SA, R (On the Application Of) v Secretary of State for the Home Department

In these proceedings the claimant SA challenges his detention by the defendant under immigration powers. He was detained from 26 January 2011 to 22 March 2012. Permission was granted by Nicol J on 19 January 2012, on what were then grounds 1 and 3 of the grounds of claim: that the defendant made public law errors in the application of her policy for detention of the mentally ill (ground 1) and that the claimant’s detention was in breach of the Hardial Singh principles (R v SSHD ex parte Hardial Singh [1984] 1 WLR 704) (ground 3). Ground 2 claimed that the policy on the detention of the mentally ill was itself unlawful. Nicol J reserved the question of permission on that ground because of litigation then pending; but in the light of the decision of the Court of Appeal in R (Das) v SSHD [2014] EWCA Civ 45, the claimant no longer pursues that ground.

The claimant is from Somalia, where he was born in 1969. He travelled to the Netherlands in 1991 and eventually obtained Dutch nationality. In the mean time some other members of his family, including his mother and some of his ten siblings, had travelled to the United Kingdom and successfully claimed asylum. He joined them here in August 2000. In April 2010 he attacked a member of staff at a hospital. He was arrested and remanded in custody. At his trial in the autumn of the same year he was sentenced to 18 months imprisonment following his plea of guilty to assault occasioning actual bodily harm. Towards the end of the period he was required to spend in custody as a result of that sentence the Secretary of State considered that he should be deported and invited reasons why he should not be subject to automatic deportation under the UK Borders Act 2007. Solicitors responded that he was a Dutch national, had a right under Article 8 of the European Convention on Human Rights not to be removed, and was mentally ill.

His nationality was investigated and the authorities in the Netherlands eventually accepted that his passport was genuine and had been issued to him. The Secretary of State then considered that he should be subject to (non-automatic) deportation because of his criminal offence, and issued a notice to that effect. He appealed against that decision and his appeal was allowed by the Upper Tribunal in February 2013, a previous determination by the First-tier Tribunal having been wholly set aside for error of law. From the end of the custodial part of his sentence he had been in immigration custody until released in March 2012.

Immigration detention in general

The Secretary of State’s powers to detain those whose deportation or removal is envisaged are contained in Schedules 2 and 3 to the Immigration Act 1971 (as amended) and in s 36 of the UK Borders Act 2007. They are not there subject to any limitations, but common law limitations are recognised following the decision of Woolf J (as he then was) in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704. The principles were encapsulated by Dyson LJ (as he then was) in R (I) v SSHD [2002] EWCA Civ 888 and endorsed by him in Lumba v SSHD [2011] UKSC 12 (‘WL’) at [22]:

(i)

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

(ii)

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

(iii)

If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;

(iv)

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

The Secretary of State has issued guidance indicating that detention with a view to deportation will be the normal practice (for that phrase see WL at [42]) when the criteria for deportation are met. The guidance, in her ‘Enforcement Instructions and Guidance’, is as follows:

“55.1.3.

Use of detention

General

Detention must be used sparingly, and for the shortest period necessary. It is not an effective use of detention space to detain people for lengthy periods if it would be practical to effect detention later in the process once any rights of appeal have been exhausted. A person who has an appeal pending or representations outstanding might have more incentive to comply with any restrictions imposed, if released, than one who is removable.

Criminal casework cases

As has been set out above, due to the clear imperative to protect the public from harm, the risk of re-offending or absconding should be weighed against the presumption in favour of temporary admission or temporary release in cases where the deportation criteria are met. In criminal casework cases concerning foreign national offenders (FNOs), if detention is indicated, because of the higher likelihood of risk of absconding and harm to the public on release, it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale.

If detention is appropriate, an FNO will be detained until either deportation occurs, the FNO wins their appeal against deportation (see 55.12.2. for decisions which we are challenging), bail is granted by the Immigration and Asylum Chamber, or it is considered that release on restrictions is appropriate because there are relevant factors which mean further detention would be unlawful (see 55.3.2 and 55.20.5 below).

In looking at the types of factors which might make further detention unlawful, case owners should have regard to 55.1.4, 55.3.1, 55.9 and 55.10. Substantial weight should be given to the risk of further offending or harm to the public indicated by the subject’s criminality. Both the likelihood of the person re-offending, and the seriousness of the harm if the person does re-offend, must be considered. Where the offence which has triggered deportation is included in the list here, the weight which should be given to the risk of further offending or harm to the public is particularly substantial when balanced against other factors in favour of release.

In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling. In practice, release is likely to be appropriate only in exceptional cases because of the seriousness of violent, sexual, drug-related and similar offences. Where a serious offender has dependent children in the UK, careful consideration must be given not only to the needs such children may have for contact with the deportee but also to the risk that release might represent to the family and the public.

55.3.2.

Further guidance on deciding to detain in criminal casework cases.

55.3.2.1 This section provides further guidance on assessing whether detention is or continues to be within a reasonable period in criminal casework cases where the individual has completed their custodial sentence and is detained following a court recommendation or decision to deport, pending deportation, or under the automatic deportation provisions of the UK Borders Act 2007. It should be read in conjunction with the guidance in 55.3.1 above, with substantial weight being given to the risk of further offending and the risk of harm to the public.

Whilst as a matter of practice, the need to protect the public has the consequence that criminal casework cases may well be detained pending removal, caseworkers must still carefully consider all relevant factors in each individual case to ensure that there is a realistic prospect of removal within a reasonable period of time.

In family cases, each individual must be considered to see if there is interference with their Article 8 rights and, if so, whether it is proportionate. For example, thought should be given to whether it is appropriate to detain family members due to be deported or removed with the foreign national offender and, if so, when – please see chapter 45 for cases where one or more family member(s) is under the age of 18. An up to date record of convictions must be obtained from the police national computer (PNC) in order to inform decisions to detain or maintain detention in criminal casework cases. Please also see 55.8 regarding detention reviews and 55.20.5 for instructions on managing contact where a criminal casework case is released on restrictions. Where a time served foreign national offender has a conviction for an offence on this list, particularly substantial weight should be given to the public protection criterion in 55.3.1 above when considering whether release on restrictions is appropriate.

In cases involving these serious offences, therefore, a decision to release is likely to be the proper conclusion only when the factors in favour of release are particularly compelling because of the significant risk of harm to the public posed by those convicted of violent, sexual, drug-related and other serious offences. In practice, release is likely to be appropriate only in exceptional cases. This does not mean, however, that individuals convicted of offences on the list can be detained indefinitely and, regardless of the effects of detention on their dependants.

All relevant factors (see 55.3.1) must be considered when assessing whether there is a realistic prospect of removal within a reasonable timescale. See 55.3.2.4 to 55.3.2.14 for more detail on the way to approach the application of the factors in 55.3.1 in criminal casework cases.

55.3.2.2 Any decision not to detain or to release a time served foreign national offender on restrictions must be agreed at grade 7 (assistant director) level and authorised at strategic director level. Cases should be referred on the relevant form, which should cover all relevant facts in the case history, including any reasons why bail was refused previously.

If it is proposed to release a serious criminal to rejoin a family including dependent children under the age of 18, advice should have been sought from the Office of the Children’s Champion and it is likely that a referral to the relevant local authority children’s service will be necessary.”

The question whether the guidance has been properly applied to any individual case is a matter of a challenge on ordinary public law grounds R (OM) v SSHD [2011] EWCA Civ 909, R (LE) v SSHD [2012] EWCA Civ 597), but questions as to the reasonableness of any period of detention and whether a decision to detain or maintain detention contravened the Hardial Singh guidelines are for the Court: R (A) v SSHD [2007] EWCA Civ 804.

A number of factors are identified in both the guidance and the authorities as relevant to the decision to detain and the judgment of the reasonableness of maintaining detention. The risk of absconding is of ‘paramount importance’, because the whole purpose of the exercise is imperilled if the person is not available for deportation when the time comes: R (Abdi) v SSHD [2009] EWHC 1324 (Davis J); WL at [111]-[121]. The risk of re-offending is also of ‘paramount importance’, because the deportation itself is for the protection of the public (WL ibid), and because the risks of absconding are tied up with the risks that a person who has no stable home may be more likely to commit offences and may abscond to avoid detection.

The prospects of removal also have to be taken into account. If there is no prospect of a person’s removal, obviously detention cannot continue: it is no longer for the purposes of removal. But detention can continue although removal is not imminent (A at [35], [43], [58]), and can and often should continue during a period in which removal is legally impossible because of a pending appeal (Abdi at [36]). As stated by the Court of Appeal in R (MH) v SSHD at [66], the question must always be whether there is sufficient prospect of removal for detention to be warranted; and that question is to be answered by reference to the material available to the decision-maker at the relevant time (that was the procedure adopted by Sales J at first instance and not doubted by the Court of Appeal: see [67]). As is shown by the facts of R (Muqtaar) v SSHD [2012] EWCA Civ 1270, the mere fact that proceedings may be extended or are outside the jurisdiction of the UK authorities does not render detention unlawful as long as there remains a reasonable prospect of removal when the proceedings are completed.

Immigration detention of the mentally ill

Chapter 55.10 of the Secretary of State’s Enforcement Instructions and Guidance is 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 criminal casework 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:

•

Unaccompanied children and young persons under the age of 18 (see 55.9.3 above).

•

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

•

Pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this (but see 55.4 above for the detention of women in the early stages of pregnancy at Yarl’s Wood).

•

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

•

Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework 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.

•

Those where there is independent evidence that they have been tortured.

•

People with serious disabilities which cannot be satisfactorily managed within detention.

•

Persons identified by the competent authorities as victims of trafficking (as set out in Chapter 9, which contains very specific criteria concerning detention of such persons).

If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file."

For the purposes of these proceedings the relevant bullet point is that relating to those ‘suffering serious mental illness which cannot be satisfactorily managed within detention’. That phrase has been the subject of recent and definitive guidance by the Court of Appeal in R (Das) v SSHD [2014] EWCA Civ 45. Ms Anderson offers her analysis of that judgment which with one addition or reservation I accept:

(i)

When interpreting and applying Chapter 55.10 it was essential to keep firmly in mind the purpose of the policy, which was to ensure compliance with the requirements of immigration control (especially in the context of the removal of FNOs where that was accorded a particular importance by the statutory policy of Parliament reflected in the automatic deportation regime and that of the Secretary of State) but prevent treatment that was inhumane [46].

(ii)

A purposive and pragmatic construction was required “In the light of the purpose of immigration detention identified above, that is enabling lawful removal pursuant to an effective immigration policy, the policy seeks to ensure that account is taken of the health of the individuals affected and (save in very exceptional circumstances) to prevent the detention of those who, because of a serious mental illness are not fit to be detained because their illness cannot be satisfactorily managed in detention” [47].

(iii)

The phrase “suffering from a serious mental illness which cannot be managed satisfactorily within detention” must not be dissected but considered as a whole. [47] and [57].

(iv)

The policy exception in chapter 55.10 does not apply simply because a person has a diagnosis of a mental illness that is regarded as ‘serious’ [48], [50], [55] and [57]. In LE (Jamaica) the claimant had a long established condition of Paranoid Schizophrenia (which had rendered him unfit to plead to criminal charges) but the policy was not engaged as the condition was one that could be managed satisfactorily in detention.

(v)

The ‘threshold for applicability of the policy’ is that the mental illness is serious enough to mean it cannot be managed satisfactorily in detention. [67]

(vi)

‘Satisfactory management’ involves considerations such as the medication required and whether ‘demonstrated needs’ can or cannot be provided by the place of detention. The Court noted that OM (Nigeria) at [33] shows that some of those suffering significant adverse effects of mental illness may be managed appropriately in detention, the views of the experts were divided but the Court of Appeal found that the balance of expert advice was that her illness could be managed appropriately in detention [67]. It is noted that in OM there were expert reports in much stronger terms than in this case that stated that the treatment needed by OM was not available in detention and that her mental health was deteriorating significantly as a result of detention so she was unfit to be detained (and lacked capacity to act). Whilst the responsible clinicians did not provide ‘expert reports’ in the same way as those procured by claimant representatives, the Court considered the views expressed in the medical papers to the effect that the needs for satisfactory management of OM’s mental health were met in detention and the Court of Appeal accepted the approach of the responsible clinicians.

(vii)

The Secretary of State was generally entitled to rely on the responsible clinicians where reasonable enquiries had been made and the requirements of Chapter 55.10 were considered where applicable, so long as there was not a total abdication of the Secretary of State’s own responsibilities to the clinicians. [70].

(viii)

For the purposes of the decision in Das, the Court did not decide whether ‘satisfactory management’ involved facilitating the possibility of recovery but at [71] the Court ‘strongly doubted’ that this was the correct approach as:

•

this was unlikely to be the intention of the policy given its purpose

•

it was unlikely to be the natural construction of the words used

•

it was inconsistent with the established jurisprudence of the higher courts

•

it was impractical given the variance of treatment available in the community

•

it was inconsistent with the context of the purpose of removal from the UK as soon as possible

(ix)

Where the threshold for applicability was met and a serious mental illness could not be managed satisfactorily in detention so the policy applied – the ‘very exceptional circumstances’ test was a demanding one. It was not met by the mere fact of liability for circumstances’ test was a demanding one. It was not met by the mere fact of liability for removal and the refusal to repatriate voluntarily. It could be met by circumstances such as the detainee posing a serious risk of harm to the public or the anticipated period of further detention being short. It required an assessment of where on the ‘spectrum’ of seriousness the case fell (that spectrum including those with no record of offending right through to the most serious terrorism cases). [68].”

My addition or reservation is this. Paragraph (v) of that summary, drawn from para [67] of Das, is in my judgment of the highest importance in applying this policy whether by those making detention decisions or by the Courts. If the person’s mental illness does not fall within the description, the policy (or at least that bullet point) does not apply at all. It is only if the illness does fall within the description that issues relating to ‘very exceptional circumstances’ become relevant. Of course a decision-maker may refer to any such circumstances as a fall-back in case somebody else thinks that the illness does fall within the description, but the identification of them is the last step in a staged process and is only relevant to the application of the policy where it has been decided that the illness falls within the description.

Citizens of the Union

The Citizens Directive 2004/38/EC is implemented in United Kingdom law by the Immigration (European Economic Area) Regulations 2006 (SI 1003/2006), which have subsequently been amended a number of times. Crucial to their operation are the definitions of ‘EEA national’, excluding a person whose nationality of an EEA state is only that of being a British Citizen, ‘family member’ including certain members of the family of an EEA national, and ‘qualified person’, meaning an EEA national who is in the United Kingdom as a worker, jobseeker, student, self-employed or self-sufficient person.

All EEA nationals may enter the United Kingdom freely and may reside for up to three months. Their entitlement under the Regulations to remain any longer than three months depends for most purposes on being a qualified person. Rights of residence are acquired by qualified persons, chiefly by being resident in the United Kingdom in accordance with the Regulations for a period of five years, and by the family members of qualified persons.

Removal of EEA nationals is governed by Regulations 19 and 21:

“19.

…

(3)

Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if –

(a)

that person does not have or ceases to have a right to reside under these Regulations; or

(b)

the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.

(4)

A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.

(5)

A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.

…

21.

– (1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health.

(2)

A relevant decision may not be taken to serve economic ends.

(3)

A relevant decision may not be taken in respect of a person with permanent right of resident under regulation 15 except on serious grounds of public policy or public security.

(4)

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who –

(a)

has resided in the Untied Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b)

is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20^th November 1989.

(5)

Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles –

(a)

the decision must comply with the principle of proportionality;

(b)

the decision must be based exclusively on the personal conduct of the person concerned;

(c)

the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d)

matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e)

a person’s previous criminal convictions do not in themselves justify the decision.

(6)

Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin.

(7)

In the case of a relevant decision taken on the grounds of public health –

(a)

a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010 shall not constitute grounds for the decision; and

(b)

if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision.”

There has been a considerable amount of jurisprudence on the criteria for the acquisition of the permanent right of residence and of the greater protection arising from ten years’ residence. The right of residence can only be acquired by residence in accordance with the Regulations, so a claimant needs to demonstrate such qualification. Periods in prison, and perhaps other periods of involuntary presence in the host country, do not count towards the five years. So far as the ten years residence is concerned, periods of imprisonment do not necessarily break the ten years. The question is rather one of integration. Following the decision of the Court of Appeal in SSHD v FV (Italy) [2012] EWCA Civ 1199 the ten years relied upon must be ten years residence for the purposes of the Directive, but breaks (other than absences as specified in the Directive itself) will have to be evaluated in terms of their effect on whether the person has integrated in the United Kingdom in the period of ten years before the removal decision. Although Pill LJ’s decision was for some purposes in the minority I cite the way in which he put it at [85]:

“The question whether the requirement of a continuous period of 10 years residence is established at the date of the decision to deport, turns on the degree of integration established at that time. This is a question of fact for the Tribunal. Following the test in Tsakouridis, periods of absence within the 10 years immediately preceding the decision do not of themselves disqualify and neither does a period of imprisonment. The period of imprisonment is, however, relevant as a factor to be considered when deciding upon integration at the date of decision. Integration will not normally be established by time spent in prison save that it may have limited relevance by contributing to the severance of links with the country of origin. If integration has been established prior to the custodial term, it will not necessarily be lost by that term.”

What is, however, clear is that neither nationality of a Member State nor physical presence in the United Kingdom for ten years nor those two things together are sufficient to give any person the enhanced protection of reg 21(3) or 21(4).

As the authorities make clear, claims of this sort are fact-sensitive. The question at each point at which detention was authorised is whether at that point the defendant was entitled to take, through her officer, the decision she did. At each stage the decision-maker must take into account all relevant circumstances, including circumstances that point to what is likely to happen in the future, but beyond that cannot be required to predict the future. It is fatally easy, but wrong, to attribute to a decision-maker knowledge of facts that have since transpired but had not then happened. In applying the standards of review set out at [6] above, the relevant factors on each date are those displayed by what was apparent at the time, not those displayed by what has in fact happened since.

The facts in the present case comprise several strands. Mr Buley’s chronology extends over 13 pages and contains about 280 entries. In order to do justice to the richness of his submissions on the facts it is convenient to treat the strands separately in the first instance. That is not because the facts ought not to be judged as a whole: it is because they cannot be properly judged as a whole until the evidence in each area has been assessed separately. I therefore undertake that assessment before brining the strands together. The principal strands are the following.

Following the end of the custodial period of his sentence (which was relatively soon after the sentence itself, because of the time the claimant had spent in custody awaiting trial) the claimant’s detention continued under the authority of the Secretary of State within the powers given to her by s 36 of the 2007 Act, which enable a person to be detained while the Secretary of State considers whether the automatic deportation provisions apply. After the Dutch authorities acknowledged that the claimant was a citizen of the Netherlands, detention continued under regulation 24(1) of the EEA Regulations, which permits the detention of a person whom the Secretary of State has reasonable grounds for suspecting may be removed from the United Kingdom on the grounds of public policy, public security or public health.

During the claimant’s immigration detention there were regular monthly reviews and other reviews when that was thought necessary, for example to consider new reports. This is not a case where any of the reviews were missed.

There is also a mass of material from the claimant’s detention before and as a result of his sentence, as well as during his immigration detention, relating to what has been called his ‘challenging behaviour’. It seems to me that those reports paint a general picture of a more or less continuous struggle between the authorities whose task it was to manage the claimant’s detention, and his own unwillingness to co-operate with them. Many of the incidents are directly attributable to the claimant’s craving for cigarettes, in pursuance of which his conduct would range from being a nuisance (for example trying to get cigarettes from others on his wing) to being a positive danger to himself or to others. It is clear that he is capable of being manipulative and exploitative and had recognised that threats, including refusal to take his diabetic medication, would be treated seriously. The general picture is of a person with a low tolerance of authority or of failure to get his own way; and that this behaviour is not the result (or not wholly the result) of mental illness is abundantly clear from the medical opinions, which I consider below.

For present purposes what is important is that the consequence of this behaviour, including periods of segregation, investigations and adjudications, and periods on the health wing, was the norm throughout the period of his detention, whether as a convicted criminal or as an immigration detainee. There were periods when things were better, and there were periods when things were worse. Whatever the exact situation on any particular day, there might be another incident shortly; and if there had recently been an incident, then things might be better tomorrow, or not. In these circumstances I do not think it is right to pick up on a few individual errors about what the claimant was doing, or where he was, at the particular moment that a review was completed or signed. The general picture is absolutely clear. The reasons for the claimant’s behaviour, and the detection of any trends in it, were and are a matter of expert diagnosis and opinion, to which I turn under two headings below relating to mental condition.

The claimant has directed a certain amount of energy to criticism of the Secretary of State’s conduct in relation to detention decisions in the final weeks of his detention. As the originally disclosed documents show, reference was made on 20 January 2012 to the Strategic Director for him to consider whether the claimant could or should be released on terms that were being considered. Following that referral, internal guidance required that any decision to release be taken by the Strategic Director unless there was sufficient change of circumstances to merit a further referral. By the time Mr Buley finalised his skeleton argument the Secretary of State’s disclosure did not include the referral itself or the Strategic Director’s decision of 18 February refusing release. Mr Buley wrote:

“This constitutes the clearest possible failure to comply with the duty of candour, and the court is invited to censure this in strong terms. Further, and separately, in the light of this failure, the court must assume that the Defendant has failed to discharge her duty to demonstrate that detention was lawful, and has little choice but to conclude that detention was unlawful as from January 2012”

I disagree. The documents have now been disclosed. The Secretary of State’s witness says that their earlier non-disclosure was a mistake. There does not seem to have been any resistance to release of these documents; and no possible purpose could have been served by non-disclosure given that the fact of the reference, and the involvement of the Strategic Director, was implicit from the disclosed documents. I am perfectly content to accept the evidence. In any event for the reasons given elsewhere in this judgment it does not appear to me that the reference to the Strategic Director can conceivably have made any difference to the lawfulness of the decisions in this case.

The claimant was given a conditional discharge for criminal damage in 2002, and was cautioned for criminal damage in 2009. On 26 April 2010, the claimant assaulted a member of staff at Park Royal Centre, a hospital at which he was a voluntary patient. The member of staff asked him to give up a cigarette lighter that he should not have had. The claimant’s response was to attack him with a chair and then punch him. The member of staff suffered injuries to his hand and arm.

The claimant was arrested and remanded in custody. Advice was that he was fit to plead and that his diagnosis of paranoid schizophrenia did not require him to be held other than in the prison estate. On his own plea of guilty he was convicted of assault occasioning actual bodily harm on 23 September 2010. On 9 November he was sentenced to 18 months’ imprisonment.

In his sentencing remarks HHJ Morris noted the reports relating to the claimant’s mental illness but said that the conclusion she draw was that he was not compliant with his medication regime, preferring to chew khat instead, and that he became violent when he had not followed his medication regime. The judge took into account that the caution in 2009 had been in relation to a similar offence, attacking a care worker with a chair, and that there had been other incidents of violence, including violence to members of his family. The claimant was not in need of hospital attention. The courts had to protect health workers. The use of a weapon put the offence at level 1 of the Guidelines. The sentence gave ‘full credit’ for the guilty plea.

The Pre-Sentence Report had found that on a statistical basis there was a low risk of re-offending, but that the claimant’s own history did not seem to be what statistical prediction would have suggested: he had been exhibiting aggressive and violent behaviour not only towards staff but also towards family over an extended period of time. It concluded that there was ‘a potential high risk of harm’ to members of staff and ‘at the very least a medium risk’ of harm to members of the public.

There was a further OASYS report on 30 March 2011. It again set out the claimant’s previous history, summarised as including threatening his brother with a knife, exhibiting aggressive behaviour towards his younger sisters, trying to assault a staff member with a pen and throwing hot drinks at ‘staff’. It concluded that the claimant posed a medium risk of serious harm to the public and named adults, and a high risk of serious harm to staff. The risk was ‘not immediate but could rapidly increase when not complying with his anti-psychotic and diabetic medication’.

Dr Spencer’s report of 8 June 2011 records a considerable number of incidents when the claimant, in custody both before and after the expiry of his criminal custody, demanded tobacco and was abusive or made threats of physical harm if he did not get his own way. There were also incidents of failure to comply with his medication regime. Dr Spencer noted that the difficulties seemed to arise from his low tolerance to frustration and had continued in custody, where the claimant had no access to khat and where he was not psychotic. If not in custody the likelihood was that there would be non-compliance with medication, and khat use, and that would exacerbate the problem. She assessed the risk to others as likely to continue to be of verbal aggression and threats and possibly the opportunistic use of weapons. Bearing in mind a previous incident of fire-raising in his cell there might also be a risk of harm to himself and others by arson but that could not be quantified on the material available.

The defendant sought a further report from the Probation Service on 5 July 2011. The report details at least two incidents of which Dr Spencer did not have details, and records the details of all the nine adjudications against the claimant. There is a comment that the claimant does not accept responsibility for his behaviour and is oblivious to the impact his behaviour has on others; also that his unacceptable behaviour seems to be escalating in seriousness and frequency. The assessment is that the claimant posed a high risk of serious harm to himself, staff and family members.

Dr Taylor’s opinion on 21 October 2011 was that the claimant’s ‘somewhat disruptive’ behaviour was linked to his psychiatric diagnosis. Dr Taylor was not asked to comment on the risk of further offences or of the danger that the claimant might pose to others.

Comments. These opinions were all properly researched and reasoned. The claimant is not a person whose risk of re-offending can be properly assessed by reference to the usual actuarial processes; and it is clear that his behaviour had been under-reported. In my judgment, throughout the period of detention the material available amply justified a view that the claimant was a person who if released would pose a risk of violence and threats of violence to his family and members of the public. The fact (if it be a fact) that the risk has not eventuated since his release is not relevant to the assessment of the risk during the period of his detention.

The claimant has no record of keeping, or of failing to keep bail conditions. He does have a record of release into the community after detention as a compulsory patient, followed by re-detention because he was unable or unwilling to continue his treatment regime; those who have examined him following his detention attribute some of his challenging behaviour to the use of khat and record the likelihood that khat use would recommence if the claimant was not in custody. If the claimant was not in custody, and not detained under the Mental Health Act, he could not be the subject of compulsion to take insulin or any other medication, and he could not be prevented from walking out of whatever care arrangements were in place.

For Hardial Singh purposes, the question is what was the material suggesting that the claimant was at risk of absconding so that he would not be available for removal when the moment came. Ms Anderson points to the claimant’s evident intention to resist removal, the fact that he had evidently attempted to abscond from psychiatric units in the past when there was no threat of deportation, and a judicial decision on 14 March 2011 refusing him bail, combined with a lack of any record of willingness to comply with any restrictions at all, and a lack of meaningful family ties given the claimant’s difficulties with his family in the past and his extended periods away from home in various institutions.

None of these factors is of wholly inconsiderable weight. Mr Buley argues that the risks of the claimant absconding are low and sets out the way he would reason the matter. I do not think he is necessarily wrong, and he is certainly not wrong to try; but it seems to me that the Secretary of State was entitled to think that the factors mentioned raised the likelihood of absconding to a level where it counted towards a decision to detain.

It is of note in this case in addition that the risk of absconding from any supervised residential care has to be looked at in conjunction with the risk of re-offending. If the claimant were no longer supervised, the risk that he will not take his medication rises, and with that rises the risk of unacceptable and possibly criminal behaviour.

The claimant stated that he had arrived in the United Kingdom on a Dutch passport, when he was interviewed in the induction process at HMP Wormwood Scrubs when he was first detained there. In response to the notice seeking reasons why he should not be subject to automatic deportation, the claimant’s solicitors asserted that he had Dutch nationality. They sent photocopies of his expired Dutch passport. These the Home Office sent with a recent photograph of the claimant to the Dutch authorities, who responded that it was doubtful whether the claimant was the person named in the passport. The original passport was sent to the Home Office in slightly late response to a request to the claimant’s solicitors, and about a month later the passport was sent to a particular identified contact in the Dutch Embassy, who sent it to the Netherlands. In May the Dutch authorities said the photographs were too dark and they were straightaway provided with new ones, which after an interval they acknowledged receiving. On 28 June 2011 the Dutch authorities acknowledged that the claimant is a Dutch national.

There is no evidence that the claimant’s presence in the United Kingdom has been as a worker, a student, a self-sufficient person, a self-employed person or a jobseeker within the meaning of the Citizens Directive or the Regulations or the predecessors of either. During the period of detention under challenge in these proceedings he had been in the United Kingdom for a period that is very likely to have been more than ten years but whose exact length is unknown because there is no reliable information about the date of his arrival. On behalf of the claimant Mr Buley says that the claimant arrived in August 2000. If that is so he had not been resident in the United Kingdom for ten years before his detention on remand in April 2010. Mr Buley did not point to any period of five years or more during which the claimant had not been subject to detention under the Mental Health Act 1983.

Comments. (i) Although the Secretary of State doubted the claimant’s claim to Dutch nationality, as did the Dutch authorities initially, the claimant’s position has been at all relevant times that he was a Dutch national. It has never been part of the claimant’s case that his removal ought to be envisaged as removal to Somalia. The claimant’s claim to Dutch nationality was made and resolved within the period 26 January – 28 June 2011, not an excessively long period in my judgment. The Home Office chased the Dutch authorities for progress and there were modest delays at both ends. The result was to confirm the claimant’s claim.

Following the claimant’s conviction and sentence, he was served with a notice of liability to automatic deportation. The notice gives his nationality as ‘Somalia’, and invites representations as to why he should not be deported. There was no response. A further letter was sent on 18 January. On 24 January solicitors for the claimant (Bishop, Lloyd and Jackson, not his present solicitors) replied asserting that the claimant’s removal would breach his rights under the ECHR and under the Community Treaties as he is a Dutch national ‘who has been residing in the UK continuously for over ten years [and] can therefore be deported only on grounds of imperative public security’. They suggested that exception 5 might also apply but they appear not to have known anything to support that claim: perhaps they did not appreciate that the claimant was in prison. Following inquiries in relation to the claimant’s nationality as set out above, the claimant was the subject of a decision to make a deportation order against him as an EEA national, dated 6 July 2011. He submitted a notice of appeal to the First-tier Tribunal. The appeal was heard by a judge and a non-legal member on 21 November 2011. The Tribunal found that the claimant had left the Netherlands in 2000 and so had been resident in the United Kingdom for over ten years. It declined to consider that LG and CC v SSHD [2009] UKAIT 00024 suggested that time spent in mental hospitals did not count towards the acquisition of ten years’ residence for the purposes of the EEA Regulations. It set out some of the evidence and declared that although the seriousness of the claimant’s offence was not in dispute and that they had ‘real concerns as to his history of violent and aggressive behaviour towards mental health professionals, prison staff and members of his family’, the evidence was not ‘sufficient to make his removal “imperative”’. The last word is a reference to reg 21(4) and was the subject of interpretation by the Court of Appeal in LG (Italy) [2008] EWCA Civ 190, to which the Tribunal referred. The Tribunal went on to declare that there was a high level of dependency between the claimant and his family members in the United Kingdom and that for that reason ‘the decision to deport is disproportionate’. There is no reference in the article 8 assessment to the claimant’s offending or liability to re-offend. The First-tier Tribunal allowed the claimant’s appeal.

The Secretary of State sought, in time, permission to appeal on the grounds that LG (Italy) said that the ten years runs backwards from the removal decision, and that as the claimant had been in prison immediately before that decision he could not have accumulated the ten years’ residence; that LG and CC did suggest that involuntary presence by reason of detention in a mental hospital did not count towards the ten years either, and that the Tribunal had failed properly to resolve or take into account the evidence of the continuing risk posed by the claimant. Permission was granted.

Before the Upper Tribunal (Judge Chalkley) the claimant’s counsel accepted that the First-tier Tribunal’s determination of the claimant’s right to reside in the United Kingdom was defective. He attempted, unsuccessfully, to argue that the article 8 findings were sound. Judge Chalkley set aside the First-tier Tribunal’s determination and made a new determination. When the matter resumed before him on 24 September 2012 he was referred to the Probation Service’s report of July 2012; an undated report that he later described as ‘rather unsatisfactory’ was adduced, and the proceedings were adjourned in order for the claimant to obtain an up-to-date psychiatric report. That report, the report by Dr Baker date 19 November 2012, was a key feature of the submissions before the Upper Tribunal and of Judge Chalkley’s eventual decision.

Judge Chalkley seems to have reached no specific conclusion on the point raised by the first of the Secretary of State’s grounds: he set out the relevant regulations but did not comment on their meaning save for a repetition of the interpretation of ‘imperative’ from LG (Italy). He must have thought that these points fell to be decided against the Secretary of State, because he then proceeded to apply the ‘imperative’ test; but he does not record any submissions from the claimant’s counsel in response to these grounds, nor does he give his reason for rejecting the latter. He concluded on the evidence before him, including in particular the most recent reports, that the claimant’s removal would be ‘wholly disproportionate’. In reaching that conclusion he cited and evidently was influenced by Dr Baker’s assessment that the risk of further offences was low (albeit not non-existent) and that he would pose a greater risk in any other country to which he was removed because of the support from his family here and the history of response to treatment that would have to be started from scratch elsewhere.

The judge went on briefly to consider article 8 in case he was wrong about allowing the appeal under the regulations. He decided that the claimant enjoyed a private life in the United Kingdom in which his family members played an important part; his removal would potentially ‘engage the operation of article 8’. He took his analysis of the application of article 8 to the case before him no further, but expressly allowed the appeal under the regulations and under article 8. His decision was sent out on 11 February 2013.

Comments. (i) Contrary to what was in due course stated in decisions of both that Tribunal and the Upper Tribunal, the decision was a decision to make a deportation order, not a decision that s 32(5) of the 2007 Act applied to him. The reason no doubt is that in the case of a citizen of the Union, deportation is not permissible as a response solely to a conviction, which is the scheme of the 2007 Act: there need to be other factors. Ms Anderson’s emphasis on the claimant’s coming within the automatic deportation regime, and the consequences of that, is therefore misplaced.

The claimant has diabetes and is dependent on regular doses of insulin, apparently administered intravenously. The extensive medical records of his time in custody record numerous occasions when he failed to comply with his medication and ingestion regime, sometimes causing him to have highly abnormal blood sugar levels with resulting pathology. Both the considered reports and the daily minutes refer to occasions when he refused (or threatened to refuse) to take his medication, apparently aware that that might alarm those who had custody of him. As I read those documents, his diabetes is an important and influential part of his make-up. Dr Taylor, however, on whose later report the claimant places much emphasis, did not regard it in that light. In his report of 4 November 2010, there is a reference to a history of 'poor attention to his diabetes', but Dr Taylor's opinion at that stage was that the claimant 'has not had any serious health problems'.

The claimant also has asthma and is prescribed an inhaler. When not in custody he had been a regular user of khat, which is said to have a tendency to produce adverse psychiatric phenomena including symptoms of psychosis, as well as raising the likelihood of oral cancers.

The claimant's IQ is not easy to determine because of his rather mixed language skills, but is said to be 'borderline’ and has been assessed at 63.

He has a long history of involvement with mental health authorities. He seems to have been admitted to mental hospitals in the Netherlands as a compulsory patient six times between 1993 and 2000. Following his arrival in the United Kingdom there have been apparently a similar number of admissions, some for extended periods. Release to his home environment with his mother and siblings has been unsuccessful because of his threatening behaviour to them. He has therefore also spent time in other residential institutions and as a voluntary patient in mental hospitals. I have not been given any accurate account of the periods of time during which he has been at liberty, but there was certainly a lengthy admission in 2002-4 and several shorter admissions in the period 2007-10.

There is a series of medical reports leading up to his arraignment and sentence, to which I made some reference earlier. On 29 April 2010 Dr Kishore reported that the claimant had not been informative at an interview, and responded to questions mostly with assertions that he did not know or did not remember. The claimant reported auditory hallucinations. Dr Kishore said that these appeared to be active psychotic symptoms; but was unable to reach a view on whether the claimant was fit to plead because of the lack of information given in answer to his questions.

Dr Madjev reported on 20 May. He too found the claimant uncooperative in responding to questions. But there was no evidence of thought disorder and the claimant was well oriented; he denied having auditory hallucinations. From the answers he was able to obtain, Dr Majdev concluded that the claimant was fit to plead and did not require urgent transfer to a psychiatric hospital.

Dr Naguib reported on 27 August, having been instructed by solicitors for the claimant. He noted that the claimant ‘tends to adapt [adopt?] a sick role and claims that he was not able to remember’; and that he claimed to continue to hear voices; but he did not exhibit any specific morbid beliefs and did not show any evidence of cognitive impairment. Dr Naguib’s opinion was that the claimant was fit to plead and stand trial. He was appropriately diagnosed as suffering from paranoid schizophrenia, currently in remission; there was evidence to suggest personality disorder but on the information available it was not possible to make a formal diagnosis. Dr Naguib added this:

“However, [SA] is showing that he could present as uncooperative and difficult during interviews or assessment. The latter is not due to any underlying cognitive impairment nor is due to exacerbation of his mental illness which in fact is currently in remission. It is most likely due to his tendency to avoid facing the consequences of his inappropriate action by adapting [sic] the sick role so as to blame his mental and physical illnesses for making him unable to recall events or to cope with the court proceedings. The latter is not a form of malingering but it is his way of avoiding the consequence of his action as mentioned above. Having said that [SA]’s Diabetes Mellitus if not controlled appropriately could cause him fluctuations in his mood, irritability and lower his tolerance to provocation or stress. The court should be aware that [his] blood sugar is kept within normal range during the court proceedings”

Dr Dreyer reported on 29 October 2010. His report summarises the various reports made on a day-by day basis while the claimant had been detained awaiting trial; and as the consultant psychiatrist for the HMP Wormwood Scrubs Mental Health Inreach Team, Dr Dreyer had had a number of meetings with the claimant. His view was that the claimant was not in need of detention under the Mental Health Act and was currently stable. There was no objective evidence supporting his claim to hear voices telling him to do things. He is:

“currently well. He has possibly suffered from schizophrenia in the past. He also has mental and behavioural disorders due to psychoactive substance misuse [this is a reference to khat]. His schizophrenia IS NOT making him attack others. … He prefers to not take his medication and to chew khat which makes him become unwell. This pattern will continue when [he] is released. …He uses psychiatric symptoms to avoid responsibility for his actions.”

Dr Richard Taylor, a Consultant Forensic Psychiatrist instructed on behalf of the claimant, interviewed the claimant on 24 September 2010 in order to give a second opinion (which the court had required) on fitness to plead. His report is dated 4 November 2010. Dr Taylor’s opinion was that the claimant was fit to plead. He noted the claimant’s history of chronic mental illness and took the view that a current diagnosis of paranoid schizophrenia was appropriate. He had previously behaved in a disturbed and aggressive way when unwell; relapses had been precipitated by non-compliance with medication and abuse of khat. Dr Taylor wondered whether the claimant’s antisocial behaviour might be referable to the personality disorder associated with chronic mental illness rather than warranting a separate diagnosis of personality disorder. He also advised about the plans that should be made if the claimant was not given a custodial sentence, or, if he was given a custodial sentence, precautions that would need to be taken on his release. Dr Taylor did not suggest that a custodial sentence would harm the claimant.

The final report before the claimant’s immigration detention began is a note dated 20 January 2011 from the claimant’s prison. The note referred to the claimant’s history and said that:

“During his current detention at HMP Wormwood Scrubs [his] behaviour has improved considerably. He is no longer aggressive and he remains compliant with his prescribed medication. His moods can be volatile but he is responsive to reassurance from staff and other prisoners. It appears that with good support [he] can function effectively”

Comments. The reports on the claimant’s mental condition span the period when he was in detention before his sentence. There are clear indications of problems, but no indication that those problems have been exacerbated by his detention. That applies even in the sixth month of his detention, when Dr Taylor’s report was made. By the time that the claimant’s immigration detention begins, the report from the prison is largely positive. Without suggesting that there are no mental health problems, it is clear that his time in custody (and the personal regime that that entails) had to an extent improved his behaviour and reduced the seriousness of the proposed diagnoses.

The claimant’s immigration began, as I have recorded above, with an enquiry relating to his mental illness, and the monthly reviews (as well as minutes at other dates) record attention being paid to the claimant’s mental illness. The claimant’s solicitors were in frequent touch with the defendant and references were made to incomplete medical evidence, but it does not appear that any case was being made that was properly based on evidence of the claimant’s mental state combined with a proper understanding of the meaning of the relevant guidance.

The first full report following that by Dr Taylor is by Dr Spencer, Specialist Registrar in Forensic Psychiatry at the West London Mental Heath Trust, dated 8 June 2011. It was commissioned in order to consider ‘possible accommodation options’ and to formulate a management plan for when the claimant might be released. In the narrative part Dr Spencer sets out a number of the incidents to which I have referred. So far as the period of immigration detention is concerned, the claimant was ‘relatively settled’ in January and February; but on 15 March he obtained tobacco by refusing to take his medication and threatening self harm; which threat was later called a joke by the claimant and assessed as non-serious by those having care of him. Later in March there was an incident in which he set a fire in his cell; he was admitted to healthcare and ‘his demanding behaviour with regard to tobacco, access to a light and hot water continued’. In the first half of April he was in Hammersmith Hospital having refused to take his insulin for three days. Later in April he was described by a senior nurse in the prison as pleasant and co-operative; but described hearing voices, which he would not describe, and there was no overt sign of them during an interview. In early May he was demanding tobacco and demanding admission to healthcare under threat of harming himself if he was not taken there.

Dr Spencer summarised the claimant’s period in custody. She said that she concurred with other health professionals in regarding the voices reported by the claimant as pseudo-hallucinations occurring when the claimant is distressed and frustrated, often in relation to lack of tobacco and frustration that his immediate needs are not being met. She continued as follows:

“I understand that [SA] has been managed on ordinary location for the majority of stay in HMP Wormwood Scrubs and whilst he has been on the Healthcare Unit there have again been no suggestions that [SA] has been psychotic. In every area of the prison he has been located on there has been difficulties managing [SA]’s behaviour, most of these difficulties appear to have been centred around his access to tobacco and frustration when this access is not immediate. There have been other difficulties managing [SA] when his immediate needs have not been met; he has a low tolerance of frustration and poor impulse control. At times when his needs have not been met he has threatened to harm himself by superficially cutting his arm, he has superficially cut his arm, he has burnt his arm, he has jumped off one of the landings I understand on one occasion last year and landed on the safety net with minimal injuries. [SA] has set fire to some papers and bedding in his cell, in March this year and has also been known to bang his head against the cell wall.

It does seem as if [SA]’s difficulties have been heightened at times; when the outcome of his court case was pending and the future was uncertain; and subsequently when [SA] was due to be released and his detention was continued on immigration grounds. He has stated that he found this frustrating and distressing.

[SA] has been reprimanded on a number of occasions and has been in the Segregation Unit on a number of occasions. He has frequently been deemed ‘unfit’ to be on the Segregation Unit by the GP and either returned to ordinary location or transferred to the Healthcare Unit. It seems as if when he has not been declared ‘unfit’ to be on the Segregation Unit [SA]’s behaviour has deteriorated, for example refusing his insulin medication, leading to hyperglycaemia with vomiting, to secure his transfer to healthcare because of a deterioration in his physical health when a transfer to healthcare in terms of his psychiatric health has been refused.

Throughout, [SA]’s time at HMP Wormwood Scrubs he has been repeatedly reported to be manipulative with his medication, both his psychiatric medication and his insulin medication when his perceived needs are not met and on one occasion at least this had led to him being admitted to Hammersmith Hospital with increased blood sugar levels requiring treatment.

Of note there do appear to have been a couple of periods of relative stability in [SA]’s presentation and I wonder if during these periods [SA] has less input from staff and possibly more time to consider the difficulties that he has experienced throughout his life. This in turn seems to lead to a deterioration in his presentation and behaviour which can rapidly decline, resulting in [SA] having a significant amount of input from staff from a range of backgrounds.”

When Dr Spencer interviewed the claimant on 4 May he had again refused insulin for three days. He agreed to see her when he was told that she needed to find out about his future accommodation, but became uncooperative when she explained that it was not as simple as complying with his wish to be released. She found no evidence that he was thought disordered, no evidence of paranoid beliefs, and ‘objectively … no evidence of any abnormality’. He was orientated. He had some insight into his drug regimes.

Dr Spencer’s assessment of risk is the subject of reference in the section on criminality above, but in the context of that assessment she gives her opinion that there has been no concern that the claimant ‘has been psychotic at any time’. The majority of the incidents recorded seem to be precipitated by the claimant’s low tolerance of frustration and in particular desire for tobacco. She thought that uncertainty as to the outcome of his immigration proceedings was likely to have an impact on his mental state and risk to himself, although there had been as yet no serious self-harm incidents.

So far as her general opinion is concerned, Dr Spencer repeats the historic diagnosis of schizophrenia, with persecutory delusions and auditory hallucinations, but repeats that while in custody there have been no concerns about a deterioration in ‘his psychotic illness’. He might have a personality disorder in addition and some of his presentation suggested that. He did not need transfer to a hospital, and any such transfer on present evidence would not need to be at a medium security level. His challenging behaviour ‘is likely to be secondary to his personality structure complicated by his borderline intellectual functioning’; it would be helpful to consider a psychology assessment to enable those working with him to develop techniques to manage his behaviour. Recommendations are made as to possible drugs and that he be weaned off khat, and his future accommodation will be most appropriately managed in a residential home with 24 hour support.

The last full report prepared while the claimant was in immigration detention is a second report by Dr Taylor, dated 21 October 2011 and sent to the Secretary of State the same day. It was commissioned by the claimant’s solicitors, with the express purpose of helping to understand whether the claimant’s mental illness was being worsened by ‘detention since 28^th January’ and whether his illness was being managed appropriately in detention. Dr Taylor summarises the previous reports and opinions (including his own) and mentions entries in the records since the last mentioned by Dr Spencer: on 25 May he complained of low blood sugar but no symptoms of mental illness were observed; on 2 June he was seen for a key work session and was calm, clean and well kept; he discussed his diabetes medication at a clinic on 3 June; but on 19 June he had drunk coffee with lots of sugar and on 24 and 27 June there had again been refusal to co-operate with his insulin regime. Dr Taylor records that he had no access to any subsequent records.

At interview on 20 September, after Dr Taylor had explained the purpose of his visit, the claimant responded ‘as if he lacked awareness of his current surroundings and situation’, although some answers showed that he had some awareness of it; he gave the wrong day of the week and the wrong month; and he said he could not remember the name of his prison. He was non-co-operative in answering direct questions; he said he was hearing voices but declined to give further details. Dr Taylor wrote that he ‘formed the impression that he appeared to be presenting himself as more confused and disorientated than was actually the case’ and that he was ‘aware of his surroundings but was presenting himself as somewhat disoriented and lacking in awareness’. A senior nurse told him that the claimant’s presentation at this interview was different from his usual presentation. She doubted whether his day-to-day behaviour was consistent with active psychotic symptoms. Other officers referred to his behavioural problems, often associated with a specific problem about tobacco and smoking; they suggested a degree of frustration deriving from uncertainty about his detention. His claims to hear voices were not thought to be objectively verified.

Dr Taylor’s opinion was that the most appropriate diagnosis was Paranoid Schizophrenia. The claimant did not appear to be actively suffering from hallucinations. He agreed with Dr Spencer that ‘given the evidence of borderline intellectual functioning, he is likely to have a degree of lowered intellectual functioning and problem solving’, but added ‘This is likely to be acquired rather than developmental, i.e. secondary to chronic mental illness’. Given the additional abnormal personality traits, Dr Taylor suggests an additional diagnosis of a mixed personality disorder. Dr Taylor adds to the above, which is his answer to the question what is the claimant’s current diagnosis, that the claimant ‘has an unfortunate tendency to present himself as more disordered that he actually is’ and that he did so at the interview in September:

Paragraphs 3-7 of the opinion must be set out in full:

“3)

In my opinion, his detention since 28^th January may have exacerbated his mental disorder overall that is his maladaptive behaviours which occur in the context of mixed personality disorder in combination with chronic paranoid schizophrenia. In my opinion his behavioural problems are best understood as arising from chronic mental illness in the context of borderline intellectual functioning and Mixed Personality Disorder. Although his challenging behaviours are not directly related to hallucinatory phenomena, they are likely to be a general feature of his overall personality deterioration in the context of chronic mental illness. In my opinion the uncertainty relating to his detention is likely to have exacerbated his sense of frustration and adversely affected his mental state and behaviour.

4)

Whilst the Prison have attempted to manage his behaviour, it is clearly not possible for a prison environment’s use of segregation to manage his disruptive behaviour in accordance to relevant NICE guidelines. If he were in, for example, a low secure rehabilitation hospital facility, then the approach to his challenging behaviour would clearly be enhanced and might involve a behavioural incentive plan to reward pro-social behaviour.

5)

In my opinion his disruptive behaviour is consequent upon chronic mental illness in the context of Mixed Personality Disorder. Overall, it is my view that mental disorder is relevant to understanding his disruptive behaviour.

6)

In my opinion a more appropriate therapeutic environment would be either a highly supportive twenty-four hour staffed hospital in the community with experience of dealing with chronically mental ill patients, or in a low secure hospital setting. I agree broadly with the conclusions of Dr Spencer about a potential community placement; however, in my opinion, establishing a trial of clozapine in the community is likely to be fraught with difficulties. In my opinion, if he were discharged to a community placement there would be risk of a community placement breaking down, in which case he would need to be considered for admission to a low secure rehabilitation unit as has previously been the case. In my opinion his behavioural disturbance is unlikely to improve in a custodial setting.

7)

In my opinion further prison detention is potentially likely to have a detrimental effect on his mental health. Although the prognosis for improvement of his mental health and behaviour must be guarded, in my opinion there is more prospect of this improving in an appropriate therapeutic environment.”

Dr Taylor concludes with comments on the appropriate regime if the claimant be released, agreeing in principle with Dr Spencer but offering some fall-back advice if a wholly voluntary regime becomes impracticable.

The submission of the opinion of Dr Taylor, together with a letter emphasising a couple of sentences of it, was treated by the Home Office as an application for the claimant’s release on the ground that his detention was or had become unlawful. The matter was considered at length and the claimant’s solicitor’s application or suggestion was rejected in a letter to them, dated 16 November. That letter notes the contents of the report and puts it in the context of the general law and guidance relating to detention and the facts of the claimant’s case including other opinions. It emphasises the claimant’s capacity for over-presentation and manipulation, as observed by Dr Taylor and others. It notes Dr Taylor’s opinion that continued detention may have an adverse impact on the claimant’s mental health, and that he is more likely to improve if not subject to detention, but points out that overall Dr Taylor does not seem to advocate release into the community and that the prospect of improvement ‘is not the only consideration’. Dr Spencer had not noted any deterioration in the claimant’s mental illness. For the majority of the time the claimant had been managed on ordinary location; there had been no suggestion of psychosis, although there had been difficulties in managing his behaviour.

Paragraph 26 is somewhat mysterious:

“Whilst Dr Taylor stated that on occasions when transferred to segregation, your client has been deemed as unfit and has been transferred to Healthcare, this information has not been conveyed to the UK Border Agency. If and when such information is provided it will be taken into account but it cannot be assessed in abstract. ”

In terms of his mental health there is nothing relevant to set out in the rest of the claimant’s immigration detention. Incidents continued, at (so far as I can see) no real difference of frequency or seriousness. Reviews continued. Following referral to the Strategic Director (see above under ‘Immigration Detention’) it was he who authorised continued detention, until the claimant’s release shortly after his appeal ceased to be pending.

Throughout this period, detention was being authorised for periods of a month at a time, although as I have said there were other reviews when material becoming available to the Secretary of State demanded them. Although the claimant’s solicitors had throughout suggested that because he was mentally ill he could not be detained, they made no properly-supported case on that basis until they had commissioned Dr Taylor’s second report and sent it to the Home Office.

Comment. (i) The claimant has suggested that Dr Spencer’s report be read as a recommendation that the claimant be released into the regime she specified. That reading is derived from the wording of the closing paragraphs of her opinion, saying that his future accommodation would be most appropriately in a supported residential centre. It is, however, clear from the context of the commissioning of her report that she was not being asked whether the claimant should be released. The ‘future’ does not mean the immediate future: it means after the claimant’s release from detention, whenever others think that that should take place.

I must now draw together the various strands.

In looking at Mr Buley’s first ground, the issue relating to the claimant’s mental illness, it is convenient to consider first Dr Taylor’s second report. That was the basis for the submission that during the claimant’s detention his mental illness had deteriorated, and the submission that the defendant ought to have considered that it would deteriorate further. As I have indicated above, in my judgment the report does not say that, and it cannot support that submission. It says only that the claimant’s mental illness may have deteriorated, but despite the particular opportunity that Dr Taylor had to identify any actual deterioration he did not point to any. Further, it does not in terms say that there will be deterioration if the claimant remains in detention. Read fairly, in my judgment it says that if improvement is sought, then that is more likely to be found by releasing the claimant from detention and subjecting him to another regime. Das does not say that in order to ‘manage’ a condition one needs to do anything to ameliorate or improve it and I cannot see that it can have meant to say that.

Dr Taylor’s second report is the high point of the evidence available during the claimant’s immigration detention that does anything to support this aspect of the claim. But there were also submissions based on many incidents of challenging behaviour. Mr Buley’s submission was that given the difficulties in dealing with the claimant, and his acknowledged medical history, the defendant was on notice that the inhibition on detaining the mentally ill might apply to him; she was therefore under a duty of inquiry; and she had failed properly to make the inquiries, the result of which would have provided evidence that he had a serious mental illness that could not be adequately managed in detention. Mr Buley points out that if there was a breach of a duty of inquiry the detention would be unlawful on the authority of WL whether or not the inquiry would have shown that detention was not appropriate.

In order to make this case Mr Buley would have to show that there were circumstances showing that there needed to be some inquiry that was more extensive than any that was taking place, relevant to the issue in question. The evidence simply does not show it. It may be that the original hand-over note was written at a time when incidents had been low, but the norm was as I have set out above. The claimant’s behaviour caused him to be frequently looked at by health professionals. None of them suggested that his detention was aggravating a mental illness, or that he had a mental illness of such seriousness that it could not be adequately managed in detention. The fact that it was difficult to manage his behaviour does not mean that it was difficult to manage his illness. His diabetes appeared to be much better managed when he was subject to some process of compulsory supervision in taking his medication. His addiction to tobacco was clearly the root of much of the misbehaviour which was aggravated when he had failed to take his insulin. This is a world away from any suggestion that his paranoid schizophrenia (or even a then undiagnosed personality disorder) was not being properly managed in detention. The Secretary of State was entitled to note that the responsible clinicians, who saw the claimant so frequently, did not raise these issues. In the absence of anything to trigger a duty of inquiry, the latter did not arise.

For the avoidance of doubt I do not accept that the mere diagnosis of mental illness gives rise to a duty to make such further enquiries as a claimant’s solicitor may consider adequate. The duty to inquire would arise only if the facts were such as to put the Secretary of State on notice that particular inquiries were necessary. Nor do I accept the suggestion that because the Reviews state that medical reports were awaited there had been a recognition that reports were necessary: if there had been that recognition, decisions would not have been made without the reports.

In any event, it is clear from the reports that subsequently came to hand during the period of detention, that if the inquiries had been made, they would not have shown that the claimant’s illness passed over the threshold required before Chapter 55.10 applied. Therefore if there had been a period in which the detention was unlawful for lack of inquiry, any damages would have been nominal. But for the reasons I have given there was in my judgment no such period. Again for the avoidance of doubt I do not accept that Dr Baker’s report, produced long after the detention had ended, is evidence of what those seeing the claimant during detention should have thought. A number of professional people including the senior nurse, Dr Spencer and Dr Taylor did see him in that period and Dr Baker’s different ex post facto opinion does not invalidate their contemporary judgments.

There being no breach of a duty of enquiry, and there being wholly insufficient evidence to establish that the claimant had a serious mental illness that could not be adequately managed in detention, I reject the claimant’s first ground of challenge. Before parting from it I should however say that if this had been a case that fell within Chapter 55.10 I should have had considerable doubts about whether there could properly have been thought to be exceptional reasons for maintaining detention.

I turn then to the Hardial Singh ground. The Secretary of State’s policy indicates the normal practice that a person with the claimant’s history will be detained with a view to deportation. There were additional features justifying detention in the claimant’s case, including the risk of his committing further offences and the risk of his absconding, both of which as I have noted above appear to me to have been assessments the defendant was entitled to make on the basis of the information before her including reports from specialised professionals. There were several inquiries into whether alternative regimes were practicable. It is not surprising that there were concerns, given the claimant’s history, and even after the decision to release him it took some time to sort out the modalities. These are all factors that tend to show that detention was not unlawful.

So far as concerns the prospects of removing the claimant, all references to possible removal to Somalia are irrelevant because during the time of the claimant’s immigration detention his claim to Dutch nationality either was being investigated or had been accepted. There was no point in that period when removal to Somalia was in prospect, or realistically possible. If it be said, however, that the Secretary of State was treating the claimant as of Somali nationality until the contrary was proved, and that she must therefore have had removal to Somalia in mind, the response is that the period in question, from January to June 2011, was not an unreasonable one as it developed and is not an unreasonable one in retrospect. There was no rule that removal to Somalia was impossible, and it was not the case that removal to Somalia could not be envisaged as possible within a reasonable time. And anyway, the claimant’s case has always been that his removal would have to be to the Netherlands, which makes it a little difficult for him to make a case based on the impossibility or impracticability of his removal to Somalia.

After his Dutch nationality was accepted he was issued with the appropriate notices, and the rest of the period of his detention was part of the period during which he had an appeal pending. That appeal was mounted by those representing him clearly on the basis at least in part that his Dutch nationality perhaps coupled with his ten years presence in the United Kingdom made him virtually irremovable. As a submission of law that was simply wrong. There was no good reason why anybody should think that the claimant’s invocation of those factors affected the prospects of his removal at all, save that he could not be removed while his appeal was pending. The Upper Tribunal’s decision was, as I have indicated above, not one that could have been expected so far as the Regulations were concerned, and so far as article 8 was concerned was based on material that post-dated the period of immigration detention. It follows in my judgment that neither the fact of the appeal nor the claimant’s eventual success in it does anything to show that during the period of his detention it should have been appreciated that the prospects of his removal from the United Kingdom were anything other than good.

Mr Buley suggests three particular dates during the immigration detention when on his submission the Secretary of State should have appreciated that further detention would breach the Hardial Singh standards. The first is 23 June 2011, when the claimant’s Dutch nationality was confirmed, because ‘his nationality posed a serious bar to deportation because of the heightened test for deportation under EU law’. But that is to treat mere nationality of a Member State as having by itself an effect that it does not have. It ignores the detailed provisions of reg 21; and in fact it also ignores those of reg 19(3)(a), which the Secretary of State has not relied upon but which those advising the claimant perhaps ought to have had in mind. The second date is 21 October 2011, the date of service of the second Taylor report, because ‘form this time if not before it was apparent to the defendant that detention was having a detrimental impact on the claimant’s medical condition, [and] that his condition was not being managed in detention’. I have discussed that reading of the report above. It is a mis-reading or over-reading. The third date is 3 December 2011, ‘success on appeal: from this time the claimant had won his immigration appeal and the burden lay on the defendant to overturn that decision before removal would take place; the prospects of her doing so were known to be … problematic’. I have dealt above with the suggestion that a decision of the First-tier Tribunal is to be regarded as having effect whilst it can be, or is being, appealed. There is no more merit in this submission than there would be in a submission by the Secretary of State in the present case that she was entitled, in the period after refusal of permission on the papers, to act on the basis that this Judicial Review would fail. The claimant chose to appeal; although the Secretary of State may for various reasons have been pessimistic about success the reasons were not apparently good ones; the fact that an appeal is in progress does not make continued detention unlawful nor does the fact that it may continue for some time. And the decision to release the claimant was taken during the time when the appeal was pending: the Secretary of State did not detain the claimant for the whole of that period and there is no good reason for saying that she intended to do so.

For these reasons I reject Mr Buley’s submissions in relation to the three specific dates; and I reject his submissions overall. I am not persuaded that there was any time during the claimant’s detention when on all the information available it was not open to the defendant to think that detention was justified and necessary and that the claimant would be removed within a reasonable time.

The application for Judicial Review will therefore be dismissed.