unlawful and challenging the lawfulness of the Secretary of State’s decision that there was no fresh claim.

At a hearing on 25 April 2012, on the Claimant’s application for permission to apply for judicial review pursuant to both sets of judicial review proceedings, I refused permission in relation to the first period of detention and granted permission in relation to the issue regarding the lawfulness of the second period of detention, but otherwise refused permission in relation to the second set of judicial review proceedings. As a result, the substantive hearing in relation to those judicial review proceedings has proceeded solely in relation to the Claimant’s challenge to the lawfulness of the second period of detention.

At the permission hearing I directed that the grant of permission in relation to the Claimant’s claim that the second period of detention had been unlawful should not operate as a barrier to her removal from the United Kingdom. In June 2012, the Secretary of State again issued directions for the removal of the Claimant to India. Those directions were put into effect. The Claimant was briefly detained pending her removal (there is no evidence before me regarding the circumstances in which this occurred), and was then sent back to India, which is where she now resides.

The Claimant’s submission in these proceedings is that at the time of the second period of detention she suffered from a mental illness, in the form of depression and post traumatic stress disorder (“PTSD”), and that in detaining her the Secretary of State acted contrary to, or without having proper regard to, his own policy regarding detention of persons suffering from mental illness. This means that her detention was unlawful, as being in breach of the Claimant’s legitimate expectation that the Secretary of State would take into account and abide by his policy in this regard.

The relevant statement of policy particularly relied on by the Claimant was contained in paragraph 55.10 of the immigration instructions issued by the Secretary of State to officials, in the version applicable at the time of the second period of detention. Paragraph 55.1.3 of the immigration instructions, headed “Use of detention”, stated: “Detention must be used sparingly, and for the shortest period necessary”. Paragraph 55.10 of the immigration instructions, headed “Persons considered unsuitable for detention”, provided as follows:

“55.10.

Persons considered unsuitable for detention

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

In CCD [Criminal Cases 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. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.

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

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

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the elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention;

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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);

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

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

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

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people with serious disabilities which cannot be satisfactorily managed within detention;

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

The Secretary of State submits that the detention of the Claimant was not in breach of the policy contained in paragraph 55.10, and was not unlawful. The Secretary of State had lawfully determined that the Claimant should be removed from the United Kingdom and there were reasonable grounds for fearing that the Claimant would abscond, unless detained, in order to avoid removal back to India. The Claimant was not a person suffering from “serious mental illness which [could not] be satisfactorily managed within detention”. In the alternative, even if the Secretary of State had failed to act in accordance with policy in taking the Claimant into detention, such that the detention was unlawful, the Secretary of State would have detained her in any event if proper regard had been given to the policy, so any damages to be awarded in relation to the second period of detention should be nominal, applying the guidance given by the Supreme Court in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245.

There were a number of unsatisfactory features of the way in which the evidence was presented by each side. Neither side put forward any psychiatric evidence regarding the mental state of the Claimant at the relevant time for the purposes of this claim, namely during the second period of detention from 7 November 2011. I was asked to draw inferences from what was said in the report of Dr Oyewole dated 26 April 2010 in relation to the Claimant’s employment claim, in the report of Dr Sharma dated 4 April 2011 in relation to the first period of detention, in the medical notes prepared at the detention centre during the second period of detention and in a further psychiatric report of May 2012 in relation to whether the Claimant could be returned to India. Nor did any of this material directly address the relevant question under paragraph 55.10 of the immigration instructions, whether the Claimant at any time suffered from “serious mental illness which cannot be satisfactorily managed within detention”. I had to do the best I could by reference to such limited material as was available to me.

The Secretary of State did not put forward any witness statements to explain how the decision had been taken to detain the Claimant or what material had been to hand when that decision was taken. I was simply referred to the contemporaneous records maintained within the United Kingdom Border Agency (“UKBA”), and to the extent that they were unclear I had to try to piece together what had happened as best I could. This was particularly unsatisfactory, because there were significant issues on the facts whether the relevant officials who decided that the Claimant should be detained and that her detention should be continued made reference to Dr Sharma’s report (it is clear that they did not have access to Dr Oyewole’s report) and whether they took into account the Secretary of State’s policy in paragraph 55.10.

Where a Secretary of State fails to put before the court witness statements to explain the decision-making process and the reasoning underlying a decision they take a substantial risk. In general litigation, where a party elects not to call available witnesses to give evidence on a relevant matter, the court may draw inferences of fact against that party: Wisniewski v Central Manchester Health Authority [1998] Lloyds Rep Med 223, 240; Herrington v British Railways Board [1972] AC 877, 930G-H (Lord Diplock); The Law Debenture Trust Corporation plc v Elektrim SA [2009] EWHC 1801 (Ch), [176]-[179]. The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well-known obligation owed to the court by a public authority facing a challenge to its decision, “to co-operate and to make candid disclosure, by way of affidavit, of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings” (Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment [2004] UKPC 6; [2004] Env LR 761, at para. [86] per Lord Walker of Gestingthorpe; and see R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409; [2002] All ER (D) 450 (Oct) at [50] per Laws LJ, and I v Secretary of State for the Home Department [2010] EWCA Civ 727, [50]-[55]).

I find that Dr Sharma’s report of April 2011 was sent in early October 2011 by the Claimant’s solicitors to the judicial review team at UKBA (“the judicial review team”) in support of the Claimant’s claims in the judicial review proceedings then on foot in relation to the first period of detention.

Dr Sharma reported that the Claimant had first been referred to him in late 2009 and that he had been seeing her regularly since then. In 2009 the Claimant had presented with “severe depression”. Asked to assess the effect of the first period of detention on the Claimant, Dr Sharma said:

“With regard to her base line mental state during this period I do not have any records of the assessment of her mental state during and after the detention. I can assume that she was unwell mentally as a result of the long term and ongoing stresses. It is quite apparent that she was also going through the legal processes of seeking asylum which is also stressful. Her current mental state does somehow reflect the effect of detention and it appears that the detention has contributed to her distress and the present symptoms of post traumatic stress disorder. Her fear of visiting official places, nightmares and general persecutory feelings can also be attributed to such incidents of detaining her. This may have also contributed to her increased vulnerability and risks to herself.”

Dr Sharma reported that the Claimant had shown some improvement in her overall level of functioning since 2009, and his assessment of her state in April 2011 was that she suffered from “Moderate Depressive Episode without depressive symptoms”, “Reaction to severe stress and adjustment disorder ([PTSD]…)” and “Mild learning disability”. She still presented “with features of depression, frequent suicidal thoughts, mild learning disability and symptoms suggestive of [PTSD]”. She had regularly been on anti-depressants and had been referred for assessment to a specialist PTSD clinic (which had, however, been unable to help her because of the language barrier). He noted that she feared reprisals from her former employers and that she would be killed if she went back to India. She also feared being placed in detention.

There were also before me letters to the Claimant dated 26 September 2011 and 12 October 2011 from Hertfordshire NHS Trust informing her of further appointments with Dr Sharma. These indicate that she continued to receive out-patient psychiatric care from Dr Sharma up to the time of the second period of detention. She made these letters available to UKBA when she was interviewed at the commencement of the second period of detention.

The contemporaneous GCID records maintained by UKBA included an entry dated 31 October 2011 by the relevant decision-making unit at UKBA (“the decision-making unit”) noting that a request had been sent to the judicial review team to progress the Claimant’s case to removal, but also stating that she had said she could not report as scheduled on 15 November 2011 as she had a psychiatric appointment, and continuing “We should look into this a bit deeper to ensure we are taking the appropriate action prior to any detention.”

A further entry by the decision-making team dated 4 November 2011 noted that after checks “the only issue that could constitute a barrier [to detention on 7 November 2011 and removal] would be the submission of a psychiatric report”, that a report (Dr Sharma’s report) had been received by the judicial review team on 12 October 2011, but that the decision-making unit had not received a copy. The note recommended that before going ahead with detention and removal the report should be obtained from the judicial review team: “The relevance of this psychiatric report is even more justified as the subject has already stated that she cannot report on 15/11/11 due to a psychiatric appointment …”.

A later note by the decision-making unit dated 7 November 2011, which reviewed the circumstances in which the Claimant had been detained and interviewed that date, stated that the report “had not been found”. This, coupled with the absence of any witness statement adduced by the Secretary of State to say that Dr Sharma’s report had in fact been obtained by the decision-making unit from the judicial review team and reviewed by the decision-making unit before deciding to take the Claimant into detention, leads me to find that the decision-making unit in fact failed to obtain and review Dr Sharma’s report – even though it was known to be available with the judicial review team – before issuing instructions for the detention of the Claimant.

A copy of Dr Sharma’s report was sent to the decision-making unit under cover of a letter dated 22 November 2011 from the Claimant’s solicitors, as part of the material put forward in support of her contention that she had a fresh claim for asylum which the Secretary of State ought to consider. There is no indication in the contemporaneous notes that this copy of the report was given any attention for the purposes of assessing whether the Claimant’s continued detention was justified, nor any witness evidence adduced by the Secretary of State to say that it was. I therefore find that Dr Sharma’s report was not reviewed for that purpose at that stage either.

There is no reference in the contemporaneous notes to the Secretary of State’s policy in paragraph 55.10, nor any clear indication in the notes that any official in the decision-making unit took that policy into account or had it in mind at all, nor any witness evidence adduced by the Secretary of State to say that it was. All this, coupled with the fact that Dr Sharma’s report was ignored at two points, leads me to find that the relevant decision-making officials did not refer to or take the policy into account.

The GCID notes recording events in relation to the Claimant’s detention on 7 November 2011 state that when detained “She appeared to collapse” and was “clearly emotional and distressed”; she “claimed to have the following medical issues: psychiatric condition, [PTSD], difficulty sleeping/nightmares … memory problem”, along with a range of physical ailments. She provided the letters showing her appointments with Dr Sharma and said that she was on the waiting list for the specialist PTSD clinic. She informed those detaining her that she took a range of medication, including anti-depressants. She said that she had suicidal thoughts and had been stopped from jumping under a train in 2010 by her boyfriend, Abid Rizvi.

The initial decision to detain the Claimant was taken with a view to setting removal directions for her. The contemporaneous notes show that the relevant officials considered it was likely that she would abscond to avoid removal, unless she were detained, and that she had “evinced no health or family grounds to preclude her … detention pending her removal”. Successive notes of reviews of her case at 24 hours, 3 days, 7 days, 14 days, 35 days and 49 days contained short mention that her detention could be continued as legal, justified and proportionate, without review of her psychiatric condition.

When the Claimant was taken into detention, a risk assessment was completed as part of the internal request for allocation of a space at the detention centre. This identified that the Claimant represented a potential risk in relation to self harm / attempted suicide, psychiatric disorder and medical problems.

This prompted medical investigation of the Claimant by a doctor on 8 November 2011, shortly after she was taken into detention. She was noted as appearing “confused”, “Tearful, upset at detention”, and that she was on anti-depressants. Under her past medical history was noted “Mental health problems – PTSD”. The doctor did not recommend release or special treatment, but only continuation of her medication.

While at the detention centre, the Claimant had ready access to the health service provided there, and made extensive use of it, particularly in relation to obtaining treatment for various physical ailments. At various times she was noted as being tearful and distressed. There was an issue that she was reluctant to take her medication, which was different from that which had been prescribed by her doctor. However, the overall impression one gets from reading the medical notes is that, although sometimes visibly upset or distressed, she coped reasonably well with her detention and that the medication provided to her was reasonably effective at controlling her depression.

The most significant incident during her detention was when the Claimant attended at the detention centre’s healthcare unit for a mental health assessment on 29 November 2011. She became distressed when talking about her deceased mother and husband. When asked about her daily routine, she said she was forgetful and had to ask officers what to do, at which she began hitting herself and calling herself “stupid”. She also hit her head on the table with a small amount of force. It was noted that the Claimant said that she had regular thoughts of killing herself. A full mental health assessment was completed, with the outcome that medication was prescribed which she agreed to take.

There was not a repetition of this type of behaviour, but on 21 December 2011, on another visit to the healthcare unit, it was noted that there was still an issue regarding the Claimant’s reluctance to take her medication and that “This lady requires a great deal of emotional support.”

None of the healthcare professionals who saw and assessed the Claimant in detention appear to have thought that she represented a serious risk of self-harm. None of them identified her as someone suffering from serious mental ill-health, or anything requiring any intervention greater than taking anti-depressant medication. There appears to have been no significant deterioration in her mental health while in detention or any major cause for concern.

The evidence of the Claimant, corroborated by her boyfriend Abdi Rizvi, was that she lost weight while in detention and was adversely affected by the experience.

Some time after the Claimant’s release from detention, she commissioned a further psychiatric report to assess whether she would be fit to fly if removed from the United Kingdom and whether she could cope upon return to India. The report was prepared by Dr Vinodh Sreeram. It is dated 23 May 2012. Dr Sreeram noted that the Claimant suffered from mood fluctuations, poor noise tolerance, social withdrawal (as a symptom of her PTSD), poor sleep, cognitive impairment and suicidal ideation. He noted that she had not responded well to the medication she was then on, and it was being changed. Asked whether he considered that the Claimant’s mental state was sufficiently serious to warrant hospitalisation, Dr Sreeram’s assessment was that it was not. He said that her current treatment, using out-patient services, was appropriate.

The following issues arise: (i) did the Secretary of State act in breach of any public law duty of inquiry by failing to review Dr Sharma’s report before taking the Claimant into detention or during her detention? (ii) did the Secretary of State act in breach of the policy in paragraph 55.10 of the immigration instructions and hence in breach of the Claimant’s legitimate expectations as to her treatment? (iii) if the detention was unlawful, are substantial damages payable for false imprisonment?

Breach of duty of inquiry

Having adopted a policy regarding detention of persons suffering from serious mental ill-health, the Secretary of State was in my view under a public law obligation to take reasonable steps to give practical effect to that policy, bearing in mind the importance of the objective which it was designed to promote (namely, the humane treatment of individuals who suffer from serious mental ill-health). That means that if there was a real (as opposed to a fanciful or insubstantial) possibility that an immigrant facing removal was suffering from serious mental ill-health which could not be effectively managed while in detention, the Secretary of State had an obligation to take reasonable steps to inform himself sufficiently about the relevant circumstances so as to be able to make an informed judgment whether the policy would have application or not in that individual’s case: see Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B per Lord Diplock (“… did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”).

In my judgment, the Secretary of State breached this obligation of inquiry at the outset of the second period of detention. His officials in the decision-making unit at the UKBA knew that there was in existence a psychiatric report in respect of the Claimant (Dr Sharma’s report) which might well have a bearing on the question whether she was suffering from serious mental ill-health and whether she could properly be taken into detention. However, they failed to obtain Dr Sharma’s report from the judicial review team, as I find they could and should have done. They thereby failed to take reasonable steps open to them at the time to inform themselves properly about those issues.

In my view, that failure extended throughout and affected the whole of the second period of detention. The significance placed on Dr Sharma’s report on behalf of the Claimant was re-emphasised when it was sent to the decision-making unit on 22 November 2011, but no-one in the unit reviewed it for the purposes of assessing whether it was right to continue to detain the Claimant; nor did they seek to pass it on to the medical staff at the detention centre to assist them in their assessments of the mental health of the Claimant. There were significant indications from what the Claimant said and did when she was first detained and from what was found in her possession (medication and letters for psychiatric appointments) that her mental health could be a serious issue. The Secretary of State would be looking to the medical staff at the detention centre for on-going assessment of the Claimant’s mental state, and in the circumstances ought to have provided them with relevant information in his possession which was so clearly germane to that assessment as Dr Sharma’s report, which might have a bearing on their advice back to him. (Incidentally, I note that - although this was not known to the officials in the decision-making unit - there were remarks in the medical notes in respect of the Claimant during her detention making it clear that the medical staff would have liked more background information about the Claimant: they had unsuccessfully sought to obtain her medical records from her GP).

I consider that this failure of inquiry by the Secretary of State so undermined the proper application of his policy as to render the whole of the second period of detention of the Claimant unlawful.

Breach of policy / breach of legitimate expectation

Despite the clear warning signs that the Claimant might be suffering from serious mental ill-health, I find that no official acting for the Secretary of State reviewed the position of the Claimant with the policy in paragraph 55.10 in mind. Nor are there any clear indications that they reviewed her case with the substance of what was set out in the policy in mind, and in the structured way contemplated by the policy. I therefore find that the Secretary of State failed, as a matter of substance, to ask himself the correct questions falling for consideration under his policy (was the Claimant suffering from serious mental ill-health which could not be effectively managed in detention? If so, were the circumstances very exceptional so as to justify detention in any event?).

In my judgment, this leads to the conclusion that the Secretary of State acted in breach of his policy (by failing to consider its application at all in a case calling out for assessment whether it did apply) and in breach of the legitimate expectation of the Claimant that the potential application of the policy to her would be properly assessed.

This breach of policy and breach of legitimate expectation also rendered the whole of the second period of detention of the Claimant unlawful.

Damages

I take the judgment of Lord Dyson JSC in Lumba to represent the lead judgment for the majority in that case on the issue of the proper approach to assessment of damages in a case of unlawful detention, where the unlawfulness consists in the application by the Secretary of State of an unlawful policy on detention. Lord Dyson emphasised the compensatory object of an award of damages for false imprisonment; and since on the facts in that case it was inevitable that the claimants would have been detained in any event, had lawful policies and the proper principles of law under R v Governor of Durham Prison, ex p. Hardial Singh [1984] 1 WLR 704 been applied, he held that only nominal damages should be awarded: see paras. [95]-[96]. Similarly, in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299, Lord Hope said at para. [56] that “an award of damages for false imprisonment is based on normal compensatory principles.”

The same approach should be applied in relation to a detention which is unlawful as a result of a failure properly to apply a lawful policy regarding detention.

The judgments in those cases were analysed by the Court of Appeal in R (OM) v Secretary of State for the Home Department [2011] EWCA Civ 909. The case concerned the detention pending deportation of an individual who, like the Claimant in the present case, suffered from mental ill-health. On the facts, the Secretary of State conceded that a period of detention of the claimant was unlawful “since during that period there was a failure to take into account the paragraph of the policy relating to mental illness,” but contended that only nominal damages should be awarded since the claimant could and would have been detained in any event on the lawful application of the policy ([21]).

On that issue Richards LJ (with whom Hughes LJ and Ward LJ agreed) referred to Lumba and Kambadzi and held that the Supreme Court had not ruled that it was only if it was “inevitable” that a claimant would have been detained had lawful policies been adopted and applied; rather, normal compensatory principles were to be applied: [22]-[23]. Richards LJ said at [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 may well 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.”

These remarks were obiter, since Richards LJ found that the claimant would in fact have been detained during the relevant period had proper account been taken of the policy, whether the standard of proof was the balance of probabilities or inevitability (para. [24]), and could lawfully have been so detained. However, Richards LJ’s conclusion that the Supreme Court in Lumba and Kambadzi did not lay down a test of inevitability is, I think, clearly correct.

For the purposes of the present case, Mr Greatorex for the Secretary of State was prepared to accept that what Richards LJ said at para. [23] in OM (including regarding the shifting of the burden of proof to the Secretary of State in a case such as this) is correct. He submitted, however, that even on that basis (indeed, even if the relevant test were a test of inevitability), it was still clear that the Claimant could and would in fact have been detained even if the Secretary of State had made proper inquiries and the policy in paragraph 55.10 had been properly considered for application in her case.

Before considering that submission, I should mention one further possibility in relation to the proper approach to damages in cases of this kind. In some areas of the law, substantial damages may be awarded for a lost opportunity or loss of a chance. Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602, CA, is a well-known example and Polkey v A.E. Dayton Services Ltd [1988] ICR 142, HL, is another illustration in the statutory context of compensation for unfair dismissal where a proper procedure is not followed by an employer. Might substantial damages be awarded on normal compensatory principles for loss of a realistic chance that if a relevant lawful policy had been properly applied a claimant might not have been detained, even if the court could not conclude on the balance of probabilities that the claimant would in fact not have been detained? This was not an option which seems to have been canvassed in OM, so I am not confident from the judgments in that case what answer should be given to this question. It was a question I raised with counsel. It seemed to me to be a potentially relevant question for this stage of the proceedings, since if the proper approach is to award substantial compensation for loss of a chance of not being detained, it would be easier for the Claimant to argue that I should make an order in her favour that substantial damages should be awarded, with the value of the lost chance to be assessed by the Master. (It would not always be to the advantage of a claimant that a loss of a chance approach be adopted, since the corollary of it is that even if it is shown on a balance of probabilities that they would not have been detained, if there is nonetheless a real chance that they would have been detained, the damages to be awarded would be discounted to take account of that chance).

Neither counsel had come to court prepared to engage in a legal debate about this. I was referred to no authority on the point. When I posed the question, Ms Harrison for the Claimant submitted that damages should be awarded on a loss of a chance basis. But she advanced no substantive or detailed argument in support of that submission. Mr Greatorex for the Secretary of State preferred simply to reserve his position and make no submissions about this.

These are potentially deep legal waters, and I would be loathe to embark upon further analysis of the issue without more focused argument and assistance from counsel. It may be that there is a straightforward answer to the question posed. Fortunately, as explained below, I have come to a clear conclusion on the facts of the case that the Claimant could lawfully have been detained and that it was in substance inevitable that she would have been detained, had the Secretary of State properly complied with her legal obligations. Thus, whether the approach to assessment whether substantial damages should be awarded is inevitability of detention, absence of a real chance that detention would have been avoided or to ask what would have happened on the balance of probabilities, I find that the Claimant is only entitled to nominal damages.

The proper interpretation of a policy is a matter for the Court: First Secretary of State v Sainsbury’s Supermarkets Ltd [2005] EWCA Civ 520 at [16]; Accenture Services Ltd v HM Revenue and Customs Commissioners [2009] EWHC 857 (Admin) at [33].

The term “serious mental ill health” in paragraph 55.10 has to be interpreted in the context of the overall policy statements promulgated by the Secretary of State in the immigration instructions. Those instructions seek to give guidance to officials and to balance the objectives of ensuring firm and fair application of immigration controls and humane treatment of individuals facing removal from the United Kingdom. It is a simple fact of life that many individuals who apply for leave to remain or asylum and whose claims are rejected may be tempted to seek to abscond to avoid removal from the country, or may not co-operate in their removal or leave voluntarily. There can be no doubt that detention of a person who faces the prospect of removal and who presents a significant risk that they will not leave voluntarily and may take steps to avoid removal can usually be justified, and will in practice be required if immigration controls are to be given practical effect in a way which is fair as between aspirant immigrants to the United Kingdom.

In this context, I consider that on proper interpretation of paragraph 55.10 it is important to give full value to the word “serious”, in the phrase “serious mental illness” (and indeed in the other cases qualified by that word, in the fourth and seventh bullet points), since that formula defines a class of case to which the “very exceptional circumstances” test will be applied. Although application of the “very exceptional circumstances” test does not prevent detention in all cases, it does – obviously – make it significantly more difficult to justify detention (and hence increases the risk that a person, not being detained as a result of application of that test, might abscond to avoid his removal and the effective implementation of immigration controls in his case). On a proper interpretation, the circumstances in which that more restrictive test falls to be applied should be relatively narrowly construed, since otherwise the effective, firm and fair operation of immigration controls may be excessively undermined.

In my view, “serious mental illness” connotes a serious inability to cope with ordinary life, to the level (or thereabouts) of requiring in-patient medical attention or being liable to being sectioned under the Mental Health Act 1983, or a mental condition of a character such that there is a real risk that detention could reduce the sufferer to that state – for instance, if there were a real risk that they could have a break-down in prison.

Similarly, on proper interpretation in the context of paragraph 55.10, the words, “which cannot be satisfactorily managed within detention,” indicate a standard of practical effectiveness of treatment, rather than treatment which avoids all risk of suffering mental ill-health or any deterioration in an individual’s mental well-being. In assessing what is satisfactory, the Secretary of State is entitled to have regard to what may be expected to be effective in preventing a detainee from slipping into a state of serious inability to cope with ordinary life.

In my judgment, the Claimant did not suffer from “serious mental illness” when she was taken into detention and during the period of her detention. The best available evidence regarding the Claimant’s condition at the relevant time is from the doctor and trained medical staff who actually examined her at or about that time, namely the staff at the medical unit of the detention centre. On a fair reading of the medical notes they compiled, they had no serious concerns that the Claimant’s mental state was such as would disable her from coping with detention. Dr Sharma’s report, if it had been properly reviewed, would not have changed that assessment. Had the Secretary of State asked a doctor in November 2011 and during the second period of detention to assess whether the Claimant was suffering from serious mental illness, I find that the advice would have been that she was not.

Dr Sharma’s report is not a very helpful guide to the Claimant’s condition at that time. It was well out of date by the time of the detention in issue. In any event, Dr Sharma did not state facts or an opinion which indicated that the Claimant suffered from a serious mental illness of the kind to which the policy refers. Dr Oyewole’s report is even weaker (from the Claimant’s perspective) than that of Dr Sharma, and was from a time closer to her first period of detention before the period of improvement noted by Dr Sharma, when the Claimant might have been expected to be in a worse state than at the time of Dr Sharma’s report. Dr Oyewole said only that in terms of a diagnosis the Claimant’s symptoms “fit a depressive episode, of a moderately severe degree”, and he was concerned that she was exaggerating her symptoms. Dr Sreeram’s report is more than four months after the second period of detention. It also does not support the conclusion that the Claimant suffered from serious mental illness at the time of that detention. Dr Sreeram thought that her treatment as an out-patient was appropriate.

Moreover, such mental illness as the Claimant did suffer from was well capable of being satisfactorily managed within detention, as in fact happened. The Claimant had ready access to appropriate and effective medical care throughout her detention. She had, in substance, the same care in relation to her symptoms of depression and PTSD (principally medication) as she had been receiving and continued to receive when not in detention. That care was, broadly, as effective and appropriate for the Claimant as it had always been.

If the Secretary of State had made proper inquiries and had properly considered the application of his policy, he would have determined both that the Claimant was not suffering from serious mental illness at the relevant time and that such mental illness as she did suffer from could be satisfactorily managed while she was in detention.

Accordingly, the Secretary of State could and would have concluded that the Claimant should be detained pending her removal. Apart from application of paragraph 55.10, the Secretary of State had good grounds for concluding that the Claimant might well abscond to avoid removal, if she were not detained. She was entitled to detain her in accordance with Hardial Singh principles.

The Claimant is entitled to a declaration that the entire second period of detention was unlawful. However, she is only entitled to nominal damages for false imprisonment in relation to that detention.