AO v The Home Office

The Claimant, OA, (“the Claimant”) is an Afghan national, now aged 27. By this claim, he seeks declarations that he was falsely imprisoned and unlawfully detained between 7 February 2017 and 25 January 2018 by the Secretary of State for the Home Department and that he was released to street homelessness in breach of Article 3 ECHR. He seeks damages for false imprisonment and for breach of his Convention rights. Whilst formally named in these proceedings as the Home Office, for ease of reference, in this judgment the defendant is referred to as “the Secretary of State”.

The Claimant’s essential case is that his detention, pending deportation to Afghanistan, was unlawful either by reason of what are commonly termed Hardial Singh principles or by reason of public law error.

The structure of this judgment is as follows. In section A, I identify the seven issues. Section B sets out the relevant legal background. Section C addresses the evidence. In section D I set out the facts, and at section E I refer to the expert evidence. Section F contains my analysis addressing each of the seven issues. My conclusion are summarised at paragraph 279 below.

The Claimant came to this country on a lorry on 27 November 2007 and claimed asylum. He has, and has had, severe mental health problems, having been diagnosed with bipolar disorder in March 2016.

On 30 June 2016 he was sentenced to 26 months imprisonment for various offences, including offences of violence. On or around 19 July 2016 the Secretary of State gave notice of a decision to make a deportation order under s. 32(5) UK Borders Act 2007. Upon release from imprisonment on 7 February 2017, the Claimant was then immediately detained, pending the making of the deportation order, under paragraph 2 of Schedule 3 to the Immigration Act 1971. He was detained in prison, rather than in an immigration removal centre (“IRC”). The Secretary of State made the deportation order itself on 18 July 2017. The Claimant appealed against the deportation order. Applications for bail were refused in October and November 2017. However on 25 January 2018 he was granted bail and released from detention. On 17 April 2019 his appeal was allowed by the First-tier Tribunal (“FTT”). He now has leave to remain and has been granted refugee status.

His detention was managed by the Criminal Casework team within the Home Office and a caseworker (also referred to as a case owner) was assigned to his case, from time to time. His detention was subject to monthly detention reviews carried out by the caseworker, and subject to authorisation by a more senior officer within Criminal Casework, referred to as the “authorising officer”. For most of the period of his detention, Mr Bertrand Walker was the assigned caseworker. Mr Walker carried out all the detention reviews, apart from the first. Since the Claimant was detained in prison, he was under the control of prison staff and ultimately the prison governor. However, the Criminal Casework team has a presence in a prison through its Prisons Operations and Prosecutions Team (“POP”). These are Home Office staff immigration officers

The issues in summary

The Claimant’s case is that his detention was unlawful on the following bases:

The Secretary of State accepts that the periods of detention between 4 April and 24 August 2017 and between 9 and 25 January 2018 were unlawful, as a result of breach of policy and thus public law error. Otherwise the Secretary of State denies that the detention was unlawful, whether by reason of Hardial Singh principles or of other public law error. Further and in any event, she could and would have detained the Claimant, even if no public law error had been made. Accordingly the Claimant is not entitled to substantial damages.

Whilst there have been substantial and detailed pleadings, it is agreed that the issues which fall to be determined are as follows:

The relevant legal background

Powers of detention

Schedule 3 paragraph 2 to the Immigration Act 1971 (“the 1971 Act”) provides, inter alia, as follows:

“(2)

Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.

(3)

Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (an if already detained by virtue of sub- paragraph… (2) above when the order is made).”

The principles to be applied in determining the length of time for which a person may be so detained under the 1971 Act were established by Woolf J in R v Secretary of State for the Home Department, ex parte Hardial Singh [1984] 1 WLR 704. These wellknown principles, as stated by Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 345 at §22, are as follows:

As regards the question, under Hardial Singh 2 and 3, of how long is a reasonable period, the list of relevant circumstances include: the length of the period of detention;

As regards the risk of re-offending, the magnitude of the risk includes both the likelihood of re-offending and the potential gravity of the consequences. The purpose of the power to deport is to remove a person whose continued presence would not be conducive to the public good. As regards the risk of absconding, the likelihood should not be overstated. It is not “a trump card”: R(I) at §53 cited at Lumba §123.

As regards the nature of the obstacles standing in the path of deportation, delays attributable to the fact that a detained person is challenging the decision to deport by appeal, and will not generally be deported until these challenges have been determined, was addressed by Lord Dyson in Lumba at §§111-121. First, if a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported, the detention during the challenge should be given minimal weight in assessing what is a reasonable period in all the circumstances (i.e. the period should be deducted from the period of time which has elapsed). Secondly, the fact that a meritorious appeal is being pursued does not mean that the period of detention during that appeal should necessarily be taken into account in its entirety for the benefit of the detained person (i.e. should not necessarily be included in considering the length of the period); there is no automatic rule, regardless of the risks of absconding and/or reoffending, which would compel release if the appeals process lasted a very long time through no fault of the appellant; 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. Nevertheless more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal. However, even if there is delay due to a meritorious appeal, that does not decide the case in favour of the detainee.

As regards Hardial Singh 3, the question is whether it is “apparent” that deportation will not be effected within a reasonable time. That does not cover the situation where the prospect of removal is “merely uncertain”. There must be a “sufficient prospect” of removal to warrant continued detention and what is sufficient is a question of balance in each case. There can be a realistic prospect of removal without it being possible to specify or predict the day by which, or period within which, removal can reasonably be expected to occur and without any certainty that removal will occur at all: R (Muqtaar) v Secretary of State for the Home Department [2012] EWCA Civ 1270 at §§36-38.

As regards Hardial Singh 4, it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done. It is necessary to demonstrate unlawfulness going beyond mere administrative failing and to show a specific period during which, but for the failure, he would no longer have been detained: R (Krasniqi) v Secretary of State for the Home Department [2011] EWCA Civ 1549 at §12.

The question whether Hardial Singh 4 governs the conduct of the Secretary of State prior to any decision of detention and, in a case such as the present, during the currency of the custodial sentence, was considered by Macfarlane LJ in R (JS) v Secretary of State for the Home Department [2013] EWCA Civ 1378 at §§48 to 52 and, more recently, by Veronique Buehrlen QC sitting as a Deputy High Court Judge in AYZ v The Home Office [2018] EWHC 2914 (QB) at §§84 to 93. The Claimant, in reliance upon the former decision, contends that the duty to act with reasonable diligence and expedition does arise before detention. The Secretary of State, in reliance upon the latter decision, contends that Hardial Singh 4 cannot arise until there has been a decision to detain. Whilst there may a difference of emphasis in the two judgments, and conscious that JS is Court of Appeal authority, in my judgment the following propositions can be derived from the two cases:

Finally, it is for the court to determine whether the detention has breached the Hardial Singh principles (and not merely for the court to review the Secretary of State’s decision on Wednesbury grounds), and to do so on the basis of the material available at the time. However, in so doing, the court may recognise that the Secretary of State is better placed than itself to decide incidental questions of fact and the court will take such account of the Secretary of State’s views as may seem proper: R(A) v Secretary of State [2007] EWCA Civ 804 at §62.

As the period of detention gets longer, the greater the degree of certainty and proximity of the removal required to justify detention: R (on the application of MH) v Secretary of State for the Home Department [2010] EWCA Civ 1112 at §68(v).

In Lumba the Supreme Court went on to consider the position where a decision maker fails to follow a published policy or makes any other public law error. The position is as follows:

In the present case, two of the Secretary of State’s policies are relevant: the “Adult at Risk” policy and parts of the general EIG.

The Defendant’s policy for Adults at Risk is contained in two distinct documents: first, an internal Home Office document published for Home Office staff on 6 December

The AAR Staff Policy states, at the outset, that the guidance tells Home Office staff what to do to assess if a person, who is being considered for immigration detention, is an “adult at risk” in the terms of the Policy. It states, first, that an assessment must be made as to whether a potential detainee is an “adult at risk.” One “indicator of risk” is a “mental health condition”. Where an individual is suffering from a mental health condition, consideration should be given as to whether the condition can be managed within detention. Even if it can be so managed the individual must be treated as being “at risk” as defined by the policy.

Secondly (at pages 7 to 8), the AAR Staff Policy gives guidance on, amongst other things, assessing risk and the weight to be afforded to particular evidence in order “to assess the likely risk of harm to the individual if he or she is detained for the period necessary to effect removal”. There are three levels of risk identified in the guidance. Level 1 involves a self-declaration by the individual of being an adult at risk, to which limited weight will be afforded if the issues raised cannot be readily confirmed. Level 2 involves professional evidence (for example from a medical practitioner, social worker or others) or documentary evidence which indicates that the person “ is or may be an adult at risk”. The Policy says that this evidence should be given greater weight and normally accepted and consideration given to how this may impact upon the detention. Level 3 involves professional evidence stating that an individual “is at risk” and that “a period of detention would be likely to cause harm”, for example because it would increase the severity of the symptoms or the conditions leading to the individual being at risk. The Policy states that such evidence should be given significant weight. It should normally be accepted and any detention justified in the light of the evidence. The Policy then gives guidance on how the risk should be weighed against immigration factors such as how quickly removal is likely to be effected, the compliance history of the individual and any public protection concerns. It deals with questions relating to the length of time in detention and public protection issues and gives guidance on compliance issues identifying positive factors, such as having fully complied with conditions of leave, and negative factors.

Thirdly, at page 11, under the heading “balancing risk factors against immigration control factors”, the Policy provides that in level 2 cases, where there is “ no indication that detention is likely to lead to a significant risk of harm if the person is detained for the period identified as necessary for removal”, detention should only be considered if one of a specified number of conditions are met. These include presenting a level of public protection concerns that would justify detention, including if they meet the criteria of foreign criminal as defined in the Immigration Act 2014 or the presence of negative indicators of non-compliance which indicate that the individual is highly likely not to be removable unless detained. In level 3 cases, (which at this point in the document are defined as where “detention is likely to lead to a risk of significant harm from detention”), the Policy says that detention should only be considered if removal has been set for a date in the immediate future and there are no barriers to removal or if there are “significant public protection concerns”. It states that it is very unlikely that non-compliance issues on their own would justify detention. Finally, the Policy requires an “ongoing assessment of risk” made by the case owner throughout the period of detention.

The AAR Published Guidance commences by stating that it sets out the matters to be taken into account in accordance with section 59 Immigration Act 2016. The intention is that the guidance will lead to a reduction in the number of vulnerable people detained and a reduction in the duration of detention before removal. It aims to introduce a more holistic approach to the consideration of individual circumstances, ensuring that genuine cases of vulnerability are consistently identified, in order to ensure that vulnerable people are not detained inappropriately. The clear presumption is that detention will not be appropriate if a person is considered to be “at risk”. However it will not mean that no one at risk will ever be detained.

At paragraph 7, an individual will be regarded as an “adult at risk” if they are suffering from a condition “likely to render them particularly vulnerable to harm if placed in detention”. The presumption is that an “adult at risk” will not be detained. At paragraph 9, the Guidance repeats largely verbatim the definitions in relation to evidence for the three levels as set out in the AAR Staff Policy. However in relation to level 2 the test is stated to be that there is evidence “which indicates that the individual is an adult at risk” (and does not include the test that he or she “ may be an adult at risk”). At paragraph 11 it sets out a list of indicators of risk and includes, amongst the list of conditions “which will indicate that a person may be particularly vulnerable to harm in detention”, those who suffer from a mental health condition.

In the present case, the distinction between AAR level 2 and AAR level 3 is important. I make the following observations on the AAR policy as contained in these two documents:

Doing my best to take account of these drafting differences, in my judgment, in order for an individual to be regarded as level 3 under the AAR policy there must be evidence to suggest that detention is likely to lead to a risk of harm, where either or both the risk is significant and the harm is significant. It is not necessary for the evidence to establish that the individual will or is likely to be harmed by detention; the risk is sufficient. On the other hand, level 2 covers the individual who is vulnerable (because of a particular condition), without there being evidence that his condition is at risk of being harmed by detention (or, at most, where there is a risk of harm from detention, which is not particularly significant).

Chapter 55 of the EIG provides as follows:

“55.1.1

general

The power to detain must be retained in the interests of maintaining effective immigration control. However there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used… Detention is most usually appropriate:

- to effect removal

…

…

To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy.

As well as the presumption in favour of temporary admission or release, special consideration must be given to family cases where it is proposed to detain one or more family member(s) and the family includes children under the age of 18 …

…

Section 55 of the Borders, Citizenship and Immigration Act 2009 (S.55) requires certain Home Office functions to be carried out having regard to the need to safeguard and promote the welfare of children in the UK. Staff must therefore ensure they have regard to this need when taking decisions on detention involving or impacting on children under the age of 18 and must be able to demonstrate that this has happened, for example by recording the factors they have taken into account .

…

A properly evidenced and fully justified explanation of the reasoning behind the decision to detain must be retained on file in all cases.” ( emphasis added)

Section 55.1.2 makes special provision for foreign national offenders (“FNOs”) dealt with by Criminal Casework. It states that the general policy, including the presumption in favour of release and special consideration of children, applies to FNOs. Nevertheless where the criteria for deportation are met, the risk of re-offending and the risk of absconding need to be weighed against the presumption in favour of release. Section 55.1.3 addresses the use of detention in criminal casework cases. It states that in cases concerning FNOs i.e. those who had been sentenced to a term of one year or more, if detention is indicated it will normally be appropriate to detain as long as there is still a realistic prospect of removal within a reasonable timescale. However, in considering factors which might make detention unlawful, regard must be had, inter alia, to the AAR Policy.

Section 55.1.4.2 addresses Article 8 ECHR, and expressly requires consideration of the position of children and the need to promote the welfare of children. The impact of the separation must be considered carefully. Any relevant information concerning the children that is available or can reasonably be obtained must be considered.

Section 55.3A makes it clear that decisions to detain or maintain detention must comply with the AAR Policy. The caseworker must look at all relevant factors to the individual case and weigh them against the particular risks of re-offending and of absconding which the individual poses.

Section 55.8 addresses “Detention reviews” and provides as follows:

“Initial detention must be authorised by a CIO/HEO or inspector/SEO (but see section 55.5). In all cases of persons detained solely under Immigration Act powers, continued detention must as a minimum be reviewed at the point specified in the appropriate table below. At each review, robust and formally documented consideration should be given to the removability of the detainee. Furthermore, robust and formally documented consideration should be given to all other information relevant to the decision to detain.

Monthly review should be conducted using the detention review

template…”

( emphasis

added)

Then Table 3 sets out the review of detention in criminal casework cases providing, inter-alia, that the first monthly review has to be authorised by SEO/inspector and, significantly, that the twelfth monthly review has to be authorised by the Director.

Section 55.10.1 sets out a number of criteria as to when it is appropriate for detention to be in prison rather than in an IRC. In particular, after setting out cases where the presumption is for detention in prison, the section goes on to identify individuals who may be unsuitable for transfer to an IRC. Such cases include first, behaviour during custody and, secondly, health grounds, namely where a detainee is undergoing inpatient medical care in a prison, transfer will only take place when an IRC healthcare bed becomes available. The section goes on to point out that those risk factors are not exhaustive and staff must identify whether other risks exist which make it inappropriate for the detainee to be held in an IRC rather than a prison. (In the present case, the Claimant was not undergoing in-patient medical care in prison and it is not clear that he was detained in prison because of his behaviour during custody. Rather the Claimant was detained in prison because of concerns about his mental health generally).

Bail accommodation: section 4 Immigration and Asylum Act 1999

Section 4 of the Immigration and Asylum 1999 (“the 1999 Act”), headed

“Accommodation” provides, so far as material to the present case, as follows:

“(1)

The Secretary of State may provide, or arrange for the provision of, facilities for the accommodation of persons –

…

(c)

released on bail from detention under any provision of the Immigration Acts.”

The evidence

In addition to substantial documentary evidence, there is evidence from the Claimant in the form of a written witness statement. The Secretary of State has adduced evidence from Ms Michele Louden. She gave evidence in two witness statements and oral evidence over two days, in the course of which she was cross-examined and reexamined. There has also been placed before me written expert evidence, to which I refer below, after setting out the detailed facts.

Ms Louden is an assistant director in the Home Office, based at Lunar House in Croydon. She is responsible for Criminal Casework, Croydon Command. She now leads delivery of CC casework to ensure that requirements in respect of maximising removals of FNOs are met. She also is involved in liaison with prisons and the probation service. She also “manages detained cases, applying the law and policy defensibly and rationally to minimise the number of unlawful detention claims and costs”. She joined Criminal Casework in 2019. She was not working in the department in 2017 and explained that she had no direct involvement in the Claimant’s detention. Her evidence was based on having read the Claimant’s detention reviews and, more recently, the Case Information Database (“CID”) notes and key documents. Her witness statements comprised comment on the reasons for detention given by other caseworkers.

In the main, I found Ms Louden to be an honest and straightforward witness, and she was willing to assist the court and prepared to respond to questions in a way which did not necessarily assist the Secretary of State’s case. Because of her lack of involvement at the time, some of her evidence was speculative. As I shall explain, on two aspects she was somewhat caught out by her lack of knowledge of the case: first in relation to whether Mr Walker was still at Home Office and secondly in relation to the twelfth detention review.

In cross-examination, she said she was astounded at the amount of costs being paid out as a result of unlawful detention claims. She had been brought in to minimise unlawful detention that led to claims and to improve training. The caseworker in the present case was not familiar with AAR or the Case Progression Panel at the time. She accepted that the relationship between Criminal Casework and prisons had improved a lot in the last two years.

In cross-examination, she accepted that others who were involved at the time still worked at the Home Office. As regards Mr Walker in particular, in both witness statements, she said that Mr Walker had now left the Home Office, but in crossexamination she said that she had been told that he is still in the Home Office. She then appeared to change her mind again, suggesting he “may” have left. She had no involvement in the case at the time and when the legal case arose she was told to be the witness. Whilst she could say what was happening with the AAR Policy, she could not get into the heads of the people who looked at the case at the time.

She accepted that there was no indication as at the second detention review in April 2017 nor in the General Casework Information Database (“GCID”) records that detention would not be injurious to the Claimant’s health. As regards Dr Maganty’s report (see paragraph 56 below), which she had not seen, she said that if it had been sent in at the time, it would probably have made the Claimant AAR level 3. If the caseworker had been aware of the report, he could not have made a decision without looking at it and it would have been escalated to at least a HEO to comment. The caseworker would have relied upon the Sentencing Remarks (see paragraph 60 below). She would have liked to think that if they had known about the Maganty report, that would have been considered somewhere as well. But if they had not seen that report, it couldn’t be included. She accepted that the caseworker relied upon the Sentencing Remarks which in turn was based on the Maganty report, but the caseworker never asked for or saw the report. She could not say why the caseworker did not ask for the report.

She was asked if the Claimant was not well enough to transfer to IRC, should that not have raised a question as to whether his health was such that it might have been harmed by detention. She said that she could see where the question was coming from, but that would not have put up a red flag. With any level of mental health problem, IRC would not want to take him. Prison has a lot better medical facilities than IRC. It would have flagged up that he was so ill that he could not be moved. However, she added that Prison healthcare was not saying that it was the detention which was having an adverse effect on his health. Nothing in the records indicates that his mental health condition was due to him being detained. She accepted that in prison there is no equivalent system to rule 34/rule 35 in an IRC, but the Claimant could have spoken to people including POP to point out his concerns. She agreed that in an ideal world it is important for the caseworker to have all information available, but here the caseworker had just taken what the prison nurse had said and not looked into it.

In re-examination she said that Prison healthcare staff do alert the Home Office that detention is affecting a detainee’s mental health. The governor will bring it to their attention. If Prison healthcare had had concerns about the Claimant’s mental health she would have expected them to have sent the medical records more quickly than they did and indeed, even without sending the records, to express concern.

She accepted that not one of the detention reviews refers to the Claimant’s two British children. She said that should have been something that Mr Walker should have been looking at. There was no consideration given to the impact of detention specifically, because a “family split” had already been done and this was a continuation of detention from prison. If he had got the authority of a family split, the case officer would assume that a senior case officer had considered it. He would not investigate further what effect detention would have on the children because he had assumed that he had got the family split document there.

In cross-examination, Ms Louden agreed that at the time of the first asylum claim the Claimant did not have bipolar or psychosis nor did he have a British partner or British children. However she did not agree that those factors indicated that the second claim

She indicated that she was not particularly familiar with section 4(1)(c). The Home Office had not put forward a witness with experience of section 4 because everyone else who had something to do with the Claimant’s case had moved on or was on secondment in other areas. She agreed that the section 4 team has to consider the application one way or the other, and that the Home Office has a duty to consider any section 4 application rationally and fairly.

“Q: So the Claimant was in detention with mental health issues and could not apply for bail without an address. These failings are pretty poor aren’t they?

A: Yes it appears to be yes…”

She sought to explain this by suggesting that the case owner was away or out of the office. (However the Secretary of State chose not to call the case owner: see paragraph 49 below).

In her witness statement she said that, if the caseworker had recognised the Claimant to be level 2 AAR, it would have not changed whether the Claimant was detained or released. This is apparent from the other detention reviews where he was assessed as Level 2 and detention was maintained. (She was not asked what would have happened if assessed as Level 3). In cross-examination, when asked about whether, absent the numerous errors, it would have made no difference, she said her opinion about what would have happened, limited to the Claimant being assessed at level 2 and, taking account of the Case Progression Panel only, was that would not have made a difference. In re-examination, she was asked to assume that she had personal responsibility and had the evidence that was available at the time, including evidence that Mr Walker had not seen, but which the Home Office did have; on that basis “would you have detained the Claimant throughout the relevant period?”. She initially answered that she would have done “without all the other bits”. Counsel then said asked what she would have done if she had had all that material available she answered “if I’d had everything in front of me I would still have maintained detention”.

From Ms Louden’s evidence, it seems clear that there are individuals working within the Home Office (very possibly including Mr Walker) who were directly involved at the time. They have not been called to give evidence. In this regard, the judgment of Beatson LJ in VC supra, at §68, citing Sales J in Das at §21, is of particular relevance. Both those cases concerned detention of individuals with a mental health condition. In both those cases, the Secretary of State had not put forward any witness statements to explain how the decision to detain had been taken or what material had been to hand. The Court was simply referred to the contemporaneous records on the Secretary of

The Facts

The Claimant entered the United Kingdom on 27 November 2007 as a minor and claimed asylum. On 23 April 2008 he was refused asylum, but was granted discretionary leave to remain as an unaccompanied minor until 22 April 2011. Subsequent applications for leave to remain failed and on 10 July 2012 he became appeal rights exhausted.

On 14 April 2009, aged 15, he was convicted of common assault and sentenced to a referral order. In 2011 date he formed a relationship with a woman, who became his partner. They have two children together, born on 3 April 2014 and 11 November 2015 respectively.

On 12 July 2012 the Claimant was notified by the Secretary of State to live at a specific address and to report weekly from 19 July 2012. He failed to report as required, and his solicitors were sent reminders. On 8 November 2012 Home Office officials visited his last known address to be told that the Claimant had left a few days before. At no time thereafter did the Claimant report as requested.

On 16 December 2015, the Claimant was arrested in connection with damaging a car and possession of cannabis. He was severely unwell at the time. Three days later, at HMP Hewell, he was diagnosed by a doctor with stress disorder, but the doctor noted no thoughts of self harm or suicide. However three days later the Claimant was admitted to hospital under s. 2 Mental Health Act 1983 (“MHA”). Hospital records dated 1 January 2016 note that the Claimant smoked cannabis at every possible opportunity. On 7 January 2016 the Claimant was discharged from hospital to stay with his partner.

On 12 January 2016 the Claimant was arrested following an incident when he was abusive to his ex-partner, refused to leave, brandished a knife and caused damage to a car. He was remanded in custody. Upon examination at HMP Hewell the next day, it was recorded that he had used cannabis two days earlier. His medical records referred to a risk of self-harm.

On 21 January 2016 Dr Maganty, a consultant forensic psychiatrist examined the Claimant when his presentation was manic. On 4 February 2016, whilst the Claimant told Dr Kihara that his behaviour and mental state had been perturbed before as he had smoked a spliff, there was improvement in his mental health. On 25 February 2016 Dr Kihara assessed the Claimant as having settled in well and was stable. Medical notes of the same date showed that he was exhibiting paranoid behaviour. On 8 March 2016 his medical notes show that the Claimant presented as psychotic and paranoid. On 10 March 2016 the Claimant completed Bio-Data information.

On 20 March 2016, Dr Maganty produced a report for court, instructed by the Claimant’s solicitors. The Claimant was diagnosed with bipolar disorder. The prognosis was good and he would require continued follow-up. He did not require inpatient treatment in hospital and could be cared for in the community. Dr Maganty considered that “there was a direct link between his mental disorder and the offences”. The question of whether or not a defence of insanity would be available was finely balanced. Dr Maganty’s report continued:

“A custodial sentence … would be detrimental to his mental health. Though a custodial sentence would protect the public in the short term, in the medium to long term by worsening his mental disorder it would paradoxically increase his medium to long-term risk to others. Bipolar disorder is a relapsing illness if not treated appropriately and under those circumstances with each relapse the prognosis could worsen. Therefore future relapses and deterioration in a custodial setting are best avoided to manage his long term risk”

He also concluded that his bipolar disorder had responded well to treatment in custody. Conviction and sentence: April to June 2016

On 20 April 2016, the Claimant was convicted at Warwick Crown Court of offences of possessions of a bladed article, two counts of criminal damages, two counts of possession of a class B drug, a racially and religiously aggravated public order offence, dangerous driving and racially aggravated assault. Some of these offences arose out of the events on 12 January 2016, and others took place on 16 December 2015.

Medical notes in April and May 2016 showed that the Claimant was struggling with low mood, he was agitated and sleeping poorly. Concerns about deliberate self harm were noted.

In a Pre-Sentence Report (PSR) dated 24 June 2016, the Claimant was assessed as being a medium risk of re-offending and a medium risk of harm to the public, and a medium risk of harm to his “now ex-partner”.

On 30 June 2016 the Claimant was sentenced to 26 months imprisonment. In his sentencing remarks (“the Sentencing Remarks”), HH Judge Lockhart QC took account of the PSR and Dr Maganty’s report. He pointed out that, based on Dr Maganty’s report, “you were caused significant mental health difficulties by a bipolar disorder.

On or around 19 July 2016 the Secretary of State served upon the Claimant notice of decision to make a deportation order – i.e. stage 1 letter – based on the Claimant’s conviction of the offences on 20 April 2016. The Claimant immediately confirmed his intention to respond.

On 31 July 2016 the Claimant’s partner and her family wrote representations. His partner explained that they had been together for 5 years and had two beautiful children together. If he was deported it would destroy him and them, being away from his children and family and that he had provided great support for her mental health. She pointed out that he was, by that time, getting the right help with his medication. In cross-examination, Ms Louden agreed that these letters from the family show that in 2016 the Claimant had strong community ties.

On 9 August 2016, the Claimant responded to the stage 1 letter, by making a claim for asylum and under Article 8 ECHR, providing details of his partner and his two children with dates of birth. His main reason was “separation from family”. He claimed that he was the main carer for his partner and children, and he could not bear to think about them growing up without a father. He was taking his medication and feeling fine in custody.

Medical notes in October 2016 record mood swings, nightmares and thoughts of selfharm (though he would not act upon them). On 9 December 2016 the Claimant reported suicidal thoughts. This was the first record of any psychotic episode since January/February 2016. His medical records stated that he had been seen by the doctor at HMP Featherstone and that he appeared distressed and anxious and had hallucinations. The plan was then to be seen by the mental health team regularly. On 12 December 2016 the medical records referred to continuing psychotic symptoms.

On 1 February 2017 the Secretary of State sent to the prison a signed medical consent form to obtain the Claimant’s medical records. On 2 February 2017 the GCID records state that Mr Majid, a case owner, completed a “family split” form and sent it to the HEO. Mr Dunlop suggested that this was the family split for detention, but the document is not available.

On 4 February 2017, the Secretary of State decided to detain the Claimant under immigration powers. By email of that date, the HEO Detention Gatekeeper stated that due to his convictions, the Claimant was assessed as a MAPPA level 2 and, as such, a high risk of serious harm to the public. She added that she expected that the asylum claim could be dealt with quickly, suggesting removal would be straightforward. He had provided no evidence of subsisting relationships. He was assessed as an Adult at Risk level 2 on the basis of the Sentencing Remarks. Referring to the psychiatrist’s report, it was noted that he was bipolar, but that there was no mention in the Sentencing Remarks of detention being likely to lead to a risk of significant harm or detriment to the Claimant. There was no evidence that currently he was suffering from such physical or psychological injury as to make detention unreasonable or inappropriate.

On 7 February 2017 the Claimant was released on licence from his prison sentence under the supervision of his nominated probation officer and commenced detention under immigration powers. His licence required him to keep in touch with his officer and to reside at an address approved by Probation.

On 14 February 2017 the Claimant’s case was given to a decision team to allocate a Stage 2 decision. A request was made for an EU letter – a process which, according to Ms Louden’s evidence, is much quicker than an Emergency Travel Document (ETD). On 16 February 2017 the detainee detention history recorded that the Claimant had been risk assessed and would not be transferred to an IRC. There were identified health care needs requiring further investigation with HMP Featherstone. The Probation case notes stated “mental health issues”. On 21 February 2017, the Secretary of State decided not to transfer the Claimant to an IRC until further notice due to an “identified mental health issue”. The medical report had been received recording ongoing mental health issues requiring medication. On 1 March 2017 Mr Majid spoke to a nurse at HMP Hewell who said that the Claimant was on the waiting list for mental health assessment. He was on medication for bipolar. There were no concerns or worries that his physical or mental health was getting worse. In cross-examination, Ms Louden accepted that the nurse did not answer the question whether his mental health would be harmed in detention. The Secretary of State never chased the results of that mental health assessment. On around 5 March 2017 the Claimant underwent an ETD interview at which biodata and photos were obtained.

The first detention review took place on 14 March 2017. It was carried out by Mr Majid. Mr Majid called and spoke to Prison healthcare who did not express concerns regarding his health. He was assessed at Level 2 AAR. The assessment followed closely the wording of the Detention Gatekeeper’s email of 4 February (paragraph 66 above).

The outstanding barriers to deportation were identified as the asylum and article 8 claim, the EU letter and the stage 2 deportation decision. It was noted that further representations were a barrier to removal. It was also noted that his previous asylum claim was refused. The Claimant was assessed as a high risk of absconding, as he had failed to report in the past and absconded. In the absence of an OASys report, he was assessed as medium risk of re-offending and a very high risk of harm to the public due to his previous violent convictions. It was noted that he was subject to MAPPA level 2. Removal to Afghanistan could be done on a EUL and the process could take a month. An EUL had been requested.

Medical conditions and including mental health and risks of suicide were addressed in section 10 of the Detention Review, as follows:

“10.

Risk indicators and risk level, according to the Adults at Risk policy (where relevant)

In the Judge’s Sentencing Remarks (JSR), the Judge states the psychiatric identified Mr [AO] with Bipolar. There is no mention in the JSR if detention is likely to lead to a risk of significant harm or detriment to Mr [AO]. Therefore, I have assessed the case as level 2”

However, the Maganty report had said he would be at risk of harm in detention. The Claimant’s case is that anyone who looks at the Sentencing Remarks would have had to look at the psychiatric report there referred to.

Then at section 14, the case officer made his recommendation. The heading to that section makes express reference to “including reference to children issues and ties to the UK”.

“I have considered release under the Adults at Risk Policy, Mr [AO] does show indicator for being a vulnerable adult.

After referring to the identification of bipolar contained in the Sentencing Remarks, he continued

“There is no mention in the JSR of detention is likely to lead to a risk of significant harm or detriment to Mr [AO]. There are no notes on CID to raise concern about Mr [AO]’s health and I called and spoke to Healthcare department at Hewell and they did not express any concern regarding his health. Therefore I have assessed the case as level 2 and consider detention is appropriate.”

He referred to the fact that the EUL had been requested and the process could take one month. He concluded as follows:

“… It is considered that detention remains appropriate as the prospect of removal is within a reasonable timescale when balanced with the offence committed. I have assessed this case in accordance with the current criteria and conclude that presumption to release is outweighed by the risks of absconding, re-offending and harm if released.”

The authorising officer, A Cockell, agreed, stating as follows:

“He has committed a serious offence whilst in the UK and presents a significant risk of harm to the public. He has no leave in the UK and has made a last-minute application for asylum. I agree that his behaviours create doubt around his likely compliance with any release restrictions. I consider that the risk of harm and of absconding outweighs the presumption to release. I would expect the asylum representations to be refused before the next review is due.”

Then the detention review sets out a passage, purportedly from a previous review on 3 February 2017, which in fact is taken, practically verbatim, from the HEO Gatekeeper’s’ assessment on 4 February 2017 set out in paragraph 66 above.

On 23 March 2017 a letter under s.72 Nationality Immigrational and Asylum Act 2002 was served pursuant to which he was no longer entitled to international protection under the Refugee Convention. There was a need to wait 20 working days for a response.

The second detention review was dated 4 April 2017. This was the first review carried out by Mr Walker. In the summary box at the outset, he classified the risk of reoffending as “high” (rather than “medium” as per the first detention review). Under section 5 headed “Known or claimed medical conditions (including mental health and/or self-harm issues…) Mr Walker wrote:

“There are no known medical issues including mental health and/or self-harm issues that have been reported. On 01 February

2017, Mr [AO]’s medical records were requested”

It is common ground that this statement was incorrect and inconsistent with the first detention review. The Claimant submits that this demonstrates that Mr Walker had not read the first detention review.

As regards the risk of re-offending, Mr Walker assessed it as “high”, referring to his convictions for 12 offences between April 2009 and June 2016. “It is considered he is likely to re-offend to support and sustain himself. As such in the absence of OASys report I have assessed that he runs a high risk of offending.” In fact the offences in that period included common assault in 2009 and a caution for shoplifting in 2012.

Under section 10, the heading of which drew express attention to the AAR policy, Mr Walker stated:

“Mr [AO] is considered suitable for detention. Therefore according to the Adults at Risk Policy, he is suitable for detention.”

This comment makes little or no sense. First it is circular; secondly Mr Walker has stated earlier in the review that there are no known mental health issues.

In section 14 the recommendation section (which includes reference to children issues), Mr Walker stated as follows:

“When considering whether Mr [AO] is suitable for release, I have weighed up the risk of absconding, re-offending and subsequent risk of harm to the public and believe that the risks he poses outweighs the presumption to release in favour of liberty

Mr [AO] claimed asylum after being notified of his liability to deportation and it is believed the timing of his claim suggest that it is an attempt to frustrate the removal process given that he had ample opportunity to claim asylum at an earlier stage.

In this light he is considered to pose a high risk of re-offending if he were to be released. Having considered all the available evidence it is considered that the risk of re-offending, absconding and risk of harm to the public outweighs the presumption in favour of release in accordance with chapter 55 of the EIG. I therefore propose Mr [AO] to be detained pending his deportation.”

It is particularly noteworthy that this passage setting out Mr Walker’s conclusions and recommendations was repeated, practically verbatim, in each of the following 9 detention reviews he carried out, all the way until the last review in December 2017.

There was no reference to AAR policy. In her witness statement, Ms Louden said she did not know why this error had been made, explaining that the caseworker (i.e. Mr Walker) has now left the Home Office altogether. In her oral evidence she corrected this (see paragraph 41 above).

On 19 April 2017, Bail for Immigration Detainees (“BID”) on behalf of the Claimant chased Probation for an assessment of the address the Claimant had submitted for potential release on bail. Probation responded on 25 April 2017 that they were inclined to approve the address in Coventry, but required more information.

In a witness statement dated 25 April 2017, the Claimant’s partner set out that she really struggled without the Claimant and it would make a massive difference if he came home. Most importantly the children were missing out on having their father in their lives. In her oral evidence, Ms Louden said that the case officer would not have seen that witness statement.

On 27 April 2017 (over two months after he was detained) Mr Walker wrote to the local authority children’s services for their views on the impact of deportation on the claimant’s two children. In re-examination, Ms Louden said that Mr Walker was contacting Coventry children’s services for safeguarding reasons. She would expect

The third detention review was dated 2 May 2017, completed by Mr Walker. There was no reference to AAR Policy and it was in broadly the same terms as the second detention review. When it came to the risk of absconding there was no reference to the historic failure to report, but only to the fact that the Claimant had been served with a stage 1 letter and would therefore have little incentive to remain in touch. Both section 10 and his conclusion at section 14 were in the same terms on the second detention review. In this case the authorising officer was different and commented that “Mr [AO] is FAS and has no ties in the UK.” The authorising officer concluded that the risks of harm and of absconding outweighed the presumption to liberty. The Secretary of State accepts that this review was in breach of policy and thus unlawful. The Claimant points to the fact that in assessing the risk of absconding, there was no reference to the Claimant’s family.

On or around 3 May 2017 the Claimant made further written representations to the Secretary of State. On 25 May 2017 BID wrote to Probation indicating that the Claimant would like to reside at the address of his friend, HMK. On the same date, the file was passed to the asylum expert to consider the Claimant’s asylum claim.

The fourth detention review was dated 26 May 2017, carried out by Mr Walker. His recommendation in section 14 was in precisely the same words as in the previous review. This review is admitted to have been unlawful, although oddly the authorising officer made some reference to AAR level 2. The authorising officer, in his comments, stated the Claimant could be removed swiftly within 4-6 weeks upon conclusion of the late asylum representations. However the authorising officer stated that the Claimant had been noted as an Adult at Risk level 2, but was of the view that detention could be maintained for a short timeframe whilst asylum representations were concluded, given the risks under public protection. He authorised a further 28 days pending the resolution of the representations, which needed to be finalised within that timeframe and advised “please monitor closely”.

On the same date, Mr Walker chased HMP Hewell for the Claimant’s medical records. On 30 May 2017 Mr Walker received the medical records and passed them on to Mr Peter Gardiner, of the Defendant’s asylum team, to consider the asylum claim.

As regards accommodation, on 1 June 2017, Probation responded to BID saying that they could not approve the different address which the Claimant had provided. At this stage the Claimant was still seeking probation approval for a private address.

On the same date BID on behalf of the Claimant applied formally for accommodation and support pursuant to section 4(1)(c) of the 1999 Act.

On 2 June 2017 Mr Gardiner considered the Claimant’s asylum claims. His minute noted that the Claimant mainly relied on Article 8. It recorded that they had obtained the Claimant’s medical records which indicated the medication that he was on. It also noted that his medical condition was not one which could be completely detached from the Claimant’s protection claim. It further noted that there appeared to be no evidence to the effect that the Claimant’s behaviour represented any difficulty in the detention regime. He concluded by recommending that the further representations should be rejected under rule 353 and that the claim had no prospect of success. He recommended a stage 2 letter be prepared. In oral evidence Ms Louden said that if Mr Gardner had had, at the time, serious concerns when looking through the medical reports, she would have expected him to flag them up to Criminal Casework and they would have been notified to Mr Walker.

On 7 June 2017, BID asked Probation to approve another private release address, being the address of the Claimant’s cousin. On 10 June 2017 the Secretary of State’s section 4 team referred the section 4 application to Mr Walker for completion of the standard form “section 4 Accommodation Information Pro - Forma (“the pro-forma”). This is a form which the section 4 team requires to be completed by the caseworker for the individual who has made a section 4 application (see further paragraph 224 below). On 12 June 2017, Mr Walker completed the pro-forma. In that pro-forma Mr Walker omitted any reference to the important offences for which he was convicted and sentenced to 26 months, and referred only to his very minor offences. The Claimant was assessed as being suitable for standard dispersal accommodation and in a shared room with shared facilities. He answered “No” to the question whether the applicant had any medical conditions. He appeared to suggest that NOMS approval was required for the address. However this pro-forma was not sent back to the section 4 team until 3 July 2017.

The fifth detention review was dated 26 June 2017, completed by Mr Walker. The body of the review and the recommendation in section 14 was in precisely the same words as before. There was no mention of AAR, even though by this time Mr Walker had received the Claimant’s medical notes. Detention at this time is admitted to be unlawful. The authorising officer in his comments directed Mr Walker to ensure urgent attention was given to his outstanding stage 2 decision, as now the asylum claim was concluded. He noted that the Claimant would be given an in-country appeal. His removal would be within a reasonable timescale if the asylum claim was dismissed and he became appeal rights exhausted. He authorised continued detention.

On 29 June 2017 the Probation service produced its OASys assessment. However Mr Walker did not receive the OASys assessment until November 2017. In the OASys assessment, the Claimant was assessed as posing a 47% risk of re-offending within two years and a medium risk of harm to the public, staff, ex-partner and children. In further detail, however, he was in the “low” category for probability of re-offending and probability of violent re-offending. Only in probability of non-violent re-offending did his score fall within the “medium” category. Then in relation to likelihood of serious harm he was assessed as medium risk to children, public, known adults and staff. It was noted that the Claimant had put forward four addresses but none were regarded as suitable by either the offender manager or the police. He had the option of a section 4 application, but that would mean that he could be placed anywhere in the UK which would not be ideal for his mental health.

On 30 June 2017 Probation informed BID that the cousin’s address was unsuitable given the presence of young children. At that point it became clear that the Claimant might well need a section 4 address. On 3 July 2017 the section 4 pro forma completed by Mr Walker on 12 June 2017 was received by the section 4 team. The section 4 team then made a property request for level 2 dispersal accommodation and BID were informed that the section 4 team were endeavouring to source such an address. The section 4 team informed the Claimant that IA (immigration accommodation) was not suitable for him, so they would have to find a dispersal bail address.

On 5 July 2017, the local authority wrote to the Secretary of State. It had conducted a further assessment. Both parents would like to resume the relationship upon release. The children had had regular contact with their father in prison and he would not be returning to the family home once released. The partner had been advised that the children should not be left alone with their father “initially” until he had adjusted to being out of prison. The letter also noted that the Claimant was receiving support for his mental health, that he was taking medication which was reported to be effective and that he was no longer taking cannabis. On 10 July 2017 that response was loaded on to the GCID by Ms Vega. Ms Louden’s evidence in re-examination was that that had been done so that everyone was clear of the circumstances of the children and those notes were available to staff authorising the detention and not just to the caseworker. She agreed that if the local authority had been saying that the Claimant not being at home was damaging the children, it would have said so.

On 5 July 2017 a property proposal for section 4 accommodation in Sunderland was received by the section 4 team from the property provider. On 12 July 2017, the section 4 team wrote to the Claimant stating that a bail address had been found and had been forwarded to Probation for necessary checks to be carried out. It appears that they forwarded it to Mr Walker for him to pass it on to Probation. On the same date, the section 4 team emailed Mr Walker with the address of a shared property with no known women or children present. They sought his comments, and in particular any information which could be placed before the immigration judge when considering the Claimant’s intended application for bail. On 16 July 2017, BID requested Probation to reconsider the private addresses and to check the section 4 address.

On or around 18 July 2017 the Secretary of State made a deportation order in respect of the Claimant. At the same time, family split for the purpose of deportation and detention was authorised: the Claimant’s children had been adequately cared for whilst he had been imprisoned and there was no reason to suggest that could not continue if he were deported. In her oral evidence, Ms Louden sought to explain. There were two documents: the initial family detention split dated 2 February 2017 and the family split for deportation and detention dated 18 July 2017. Family split is the authority to keep someone detained and progressed into deportation, knowing they had family. However, the Claimant could not be served with the deportation decision as he had been locked in his cell for his own safety, having been assaulted by three other prisoners. (In fact, the Claimant was subjected to violence whilst in prison on a number of other occasions).

On or around 23 July 2017 the Claimant was transferred from HMP Hewell to HMP Hull. Upon arrival he was assessed by a nurse. He appeared fit and well and mentally stable and reported no health concerns.

On 2 August 2017, BID wrote to Probation stating that they preferred private accommodation, in the light of a new social services report. They also pointed out that a section 4 address had been sourced on 12 July and that Probation should have received that information from Mr Walker. Probation responded that they had not been asked to approve a section 4 address and had not been contacted by Mr Walker. BID then gave the probation officer Mr Walker’s details and also contacted the section 4 team to inform them of the failure to request probation approval. On 4 August 2017 the section 4 team replied to BID saying that the address had been sent to Mr Walker on 12 July, and then sent it to Mr Walker again, asking that he pass it on to Probation for checks. On the same day the section 4 team noted internally, and somewhat oddly, that the caseworker had not received the Probation “request”.

Meanwhile, on 3 August 2017, the sixth detention review was carried out by Mr Walker. It was in precisely the same terms as the previous reviews. The authorising officer’s comments were in similar terms. They should wait to see if the Claimant lodged an appeal within the time allowed. There was no reference at all either to family ties or to AAR policy.

On 3 August 2017 the deportation order had been served on the Claimant and on 7 August 2017, the Claimant lodged an appeal.

On 7 August 2017 the Secretary of State’s Case Progression Panel concluded that the Claimant’s detention was appropriate, justified and proportionate. The Case Progression Panel was unaware of the Claimant’s mental health condition or that he was AAR level 2.

On the same date the POP saw the Claimant at HMP Hull, given the circumstances of his transfer. The Claimant disclosed that he was struggling mentally and had been diagnosed as bipolar. He was feeling depressed, having suicidal thoughts and not sleeping. He had applied to see the mental health team. Ultimately he said he was doing ok, but being away from the family was having a huge impact on him and his partner mentally. This was recorded by POP in the GCID case record on 10 August. In crossexamination, Ms Louden considered that what was there recorded suggested that the Claimant was at level 2 Adult at Risk, as he was feeling all right at that time.

On 9 August 2017 Probation informed BID that they had still not received any request to check a section 4 address. BID then wrote to Mr Walker indicating that the section 4 team had told them on 12 July that an address had been sourced and that the section 4 team had contacted him, for him to forward the address to Probation. However the Claimant’s probation officer had not received any address for approval. She had tried to contact Mr Walker but had not managed to speak to him. They therefore requested Mr Walker to forward the address to the probation officer. On the next day, Probation informed BID that they had now received information regarding the section 4 address and would look into it.

On 10 August 2017, the Claimant’s partner’s GP wrote a letter explaining that the

On 16 August 2017, in light of what POP had recorded on 10 August, Mr Walker chased Prison healthcare for an urgent medical update. He stated that this would enable them to fully consider both detention and deportation. He asked them to advise whether the Claimant “has any history of mental health problems and whether he was receiving any ongoing support”. In my judgment, it is surprising, to say the least, that Mr Walker appears to have had no knowledge of the Claimant’s mental health condition after 6 months of detention and 4 months after he became involved, and given the evidence of that condition, including the local authority letter of 5 July 2017.

The seventh detention review was dated 24 August 2017, again carried out by Mr Walker. On this occasion in section 5 Mr Walker stated that the CID notes of 10 August stated that the Claimant claims that he had been diagnosed in 2016 as bipolar, and at section 10 it was noted that the Claimant’s medical records had been requested and “therefore according to the Adults at Risk policy, he is likely to be considered as level

Nevertheless despite the fact that Mr Walker had now noted, for the first time, that the Claimant was AAR level 2 and despite the fact that he now had an in-country right of appeal, there was no change at all to the wording of either Mr Walker’s assessment of risk of absconding nor to his final recommendation in section 14 of the review.

The authorising officer agreed with the recommendation to maintain detention, noting that the Claimant had lodged an appeal. He added that the Claimant had been assessed as AAR level 2. “However healthcare have not stated that continued detention would be injurious to health”. Detention remained proportionate but if the appeal process was prolonged it might need to be reviewed. At this stage, the medical updates had not been provided.

On 24 August 2017, the Claimant’s probation officer notified Mr Walker that the section 4 release address was not suitable. On the next day, Mr Walker sent an email to the section 4 team (copied to the probation officer) to confirm the unsuitability of the address. On 29 August 2017, BID wrote to the section 4 team and informed them that Probation had not approved the section 4 address and asked if another address had been requested from the accommodation provider. The section 4 team did not respond.

Meanwhile, on 25 August 2017 Mr Walker chased Prison healthcare for the urgent medical update, previously requested. On 31 August 2017 Mr Walker received an update from Prison healthcare, stating that the Claimant had an appointment for a broken hand and that he was on medication; but he was fit to fly. In cross-examination, Ms Louden said that if Prison healthcare had had concerns about the Claimant’s mental health being damaged by detention, she would have expected them to mention it in that 31 August update.

On 6 September 2017, BID contacted the section 4 team for an update, who told them that Probation approval of the address sourced on 5 July 2017 was still being awaited. This is despite the fact that, two weeks earlier, on 24 August 2017 Probation had confirmed to Mr Walker (and that Mr Walker had then informed the section 4 team) that the address was not approved. On the same day BID faxed Mr Walker urging him to confirm that the section 4 team had been informed of the unsuitability of the address.

On 6 September 2017 notice of the case management hearing for the Claimant’s appeal was given, to take place on 28 September 2017.

On 7 September 2017 Mr Walker contacted the section 4 team requesting a second address to be sourced. On the same date BID called the section 4 team who finally confirmed that they would request a further suitable address from the accommodation provider. On 8 September 2017 BID made a formal complaint about delay in providing the Claimant with accommodation, setting out a detailed history of events; no progress had been made for a period of more than 6 weeks due to the lack of diligence of the section 4 bail team and of Mr Walker.

On 15 September 2017 BID requested that the Claimant be transferred to an IRC, on grounds of his mental health which had deteriorated in prison.

On 16 September 2017 Probation rejected proposed accommodation as not suitable. On the same day, Mr Walker emailed the section 4 team asking them to find another suitable address since Probation had stated that the original address was not suitable. The section 4 team then made a further property request to the property provider and informed BID of this. In cross-examination, Ms Louden agreed that the second request for accommodation made to the property provider on 16 September was a repeat of the first request and did not take account of the reasons for the first accommodation being rejected as unsuitable.

The eighth detention review was dated 19 September 2017, carried out by Mr Walker. It was noted that the case management hearing was scheduled to take place on 28 September 2017 and that an update had been received from Prison healthcare. His recommendation in section 14 was in precisely the same terms as before. The authorising officer agreed that detention was warranted. There was no reference to his children. Removal would be within a reasonable timescale, if the appeal was dismissed.

On 22 September 2017 the Claimant made his first application for bail. On 25 September 2017, it appears that the Claimant referred himself to mental health services in the prison. There is conflicting evidence as to the exact state of his mental health at that time. The case management review took place on 28 September 2017.

The first bail application was withdrawn on 3 October 2017. In a letter written the next day to Mr Walker, complaining about the delay in sourcing the section 4 address, BID reported that the immigration judge would have granted bail if an address had been available and that the judge was outraged that between the section 4 team and the Probation service a suitable bail address had not been sourced and approved. He also expressed the view that the Claimant was now being kept in detention simply because of an accommodation shortage. In cross-examination, Ms Louden agreed that, given what was reported as said by the immigration judge on 3 October 2017, there should have been some chasing to find an address. On 5 October 2017 BID sent a pre-action protocol letter challenging the delay in providing the Claimant with bail accommodation. On 11 October 2017 the Claimant made a second application for bail.

The ninth detention review was dated 16 October 2017, carried out by Mr Walker. He noted that a bail application had been made and withdrawn. Again Mr Walker’s recommendation was in precisely the same terms. The authorising officer noted that the Claimant could be removed on an EUL and the only barrier was the appeal against deportation. The authorising officer further noted “Please monitor closely and if a hearing date is not within a reasonable timescale then we should look to alternatives to detention”. He noted that the Claimant was AAR level 2 and if there were to be a prolonged period of detention due to appeal timescales, then they would need to seriously consider release. He authorised detention for a further 28 days, for a robust release plan to be compiled pending the appeal hearing date becoming known. This was the first time that the detention reviews mentioned the need for release.

On 19 October 2017 the Secretary of State decided not to transfer the Claimant to an IRC until further notice due to an “identified mental health issue”. There was a medical report referring to his mental health issues. On 23 October 2017 it was recorded that a medical update had been requested from Prison healthcare. Meanwhile on 20 October 2017 Probation had declined to approve the fifth private address suggested, because children were present.

On 23 October 2017, the Claimant’s second bail application was refused by an immigration judge on the basis that an appropriate address was not available. BID counsel made detailed written submissions, but did not argue that the Claimant was AAR level 3 and no reliance was placed on Dr Maganty’s report. Rather it was stated that the Secretary of State had produced a risk assessment recognising the Claimant’s ongoing medication and medical condition and had recognised that the Claimant was level 2 AAR.

On 24 October 2017 the Case Progression Panel recommended the Claimant’s release (“the CPP recommendation”). It concluded that the evidence suggested that removal within a reasonable timeframe “may not be possible”. On this occasion, it expressly noted, in more than one place, that the Claimant was AAR level 2, and that this was the first of the factors that weighed in favour of release. Nevertheless, despite the CPP recommendation, the Secretary of State decided to maintain detention. In crossexamination, Ms Louden agreed that, by the time of the second Case Progression Panel, the fact that he was acknowledged as an Adult at Risk was a big difference from its previous recommendation. She agreed that the caseworker had a duty to agree with the Case Progression Panel or at least give reasons for not following the recommendations.

“You’re right, the caseworker does need to justify.” She thought that he was not released at the time because there was no accommodation for him.

On 25 October 2017 BID repeated their request that the Claimant be transferred to an IRC, preferably to one near Coventry. On 31 October 2017 Mr Walker acknowledged, by reference to the CPP recommendation, that the Claimant should be released and that he had emailed HMP Hull to request a proposed release. It appears therefore that, at this stage, Mr Walker was suggesting release subject to accommodation being available.

On 10 November 2017 Mr Walker reported that the OASys report had been emailed for his attention. This appears to be the first time that Mr Walker had seen that report. On 13 November 2017 the Claimant submitted his third bail application.

The tenth detention review was dated 14 November 2017, carried out by Mr Walker. His assessment of re-offending and of risk of harm to the public remained in precisely the same terms as in all his previous reviews, reiterating in each case that there was no OASys report. This is despite the fact that by that time Mr Walker had the OASys report in his possession. In evidence, Ms Louden could not explain why Mr Walker had said this. That report does not endorse a high risk of harm. Mr Walker’s final recommendation was again in precisely the same terms as before despite the fact that by then the Case Progression Panel had recommended release and despite what Mr Walker had said on 31 October 2017. The authorising officer noted that the only barrier was the appeal and that there was a need to monitor when the appeal would take place. If the appeal was unduly delayed, then they must consider potential release.

On 15 November 2017 the Secretary of State internally referred the Claimant for release on contact management (as recorded in the eleventh detention review: see paragraph 130 below).

On 24 November 2017 the third bail application was refused by an immigration judge at the FTT. The judge stated:

“there are substantial grounds for believing that the Claimant would abscond, given his failure to report on a number of occasions in 2012, his absconsion for 3 ½ years (which the 2 previous judges were unaware of) and his failure to notify the Respondent of his change of address. … I accept that the Offender Manager has not approved any address he has put forward as being suitable is for good reason, - namely the risk his offending behaviour and mental health causes to children. I do not accept that the failure of the Respondent to provide a s4 address means that he should be bailed as in his circumstances s4 is discretionary. I am not satisfied that the imposition of conditions will reduce the risk of absconding in any material way given his history and the very limited surety money offered. His mental health problems can be treated in custody as they are now. His partner is getting treatment and support she is entitled to. Removal can be effected sufficiently imminently given the background once his appeal is heard”

However, I note that the bail summary provided for earlier bail applications clearly had explained the Claimant’s failures to report in 2012. Moreover section 4 accommodation is not purely “discretionary”: see paragraph 225 below.

On the same day, Ian Davies of Detention and Escorting Services wrote to Mr Walker that DEPMU had assessed the Claimant on 16 February 2017 as unsuitable for transfer to an IRC, due to the Claimant suffering from mental health problems. They had received information that his mental health issues were ongoing and that he was susceptible to psychotic episodes and that was currently managed by the prison under the Care Programme Approach. On 5 December 2017 BID chased up its previous requests for the Claimant to be transferred to an IRC.

On 7 December 2017 Mr Walker emailed the Claimant’s offender manager to ask if she could provide a suitable address for him due to his mental health difficulties. On 8 December 2017 the Claimant’s offender manager replied that Probation could not supply an address because the Claimant was not entitled to public funds and his “level of risk” meant he was unlikely to qualify for approved premises (i.e. his risk was not high enough). On 15 December 2017 Mr Walker was told by the HEO to ask the section 4 team to email a “best available address letter” to Probation (see paragraph 227 below). Eleventh Detention Review: 12 December 2017

The eleventh detention review was dated 12 December 2017. By this time the format of the detention review document had changed. Mr Walker noted that the substantive appeal hearing was due to take place on 23 February 2018. His assessment of the risk of absconding and risks of harm and of re-offending remained in similar terms. There was no reference to children and Mr Walker maintained his position that there was no OASys report. In section 7 asking about issues of family, children issues or ties in the UK, Mr Walker entered “N/K”. This is despite the fact that at by that stage the Claimant had put in a fully detailed appeal, referring, inter alia, to the issues relating to his children. In the section “Case Progression Actions”, Mr Walker noted that bail had been refused and referred to the fact that on 15 November 2017 he had sent a recommendation for release on conditions in a “Contact Management Referral”. As

Despite all the intervening developments, Mr Walker’s final recommendation was that detention should be maintained in precisely the same three-paragraph wording as in his original detention review (set out at paragraph 78 above). The authorising officer again noted his appeal was the current barrier to removal and that was “due to be heard in February”. He further noted the risk assessments and agreed that the Claimant was not a strong candidate for contact management. He agreed that removal remained a realistic prospect within a reasonable timescale and authorised a further 28 days detention. He also asked for an up to date medical assessment of how his bipolar was being managed in detention. There is no mention of the CPP recommendation nor of Mr Walker’s proposal for release.

On 22 December 2017 Dr Pick, a consultant psychiatrist, instructed by the Claimant’s solicitors produced a medico-legal report, diagnosing bipolar affective disorder, currently in remission and PTSD. Separation from his partner and children was putting him under significant strain. He reported three suicide attempts.

On 27 December 2017 Mr Walker emailed the section 4 team to see if they could find a suitable address. On 28 December 2017, the Claimant’s probation officer said that, because the Claimant had no recourse to public funds, she could not refer the Claimant to supported housing and that he was not suitable for approved premises “as he is not assessed as high risk”. She would check any further address that the Claimant wishes to provide.

In a witness statement dated 3 January 2018, the Claimant’s partner explained that the Claimant’s imprisonment had led to a deterioration in her mental health. In her evidence, Ms Louden said that, if the caseworker had seen that witness statement, it should have been taken into account by him.

On 9 January 2018 the twelfth detention review was due to take place. It did not take place. Mr Walker’s entries made at the time in the CID calendar events records state that it was cancelled. No further explanation has been given for why it did not take place. The Secretary of State now accepts that this was a public law error.

Ms Louden gave evidence about the twelfth detention review. In her witness statement she had said that “we can infer that the detention review was carried out”. She was then cross-examined about this and the basis upon which she had drawn that inference. Her evidence on this was confused and unconvincing. She explained at first that because someone had gone and uploaded the wrong review, she had assumed that a review had in fact been done. She said that “it wouldn’t take much time to do a new review. If you’re going to take the time to upload the wrong one you might as well have done it correctly”. She then corrected herself: she wasn’t saying that it wouldn’t take long; rather it wouldn’t take much longer to do it correctly. She accepted that she had not looked at the CID to see if there was any record of the twelfth detention review having been done. She was then shown the CID record confirming that the twelfth detention review had been cancelled. She accepted that that showed that no detention review had taken place in January 2018. She agreed that she did not know what the case owner

On 19 January 2018 the Claimant made his fourth bail application. On 25 January 2018 the Claimant was granted bail by the FTT with a condition of reporting. No residence condition was imposed. Nevertheless there is evidence to suggest that at the hearing the immigration judge granted bail in the expectation that the Secretary of State would be imposing a condition of residence to a section 4 bail address. On the same date, the Claimant attended at UK Visas and Immigration in Leeds and reported with the address he was staying at. Probation reported that the address where he was staying was not suitable because it did not pass checks and had asked for details of the section 4 address when available. He went to stay with a friend and stayed there until March. Probation said that they were happy for the Claimant to be released, because it had been so long, and for him to go into private accommodation, pending provision by the Secretary of State of section 4 accommodation.

On 29 January 2018, the Secretary of State wrote to the Claimant, noting that the Claimant had been granted bail by the FTT. As no residence condition was imposed in the grant of bail, the Claimant’s application for section 4(1)(c) accommodation had now been closed, as the Claimant no longer required an address to be released to. It is now accepted that this was wrong as a matter of law. The section 4 application was still pending and the residence condition was irrelevant to that application. In crossexamination, Ms Louden agreed that as at 29 January 2018, his section 4 application of June 2017 was still outstanding and it should have been considered.

On 2 February 2018, the probation officer wrote to Mr Walker explaining that she was confused that the section 4 application had been closed. She had understood that it had been agreed before the immigration judge that the Secretary of State would secure section 4 accommodation. She reported that the Claimant was currently residing at a friend’s flat on a temporary basis. She therefore requested that section 4 accommodation was sought for the Claimant, as agreed at the hearing.

On 13 February 2018 the Claimant’s representatives sent a letter before action challenging the continuing failure to provide the Claimant with section 4 accommodation. The Claimant provided a witness statement saying that he was living at a friend’s house and was visiting his partner and children every day. On 27 February 2018, the Secretary of State responded to the pre-action letter, stating that the closure of the application was in accordance with the new legislation. On 9 March 2018, the

On 24 April 2018 the Claimant’s representatives submitted a letter from Dr Maumi, a consultant psychiatrist. stating that the Claimant would benefit from permanent accommodation which would promote stability in his mental health, and reporting that the Claimant said he was sofa surfing.

On 9 May 2018 the Secretary of State decided to offer s.95 support. On 17 May 2018 the Secretary of State cancelled a proposed dispersal to London and requested dispersal to property in Coventry. On 1 June 2018 the Claimant moved into an address in Coventry.

On 12 July 2018 the Claimant was admitted to hospital under the MHA. Prior to his admission, he was living with his partner. He had assaulted members of the public with a knuckle duster and assaulted a police officer, a fellow patient and attempted assault on member of staff. He reported smoking a joint every day. On 28 July 2018 the Claimant had an altercation with another patient. On 29 August 2018 the Claimant was discharged from hospital.

On 3 October 2018 the Claimant’s appeal against refusal of asylum was finally heard by the FTT in Bradford. On 17 April 2019 his appeal was allowed on humanitarian grounds i.e. that on return to Afghanistan he would face a real risk of serious harm. On 8 October 2018 the Claimant sent a pre-action protocol letter challenging his false imprisonment. Further such letters were sent. On 30 April 2019 the Secretary of State accepted liability for false imprisonment for the period 4 April to 24 August 2017 due to lack of appropriate reviews, but maintained that damages would be nominal. On 14 May 2019 the claim form was filed. On 3 July 2019 the Upper Tribunal refused the Secretary of State’s application for permission to appeal. On 18 September 2019 the Claimant was granted 5 years leave to remain. On 26 January 2020 the Claimant was sectioned under s.2 MHA after periods of heavy drinking and cannabis use, and on 27 March 2020 the Claimant was sectioned under s.3 MHA.

Expert psychiatric evidence

Expert evidence from a consultant psychiatrist was submitted by each party: Dr Hillen, instructed by the Claimant and Professor Greenberg instructed by the Defendant. Together they prepared a joint statement dated June 2020 (“the Joint Statement”). This evidence is of some, albeit limited relevance, where the assessment is made largely on the basis of evidence available at the time of the detention. I refer to the following aspects of the Joint Statement.

Asked whether the mental health condition(s) and/or trauma rendered the Claimant particularly vulnerable to harm in detention, the two experts agreed that the Claimant was more vulnerable to harm in detention than the average member of the general public because of his mental health history and his previous self-reported exposure to significant adversity both in Afghanistan and during his transit to Europe. Professor Greenberg observed that similar levels of vulnerability are quite common amongst the prison population. Dr Hillen emphasised the importance of the Claimant’s previous experience of imprisonment by the Taliban which in his opinion made it particularly difficult for the Claimant to cope with immigration detention. They agreed that the ongoing and indefinite nature of the detention represented a stressor which was likely to have affected the Claimant’s sense of safety, agency and certainty which would have been likely to have a negative impact on his mental state. Professor Greenberg noted that the Claimant had spoken about fears of being deported to healthcare staff when he was detained in custody.

In answer to the question “was the Claimant unsuitable for detention in an immigration removal centre because of his mental health condition(s)?”, Dr Hillen felt that because of his mental health difficulties, by February 2017 he should have been released to the community because he was clearly psychologically vulnerable and was not suitable to be detained in an IRC. Professor Greenberg noted that on 7 February 2017 there was no evidence which suggested to prison staff that his mental health needs could not be managed in custody. Indeed in Professor Greenberg’s view, the care he received during the period of immigration detention in prison was generally successful in preventing the Claimant from suffering a severe psychotic relapse, whereas since he has been released into the community, he had been detained in hospital under MHA on multiple occasions. In Professor Greenberg’s view there is no reason that the Claimant would not have been suitable for detention in an IRC.

The experts were asked whether the Claimant suffered any additional symptoms as a consequence of his lack of accommodation. Both experts were of the view that not having any accommodation was likely to be a considerable stressor and would have contributed to his poor state of mental health. However, Professor Greenberg noted that the medical entries during that period did not comment specifically on the negative impact of a lack of accommodation on the Claimant’s mental health. Dr Hillen noted that the clinical team had written a letter emphasising the Claimant’s vulnerability and need for stable accommodation which demonstrated that they were acutely concerned about how the homelessness increased the Claimant’s risk of further psychotic episodes. Asked whether the lack of accommodation caused and/or contributed to a worsening of his mental health condition, they stated that, whilst lack of accommodation would have been an additional stressor for the Claimant, there is no specific evidence that it caused or contributed to a worsening of his mental health condition. Professor Greenberg noted that he was not admitted to hospital for care during this period, whilst he was admitted to hospital twice subsequently.

Analysis

Before turning to the seven issues, I make some observations on the course of the Claimant’s detention between February 2017 and January 2018. Over that period, there were a substantial number of failings in the management of his detention, and in particular on the part of Mr Walker. First, from the outset Mr Walker failed to notice that the Claimant had been assessed in February and March 2017 at AAR level 2; he either did not read, or ignored, the content of the first detention review. In fact he appears to have had no awareness of the Claimant’s mental health condition until August 2017, despite the content of that review and despite the terms of the local authority letter of 5 July. Further, there is no reference, in the detention review, to the Claimant’s family ties. Large parts of the detention reviews are simply repeats of what he had said in the second detention review; he appears to have merely “cut and paste” from that review; most particular his recommendation in section 14. Little or no proper assessment of the actual position appears to have been made in each detention review. This is exemplified by his express statements that there was no OASys report, at times when it was in Mr Walker’s possession. In relation to the section 4 application, the proforma completed by Mr Walker contained a number of errors; he repeated the error about known medical conditions and failed to refer to the principal offences.

I conclude that consideration of the Claimant’s detention, in the detention reviews and generally has failed, by some margin, to be “robust and formally documented” as required by section 55.8 EIG. I infer from the fact that Mr Walker has not been called to give evidence that there is no adequate explanation for these failings. Nevertheless, the questions still remain as to whether, as a result of these failings or otherwise, the Claimant’s detention was unlawful. I turn to that question now.

Issue (1) was addressed by reference to two sub-issues:

and there were many visits. Even if there was a breach of Hardial Singh 2 and 3 and of EIG in relation to the family, that does not amount to a breach of Article 8 if the impact on the family was proportionate. As regards the final aspect, the Claimant’s suffering in prison was not so great as to require release under the AAR policy and was thus not a breach of Article 8. Further if it is not a breach of Article 3, it is hard to see that it could be a breach of Article 8, taking account of proportionality.