AXD v The Home Office

Dr Maloney has worked as a Consultant Psychiatrist (between 1993 and 1999) and then as a General Practitioner in Hackney. He was a sound and careful witness whom I thought was appropriately caring and reasonably objective.

Dr Maloney was only able to assess the Claimant on one occasion, which as I have already said was on 9^th July 2013 at HMP Woodhill. The interview lasted 75 minutes and was conducted with the benefit of an interpreter. Dr Maloney told me that on this occasion the Claimant was thin, unkempt and in a poor state. (The Claimant’s physical appearance has changed considerably). On the very day Dr Maloney was travelling by train in order to conduct a further assessment of the Claimant, the latter was transferred without notice to another institution. Thereafter, funding for a further assessment was not granted.

Dr Maloney appears to have conducted a thorough assessment of the Claimant. He noted the following:

“He was preoccupied and repetitive throughout the interview continually reiterating a small number of themes. These were essentially that he hears other people talking about him, saying that he is a paedophile; and that he is discussed on the television to the same effect [this chimes with part of the Claimant’s oral evidence]; and that he had broken a television and was going to break one again.

…

He accompanied his complaints by waving his arms around, or wriggling within his seat. At times he clicked his fingers repeatedly as he spoke. On the few occasions when his agitation and insistence did subside, he slumped on his chair, looking rather forlorn. At one point he put his finger in his mouth, sucked on it, and conveyed an impression of deep, childlike sadness.”

The Claimant told Dr Maloney that at night he could not sleep “because someone is touching my body … I wake up and become violent”.

The Claimant explained to Dr Maloney that he was gay and had been promiscuous since the age of 12, when he was in a residential school for “orphans” in Somalia. (The Claimant did not hide from Dr Maloney that his mother was still alive). The Claimant denied taking alcohol in prison over the past 20 months, save for small amounts of ceremonial wine at Communion – he said that he had been a Christian for “a year or something”. Dr Maloney’s review of the Claimant’s “contact log” demonstrated that the Claimant had been observed to be acting in an inappropriate sexual manner, making unwanted advances to other prisoners (e.g. the entries for 12^th September 2012, 31^st December 2012 and 3^rd February 2013).

Dr Maloney’s diagnosis of the Claimant under DSM-IV(R) (he preferred this to the recently published DSM-V) was of paranoid schizophrenia. The key clinical features supporting the diagnosis were: (i) preoccupation with accusatory delusions; (ii) fixated belief that people were talking about him in the context of paedophilia and killing children; (iii) command and somatic hallucinations; (iv) disorganised speech and behaviours; and (v) flat affect.

Given that in Dr Maloney’s view there was no evidence of recent substance abuse in detention, substance-related psychosis could in his opinion be ruled out.

In his second report dated 15^th June 2015, Dr Maloney addressed the Defendant’s care of the Claimant at all material times. By way of summary:

In his oral evidence, Dr Maloney explained that there is no widely accepted diagnostic tool in relation to malingering, that the DSM-V criteria are no more (and no less) than criteria for suspecting malingering; that a broad clinical judgment has to be made, having regard to all the available evidence; and, that he did consider the possibility that the Claimant was malingering because this is his standard practice. In terms of the clinical judgment which falls to be exercised, the questions are: “is this a consistent history and presentation?” “does this add up?”

Dr Maloney did not accept that the DSM-V criteria are particularly good discriminators of malingering. They are merely screening instruments, capable of setting up a series of “red flags”.

In cross-examination, Dr Maloney was taken by Ms van Overdijk through the DSM-V malingering criteria as applied and analysed in depth by Dr McKay, and was also referred to the list of “recognised features that are more common in simulated than genuine psychiatric illness” as set out by two American academic writers, Professor Resnick (a psychiatrist) and Professor Rogers (a psychologist). During the course of Ms van Overdijk’s cross-examination it became plain that the experts were in disagreement both in terms of the Claimant’s actual presentations at all material times and the inferences to be drawn from them. For example, Dr McKay’s clinical judgment was that the Claimant at the start of his interview described his symptoms in the same manner as a person with psychosis might, but towards the end he was describing voices as symptoms. Dr McKay’s point was that towards the end of the interview the Claimant was unable to maintain the pretence. Dr Maloney did not share this experience, but he did agree as a general observation that the Claimant was quite inconsistent in the manner of his presentation over the years.

I asked Dr Maloney to explain the difference between second and third person symptoms as mentioned in the Claimant’s clinical notes at IRC The Verne. Dr Maloney explained that traditionally a third person hallucination is regarded as “first rank”, that most psychiatrists today would adhere to that view, but there is a school of thought that the difference between apparent second and third person symptoms is less important.

Dr Maloney agreed that he considered, and discounted, the possibility of substance-induced psychosis on the premise that the Claimant, on his account, had not been drinking alcohol for 20 months.

When asked about the Claimant’s apparent admission of feigning to Ms Prince on 28^th December 2012, Dr Maloney said that it was possible that the Claimant was paranoid, lacking in insight, and refusing to admit this because he was incapable of doing so.

Towards the end of Dr Maloney’s cross-examination, it became clearer where the essential fault-line between his and Dr McKay’s views lay:

“As the soft factors [in the DSM] become less clearly defined, the question of applying them becomes more problematic. We are suspicious [of individuals in a medico-legal context] in any event. In the absence of clear evidence that he was not telling the truth, or that the presentation is clearly out of keeping with what one might expect, those soft factors do not tell me enough about a key issue about a person.”

Dr McKay has been a substantive Consultant Psychiatrist in the NHS, working full-time in that capacity, since 2012. He has less clinical experience overall than Dr Maloney, but greater recent clinical experience in psychiatry. It is apparent from his cv that he has a number of academic interests. In my view, Dr McKay has provided the court with an immensely thorough, well-crafted and extremely detailed report. He was able to examine the Claimant for 2 hours, and (like Dr Maloney but unlike Dr Cornish) had the benefit of an interpreter. My assessment was that Dr McKay gave his oral evidence in a reflective, careful and slightly studious manner. He had a complete mastery of the material, and had obviously done a lot of work on this case overall.

According to Dr McKay, the Claimant appeared less restless after being encouraged to relax. The account he gave Dr McKay was that his voices started in 2011, but then the Claimant said that he “used to drink to forget”. The voices were reportedly particularly bad for a period of three months in 2011. The Claimant then explained that he was taken to “another place” (we know that this was IRC The Verne, to where the Claimant was in fact moved in May 2014), and he then felt a little better. In my judgment, it is quite clear that the Claimant is incapable of giving a reliable history to any clinician.

On examination, the Claimant told Dr McKay that he experienced auditory hallucinations in the second and third person, but there were no visual hallucinations and, at the time of examination, no thought echo – a first rank symptom of schizophrenia. There was no evidence of thought disorder (c.f. Dr Maloney).

In Dr McKay’s opinion, if the Claimant’s symptoms are to be taken at their face value, the two main possibilities are substance-induced psychosis and schizophrenia. A diagnosis of the latter illness should not be made until the Claimant has been free of substances for approximately one month, and “the Claimant has an extensive history of misuse of various substances that have been linked to psychotic illness, such as khat, cannabis, spice and alcohol”.

For Dr McKay, an important issue is whether there is evidence of simulation and symptom magnification in the Claimant’s case. According to DSM-V, malingering should be strongly suspected if any of the combination of the following is noted: (i) a medico-legal context; (ii) marked discrepancy between the person’s claimed stress and disability, and objective findings; (iii) lack of co-operation during the diagnostic evaluation and non-compliance with the prescribed treatment regime; and (iv) the presence of anti-social personality disorder. In Dr McKay’s opinion, items (i), (ii) and (iv) are clearly satisfied in the instant case. In relation to item (ii), Dr McKay points out that there is no evidence of the Claimant responding to auditory hallucinations, which is an atypical presentation. In relation to item (iv), Dr McKay points out that deceit and malingering are associated with anti-social personality disorder. In the light of these matters, Dr McKay stated that “the case needs careful scrutiny”. His position was not that the DSM-V criteria should be applied algorithmically, but rather that they are guides to the sound exercise of clinical judgment.

The next stage in Dr McKay’s analysis was to consider the Resnick/Rogers features or criteria to which I have already referred. There are 16 of these, and Dr McKay has carefully considered all of them. It is unnecessary to examine all the salient matters in this judgment, but Dr McKay placed particular emphasis on the fact that the Claimant “thrusted forward” his symptoms both to him and Dr Maloney (said by Dr McKay to be an atypical presentation, because genuine psychotics tend to hide their symptoms), that he has given inconsistent accounts throughout, that he has exaggerated his symptoms, and that his responses to medication (or their absence) are difficult to reconcile with the known course of paranoid schizophrenia. On this last point, Dr McKay accepted in cross-examination that he had been mistaken about the absence of medication in 2015 – the Claimant was taking aripiprazole since his arrest and detention in December 2014.

There is clear evidence in the Claimant’s medical history that even before July 2013 and the receipt by HMP Woodhill of Dr Maloney’s email, nurses were recording that he was “paranoid” about people talking about him as gay as a Christian. Dr McKay did not agree that this contradicted his diagnosis. His point was that this might well have been a non-pathological reaction by the Claimant to the fact that his fellow inmates were indeed talking about him in this regard. On this approach, “paranoid” bears its non-psychiatric meaning.

Dr McKay also noted the views of the mental health nurse at HMP Woodhill that the Claimant only claimed to experience symptoms when a court case or bail hearing was on the horizon. The relationship between stress and symptomatology clearly needs to be considered. In Dr McKay’s opinion, stress affects neurotic conditions (here, he was perhaps moving away from the terminology of DSM-V) more than psychosis. On my understanding of his evidence, he was not ruling out a possible association.

For obvious reasons, the Claimant’s putative ability to contrive symptoms about which he might be expected to be unfamiliar must be called into question. Dr McKay’s opinion about this was as follows:

“There were no blatant signs of simulation such as claiming absurd visual hallucinations or severe cognitive impairment but it has been observed that the most successful simulators will simulate only one or two symptoms and avoid obviously bizarre complaints.”

In his oral evidence, Dr McKay said that the Claimant’s intellectual level was not known. However, “we see patients of a low intellectual level who are simulating psychosis”.

Overall, therefore:

“… my conclusion is that, on the balance of probabilities, simulation or symptom magnification explains a large part of the Claimant’s presentation. I am reluctant to say that it explains it all at all times. In the context of substance misuse psychotic symptoms are very common so it is highly plausible that at times the Claimant has experienced transient psychotic symptoms such as paranoia and auditory hallucinations. If he has personal experience of such symptoms then this would explain the typical features of the hallucinations described above.”

Further, in Dr McKay’s estimation the management of the Claimant’s mental health was reasonable, although he was critical of the absence of psychiatric review between July 2013 and March 2014 following receipt by the Defendant of Dr Maloney’s report. Further:

“Whether it was inadequate and caused harm depends on whether the Claimant actually needed any treatment or not. I do not consider that on the balance of probabilities he did. He did have a short term supply of a sleeping tablet and sleep advice on 10^th August 2013 by one of the GPs and was seen daily by them until 24^th August 2013 … There should have been a follow up review as in the documented plan or an entry to justify not offering one. Having said that the Claimant spent the rest of his time at HMP Woodhill without any further serious behavioural disturbance or complaints of mental health problems.”

This opinion is predicated on there being no need for treatment at all material times. Under cross-examination, Dr McKay said that if the Claimant was in fact receiving olanzapine between July 2013 and March 2014, even at 5 mgs, that would have contained his symptoms. In re-examination he added that the records betray no obvious signs of behavioural disturbance between those dates.

Dr McKay was asked in cross-examination to explain the number of convergent diagnoses of schizophrenia made by those who saw the Claimant in a detention setting since 2013 (I have counted 5, possibly 6). His answer was that treating doctors will generally believe their patients.

Asked about the Prince entry for 28^th December 2012 and the possible confession of symptom manufacture for secondary gain, Dr McKay accepted that it was possible that the Claimant might have been lacking in insight about his mental health difficulties.

Dr Maloney and Dr McKay prepared a joint statement on 15^th March 2016 following a fifty minute discussion on the telephone.

On that occasion, Dr Maloney addressed the question of malingering in these terms:

“In July 2013 Dr Maloney did not consider that the evidence was that [the Claimant’s] presentation was primarily symptom manufacture or exaggeration, nor did he consider that the picture was one of psychotic symptoms arising as a direct consequence of substance abuse, due to the protracted and consistent nature of the presentation as documented in the records he cited, and due to restrictions upon [the Claimant’s] substance usage inherent in his imprisonment.”

The experts were not in agreement as to whether, if the Claimant did have schizophrenia, the period when he was untreated would on the balance of probabilities have made any difference to his long-term prognosis. In Dr McKay’s view, it would not have done, owing to the lack of any real response to treatment. Dr Maloney, on the other hand, whilst recognising the academic debate on the issue, believed that it is probable that earlier treatment would have led to a better response to medication and an enhanced prognosis. In any event, earlier treatment would have substantially reduced his subjective distress.

In terms of the Claimant’s release from detention on 5^th December 2014:

“We agree that [the Claimant] was considered to be suffering from schizophrenia at the time of release, and that if suffering from schizophrenia, he would have been particularly vulnerable at this point due to being in the process of changing his medication, It would therefore have been at the worst time at which to have a lack of supervision, considering his risk factors of substance abuse and anti-social behaviour.”

It is convenient to address this claim first, only because it is less elaborate than the common law claim and turns, in the main, on my assessment of the expert evidence.

I did not understand Ms Laughton to be advancing a free-standing Article 8 claim on behalf of the Claimant. The claim has been put forward on the basis of Article 3 and/or Article 8, but nowhere in her submissions could I find any development of a separate case under Article 8, or at least a case which was not wholly parasitic on the Article 3 claim. In my view, in the circumstances of this case the destiny of the Article 8 claim is wholly contingent on the Article 3 claim.

Before the Defendant’s positive and negative obligations under Article 3 are put in issue, the following logically prior question arises, namely: was the Claimant in fact suffering from paranoid schizophrenia at any stage during the first and second period of detention?

This issue does not fall to be resolved on the standard probabilistic basis familiar to civil proceedings in a common law context. In Ireland v UK (5310/71) [1978] ECHR 1, the ECtHR said, at paragraph 161:

“The Court agrees with the Commission’s approach regarding the evidence on which to base the decision whether there has been a violation of Article 3. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the Parties when evidence is being obtained has to be taken into account.”

Ms Laughton accepted that this is the approach I should be adopting.

Ms Laughton advanced clear and spirited submissions seeking to persuade me that the standard of proof for an Article 3 breach had been discharged in the instant case. She submitted that Dr Maloney’s evidence was very strong, and that he was the only professional who had prepared a report when the Claimant was under no medication. Dr Maloney’s diagnosis was supported by the convergent opinions of five psychiatrists, including Dr Hillman (in January 2015) and Dr Fazell (in June 2015). None has concluded that the Claimant was malingering, notwithstanding that this issue would clearly arise in any prison context. Dr McKay, who had on Ms Laughton’s submission a tendency to advocate a point of view, saw the Claimant at a time when he was being successfully medicated. Further, it is implausible that the Claimant could have had the guile to manufacture these symptoms, including an ability to dissemble an absence of improvement of symptoms from one drug (olanzapine) but an improvement from another (aripiprazole). If the court accepts Dr Maloney’s evidence as to the Claimant’s presentation on 9^th July 2013, others within the prison should have assessed him in the same way.

Ms van Overdijk invited me to accept Dr McKay’s evidence and in particular to note that he has been the only psychiatrist who has been prepared properly to engage with the issue of malingering. Dr Maloney, for example, really only addressed this issue for the first time in the joint report, although it had been mentioned in passing, and then solely in the context of Dr Thirumulai’s evidence, in Dr Maloney’s second report.

In my judgment, although the diagnosis is probably sound, I cannot be satisfied beyond reasonable doubt, making findings of primary fact and drawing inferences where appropriate, that the Claimant has or has had paranoid schizophrenia.

Ms Laughton’s strongest point was that at least five psychiatrists within the prison service have made a diagnosis of paranoid schizophrenia, and it seems improbable that the issue of possible deception and secondary gain has escaped all of their minds. Even so, Dr Thirumulai clearly considered this possibility (I do not place any particular weight on his ordering of possible diagnoses within the differential diagnosis), as did those who knew the Claimant well within HMP Woodhill. My task is hampered by the fact that I have only heard evidence from two psychiatrists, and the quality and robustness of clinical opinion elsewhere cannot be reliably evaluated. However, the standard of proof is a high one, and the possibility that those at HMP Woodhill were appropriately sceptical whereas those at other institutions were inappropriately gullible cannot be discounted. On this same theme, it is slightly surprising that the Claimant should have presented in such an extreme and florid manner to Dr Maloney on 9^th July 2013, but not apparently to an experienced mental health nurse just a few days beforehand. If I were deciding this issue on the ordinary civil standard of proof, I would be concluding, having regard to all the evidence, that these nurses were probably negligent. Yet, on Article 3 standard of proof I simply cannot make such a finding.

Serious issues arise as to (i) the Claimant’s alcohol consumption in detention, (ii) his drug regime after July 2013, and (iii) whether he improved or not. I cannot resolve those issues beyond reasonable doubt, although I would be prepared to hold that (i) the Claimant probably was consuming substantial quantities of illegal alcohol at IRC The Verne in addition to his intake of “legal highs” at both establishments, (ii) the Claimant probably was taking olanzapine for 8-9 months at HMP Woodhill, and (iii) there is little evidence of marked, significant or florid psychiatric presentation between July 2013 and May 2014. Item (i) clearly brings into play the issue of substance-induced psychosis, which in my view has been undervalued by Dr Maloney. In my judgment, the Claimant probably did appear to improve once he was transferred to IRC The Verne, but that may have been the result of less bullying and a more generally supportive regime, possibly leading to a reduction in his anti-social behaviour disorder.

The fact that a number of psychiatrists have shared Dr Maloney’s evaluation of this case only takes the Claimant a certain distance. As regards all save Dr Cornish, the quality of their reasoning is unclear. Dr Cornish only examined the Claimant for one hour, without the benefit of an interpreter. It could be argued that he has not penetrated below the surface of this complex case.

I also consider that there is some merit in Ms van Overdijk’s submission that Dr Maloney has come late to any proper consideration of the issue of malingering, and that Dr McKay is the only psychiatrist who has investigated this issue with proper and detailed care. It may well be said that Dr McKay has investigated this issue with considerable vigour and enthusiasm, and may slightly have lost his objectivity along the way. On the other hand, in my judgment Dr McKay has been able to amass a reasonably convincing series of reasons in support of the contention that this Claimant is malingering, and he has also been able to address the point that the Claimant lacks the guile to do this. As he has said, people of low intellect have demonstrated a capacity to manufacture symptoms, the Claimant clearly receives a diagnosis of anti-social personality disorder (with a concomitant propensity to lie), and (I would add) prisons and immigration detention centres must have a number of inmates with psychotic signs and symptoms - the Claimant would have been able to learn from these.

I should emphasise that I should not be understood as holding that malingering, symptom exaggeration and an element of substance induced psychotic symptomatology is my preferred explanation for the present case. Rather, I cannot properly exclude it as a reasonable possibility on all the available evidence. It is supported to some extent by the Claimant’s admission to Ms Prince on 28^th December 2012, a consideration which in my view cannot be wholly brushed aside.

It follows that the Claimant’s primary case based on a breach of Article 3 and/or 8 of the ECHR must fail.

Ms Laughton’s subsidiary case was that I should hold that the Claimant’s Article 3 rights were violated upon his release from detention on 5^th December 2014, until his re-arrest on 17^th December.

In this context, the Claimant’s unchallenged evidence was as follows:

“One day an officer came to see me while I was working in the Verne. He asked me if I had an address. He said that if I did they would let me out that day, and if I didn’t it would take longer. I gave the address of a friend of mine, A [redacted] ….

In Northampton I went to A’s house but he did not live there anymore. After that I lived on the street. I was sleeping in the street outside a theatre. I was given some blankets by a day centre that helps homeless people but I was still very cold. I did not feel safe. I was scared of being attacked. Anything can happen when you are on the street. I was begging for money and drinking a lot. I felt very bad and confused.”

I have referred to the documentary materials which indicate that the Defendant considered that the Claimant was vulnerable and needed to be released into the community in a structured and measured fashion. I am not satisfied that this happened. However, for the purposes of his Article 3 claim the Claimant must satisfy me not merely that he was believed to have schizophrenia, but that there is no reasonable doubt about this being the correct diagnosis. If one proceeds on the premise that schizophrenia might not have been the correct diagnosis, the position becomes much more difficult from the Claimant’s perspective. I would not be prepared to hold that it was a breach of the Claimant’s Article 3 rights to release him into the community on the basis of the Defendant not being satisfied that he had an address to which to go. In any event, in my judgment there is insufficient evidence to support the proposition that in these circumstances the Article 3 threshold of destitution was met by the Claimant having to sleep rough for 12 days whilst the day centre was helping him with his application for benefits (see, for example, Lord Bingham in R(oao Limbuela) v SSHD [2006] 1 AC 396 (at paragraph 7)).

Overall, and for the reasons I have given, the claim under section 8 of the Human Rights Act 1998 fails.

There was a broad measure of consensus between Counsel as to the legal principles governing the claim at common law.

It is not in dispute that at all material times the Claimant was an individual liable to be deported, and therefore liable to be detained. As a foreign national criminal, the public interest in favour of deportation was strong, unless the Claimant could bring himself within one of the exceptions, including of course asylum, Article 3 and/or Article 15(c).

The locus classicus remains R(oao Lumba) v SSHD [2012] 1 AC 245. Three of the principles capable of being distilled out of the judgment of Lord Dyson, supported by a majority in the Supreme Court, are as follows:

In R(oao Krasniqi) v SSHD [2011] EWCA Civ 1549 Carnwath LJ explained that these principles are not statutory rules, and that sight must not be lost of the underlying propositions of law, namely that the paragraph 2(3) Schedule 3 power within the Immigration Act 1971 (I would add, modified as appropriate to reflect the UK Borders Act 2007) should not be exercised perversely or in a manner inimical to its policies and objects (here, I am paraphrasing). Carnwath LJ added that there is a dividing-line between administrative failings on the one hand and unreasonableness amounting to illegality on the other, and that it is incumbent on a claimant to prove causation. As the Court of Appeal explained in R(JS (Sudan) v SSHD [2013] EWCA Civ 1378, the concept of a burden of proof is inapt to govern the overall assessment of what is reasonable.

In unlawful detention cases, the court does not conduct a Wednesbury review but assumes the role of primary decision maker: see R(A) v SSHD [2007] EWCA Civ 804, per Toulson LJ at paragraph 90. The court can take into account any facts that were known to the Defendant at the time, even if they did not feature in the reasons for detention that were furnished: see R(MS) v SSHD [2011] EWCA Civ 938. Hindsight is no part of the exercise: see R(Fardous) v SSHD [2015] EWCA Civ 931. The weight to be given to the Defendant’s view is a matter for the court, although certain issues are more within the expertise of the executive than the judiciary, for example the progress of diplomatic negotiations and the attitude of other countries to accepting returnees. I would add that in my judgment the Defendant knows more than judges sitting in this jurisdiction about the absconding risk of immigration detainees.

Hardial Singh (ii) has been given further content in R(I) v SSHD [2003] INLR 196 and in Lumba. The evaluation of a reasonable period of time includes an assessment of the length of the period of detention, the nature of the obstacles which stand in the path of the Defendant preventing deportation, the diligence, speed and effectiveness of the steps taken by the Defendant to surmount such obstacles, the conditions in which the detained person is being kept, the effect of detention on him and his family, the risk that if he is released he will abscond, and the danger that, if released, he will commit criminal offences.

At paragraph 121 of Lumba, Lord Dyson added:

“The risks of absconding and re-offending are always of paramount importance, since if a person absconds, he will frustrate the deportation for which purpose he was detained in the first place. But it is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he pursuing a hopeless one.”

The Defendant need not show certainty of removal within a specific timeframe to establish lawful detention, but there must be a sufficient prospect of removal, having regard to all the circumstances of the case including the absconding risk: see R(A) v SSHD [2007] EWCA Civ 804 (Toulson LJ, paragraph 45), R(MH) v SSHD [2010] EWCA Civ 1112 (Richards LJ, paragraph 64), and R(Muqtaar) v SSHD [2012] EWCA Civ 1270. In the latter case, the Court of Appeal held that the detention was not unlawful when the Defendant decided not to release an immigration detainee upon receipt of a rule 39 application from the ECtHR requiring that the detainee should not be deported until it had determined a related lead case.

At this stage, it is convenient to consider the saliency of the absconding and reoffending risk, because it has generated differences of emphasis at Court of Appeal level. If there is simply no prospect of removal within a reasonable time, it seems to me that these risks are irrelevant. However, many cases occupy a grey area, and to my mind the concept of “sufficient prospect” must to some extent be a flexible one, accommodating all the circumstances of the case, including the absconding risk. Thus, in R(A) v SSHD [2007] EWCA Civ 804, Toulson LJ held in terms that the risk of absconding is bound to be a “very important factor, and likely often to be decisive” (see paragraph 54 of his judgment). In R(I) v SSHD [2003] INLR 196, Dyson LJ took a broader view. I am content to follow Toulson LJ’s guidance, tempering it to the extent I have already mentioned. Yet, these cases are all heavily fact-sensitive, and in due course it will be necessary to quantify the risks and to weigh them in the balance against everything else.

The absconding risk is important because a former detainee who absconds will be frustrating the public interest in favour of his deportation. The risk of reoffending is relevant but it must be less important, because the purpose of immigration detention is not to provide indirect facilitation to the separate policies and objects of the criminal law.

I agree with Ms Laughton that the decision of the Court of Appeal in JS (Sudan) (loc.cit.) is particularly useful for present purposes. The following guidance emerges. First, that there is a strong policy and statutory impetus favouring the deportation of foreign national criminals, and the determination of whether such a person should exceptionally be given leave to remain “is a serious matter requiring proper and careful evaluation which, of necessity, will occupy a period of time”. Secondly, past offending cannot be any justification for implementing or extending time in immigration detention. Thirdly, the detainee will have no statutory right to challenge the Defendant’s decision to proceed to deportation until that decision has been made. Fourthly, the question of whether the Defendant is acting reasonably where she has not started the process of evaluating the claim for asylum (or for humanitarian protection) before the period of criminal custody has ended will turn on the specific facts of each case, and form part of the court’s overall assessment of reasonableness.

Further, the approach of Macfarlane LJ to the facts of the case before him is illuminating:

“On the face of the papers this administrative delay [12 months] is unaccounted for. Its existence requires explanation and it was to be expected that the Secretary of State would have filed a witness statement explaining in sufficient detail what has occurred. No such statement was filed. The only statement provided by the Secretary of State was from the senior caseworker. That statement simply describes the decisions that were taken without reference to the timescale at all. In submissions, Miss Anderson … accepted that if there is a period during the detention which self-evidently requires explanation, then the Secretary of State must provide evidence by way of explanation. The witness statement filed in these proceedings by the senior caseworker is wholly inadequate for the purpose of explaining the periods of unaccounted for delay that I have identified. The lack of any explanation makes it difficult to hold that the period of detention was reasonable. In making that this observation I am keen to stress that the evaluation is focused upon what is, or is not, “reasonable”. There is no requirement upon the Secretary of State to account every day or every single week. These cases are very fact specific but, where, as here, a significant proportion of the total period of detention is marked by an apparent absence of any administrative activity, and no explanation for that state of affairs is proffered, then a court, standing back and looking at all of the circumstances, is entitled to come to the view that a proportion of the total period was unreasonable and therefore unlawful. ”

Finally, Macfarlane LJ observed that the dividing line between administrative failings and unreasonableness amount to illegality is inevitably an exercise in judgment rather than mathematics.

There is an issue between the parties as to whether, and if so in what circumstances, an intervening period of liberty should be regarded as sufficient to amount to an effective break in the continuity of a period of detention for the purpose of assessing the reasonableness of its duration. I confess that I have not found paragraphs 33-37 of the decision of the Court of Appeal in R(MC (Algeria)) v SSHD [2010] EWCA Civ 347 to be wholly clear, and I note Warby J’s approach to paragraphs 34 and 37 in Abdi v SSHD [2014] EWHC 2641 (Admin) (see his paragraphs 44(i) and 49). One feature of that case was that the claimant was out of time to challenge the lawfulness of an earlier period of detention. The Court of Appeal stated that there was a break in continuity because the claimant was released on bail, committed further offences and was imprisoned for them, and then re-detained on the expiry of that sentence. The identical circumstances apply to this Claimant before he was re-detained in November 2011. On the other hand, the Court of Appeal observed that it did not follow that the circumstances of the lawful detention were irrelevant for the purposes of considering the reasonableness of the second period of detention, because there was evidence of mental illness in the first period. That evidence was capable of being relevant to the second decision to detain. In my judgment, however, there was nothing in the Claimant’s first period of detention which was capable of bearing on the later decision to detain. There is nothing in the records to indicate that he was suffering from mental illness. Properly analysed, therefore, I consider that this is a discontinuity of detention case. Although I would not disregard the first period of detention altogether for the purposes of evaluating the reasonableness of the second period of detention, I propose to place little weight on it.

Hardial Singh (iii) was considered by the Court of Appeal in R(ZA (Iraq) v SSHD [2015] EWCA Civ 168. The court found detention to be unlawful after 16 months, on the basis that there was no longer any reasonable prospect of removal. The assessment of what is a reasonable future period will depend partly on the length of time a detainee has already spent in detention:

“What is a “reasonable period” for effecting return in any particular case will depend on all the circumstances, but one of the factors which will be highly relevant will be the length of time that the detainee has already spent in detention, A belief that it may be possible to effect removal within a reasonable time of someone who has just been detained may be justified even if it is based on little more than hope that the security situation in the receiving country may improve (as appears to have been the basis for the Secretary of State’s view in Mahmoud), but it does not follow that the position will be the same if the person whose removal must be effected within a “reasonable time” has already been in detention for a long time: see paragraph 52 of MI and AO. By 4^th May 2008 when Mr Mahmoud was detained the Appellant in the present case had been detained for ten months.”

Plainly, there is an element of overlap between the Hardial Singh principles, and a concomitant degree of artificiality in seeking to apply an independent evaluation to each of them.

I have mentioned Krasniqi and the need to prove causation in a false imprisonment case. In my view, the issue requires a greater weight and depth of analysis than was attempted by Counsel. Approaching the issue as one of first principle, it seems clear that the issue of causation plays out differently depending upon which Hardial Singh principle is under scrutiny. If a claimant is being detained beyond a period that is reasonable in all the circumstances, I consider that causation of loss will flow as a matter of course. The same analysis applies in a case where it becomes apparent that the Defendant will not be able to effect deportation within a reasonable time – the power to detain should in such circumstances not be exercised at all. If, however, the Defendant fails to act with reasonable diligence and expedition, it seems to me that consideration must then be given to the issue of what would have happened had the Defendant in fact discharged its obligations under Hardial Singh (iv).

The issue is covered by Lord Dyson (for the majority) in Lumba, at paragraph 95:

“The question here is simply whether, on the hypothesis under consideration, the victims of the false imprisonment have suffered any loss which should be compensated in more than nominal damages. Exemplary damages apart, the purpose of damages is to compensate the victims of civil wrongs for the loss and damage that the wrongs have caused. If the power to detain had been exercised by the application of lawful policies, and on the assumption that the Hardial Singh principles had been properly applied …, it is inevitable that the appellants would have been detained. In short, they suffered no loss or damage as a result of the unlawful exercise of the power to detain. They receive no more than nominal damages.”

The question in Lumba was whether the Defendant, had it not acted unlawfully, could have exercised a power to detain (at the same time) pursuant to lawful policies. The question here is what would have happened (at a different time) had the Defendant not acted unlawfully. I do not consider, however, that there is any difference in principle and approach between these two situations. I would add this brief qualification. Whereas it was inevitable on the facts of Lumba that the appellants would have been detained, I do not understand Lord Dyson to be expressing the legal test of causation (against the Defendant) in those stringent terms. In my judgment, it would be sufficient for a claimant’s purposes to prove the case on causation on the balance of probabilities. This appears to have been the approach followed by the Supreme Court in an admittedly different statutory context in R(O) v SSHD [2016], UKSC 19.

This exercise did not fall to be undertaken on the facts of JS (Sudan) because the Claimant in that case received a grant of exceptional leave at the end of the period sought to be impugned as unreasonable. Ex hypothesi, he would have been granted such leave at the end of any reasonable period.

Ms van Overdijk drew my attention to her client’s policies on detention and temporary release, as set out in Chapter 55 of the Enforcement Instructions and Guidance (“the EIG”). Plainly, the EIG has to be read in the light of the applicable jurisprudence which I have already set out. I do not understand there to be any conflict or tension between the two. The Guidance recognises that there is a presumption in favour of temporary admission or release. I will have regard to the whole of this document, but for present purposes can set out just one paragraph:

“… 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 reoffending, and the seriousness of the harm of the person does reoffend, must be considered. Where the offence which has triggered deportation is included in the list here [the list includes section 20 wounding], 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 a robust albeit moderate submission, Ms Laughton chose to deal first of all with Hardial Singh (iv), namely the issue of reasonable diligence and expedition. She submitted that the delay of more than four years between 8^th October 2010 and 5^th December 2014 was prima facie evidence of a breach of the Defendant’s duty to act with reasonable diligence and expedition. In the alternative, the 17 month period between 8^th January 2009 and 30^th June 2010 which the Defendant took to decide whether the Claimant was entitled to asylum or humanitarian protection displayed a lack of diligence, and could not begin to be justified by the Claimant’s further representations made on 19^th January 2010. In the further alternative, Ms Laughton submitted that the Defendant failed to act with reasonable diligence and expedition between 8^th October 2010 (when the application to revoke the deportation order was made) and 29^th June 2012, when the Claimant raised his sexual orientation and conversion to Christianity. In the yet further alternative, there was unreasonable delay between 29^th June 2012 and 13^th May 2013 whilst the Claimant’s new case was being considered. No proper explanation, for example, has been given for failing to re-interview the Claimant after August 2012. Finally, Ms Laughton submitted that the Defendant failed to act with reasonable diligence and expedition between 12^th August 2013 (when it withdrew its decision of May 2013) and 5^th December 2014, by abstaining to make prompt arrangements for an independent psychiatric examination of the Claimant.

Secondly, Ms Laughton submitted that there was no prospect of removal within a reasonable time, and a breach of Hardial Singh (ii). The Claimant’s offending fell at the lower end of the scale, and he was at relatively low risk of harm to others. A risk assessment was carried out by a psychiatric nurse on 1^st September 2014 and evaluated the Claimant’s risk as being low. In any event, the Claimant’s case was always “extremely strong” in the light of the Country Guidance decisions, the Defendant’s own assessments of the prospects of successfully effecting deportation action, and the number of enforced removals to Somalia over the whole of the relevant period. As before, Ms Laughton made a number of submissions in the alternative based on salient dates in the narrative.

Finally, Ms Laughton invited me to take a holistic view in line with the authorities on Hardial Singh (ii), and to conclude that the Claimant’s detention overall was manifestly unreasonable.

Ms van Overdijk’s submissions were equally helpful and robust. At no stage did she lose her fluency and poise notwithstanding a measure of judicial interruption and scepticism.

Her approach was to invite me to consider the Hardial Singh principles both in the round and in the light of a granular, atomistic review of the chronology. She also invited me to consider each period of detention separately.

As regards the first period of detention, Ms van Overdijk submitted that the Claimant was interviewed twice within two months, and then on 18^th January 2010 submitted further representations. On 15^th February 2010 a language and contrary analysis test was performed, to check that the Claimant was from Somalia as he claimed. When the rule 39 indication was sought from the ECtHR in July 2010 the Defendant reasonably believed that it was contingent on the outcome in Hussein, and not on any other cases. On 8^th October 2010 the Claimant submitted further representations which warranted detailed consideration. Thereafter, there were no unreasonable delays.

As regards the second period of detention, it fell to be sub-divided into three periods: first, from 27^th November 2011 to 25^th June 2012; secondly, from 29^th June 2012 to 13^th May 2013; and, thirdly, from 9^th July 2013 to 5^th December 2014. In relation to the first period, Ms Van Overdijk submitted that the Defendant clearly gave anxious scrutiny to the Country Guidance cases, and that I should be slow to second-guess her decision making. It is clear from the June 2012 decision letter that there was an entirely proper basis for resisting the Claimant’s Article 15(c) claim, and by parity of reasoning an appropriate case to be defended on appeal. Further, the statistical evidence is of very limited utility in assessing the prospects of removal in any given case.

In relation to Ms van Overdijk’s second period, she accepted on my understanding that there was delay between August 2012 and February 2013 (the hiatus between the two interviews) but submitted that this fell into the category of administrative failings rather than illegality.

In relation to the third period, Ms van Overdijk’s point was that the issue should not be seen through the prism of hindsight, and that it is apparent from the documents that the reason for the delay in instructing an independent psychiatrist was an understandable difference in opinion between Criminal Casework and HMP Woodhill in particular as to whether the Claimant was genuinely suffering from psychiatric illness. When the chronology is examined with condign care, the court should be slow to conclude that at any stage the Defendant acted unreasonably or without due diligence and expedition.

I begin with a series of miscellaneous points.

First, the Defendant has consistently taken the view that the Claimant posed a high risk of reoffending (with corollary risks to the public) and of absconding. I reject Ms Laughton’s submission that I should attach little weight to the Defendant’s assessments because these amount to no more than assertions rather than proper evaluations of the risk supported by structured assessments from the probation service and/or NOMS. In my judgment, the detention reviews have convincingly explained why the relevant risk posed by the Claimant was deemed to be high in the circumstances of his case, and I accept those assessments. The Claimant’s offending, which started quite late in the day (in 2006) was escalating in seriousness, culminating in an offence of section 20 wounding where the Claimant slashed a man’s face with cut glass. Further, the Claimant had no known ties in the community, was far from being a model detainee, and was a clear absconding risk.

Even so, I do not consider that the Claimant fell within the highest category of risk. I would hold that his criminal record fell within the middle of the range. As against that, his risk of absconding was probably medium to high, because he exhibited what the psychiatrists would no doubt call the standard traits of anti-social personality disorder, and there were no family or personal ties which might motivate him to adhere to the conditions of bail or temporary admission.

Secondly, both periods of detention in this case have been substantial, and there is a plethora of internal documentation relating to the second period expressing concerns about the delays, culminating in a Director’s observation given on 10^th July 2014 that “this case is drifting”. I am critical of the Defendant for failing to call admissible, relevant evidence addressing the periods of apparent delay. Instead, the Defendant chose to adduce evidence from a Senior Executive Officer who had no personal knowledge of the case during the Claimant’s detention. In my judgment, the present case shares uncomfortable parallels (from the Defendant’s perspective) with JS (Sudan). What should have happened, in my view, is that the Defendant should have called a series of witnesses who were in a position from their own knowledge to deal with salient periods of apparent delay, and if they could to provide reasons and explanations for them. The Defendant’s expectation, or hope, is that I should be prepared to draw inferences which somehow place its delays within the category of administrative failings rather than illegality, but I have to say that there is no proper, tenable basis on which these benevolent deductions could be drawn.

Thirdly, and as a related point, the detention reviews provide clear and detailed reasons for concluding that the Claimant constitutes a risk of reoffending and absconding, but – save to express concerns from time to time, and/or demand a decision from more junior officials within the next 7 or 28 days – conspicuously fail to stand back from the here and now, and address the Hardial Singh principles properly. No one in the appropriately self-critical way has asked, for example, whether the department has in fact acted with reasonable diligence and expedition in this case; and, if not, what the consequences should be. No one has sought to evaluate whether, in the Claimant’s circumstances, there was a real prospect of removing him to Somalia within a reasonable time, as opposed to some vague and unquantified hope that this might happen. In my judgment, there is an overwhelming sense of the Defendant reacting to events and hoping for the best, rather than acting proactively and taking a realistic view of the probabilities.

Finally, the Defendant appears in my view to have adopted an unnecessarily restrictive, binary approach: either deportation action should be abrogated, or the Claimant’s detention should be maintained, in the light in particular of the absconding risk. In my judgment, unless the absconding risk is always to be treated as a trump card, which it is not, a more balanced, intermediate approach could and should have been adopted – once, that is, the Claimant’s detention had become lengthy. The Defendant appears to have excluded from account the identification of a state of affairs which would have resulted in deportation action being maintained and the Claimant being released for the time being, because it was no longer lawful to detain him.

There is no evidence that the Claimant’s asylum and humanitarian protection application, which was made on 8^th January 2009, was considered by the Defendant before he was detained pursuant to immigration powers on 27^th August 2009. For the whole of that period he was in prison, and on any view the Claimant was irremovable before he completed his terms of imprisonment. In the circumstances of this case, I am not prepared to hold that the Defendant should have investigated the Claimant’s asylum claim whilst he was in prison.

I agree with Ms van Overdijk that the Claimant’s asylum interviews were conducted with reasonable expedition. I disagree with her that the further representations submitted on 19^th January 2010 could have delayed the decision-making process to any significant extent. These did not materially add to what had already been provided and, in any event, there is no evidence that anyone within the Defendant had started to write a decision letter by that point. Further, I do not accept that the Claimant’s indication that he wished to join the Facilitated Return Scheme could have made other than minimal difference to the timescales, because he withdrew his indication on 5^th March.

I accept that it was reasonable to subject the Claimant to a “country and language analysis”, and that this was done within a reasonable time.

Thereafter, it took the Defendant about four months to prepare her decision letter – it was promulgated to the Claimant on 28^th June 2010. I do not dismiss out of hand the submission that this was too long a period, and requires an explanation which has not been forthcoming. On the other hand, the present case clearly merited anxious care and scrutiny, and I accept that Somali cases of this type are scarcely free from complexity. Although I was not taken expressly to the decision letter during the course of the trial, I have taken the opportunity of reviewing it carefully. The Defendant referred to AM & AM, and concluded that there was an internal relocation option available to the Claimant. Further, the Defendant placed reliance on the decision of the ECJ in Elgafaji (17^th February 2009) in which it was held, with different emphasis on the risk than that placed in the domestic Country Guidance jurisprudence, that the threat would have to be “exceptional” before the Article 15(c) threshold might be met.

In my judgment, the four month period under current scrutiny is on the borderline of illegality, but ultimately I conclude that it cannot be said in all the circumstances that the Defendant’s decision came unacceptably late or that there was not a realistic prospect of removal within a reasonable time after it was promulgated. Indeed, those prospects were considerably enhanced when the Claimant failed to appeal that decision.

The Defendant would have removed the Claimant on 21^st July 2010 were it not for the rule 39 measures granted by the ECtHR in his case. At that stage, the Defendant reasonably believed that the rule 39 application was tethered to the decision of the court in Hussain, and in my judgment it was therefore appropriate to conclude that the Claimant could still be removed within a reasonable time.

On 8^th October 2010 the Claimant made an application to revoke his deportation order on further grounds which in my view added little to the case he had previously advanced, and which had been rejected. However, the Defendant appears to have accepted this application as a fresh claim, and in my judgment it was incumbent on her to process it with reasonable diligence and expedition. Instead, there is no evidence of anything happening at all. On 14^th December 2010 the ECtHR struck out the main application in Hussain, but the rule 39 indication remained in place. It was the Defendant’s belief that this was so, although there is no evidence that it took steps to ascertain the true position. In truth, however, this does not materially impact on my analysis. The real point here, in my judgment, is that for whatever reason the Defendant took no steps to consider the Claimant’s case between October 2010 and May 2011, when the Claimant was released on immigration bail.

What should have happened here is that within a reasonable time after 8^th October 2010 the Defendant should have prepared a further decision letter addressing the Claimant’s further representations in the light of contemporary conditions in Somalia. No interview was required (no interview was conducted before the Defendant rejected these further representations in June 2012), merely analysis of all the material known to the Defendant, and which it had no doubt deployed in other Somali cases.

In my judgment, a decision on the Claimant’s further representations should have been provided to him by 31^st December 2010.

However, this finding is not dispositive of the issue of unlawful detention, for these reasons. First, my holding is limited to Hardial Singh (iv) – the Defendant has failed to act with reasonable diligence and expedition. I do not find that there was no real prospect of effecting deportation within a reasonable time or that the overall period of detention had ceased to be reasonable in all the circumstances. The fact that the rule 39 indication remained in place does not mean that there was an insufficient prospect of removal: see Muqtaar. Secondly, it is clear from the last sentence of paragraph 12 of Carnwath LJ’s judgment in Krasniqi, and my earlier analysis, that the Claimant must prove causation. In my view, this means that I must decide on the balance of probabilities what would have happened had a timeous decision been made, namely a decision by 31^st December 2010.

In the present case, I believe that it is reasonable to infer on the balance of probabilities that any decision given on 31^st December 2010 would have been both unfavourable to the Claimant and reasonably defensible (c.f. the June 2010 decision, which I have found to be defensible). Accordingly, the Claimant would not have been released after any hypothetical timeous decision would have been made.

I have not received any evidence about appellate timescales (save to note that in relation to the May 2013 decision an appeal date was set for 8^th August), but I doubt whether any appeal in the Claimant’s case would have been determined, let alone successfully determined, before the date of his actual release in May 2011. I am not discounting the possibility, but the Claimant must prove his case on the balance of probabilities.

Overall, the Claimant has failed to satisfy me that the Defendant’s breach of Hardial Singh (iv) was causative of any loss in relation to the first period of detention. Ms Laughton did not ask me to award nominal damages to her client in respect of any non-causative breach, and I would decline to do so. Accordingly, this part of his claim fails.

There is no evidence that the Defendant devoted any attention to the Claimant’s case between the date of his release (17^th May 2011) and the date that the second relevant period of immigration detention commenced on 27^th November 2011. For part of that period the Claimant was serving a sentence of imprisonment. With a modicum of hesitation, I conclude (as I did in relation to the first period of detention) that the Defendant was not remiss in failing to progress the Claimant’s case between these dates.

Reasonably early attention was given to the Claimant’s case on 21^st December 2011, when the Senior Case Worker reviewed his case and concluded that he would be likely to face a risk of Article 15(c) harm on return to Somalia, given recent Country Guidance. For reasons which I find opaque, the Senior Case Worker concluded that consideration should be given to conceding the case subject to the outcome of the rule 39 application. To my mind, the outcome of the rule 39 application could have no logical bearing on an early decision to concede the case. In late January 2012 an Executive Officer came to a different conclusion on the merits. When an Assistant Director considered the file on 27^th January, detention was authorised for one week only, with concerns being expressed about some of the language used in the detention review as regards the perceived Article 15(c) risk.

I refer to my review of the contemporaneous documentation at paragraphs 42 to 51 above for the full picture. It is clear, in my judgment, that senior officials within the Defendant were astute to the need for expedition. This was because the Defendant’s reasons for continuing to maintain deportation action against the Claimant were seen as being much weaker in the light of recent Country Guidance. Indeed, the Defendant itself was well aware of the difficulties: see, for example, the negative views expressed in December 2011 and January 2012, and the minute prepared by a Senior Case Worker on 26^th May 2012 with the reference to “a great achievement”.

In the result, it was not until 25^th June 2012 that a draft decision letter was prepared. In my judgment, this was far too long in the context of a case which was understood to raise particular challenges for the Defendant in terms of upholding the merits of the decision to deport (or, more precisely, the merits of the decision to deny to the Claimant the application of a relevant exception to automatic deportation under the 2007 Act). If the Defendant had been acting with reasonable diligence and expedition, I find that the draft decision letter should have been prepared, and if necessary served, by the end of April 2012. Here, I am making due allowances for the fact that the decision letter, when it was eventually put together, was an extremely detailed and complex document, and that it was important for the Defendant “to get this case right”.

I have little doubt that the Defendant’s decision letter would have reached the same conclusion regardless of when it was sent – that is to say, once the decision was made to maintain deportation action rather than to concede the case. The issue naturally arises as to whether the case ought to have been conceded on the ground that it was hopeless (Ms Laughton’s preferred formulation) or weak (her alternative formulation). Here, as before, I must reach my own conclusion on the issue rather than perform a second-level review of the Defendant’s premises and reasoning. I bear in mind Ms van Overdijk’s submission, advanced with reference to the Defendant’s decision letter and the Country Guidance in AMM, that her client had a very respectable case which might well have succeeded on appeal, and that I should defer to the Defendant’s expertise on the issue.

I have not overlooked Ms van Overdijk’s submission that it was only in her skeleton argument that Ms Laughton clearly made the point that the June 2012 decision letter, which was never served, cannot be sustained. My reading of the Particulars of Claim is that the Claimant was always relying on a breach of Hardial Singh (iii), in the context of both the practical and the legal difficulties of removal to Somalia. The point might have been made more clearly, but it was there.

My starting-point is that the Country Guidance in AMM is set out in the headnote and paragraphs 594-596 of the Tribunal’s judgment. Applying this Country Guidance without any qualification or nuance, it seems clear that the Claimant, despite his majority clan membership, does not fall within the minority of Somalis (sc. powerful actors and members of the middle-class) who would not suffer from Article 15(c) harm. I have already observed that the internal logic underpinning the April and May 2012 minutes is problematic: see paragraphs 47 and 48 above. Accordingly, a mechanistic application of the Country Guidance would have been fatal to the Defendant’s resistance to this claim. I should add that on my understanding of the decision letter, internal relocation was no longer being pursued as an option.

However, the decision letter raises two further matters which were overlooked in Counsel’s submissions. First, paragraph 30 of the decision letter states that the security situation in Mogadishu has improved and half a million people have returned there. On the face of things, this might be a factor which avails the Defendant to some extent. Delving more deeply, I note that in AMM this issue was expressly addressed in the context of Al-Shabaab retreating from Mogadishu in August 2011, but I would add that by November 2011 (when AMM was published) the number of returnees to Mogadishu would surely have been less than 500,000. Accordingly, this probably fell short of being a cogent reason for not applying the Country Guidance in AMM, but it could reasonably be factored into the assessment. Secondly, the Defendant also relies in the decision letter on the fact that the Claimant’s criminal record means that he should be excluded from Humanitarian Protection under paragraph 339D. Under the Defendant’s internal policy, a 16 month sentence for unlawful wounding and grievous bodily harm would place the Claimant within sub-paragraph (i) of paragraph 339D. This provision applies where “there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes”. I can certainly envisage strong arguments along the lines that the sort of crime for which the Claimant was convicted (section 20) does not fall within paragraph 339D(i), notwithstanding its broad reference to “any other serious crime”.

Taking all these matters together, the question arises whether there was any realistic prospect of deporting the Claimant either at the end of April 2012 (when I have found the decision ought to have been made) or the end of June 2012 (when it was fact made). The April date is relevant both to the issue of causation on Hardial Singh (iv) and liability on Hardial Singh (iii). In this latter regard I am holding that it could not have become apparent to the Defendant that there was no realistic prospect of deportation within a reasonable time until full and proper consideration was given to the Claimant’s particular circumstances in the light of the overall situation. In other words, I am allowing the Defendant a notional reasonable period for these matters to have become apparent.

I confess that my initial view was that the Defendant could not possibly demonstrate that there was a realistic prospect of deporting the Claimant within a reasonable time. However, upon further deliberation I can see that the point is more complex and nuanced. Ultimately, I have come to the conclusion that (i) the Defendant’s arguments would probably have failed on appeal, but (ii) there was a realistic prospect of deporting the Claimant within a reasonable time. I reach that conclusion notwithstanding the Defendant’s failure to call explanatory evidence.

Clearly, after the promulgation of the Country Guidance in AMM, removal of the Claimant either within a reasonable time or at all was always going to be a real challenge for the Defendant, a fact confirmed by the precious few numbers of failed asylum seekers who were returned to Mogadishu between 2009 and 2014. Even so, I cannot hold that the Defendant’s prospects of defending an appeal were “slim” (to adopt Ms Laughton’s alternative formulation); they were respectable.

I take into account that the rule 39 measures remained in place, and there is no evidence before me that the Defendant had any idea when it would or might lapse. This is a consideration which tells slightly against the Defendant, but they are far from weighing heavily.

The issue also arises as to whether it was reasonable for the Defendant to delay for a period of time in order that the situation in Somalia might improve: see paragraph 186 above. There is no evidence that this was in fact the Defendant’s thought-process, and the point did not feature in Ms van Overdijk’s submissions. Having said that, there is some limited evidence that the situation was improving after Al-Shabaab’s retreat from Mogadishu in August 2011, and my current focus is on the spring of 2012, at which stage the Claimant had been detained for less than 6 months – not particularly long. This is a factor which tells slightly in the Defendant’s favour.

I have dealt with the issue of returns to Somalia at paragraphs 107 to 121 above. The practical difficulties were considerable, and the Defendant cannot finesse this issue by asserting the unreliability of its own information. However, the raw data, without more, cannot prove that there was not a realistic prospect of removal.

Taking all these matters into account, fusing the legal as well as the practical difficulties from the Defendant’s perspective, giving appropriate weight to the absconding risk, and notionally posing the question in late April 2012 – was there a realistic prospect of deporting the Claimant within a reasonable time? – the answer is “yes”. It follows that the Defendant’s breach of Hardial Singh (iv) was not, at least at this stage, causative.

I move on to consider the next notional phase of the Claimant’s detention. The June 2012 decision letter was never served because on 29^th June 2012 the Claimant advanced a new case based on his sexual orientation and religious affiliations. For present purposes, it is quite artificial to hold that, had the Defendant served its decision letter at the end of April 2012, rather than not serve it at all, the Claimant would not have advanced this new case. I find that the Claimant would, on advice, have done so, probably in June 2012 and before any appeal would have been heard. On this hypothesis, events would have ensued in exactly the same way.

As it has turned out, the Claimant’s new case had substance, but I am able to draw the inference that the Defendant, whilst keeping an open mind, was sceptical about these new claims, given their apparently tardy advent and the frequency with which assertions of this nature are made. It follows that in my view the Defendant was not required to consider releasing the Claimant immediately on receipt of the new claims, notwithstanding the fact that by then he had already been detained for over 7 months. If the new claims were true, then the Claimant obviously could not be deported to Somalia; but if they were not then, subject always to the Article 15(c) point, he could be. Accordingly the credibility or otherwise of these claims was central to the whole exercise.

I find that the Defendant’s initial consideration of these new claims was reasonably diligent inasmuch as interviews were conducted on 26^th July and 17^th August 2012. However, the Defendant failed to instruct the interviewer to ask the Claimant questions about his conversion to Christianity. On the available material, I have no means of ascertaining whether this omission was attributable to administrative error or illegality, and the Defendant has adduced no evidence to assist me. My attention has not been drawn to any documentation containing the Defendant’s instructions to the interviewing officer. On balance, but only just, I am prepared to infer that there must have been some sort of breakdown in communication which could reasonably be ascribed to mere administrative error.

However, as soon as it was appreciated that such an error had been made, it was incumbent on the Defendant to seek to progress matters swiftly. In the event, nothing happened until February 2013, in the face of a number of detention reviews requiring the making of a decision within 28 days. This was unacceptable delay. Once the Claimant’s further interview had taken place, no decision letter was promulgated to him until 13^th May 2013 – that is to say, there was a further delay of nearly three months. In my view, that was far too long in these circumstances, and cannot begin to be justified by the Claimant’s further representations sent in March 2013 which did not add much to the overall picture.

In my judgment, the Defendant acting with due diligence and expedition ought to have re-interviewed the Claimant by the end of September 2012, and to have reached a substantive decision on the new claims by the end of November 2012. A breach of Hardial Singh (iv) occurred as from 1^st December 2012.

Had this breach not occurred, what then would have happened? In my view, the Defendant would probably have rejected the new claim because at that stage Dr Maloney’s supportive evidence would not have been available. The Claimant would have appealed to the First-tier Tribunal. At such an appeal the entirety of the case would have been considered, including the Article 15(c) issue and the safety of return to Somalia generally.

Focusing solely on the merits of the new claim, the Claimant’s case – evaluated without Dr Maloney’s evidence – was not strong, and naturally depended on his credibility. His account at interview that he was/is gay was on the face of it not particularly convincing, and at that stage lacked any corroboration. His answers to his Christianity interview were somewhat of the metaphorical Curate’s egg. Allowances would have to be made for the fact that the Claimant converted quite recently (a point which cuts both ways) and his probable lack of educational attainment. He claimed to have read two of the Gospels and the Acts, but it is unclear in what language. Overall, had the new claim been the only issue on an appeal, the Claimant would probably have failed.

Even so, I accept Ms Laughton’s submission that the Claimant would probably have won his appeal, which is sufficient for her client’s purposes on the issue of causation. I have already found that the Claimant had a better than evens chance of winning in the Article 15(c) issue. Doing the best I can, I conclude that the outcome of the Claimant’s appeal would have been known by the end of March 2013 (I am allowing time for a reserved judgment), at which point the Claimant would or should have been released.

It follows from the above that on this limb of the Claimant’s case the Defendant was, from the end of March 2013, in causative breach of Hardial Singh (iv). I have not found a breach of Hardial Singh (iii).

I now proceed to consider the Claimant’s alternative case that, once Dr Maloney’s email was provided on 11^th July 2013, the Defendant should have had the Claimant assessed by an independent psychiatrist. Such an assessment would, on the balance of probabilities, have led to his release.

I did not understand Ms Laughton to be submitting that, irrespective of Dr Maloney’s opinion, the Defendant should independently have concluded before July 2013 that the Claimant was suffering from mental illness and should therefore be released. However, given that this is probably Dr Maloney’s view, I should address the issue, if only to dismiss it. Under paragraph 55.10 of the EIG, an individual with mental illness should be detained only in “very exceptional circumstances”. I have found as a fact that the Claimant probably did suffer from paranoid schizophrenia, although thus far I have not given a start date. In my judgment, the Claimant was probably suffering from mental illness before he was seen by Dr Maloney, and it is reasonable to infer that this did not begin overnight. Concerns about their client were evinced by the Claimant’s solicitors in April 2012, albeit these may well not have been received by the Defendant. I shall assume that they were not. But, even on all these factual premises I am not prepared to hold that a diagnosis of paranoid schizophrenia should have been made before July 2013. This, it seems to me, raises a Bolam issue, and I am not satisfied on all the available evidence that it was sub-standard practice to fail to diagnose mental illness and/or not to refer the Claimant to formal psychiatric opinion.

In my judgment, once in particular the Defendant was provided with a copy of Dr Maloney’s report in October 2013, and the view was taken (as it was) that he is a reputable and well-respected psychiatrist, the Defendant should either have accepted it, and released the Claimant forthwith, or commissioned its own report from an independent psychiatrist. Instead, the issue seems to have been batted back and forth between the Criminal Casework team and HMP Woodhill, with the former being far too slow in making up its mind as to how to proceed, no doubt somewhat troubled by the potential cost implications, and the latter insisting that there was nothing wrong with the Claimant. As I have already pointed out at paragraph 73 above, the Defendant was appearing to accept on 31^st October 2013 that, in the event that the Claimant’s representatives challenged the issue, an assessment by an independent psychiatrist would be required. As I have already said, it was inevitable that the Claimant’s solicitors would take that line. Further, and as observed at paragraph 77 above, on 6^th March 2014 Criminal Casework said that regardless of the conclusion of the in-house assessment to be carried out on 18^th March, a report from an independent psychiatrist would be required. In my view, this rather obvious conclusion should have been reached in October 2013, and the matter expedited thereafter. If Dr Maloney were right, then the Defendant was continuing to detain a man with paranoid schizophrenia in circumstances where removal to Somalia could well amount to a breach of his Article 3 rights, as the Defendant itself concluded once Dr Cornish’s report was available. Further, as Ms Laughton submitted, Dr Maloney’s report lent support for the proposition that the claims of sexual disinhibition and religious affiliation were correct.

In my judgment, the Defendant ought to have obtained an independent psychiatrist’s report by the end of November 2013, at the latest. If that had occurred, regardless of whether that psychiatrist would have been Dr Cornish, it is probable that a diagnosis of paranoid schizophrenia would have been made (I have found as a fact that this was the probable diagnosis), and that the Claimant would have been released.

Dr Cornish’s report is dated 27^th October 2014 and the Claimant was released on 5^th December. I appreciate that the issue required high-level input, but in my view nearly 7 weeks was too long. This should have been achieved in 4 weeks, including some allowance being made for post-release arrangements. Such arrangements were desirable, although they did not in fact bear on the 7 weeks it took the Defendant to reach a decision, because they were not made.

It follows from the above that on this alternative premise the Defendant was, from 1^st January 2014, in breach of Hardial Singh (iv).

Thus far, I have not addressed Hardial Singh (ii) and the reasonableness of the Claimant’s detention assessed holistically and in the round.

In my judgment, it is unnecessary to proffer a series of alternative conclusions on various permutations and combinations of the facts. I must approach the case on my primary, not alternative, findings of fact. I do not conclude that a breach of Hardial Singh (iii) and/or (iv) must lead inevitably to a breach of Hardial Singh (ii). This issue must be addressed by applying the congeries of factors listed by Lord Dyson in Lumba.

Reading the Defendant’s minutes and file notes with care, it is difficult to avoid two headline conclusions, and these apply to almost the entirety of the Claimant’s second period of detention – although they do not ineluctably lead to the conclusion that almost the entirety of the Claimant’s detention was unlawful. First, that no one was really prepared to take personal responsibility for any decision to abrogate deportation action and/or release the Claimant. Secondly, that what really drove the decision-making process was the Defendant’s belief, no doubt justified, that the Claimant posed a high risk of reoffending and of absconding. But no one was prepared to proceed along a path of reasoning which looked much further or deeper than this, and which properly engaged the Hardial Singh principles. These are criticisms which do not just apply to Hardial Singh (ii): they apply equally to Hardial Singh (iv).

In reaching my conclusion on this issue, I continue to bear in mind the approach of the Court of Appeal to Hardial Singh (ii), in particular R(MH) v SSHD [2010] EWCA Civ 1112 where it was held, upholding Sales J, that a period of 38 months’ detention, although very long, did not exceed a reasonable period. In that case consideration was being given to the circumstances in Somalia some years before this case. The evidence considered by the court on that occasion was very different from the material under present scrutiny.

For the avoidance of doubt, my conclusions on Hardial Singh (ii) are predicated on the specific evaluations I have made on Hardial Singh (iii) and (iv). They are not free-standing.

Highly relevant to the broad Hardial Singh (ii) assessment of reasonableness are, in my judgment, the psychiatric report of Dr Maloney which – in addition to its diagnosis of mental illness - supported the Claimant’s case as to his sexual orientation and his religious affiliations, the dwindling strength of the Defendant’s case in the light of all salient matters, the fact that the absconding risk was medium to high, but not of at the highest level, and the Defendant’s delays.

Standing back from this case, I conclude that by the end of October 2013 the Claimant had been detained far too long in circumstances where he was not obviously “playing the system” and his deportation to Somalia could best be described as speculative. The case had begun to drift, as one senior official put it, long before the summer of 2014. The risk to the public, and of absconding, was not so great that continued incarceration was the only real option. In my judgment, the Claimant’s case cried out to be grabbed by the metaphorical scruff of the neck, and clear and firm decisions made. It is simply not acceptable that the Claimant was detained for so long, in such circumstances. I hold that the Defendant was in breach of Hardial Singh (ii) by the end of July 2013. In this respect, I should reiterate that I am excluding from account previous periods of detention. If it should transpire that I should have taken either or both of them into account, the date must be advanced accordingly; but in the circumstances and in the light of my other findings, I doubt whether this really matters.

The Claimant was not unlawfully detained between 27^th August 2009 and 17^th May 2011.

The Claimant was unlawfully detained from 1^st April 2013 to 5^th December 2014 (20 months and 5 days); alternatively, from 1^st November 2013 (13 months and 5 days); in the further alternative from 1^st January 2014 (11 months and 5 days). I have found various breaches of the Hardial Singh principles, all as specified in detail in this judgment.

I said during the course of the hearing words to the effect that the Claimant is not a particularly worthy, likeable or sympathetic individual, and that there must be at least a risk that any award of damages would not be put to good use. I do not withdraw those observations. Another way of looking at this case, however, is to point out that the Claimant is vulnerable, that he probably suffers from paranoid schizophrenia, and that only those obligated to an adherence to the rule of law would be likely to vindicate his rights. This alternative viewpoint is based not on any subjective preferences but on the loyal discharge of the judicial function.

Damages are likely to be substantial in this case. If quantum cannot be agreed, the matter should be listed for hearing as soon as possible to deal with their assessment, as well as any other consequential matters.