Introduction paragraphs 1 to 10

The law paragraphs 11 to 23

Evidence paragraphs 24 to 26

Assessment of the lay witness evidence paragraphs 27 to 34

Chronology

Analysis

Conclusion paragraphs 306 to 308 Introduction

The Claimant, a national of the Democratic Republic of Congo (“DRC”) claims entitlement to damages for false imprisonment and personal injury following unlawful immigration detention by the Defendant. In accordance with the order of Farbey J the sole issue considered at the hearing was liability.

The Claimant challenges the lawfulness of his detention (after he had completed a criminal sentence), during two periods;

Between 18 May 2011 and 21 May 2015 (“the first detention”) and

Between 5 October 2015 and 20 January 2016 (“the second detention”).

As it is not in issue that the Claimant was detained during both periods the Defendant must prove that each day of that detention was lawful (Footnote: ¹) .

The issue of liability required consideration of the following questions:

First, was any part of the Claimant’s first detention unlawful by reference to common law limitations?

Second, was any part of the Claimant’s first detention unlawful as in breach of a public law error bearing on the decision to detain?

Third, if any part of the Claimant’s first detention was unlawful by reference to a public law error bearing on the decision to detain, can the Defendant prove that the Claimant could and would have been detained in any event?

Fourth, was any part of the Claimant’s second detention unlawful by reference to common law principles?

Fifth, was any part of the Claimant’s second detention unlawful as in breach of a public law error bearing on the decision to detain?

Sixth, if any part of the Claimant’s second detention was unlawful by reference to a public law error bearing on the decision to detain, can the Defendant prove that the Claimant could and would have been detained in any event?

Seventh, did the Defendant cause the Claimant to suffer personal injury?

It can immediately be seen that the first period of detention of just over four years was exceptionally long in any event. The Claimant had completed a sentence imposed by HHJ Hand QC for robbery of mobile phones (when aged 20) and was then detained for five times as long as his length of time in custody.

After his release from detention he was detained again for a period of three and a half months before his release on bail.

His appeal against the deportation order was eventually upheld by the First Tier Tribunal and unlike many other challenges to immigration detention after spending 1,573 days detained, much of this time within prisons, the Claimant has not eventually been deported.

The power of the executive to administratively detain without charge or trial is one of the most draconian powers exercised by the state over the individual. In R (Lumba) v SSHD [2012] 1 AC 245 , Lord Brown (at paragraph 341) endorsed Lord Bingham’s well-known statement that:

It is the Defendant’s case that although the first period of detention was very lengthy, it followed conviction for a serious offence and was caused for the most part by the Claimant’s deliberate and repeated deception to evade deportation. Until May 2013 the Claimant was entirely responsible for the length of his detention. He had, as one detention reviewer noted, led the Defendant on a ‘merry dance’ with attempts to establish his nationality. Although it was two years before a deportation order was made the Claimant had made assertions during that period that he was Belgian, Congolese and Somalian during that period. In fact the deportation order was made shortly after the Claimant withdrew his asylum claim based on his claimed Somali citizenship and confirmed that he was from DRC. The Defendant acted diligently throughout detention in the face of prolonged and significant deception. Once the Claimant cooperated with the ETD process from 16 ^th August 2013 onwards the prospects of removal increased significantly and detention remained justified.

Further, his repeated attempts to evade immigration controls prior to his detention, use of aliases and his previous conviction for failing to surrender to custody, and deception whilst in detention plainly suggested that his risk of absconding if released was of the highest order.

The Defendant’s power to detain is subject to:

The implied common law limits to read into the power following the decision in Hardial Singh [1984]1 WLR 704 (commonly referred to as

The limit arising from any unlawfulness caused by a breach of a public law rule bearing on the decision to detain, such as a relevant policy; see generally Lumba v SSHD [2011] 2 WLR 671.

The Hardial Singh principles were conveniently summarised in R(I) v Secretary of State for the Home Department [2002] EWCA Civ 888 (at paragraphs 46-48):

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

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

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

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

Principles (ii) and (iii) are conceptually distinct. Principle (ii) is that the Secretary of State may not lawfully detain a person “pending removal” for longer than a reasonable period. Once a reasonable period has expired, the detained person must be released. But there may be circumstances where, although a reasonable period has not yet expired, it becomes clear that the Secretary of State will not be able to deport the detained person within a reasonable period. In that event, principle (iii) applies. Thus, once it becomes apparent that the Secretary of State will not be able to effect the deportation within a reasonable period, the detention becomes unlawful even if the reasonable period has not yet expired.

It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State 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 from detention he will abscond; and the danger that, if released, he will commit criminal offences.

A useful summary of the factors which are in play when considering the reasonableness of a period of detention (or the likely period of detention) is to be found in the judgment of Ganesharajah v SSHD [2014] EWHC 3497 (QB). Ms Cheema QC (as she then was) stated:

There can be a ‘realistic’ prospect of removal without it being possible to specify or predict the date by which removal can reasonably be expected to occur and without any certainty that removal will occur at all ((MH) at [65]).

The extent of certainty or uncertainty as to whether and when removal can be effected will affect the balancing exercise, but there must be a sufficient prospect of removal to warrant continued detention when account is taken of all other relevant factors ((MH)) at [65]).

The risks of absconding and re-offending are relevant considerations, but the risk of absconding should not be overstated, otherwise it would become a trump card (Lumba at [108]-

The weight to be given to time taken up by an appeal depends on the facts, but 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 is pursuing a hopeless one (Lumba at [121].

A detainee who will not comply with the ETD process or other requirements of detention and is doing everything he can to hinder the deportation process, may reasonably be regarded as likely to abscond (Lumba at [123]; MH at

Refusal of voluntary return does not necessarily permit an inference of risk of absconding (Lumba at [123]).

Where return is not possible (for reasons that are extraneous to the person detained), the fact that he is not willing to return voluntarily cannot be held against him, since his refusal has no causal effect (Lumba at [127]).

Where a person has issued proceedings challenging his deportation, then it is reasonable that he should remain in the UK pending determination of those proceedings and his refusal to accept an offer of voluntary return is irrelevant (Lumba at [127]). Even where there are no outstanding challenges, refusal of voluntary return should not be regarded as a trump card for the SSHD’s wish to detain. If it is relevant, its relevance is limited (Lumba at [128]). A breach of a principle of public law will render the detention unlawful but it must be a material breach, that is, a breach which bears on and is relevant to the decision to detain (Lumba at [66,68]).

There is no maximum period after which detention becomes automatically unlawful.

Pertinent to this case Ms Cheema QC also stated:

The length of what is/was a reasonable period of detention in any case will depend on the relevant factors/circumstances unique to that case, but a review of the authorities reveals that often the central considerations are the person’s compliance with attempts to remove him, his risk of absconding and of committing further offences.

In Chuck v SSHD [2015] EWHC 1103 (Admin), Her Honour Judge Walden-Smith gave a fuller summary of the position in relation to noncooperative claimants:

The risks of absconding and reoffending are “ paramount ”, although neither constitutes “ a trump card ”. As for the risk of absconding, in A v. SSHD [2007] EWCA Civ 804 (at paragraph 54) Toulson LJ said that:

However, although a relevant factor, it must not be overstated. In the case of R(I) v SSHD [2003] INLR 196, Lord Dyson said:

As to the risk of reoffending, Toulson LJ stated in A v. SSHD [2007] EWCA Civ 804 that:

In Fardous v SSHD [2015] EWCA Civ 931 the Court of Appeal held that there are no particular yardsticks during which detention will be presumed lawful;

The absence of diligence on the part of the Secretary of State is relevant to Hardial Singh principles (ii), (iii) and also (iv). The absence of diligence in attempts to remove a detainee alone is sufficient to give rise to a false imprisonment (see JS(Sudan) v SSHD [2013] EWCA Civ 1378).

A breach of a principle of public law may also render detention unlawful but it must be a material breach i.e. one which bears on and is relevant to the decision to detain. In the present case t he Claimant submits that his detention was unlawful as it breached the Defendant’s published policy.

The Secretary of State’s policy at the material time was primarily contained within the policy “ Chapter 55 Enforcement Instructions and Guidance”. The policy confirms that:

That detention be used “ sparingly, and for the shortest period necessary ”;

That there is a presumption in favour of release;

That those suffering from medical conditions that could not be satisfactorily managed in detention would not be detained save in exceptional circumstances;

That reasonable alternatives to detention must be considered.

I heard from the Claimant and, on behalf of the Defendant, Mr Kates, a case progression manager in the criminal casework team responsible for considering and progressing deportation action against foreign national offenders. Where foreign national offenders are detained beyond the completion of the custodial sentence “case owners” manage the period of detention with their reports being reviewed by a case progression manager every 28 days as required by the Defendant’s detention review policy. Mr Kates undertook some of the reviews of the Claimant’s detention.

I also heard from two consultant psychiatrists on the issue of mental health and personal injury.

At an early stage within cross-examination of the Claimant it became clear that the whole of his social service records were not in the bundle. The full records were then obtained.

Given that his truthfulness and credibility were in issue, and that he was extensively cross examined and criticised, it is necessary, before descending into findings of fact, to provide an overarching assessment of the Claimant’s evidence.

When approaching the evidence from a witness whose testimony has been challenged it should be broken down into its component parts. If one element is incorrect it may mean, but does not necessarily, that the rest of the evidence is unreliable. It should be recognised that apart from lying there are a number of reasons why an incorrect element can have crept in. Apart from the obvious loss of recollection due to the passage of time, which may have had greater impact if the events took place in childhood, there may have been the impact of traumatic experiences, or a process of conscious or subconscious reconstruction or exposure to the recollection of another (here family members) which has corrupted or created the recollection of an event or part of an event.

It is also necessary, particularly in immigration cases, to consider whether, and to what extent, allowance should be made for the fact that a person may have had a limited education and that English is not, or was not, the language with which they are/were most comfortable. Care must also be taken to recognise the impact the very different customs and practices of other countries may have on what has happened in a person’s past and their ability to furnish information. By way of example in many countries there is no national registry office where copies of birth, marriage, and death certificates are kept. Local authorities issue these documents but do not keep copies for their records.

I have taken into account that the Claimant was asked in detail (quite properly) about matters, some of which occurred when he was a child. It would not be unusual if he had not appreciated all that was happening at the time (e.g. the use of false documentation) and/or cannot now remember. He was also challenged about entries made about what he had said at a time when he spoke very little English.

The Claimant had (and probably still has) a family bond and loyalty which meant that he tried to avoid creating trouble for his family. This is despite the fact that, from the very outset, his brother has not been entirely reliable and chose to claim to be only the Claimant’s cousin. Added to this factor he also had a troubled adolescence with disrupted schooling.

Further, and as will be covered in detail in due course, during his first period of detention his mental health declined badly.

Although the Claimant has at times lied on occasions in respect of his nationality, which he has admitted, and also, I am satisfied, in relation to other matters to immigration officers and others (e.g. t he Claimant has not been a consistent historian as to how he came to enter the UK referring at different times to having entered in 1999, 2001 and 2002) it is my judgement that he was largely (but far from entirely) honest and as helpful as he could be with his evidence before the Court. As one case officer was to suggest it is likely, given his age when he came to the UK and reliance upon social services that he has been heavily dependent upon information provided by others and that he does not have detailed knowledge of some aspects of his history. I reject the characterisation of him within the records as essentially an untruthful and/or devious man who has consistently deceived people in the UK since he was 13 years old and throughout detention. It was and is a lazy and superficial analysis which fails to reflect the detailed history of his time in this country and specifically within administrative detention.

Much of Mr Kates’ evidence was based upon the content of the documents, although he did have some limited personal involvement. I found him a most helpful witness willing to make concessions when appropriate.

The Claimant is a national of the DRC born on 5 ^th July 1989.

On 18 ^th July 2002 (so when aged 13 years) the Claimant was encountered entering the UK on a coach using the Eurotunnel. He presented a Belgian identity card in the name of Lusangu Tshivadi, born on 2 ^nd April 2002. What were referred to as “immigration records” identified the Claimant as Mayela Sambea date of birth 5 ^th July 1989. He was returned to France. An entry in

Within his witness statement Mr Kates stated:

So immigration records were available which referred to Mayela Sambea as a Congolese national with a date of birth 5 July 1989. It is not known what documentation the Belgian authorities retained. Mr Kates conceded that at no stage during the four years of detention were the Belgian records sought; he could give no explanation why not. This despite the fact that it was the conclusion eventually reached that the Belgian authorities had been wrong and the claimant was not Mayela Sambea, but Sam Louis.

On 24 ^th February 2003 a PC Ball (based in Forest Gate) received a telephone call from the Claimant (who spoke only very limited English) who stated that he was homeless. The Claimant was still only 13 years old. PC Ball informed Newham Social Services that the Claimant had said that he had arrived in the UK two weeks previously and had been sent to his cousin in Forest Gate who lived in a single person’s hostel so could not have him to stay. He claimed to have been sleeping on the streets for the past week. When a social worker attended the police station he found the young man, described as Louis, with his “cousin” and his cousin’s girlfriend. Dady Neski-Sambea, the “cousin”, produced a tenancy agreement that showed he was allowed only single occupancy.

The social worker seems to have quickly been able to ascertain that the story (as somehow provided) was not correct, that “ the facts are quite different ”. She recorded:

I have set this record out at length because it reveals that the social services had established the following as long ago as February 2003 (the interview with the Claimant being brief as he spoke little English but information was clearly obtained from the two people attended the police station with him):

The Claimant appears to have entered the country in/about August 2002. It seems he lived with Dady who was either his cousin or his brother. He went to school although he spoke little English.

He was an asylum seeker.

His date of birth was stated to be 5 July 1989 and he was from the Congo (Footnote: ⁴) .

There was uncertainty as to the relationship between the claimant and Dady (who was accused of lying about not being his brother) and Miss Mathy.

The Claimant is said to have a sister.

The Claimant’s father (Louis Sambea (Footnote: ⁵) ) was dead.

The Claimant’s mother (Mary Jose Mayela Samba) lived in Zaire (Footnote: ⁶) (Democratic Republic of the Congo) and he had telephone contact with her (Footnote: ⁷) .

The Claimant was also known as Sam or Sam Louis (Footnote: ⁸) .

Contact telephone numbers for family members in the UK.

The Claimant’s social services records commenced under the name “Sam Louis Mayela-Sambea” (Footnote: ⁹) . At this stage it does not appear as though there was any corroborative documentation to support the history given. Reference was made to his father having died, no details were recorded in relation to his mother but his cousin was referred to as Dady Nseki Sambea with an address at 9 P*****n Road, E7 and a mobile number (which has remained the same to date). The Claimant was provided with accommodation under section 20 the Children Act 1989 at Holbrook Crescent residential unit. He was registered with a general practitioner at Forest Gate in October 2003.

It is interesting to observe that the information above gleaned by the social services in February 2003 is, according to the evidence the Claimant gave to me, essentially correct, although Dady continued to be referred to (including by the Claimant) as his cousin and not his brother. Indeed consideration of Newham’s records provided a wealth of information about the Claimant. At some stage the social services came into possession of a document, an “Attestation de Naissance”. This gave the identity of Louis Mayela Samba.

As the Claimant pointed out at this stage he was 13 and spoke little English. Sadly, his brother Dady, who appeared to have charge of him, was quite prepared to lie and state that he was a cousin and not a brother. His version of events when asked whether the Claimant had any documents or passports which he travelled with when he came to England was recorded as follows:

During cross examination of the Claimant Mr Fortt was able to establish a number of inconsistencies in what the Claimant is reported to have said over the next few years about his family members and circumstances. At various times he is recorded as stating that he had an older brother “Geajoy Matela Sambea” in Zaire who he could contact by telephone. Also that his father died when he was a baby and he did not know what his father died of and that he had a lot of family in Zaire which included grandparents, aunts and uncles, he went to school in Zaire, and had many friends (Footnote: ¹¹) . Alternatively that the Congo rebels killed his father and his mother fled to another part of the Congo with the Claimant and his older brother. However, the essential ingredients of who he was, where he was born and that he had a cousin/brother and also a cousin in this country in the local area have been a relatively consistent theme, save for a period when he lied about being Somalian which I shall deal with in due course.

Newham Social Services decided to support the Claimant through the provision of accommodation under section 20 of the Children Act 1989. Somewhat surprisingly given his age, no further steps were taken thereafter to regularise the position either in terms of care proceedings or regularising immigration status and the local authority continued to support the Claimant under this section alone for the next seven years. I am conscious that there was no witness from Newham or explanation of why matters remained as they did. To a degree it may have reflected a practice used widely at the time. In 2015 the President of the Family Division highlighted the long-term use of section 20 in Re A (A Child), Darlington Borough Council v M and stated:

The reason why this has some relevance is that on any reasonable evaluation for many years the Claimant was not under the radar of the public authorities in the country or somehow “at large” or demonstrating “total disregard for the UK laws” and/or using “deception” or “5 aliases” as the Defendant’s officers subsequently characterised his past. Rather he was the subject of statutory intervention, under regular and close scrutiny, and the fact that more was not done (as should have been done) cannot be attributed to any attempt by the Claimant to avoid contact with any government agency. As early as 11 ^th April 2003 it was noted in his records that:

In my view it is both surprising and regrettable that, given that the Claimant was under statutory provision of care under section 20, no steps were taken by Newham Social Services (Footnote: ¹³) to ensure that his immigration status was addressed for a further four years, when an application was submitted (but then not addressed by the Defendant). The situation was just allowed to continue with an uncertain immigration status through to the Claimant reaching age 21 in July 2010, by which stage he had already committed a robbery. I will return to the importance of the social services records in due course.

On 8 ^th September 2004 the Claimant received a warning from the police for criminal damage of property at the home at which he was living (he damaged a TV, computer, wall unit and dining table). He used the name

On 29th June 2007 the Claimant submitted an application for indefinite leave to remain (“ILR”) relying on Articles 3 and 8 (the former due to the instability in Congo and the risk of being forcibly recruited as a child soldier). In the application form he indicated that he had a settled existence having arrived in the UK in 2001 aged 12. He gave his name as

It is, in the context of what was later to happen, to say the least regrettable that despite being chased, this application was not addressed by the Defendant for four years and only then, prompted by the Claimant’s intervening conviction, by which time the outstanding application had been sitting on a metaphorical shelf for two years

On the 22 ^nd February 2008 and 3 August 2008 there were internal records in relation to the outstanding application by the Claimant for leave to remain (as Mayela Sambea), but no action was taken.

The Claimant’s solicitors chased up progress of the application on 19 ^th August 2009 as they had heard nothing since submitting the application two years previously.

It is important to note that if, at this stage, the application of Mayela Sambea had been considered it would have recognised that it was supported by the registration of birth document and the letter from Newham Social Services, who had been providing statutory assistance for well over six years during which time he had been educated and accommodated. Adequate cross-referencing would have brought up the records in relation to the attempt to enter the country in 2002.

No excuse could be given by Mr Kates for the failure to deal with an application made by this young man in 2007 within an appropriate timescale. It was the first of three immigration applications which took years to be addressed by the Defendant and which seemed to get “lost in the system”, such that the Defendant’s case officers who were taking decisions in relation to the Claimant’s detention were unaware of them.

On 31st October 2009 the Claimant committed three offences of robbery and an offence of attempted robbery. He was arrested and released on bail.

On 18 ^th November 2009 at Redbridge Magistrates Court the Claimant was convicted of failing to surrender to custody and sentenced to one days’ detention at court. His explanation was:

Significantly, given the importance that the Defendant was later to place upon this conviction, and on any reasonable view consistent with a view having been taken by the Magistrates that he would not abscond or commit further offences, he was then released back on bail.

On 15th November 2010 (so almost a year after the conviction for failing to surrender) the Claimant was convicted of three counts of robbery and one count of attempted robbery. For some reason he was not sentenced until 15th April 2011 (this may be due to the fact that his co-defendant did not answer to bail). He was sentenced in total to a term of 18 months imprisonment (Footnote: ¹⁴) . It is apparent from the transcript of the sentencing hearing before His Honour Judge Hand QC that the robberies related to an incident on a bus when the Claimant and others took mobile telephones from three boys and attempted to take one from a fourth. The Judge described the offence as a

In contradistinction to his time in immigration detention (spent in prison and immigration centres), the Claimant did not suffer any issues with his mental health whilst serving his custodial sentence. He accepted that punishment was due and regretted the crime. He stated:

The Claimant’s conditional release date (from Pentonville Prison) was 19th May 2011.

On 17th May 2011 the Defendant decided that the Claimant met the criteria for automatic deportation and a notice of his liability to deportation was sent to him on that date. On 18th May 2011 a Minute of Detention was completed which included the following:

From the very start of the detention the review records paint a picture at significant variance to that contained in the Newham Social Services Records (and, as regards the risk of absconding and/or committing further offences, the view of the Magistrates).

The Claimant duly entered immigration detention upon the completion of his custodial sentence on 19 _th May 2011. He was detained for the purposes of the making of a decision as to making of a deportation order under section 32 of the UK Borders Act 2007). He stated:

First period detention can be subdivided as follows :

18 ^th May 2011 to 29 ^th February 2012

1 ^st March 2012 to 24 ^th July 2012

25 ^th July 2012 to 16 ^th May 2013

17 ^th May 2013 to 19 ^th July 2013 (e) 20 July 2013 to 21 ^st May 2015.

On 19 ^th May 2011 an interview under caution was conducted. The Claimant is recorded as having stated that:

The detention decision is recorded as follows:

The Claimant was subsequently to be consistently characterised within detention reviews as a person who had given “ no assistance at all ” to the Defendant. However, this is simply not correct. From the very outset of immigration detention he provided information that his name was Sam Louis, he was born in Kinshasa on 5 ^th July 1989 and that he had been in the care of Newham Social Services and that his solicitors had been in touch with the Home Office. These matters were broadly correct, but in any event they provided adequate information to unlock a wealth of information within the Newham records and to allow cross referencing with the outstanding application and the 2002 records, with the ability to obtain the Belgian records.

Remarkably no attempt was made to contact Newham Social Services. It was an obvious step and the failure to take it was not consistent with the pursuing of matters with reasonable diligence. Had the step been taken then shortly after the interview in May 2011 the Defendant would have been aware of the Claimant’s nine years of accommodation in an area of London close to his brother and sister, that he had an outstanding application, made four years previously, for indefinite leave to remain and as a result had an incentive not to abscond. It would also have produced the birth registration document and established from the records that whilst his birth/family name was believed to be Mayela Sambea that he had consistently liked to be known as Sam Louis from when he was a child (and this was indulged to a degree by social services). This would surely have put the perceived use of aliases in a completely different light and should have weighed against the likelihood of the Claimant absconding.

The failure to take basic steps to follow up on information within their possession meant that case officers did not cross reference to the Defendant’s own documentation and that of other countries. Mr Kates conceded that despite the fact the Belgian authorities had positively identified the Claimant in 2002 no attempt was ever made to make contact with them, and could provide no explanation as to why the records of the Belgian authorities were never sought during the first four years of detention. In my judgment the reason was that steps to allow crossreferencing were not taken.

Within the detention review document of 15 June 2011 the view of the case officer is as follows:

Any investigation with Newham Social Services and consideration of the outstanding application would have put matters in a different light. It is difficult to understand the justification for the stated strong belief that the Claimant could reoffend given his limited criminal record or what was thought to justify the statement that the Claimant had shown “total disregard of UK laws”. Certainly this description could not have been legitimately maintained if it were known that he had been in social services care for well over six years and had made a legitimate application for leave to remain.

On 24 _th May 2011 the Claimant told an immigration official that he had contacted his brother and sister to locate his passport but to no avail. He said that his sister would contact his aunt in Belgium but he could not provide the official with contact details for her. The Claimant requested transfer from prison to a UKBA detention centre “ as he feels frustrated being detained in the prison” . It was explained to him that the onus of proof lay on him and that the sooner he verified his identification, nationality or lawful basis to remain “ the better for him ”. It is recorded that the Claimant stated that he would only complete the automatic deportation questionnaire (ICD.0350) following legal advice (he did not subsequently return it until January 2012).

On 10 ^th June 2011 the Claimant was moved to IRC Morton Hall. On 16 ^th June 2011 the Claimant was served with his first monthly progress report. The second detention review took place on 8 ^th July 2011 with no material progress having been made or any further investigations undertaken. No steps had been taken to investigate his status in light of the information he had provided.

On 25 _th July 2011 the Claimant underwent an induction interview at Colnbrook IRC during which he stated that he had family in the UK, his sister, Lisa Louis, and also a brother living in Belgium.

On 11 ^th August 2011 there was a detention review. The statement made in May 2011, three months earlier, that:

On the 7 ^th September 2011 the SEO Ops Manager approving the detention review (also recorded in the GCID case record sheet) noted:

The actions to be made prior to the next review on 5 October 2011 were stated to be

This ignored the obvious step of contacting Newham Social Services to obtain the Claimant’s records.

The detention review of 7 September 2011 shows no material progress and again repeats the phrase:

The detention review of 27 October 2011 added nothing to the picture, save that an interview had been chased up and was now scheduled for that day. Yet again there is reference to the caseworkers continuing to make enquiries regarding his claimed nationality.

On 27 _th October 2011 the Claimant underwent a nationality interview. It is recorded that the Claimant stated he was born in Kinshasa, DRC. His father was Congolese, but his mother was dual nationality Belgian/Congolese as her father was a Belgian national. The Claimant stated that he attended school in Congo. When he was seven years old his father died and his mother was very sick (and later died). An aunt from Belgium took him to Angola where she was working, where he remained for a year. He could not recollect much of this time. From Angola his Aunt took him to Belgium where he lived for around two years. He then travelled to the UK with his Aunt and was left with his brother who he thought was studying in the UK:

It is necessary to now consider what information the Defendant had access to in relation to the Claimant. Perusal of the file should have alerted any case worker to the following:

The Claimant was born in Kinshasa, DRC. He was not stating he was Belgian; rather he did not know what his nationality was given his history.

He had been in the care of Newham Social Services (and a name had been provided) so there must be records.

He had attended school, so there must be records.

His bother/cousin’s details.

The Claimant’s outstanding application.

The birth certification documentation.

Details from the Belgian authorities.

Within the detention review dated 31 ^st October 2011 it is stated:

Significantly the person who authorised the detention continued:

The potential importance of the information had now been appreciated by the officer authorising detention. As I have indicated the investigation which was considered essential at this stage would have produced the Newham Social Services records, the family details, the 2007 application and the birth certification document. It should have prompted enquiries to be made of the Belgian authorities. However the step which it was stated must be taken was never taken. In my judgment this unarguably constituted a failure to progress matters with due diligence. The Claimant had at this stage spent more than five months detention. In my view the results of an adequate investigation could have been obtained and assessed within four weeks.

On 23 November 2011 the detention review recorded that:

The request was made of the Claimant’s solicitor on 23 ^rd November and Duncan Lewis responded the same day stating:

At this stage the Claimant had been detained for over six months. Contrary to what is later stated in reviews he had provided information which enabled access to a wealth of information concerning his history and he had

In my judgement there had been repeated and clear failures to progress matters with reasonable diligence, one of the necessary Hardial Singh principles for lawful detention, and on careful close scrutiny much of the first six months was characterised by an inactivity and, specifically, a failure to investigate on the part of the Defendant which did not come close to satisfying the high duty upon a body administratively detaining without charge.

It is necessary to note, in terms of causation of personal injury, which I shall deal with in due course, that at this stage (after six months of detention) there was no indication of a significant deterioration in the Claimant’s mental health.

On 7 ^th December 2011 the Claimant’s solicitor wrote to the Defendant asking for release. It was pointed out that the Claimant’s criminal sentence had been completed seven months earlier and no removal directions had been set so removal was not imminent. Reference was made to the presumption in favour of temporary admission or temporary release and that the Claimant’s liberty should only be restricted if it was essential to do so. A temporary release address was given. Had all the information which should have been available been considered (including the outstanding application for ILR) it is my view that any adequate or proper review abiding by the Defendants own guidance should have resulted in the consideration of release from detention. In any event, given a proper review of the file it should have been appreciated that the Claimant had co-operated and provided information yet he could not be removed before a reasonable period had expired (a deportation decision had not been made) requiring consideration of the third Hardial Singh principle.

Instead of undertaking an adequate review of the detention the GCID case record sheet has an entry on 8 December 2011:

The Claimant’s solicitors wrote again on 16 December 2011 asking for upto-date reasons for continued detention and release on temporary admission with an offer of reporting requirements. It was repeated that the Claimant was born in the Democratic Republic of Congo, that his parents were dead and the only family members he had were in the UK being his brother, his brother’s partner and their children. It was stated that his mother was a Congolese national and not a Belgian citizen as initially indicated and it was pointed out that the Claimant had been in the UK from a young age and was unlikely to reoffend or harm the public interest in the future. The Claimant also sent a personal letter stating that his offence was out of character and he had learned his lesson. It bears repetition that the Claimant was later characterised as having provided no information to the Defendant and of having been totally un-cooperative throughout.

Within the detention review of 28 ^th December 2011 it is stated that the Claimant had failed to provide evidence to substantiate his claim of being an EEA national:

Mr Kates accepted in cross-examination that the Claimant would have been treated as a DRC national but stated that at this point in the chronology matters had not been “fully verified”. However, that was due to the Defendant’s lack of diligence. There was no good reason why the decision to deport could not have been made by this stage and the Defendant cannot pray in aid its own manifest failures to investigate. No further significant information was obtained before the interview which eventually took place

When seeking to justify continued detention Mr Fortt relied upon the fact that the Claimant had not filled out the deportation questionnaire. However, as Mr Kates accepted a person is given a significant amount of time to fill out the document but ultimately the Defendant has to proceed on the information she has. He stated he did not know if there was a particular timeframe and though this would be six months plus. In my judgement the failure to complete the questionnaire was a feature which presented some difficulty, but it had to be seen in the context of other available information and the detail of the Claimant’s own outstanding request for ILR (which had been languishing on the metaphorical if not literal, shelf for over four years).

On 23 _rd January 2012 a request was submitted by CCD for an ETD interview to be carried out with the Claimant.

There was a detention review on 24 January 2012. The author confirmed that the Claimant’s solicitor had told him that the Claimant’s nationality was DRC. Reference was made to the high risk of reoffending in order to support himself financially. There is repetition of the view that he has shown a total disregard for UK laws and would have little incentive to comply with any release restrictions and was a high risk of absconding. The supervising officer Ms Todd who co-signed the document stated (after a misunderstanding and early reference in the document to a partner and children) that:

In my judgement this evidences an unacceptable failure to have regard to the content of the earlier detention reviews. Indeed on balance it is likely that these were not even read. There was a lamentable failure to adequately review the file.

An entry in the GCID on 25 ^th January 2012 stated:

There is no explanation by the author as to why no steps had been taken to look into or try and access the information that had been obtained.

On 27th January 2012 the Claimant’s solicitor returned his completed ICD.0350AD questionnaire. It stated that the Claimant’s nationality was the DRC. The accompanying letter asserted that the Claimant qualified under exceptions 1 and 2 of s.33 of the UK Borders

On 29 ^th January 2012 a GCID note sets out that there is a Home Office file under the “alias name” Louis Mayela Sambea matching the Claimant’s details. It is stated that no decision could be made until that file was received. The application for leave to remain on 2 ^nd July 2007 was noted. Had the Newham Social Services records been obtained, as they should have been, this step could and should have been taken many months earlier.

By the end of February 2012 the Claimant had been in detention for nine months; matching the length of the custodial element of the sentence for robbery. Despite all the details provided, correspondence from the

As I shall set out in due course it is my view that detention was not lawful from 29 ^th February 2012 due to breach of Hardial Singh principles (ii), (iii) and (iv).

On 29 ^th February 2012 an ACDT was opened as the Claimant was noted to be presenting as uncommunicative and hinting at self-harm. His mental health had started to deteriorate. The clinical medical officer noted

Within the next detention review on 20 ^th March 2012 it was incorrectly stated that the Claimant was yet to respond to the questionnaire request. As with other erroneous entries such a mistake should not be present within a report analysing whether deprivation of liberty should continue. It reveals an inadequate review of the file and a failure to critically review detention. Instead it points towards the completion of a detention review being treated by the caseworker as a necessary administrative step to justify continuing detention which could be completed after a cursory assessment of the file.

The reviewing director Mr Hearn requested that the ETD interview be chased as a priority. Given all the information now available (a fortiori potentially available after relatively straightforward enquiries) his review was also manifestly inadequate.

The next review was on 19 ^th April 2012. Again there was an incorrect reference to the need for the solicitor to get the questionnaire completed as soon as possible. It is stated in relation to release that the Claimant did not have:

This entry can, in my view, only have been written by someone who had not read the letters of 7 ^th and 16 ^th December 2011 sent by the Claimant’s solicitors. Further, the author seems unaware of the existence or details (mobile phone number) of the Claimant’s brother, and the history with Newham Social Services, the files of which should, according to earlier reviews, have already been obtained.

The next review was on 14 ^th May 2012, approaching the first anniversary of the Claimant’s time in detention. Tellingly, yet again there is reference to a failure to reply to the questionnaire, reflecting an inadequate review of the documents. The supervising manager Mr Whyte stated that the current barriers to removal were the making of a deportation decision and the obtaining of an ETD. For reasons set out above it is my judgement there was no barrier to either. Mr Whyte continued:

It is difficult to understand how Mr Whyte could come to the conclusion that the Claimant had continued to be non-compliant with any process touching upon his detention or deportation unless he erroneously relied upon the statement that the Claimant still had not returned the questionnaire. Yet again the picture is of a cursory and inadequate review of the information available and not only a lack of reasonable diligence or urgency but a want of care; this despite the fact that the Claimant had now spent a year in detention.

The next detention review was on 13 ^th June 2012. The record still incorrectly records that the Claimant had not responded to the questionnaire. Other content of the document merely repeats what has been stated before and again detention appears to be authorised without any adequate consideration of all information and with a failure to ensure the decision was made in line with the previous review.

The next review was on 9 ^th July 2012 and made reference to the failed attempt to gain entry in July 2002 and the outstanding application dated 20 ^th June 2007 requesting leave to remain on discretionary grounds. Thereafter much of the content was the same as before e.g. demonstration of a total disregard for UK laws and little incentive to comply with any release restrictions and “ no evidence of subsisting relationships ” (this despite all the information in relation to his brother). It was recognised the Claimant had been in detention for 15 months and reported that he “ still refuses to comply with the re-documentation exercises”. Further that:

As set out above the Defendant had the ability to seek information from Belgium from the outset, or certainly shortly after the outset, of detention.

In his closing submissions Mr Fortt referred to the delay in making the deportation order (eventually made on 19 ^th July 2013) as

I also believe that it is necessary to appreciate the detail of what happened over the first 15 months of detention, a long period, when considering the next stage of the chronology path when the Claimant lied about his nationality. He stated in his evidence:

I find as a fact that had the Claimant not been in detention, as he should not have been, he would not have claimed to be from Somalia. His desperation at continued detention was the main cause of the lying. Had he been in the community his focus would in all likelihood have been his outstanding application.

On 23 _rd July 2012 the Claimant underwent an ETD interview during which he claimed that he was from Somalia. On 7 _th August 2012 an urgent request was made to carry out a nationality interview in view of the Claimant’s latest claim to be Somalian rather than Congolese.

On 9 _th August 2012 a further attempt at interview was made but could not proceed as the Claimant was unwell. On 30 _th August 2012 the Claimant was interviewed and maintained that he was Somalian. A note on 18 _th September 2012 noted that the Claimant now wished to claim asylum on the basis that the war in Somalia put his life in danger.

A screening interview request form dated 19 _th September 2012 included the following details in answer to the question of whether the Claimant had a history of violence:

On 5 _th October 2012 the Claimant underwent a screening interview during which he continued to maintain that he was Somalian. His asylum screening interview was rescheduled for 9 _th November 2012.

On 5 _th November 2012 the following information is recorded about the Claimant:

On 9 _th November 2012 the Claimant refused to leave his room to attend an asylum interview. The record states:

On 10 _th November 2012 the record states:

An asylum interview was scheduled to take place on 14 _th December 2012 but this did not proceed because the Claimant stated that he wanted to obtain legal advice and the solicitors indicated that they were fully booked until 24 ^th January 2013.

On 3 ^rd January prison medical health records show that the Claimant walked into the clinic stating that he was feeling stressed, finding it difficult to sleep and he was very frustrated about his situation i.e. awaiting deportation.

On 4 ^th January 2013 the Claimant was assessed by a social work assistant. The Claimant is reported to have stated that he witnessed many distressing things in prison and in detention and now he was nearing deportation the “ situation is getting on top of him ”. Officers reported that the Claimant had been “ a well-behaved inmate in the past ”. The Claimant stated that he had taken up smoking due to stress and that he smoked cannabis occasionally to deal with his circumstances. The conclusion was that there was no evidence of severe mental illness.

Between 4 _th January 2013 and 5 _th March 2013 a further three failed asylum interviews were attempted with the Claimant. The detention reviews dated 16 th January 2013, 15 th February 2013 and 10 th May 2013 suggest that these failures were due to the fact that the Claimant was on an ACDT and could not be interviewed and/or due to his desire to have a solicitor (the latter reason applying to interviews on 5 th and 11 th February 2013 and 6 th March 2013).

On 15 ^th January 2013 he was seen by a psychiatrist Dr Rawat who noted:

On 22 ^nd January 2013 the Claimant was reviewed by a psychiatrist, Dr Bartlett, who noted that the Claimant was finding his situation very distressing. On the 27 ^th February 2013 he was seen in the prison surgery as he had smeared faeces on the walls of his cell and was presenting in a mentally distressed state. His cell was in a highly chaotic and dirty state with debris over the floor and burned papers. The medical records reveal that the Claimant presented as very flat in mood and stated that voices in his head urged him to burn items in his cell and smear faeces on the wall. He reported the voice was external and “ has been during him to harm himself (sic)”. He denied being stressed about his immigration status saying he did not care about this. The record continues:

On 1 ^st March 2013 Dr Maggio, a consultant psychiatrist, examined the Claimant and stated:

In early March 2013 the Claimant’s mental health appears to have stabilised. He was reviewed by Dr Maggio on 5 ^th March who noted that he had complained that his prison food was poisoned and at the mental state examination he presented with limited rapport and low mood. An entry of the 6 ^th March by Dr Maggio refers to a nurse stating that the Claimant was manipulative but also complaining of hearing voices and putting a towel over his head as he was trying to block out the voices. On 7 ^th March it was noted that he been complaining of hearing voices and had been blocking his ears with a towel and appeared to be guarded and withdrawn. On 10 ^th March he was observed with a towel wrapped around his head and isolated in his cell. The behaviour with a towel continued for three weeks.

On 23 April 2013 Dr Maggio recorded:

On 19th April 2013 a further request was submitted for a nationality interview to be carried out with the Claimant.

The detention review on 10 ^th May 2013 referred to the incidents on 9 ^th November 2012 and 13 ^th November 2012 in relation to known or claimed medical conditions (including mental health and/or self-harm issues) but made no reference to any of the subsequent entries or Dr Maggio’s diagnosis of moderate depression.

On 16th May 2013, the Claimant signed a disclaimer stating that he wished to withdraw his asylum claim. So the period during which he maintained a lie that he was Somalian lasted ten months. For the last six months of that period he was suffering fluctuating and, in all probability deteriorating, mental health leading to the eventual diagnosis of moderate depression.

On 23rd May 2013 the Claimant attended a nationality interview during which he reaffirmed that he was Congolese.

A detention review of 6 ^th June 2013 noted the disclaimer form withdrawing the asylum claim. It also noted the Claimant’s brother and family and two sisters were in the UK. The authorising officer commented:

On 21 _st June 2013 a request was submitted for an ETD interview to be carried out with the Claimant. On 22 _nd June 2013 the CCD caseworker recommended that a deportation order should be made with a right of appeal in respect of his Article 8 rights claim which he considered to be arguable.

On 19 _th July 2013, two years and two months after detention started, a deportation order was made pursuant to section 32(5) of the UK Borders Act 2007. Of the 26 month period before the order was signed the Claimant claimed to be from Somalia for 10 months.

In addition to addressing the claimed exemptions under s.33, the decision notice also addressed and refused the ILR application of June 2007, six years after it was made. It was noted that the Claimant had spent somewhere between 10 years and five months and 11 years in the UK, but had spent the first formative 10 years of his life in DRC. The Claimant did not appeal against the order.

In the detention review dated 31 _st July 2013 the authorising officer included the following observations:

On 16 _th August 2013, the Claimant completed a Bio-Data Information Sheet during an ETD interview in which he stated that his mother was called Lisa Louis and his father was called Dady Louis. He said he also had a sister called Lisa and a brother called David, both of whom were described as “Congolese/British”. It is stated within the records:

The detention review of 20 ^th August 2013 (the 30 ^th review) the authorising officer Ms Todd, stated

In fact the inexcusable failures to explore the circumstances of the Claimant’s siblings went back much further; to the start of his immigration detention. Mr Todd also stated:

In a detention review dated 26 _th September 2013 the authorising officer expressed some concerns at the length of the Claimant’s detention in the following terms:

There was a detention review on 24 ^th October 2013 within which the authorising officer stated:

On 25 _th October 2013 the Claimant refused to speak to the immigration officer. The suggestion of release was not one which found favour in the subsequent detention review of 22 _nd November 2013 (which was summarised in the December review), within which the reviewing officer stated:

Given the totality of information that the Claimant had provided to the Defendant (particularly during the first 15 months) and, even though he had

On 26 _th November 2013 a request was submitted to Pentonville prison for the visitor logs and telephone records in order to further investigate the identities of the Claimant’s claimed family members. This proved unsuccessful. No further thought was given to the earlier information provided by the Claimant or what had previously been considered the mandatory step of seeking to access the records from Newham Social Services.

On 6 _th December 2013 the ETD pack was submitted to the DRC embassy.

On 9 _th December 2013 the High Court handed down judgment in P (DRC) v SSHD [2013] EWHC 3879 (Admin) which contained the following conclusions relevant to the intended removal to DRC:

The detention review dated 17 _th December 2013 noted that the SSHD had permission to appeal the judgment in P(DRC). There plainly also remained doubts at that time as to whether the Claimant was Congolese. This is evident from the following extract of the authorising officer’s remarks:

The medical records reveal that by December 2013 the Claimant’s mental health had deteriorated again. An entry of 16 ^th December notes that he had been admitted to the healthcare centre having been referred for admission by the in-reach team when he reported feeling depressed and auditory/command hallucinations asking him to harm himself. An entry of 17 ^th December by Dr Govindarajula stated that he been settling into healthcare with no active symptoms of psychosis and at the interview:

These entries directly contradict the assessment in the detention review that it was the Claimant’s intention to thwart the identification and deportation process. The reality was that he was desperate to gain his liberty; hardly surprising after such a long period of immigration detention.

By 19 ^th December 2013 the Claimant was again seen with a towel round his head. Further entry noted “ relapse stage (Xallx)-increase in psychosis symptoms” . On 23rd December he attended at Dr

On 8 ^th January 2014 Dr Maggio diagnosed an adjustment disorder with psychotic symptoms.

On 17 ^th January 2014 the same authorising officer who had completed the December review stated:

Yet again this entry reveals a lack of insight into the information which the Claimant had provided.

On 30 _th January 2014 the SSHD abandoned her appeal in the P (DRC) case. An entry on the GCID case record sheet on 7 February 2014 recorded:

There was a detention review on 11 ^th February 2014. The references continued to the Claimant “ actively clouding his past in order to prevent removal” and it being not at all clear which nationality he was. It was noted that the Claimant had stated whilst in the healthcare centre at Pentonville prison that he was willing to be deported back to the Congo and was 100% a Congolese national from the DRC. There is no reference to the Claimant’s deteriorating mental health (the only references being to what happened in November 2012). The reviewing officer recorded that:

On 13 February 2014 an ETD interview was conducted at Pentonville prison with a DRC official present. The internal note states:

On 14 ^th February 2014 the Claimant stated that he would like to return to Congo as soon as possible and would also like to be considered for release from detention. He also provided details of his brother which had previously been provided as far back as the nationality interview of 27th October 2011 and the application of 7 ^th December 2011; so provided information that the Defendant had already had possessed for nearly two and a half years, but never acted on.

There was a detention review on 13 March 2014 in which the same officer who had conducted reviews in December 2013 and January 2014 stated:

By the time of the April 2014 detention review, the SSHD’s position in relation to the P(DRC) judgment was as follows:

On 29 _th April 2014 a meeting was arranged with a DRC official to take place on 9 th May 2014 to discuss the Claimant’s case. It appears from the following entry in the June detention review that the meeting of 9 _th May 2014 was productive and resulted in DRC confirming that the Claimant is one of their nationals:

I accept as accurate the submission that the positive verification occurred with essentially the same information as was available in May 2011. Mr Ó Ceallaigh suggested to Mr Kates that during the intervening three years nothing had come to light which had materially further assisted in the Claimant’s identification as Congolese national. Mr Kates found it difficult to demur.

The third anniversary of the Claimant’s detention passed and there was a detention review on 5 ^th June 2014. The fact that the Claimant had complied with the DRC documentation exercise was said not to alter the fact that he was a high abscond risk or that he was a risk of harm. It was stated that:

On the 24 ^th June 2014 the notes record that a response had been received from CROS:

On 1st July within the detention review it was stated:

On 24 ^th July 2014 the case owner records that CROS had been contacted for an update on “Mr Sam’s ETD” and had been told that they were still waiting for a decision from Kinshasa and that it was:

On 31 ^st July 2014 within the detention review it was stated:

At the next detention review on 29 ^th August 2014 the authorising officer did not address the matters set out within the previous review, including the proposed meeting with officials of the DRC, stating only:

On 1 September 2014 the Migrant Law Partnership made detailed/fresh representations on behalf of the Claimant. Revocation of the deportation order was sought. It was stated that the objective material indicated a risk posed upon return in accordance with the case of P (DRC) and that a decision must be made on the human rights claim before any removal directions were enforced. It also was stated that if there was a refusal it was appropriate to grant the Claimant an in country right of appeal and that:

I accept Mr Ó Ceallaigh’s submission that the fresh representations constituted a further barrier to removal as any refusal would have resulted in an in county right of appeal. This should have been considered together with the lack of a timescale for an ETD and led to the immediate release of the Claimant from detention. Mr Ó Ceallaigh also pointed out that, consistent with a continuing unacceptable failure to undertake adequate reviews of the deprivation of a person’s liberty, no reference was made in any subsequent monthly detention review to the representations between their receipt and the Claimant’s release on 21 ^st May 2015, a period of over eight and a half months (and over a year after he had been accepted by the DRC as national).

On 23 _rd September 2014 the case owner contacted CROS to find out the progress of the ETD and was informed that Kinshasa needed further details which an officer from CROS would obtain and forward to the DRC embassy “in the next couple of days”. The review took place on the 25 ^th September 2014 and noted the lack of a timescale (with no reference to the representations).

The next review occurred on 24 ^th October 2014. The officer reviewing the Claimant’s case stated:

On 17 _th November 2014 CROS advised that:

The next detention review was on the 20 ^th November 2014. There was no material change to the content save that the authorising officer stated:

On 18 _th December 2014 the High Court handed down judgment in the case of BCT v SSHD [2014] EWHC 4265 (Admin) which confirmed that, contrary to the position taken in the P (DRC) case, there remained a reasonable prospect of removing foreign criminals to that country throughout the period since that judgment:

In my judgment, the same analysis applies here. The judgment in P(DRC) meant that the Secretary of State had to reconsider her position and reassess the evidence as to the consequences of a return to the DRC. Within a relatively short period of time new material emerged, notably the discussion between the Foreign Office and the Directeur Central de la Chancellerie at the DGM, which suggested that the position may not be as concerning as the Ambassador had described. Thereafter, there was a realistic prospect of effecting removals to the DRC and, in fact, in October 2014 such removals commenced.

In those circumstances, there was a reasonable prospect of removing the Claimant to the DRC throughout the relevant period and accordingly the detention was lawful …

The next review was on 18 ^th December 2014. The authorising officer stated, remarkably and plainly erroneously given the history which I have set out in detail above:

The reviewing and authorising officers for the detention review of 16 January 2015 provided a somewhat more realistic overview of the history of the case”:

The detention review of 13 ^th February 2015 was authorised by Mr Kates. He noted the comments of the previous month and the request that was made (belatedly) of CROS on 9 ^th February 2015. It appears that he did not get his update as requested.

The review of 13 ^th March 2015 was authorised by the same officer who authorised the review in December 2014. No further information had been provided by CROS. Despite the comments made by Mr Jackson in January the only comment made by the officer was that detention was agreed:

On 7 _th April 2015 CROS advised that there was no timescale for the ETD because ETDs were not being issued at that time. They anticipated hearing “on around 100 DRC cases sometime soon’. Within the review it is stated:

So detention was authorised until 14 ^th April 2015. Somewhat surprisingly Mr Kates proposed detention through to 8 ^th May 2015 despite this seven-day extension. On 29 April 2015 this was authorised although it was noted that if the release address was not forthcoming by Friday (1 ^st May 2015) there would need to be referral back to Mr Wood as he could not have expected detention to go on for more than a few days. Despite this the

On 21 ^st May 2015 the Claimant was released without accommodation (the “you must live at..” section of the release form was blank) but subject to reporting restrictions. The reasons for this are set out in an email from David Wood, the Defendant’s Director of Crime and Intelligence which stated:

The Claimant stated:

On 25 _th June 2015 an ETD was issued by DRC with validity to 25 _th December 2015. It was received by the Defendant on 8 _th July 2015.

The Claimant complied with his reporting restrictions.

On 1 st October 2015 (so after four and a half months) the Claimant’s re-detention was authorised to effect his removal on the basis that there were no outstanding appeals and he had a current ETD and there were no barriers to removal. It was stated:

The decision appears to have been taken in ignorance of the fresh representations. Mr Ó Ceallaigh submitted that as a result of the representations continuing detention could not be justified on Hardial Singh principles. It should have been clear that the Claimant would be entitled to challenge the decision to deport him and given the period which he had already spent in detention, his release and subsequent compliance with reporting restrictions Mr Ó Ceallaigh described further detention as

It is also difficult to see how, given that he had reported for 4 ½ months, the view could be taken that he would be highly likely to abscond.

The Claimant was re-detained on 5 _th October 2015 when he attended at a centre as required by his reporting requirements. He was placed on ACDT (Footnote: ¹⁷) in view of previous self-harm.

On 12 _th October 2015 the Claimant (himself) submitted a request for bail and on 13 ^th October 2015 a request for temporary admission claiming that he was:

The Claimant’s solicitors attempted to obtain information as to the reasons for detaining the Claimant and were advised that the caseworker was “away for a couple of weeks and that no more details could be given than was on the detention paperwork ”. This was an unacceptable and unreasonable response given that the Claimant had been deprived of his liberty. Someone else should have reviewed the file and given the relevant information to his solicitors so a challenge to detention and/or a bail application could be made.

The request for temporary admission was refused on 19 _th October 2015 on the basis that he posed a high risk of absconding. It was stated that due to his deliberate use of deception it was considered that he could not be relied upon to comply with any conditions of release and that there was a significant risk that he would use false identities to evade the authorities. The false identities theme was a hangover from the view that several aliases had been used in the past. It required analysis of the Newham Social Services records to properly understand the history of the use of the name Sam Louis; but due to the failure to properly investigate, and a lack of reasonable diligence, this information was not available.

On the 19 ^th October 2015 the Claimant’s solicitors renewed the application for temporary admission. On 22 ^nd October the renewed application was refused.

On 30 _th October 2015 an Immigration Judge refused the Claimant bail for the following reasons:

The applicant has a history of entering the United Kingdom unlawfully on a number of occasions. He has shown himself to be adept at evading the Immigration authorities in the process. He has in the past, claimed to be a Belgian National.

The applicant was only located by chance. Otherwise he would still be at large .

Given the above, I find that there are substantial grounds for believing that he will abscond and not comply with bail conditions .

Detention remains proportionate (taking into account the length of time spent in detention) given:

The aforementioned

There are no outstanding appeals

Given that this hearing was solely to consider bail it is, to say the least, very worrying, that the Judge was apparently informed, wholly incorrectly, that the Claimant was only located by chance and otherwise would still have been at large. The correct history was that he had complied with his reporting restrictions and had been detained when he had turned up to report as required. I received no explanation as to how this information was given to the Judge (or if it was given) despite available records.

Further, it appears that the Judge was unaware of the outstanding fresh representations from September 2014 which had never been addressed. Those representations were likely to lead to a right of appeal and so constituted a barrier to removal.

Although I have no evidence on the issue beyond the decision itself, in my Judgment there are, broadly speaking, only three options as to what could have happened:

The Tribunal was deliberately misled;

The Tribunal was not misled at all i.e. the Judge made mistakes (which should have been immediately corrected by the Defendant);

The Tribunal was misled through error and the belief of the presenting officer for the Defendant was that the Claimant had only been located by chance and that there was no apparent bar to removal.

Assuming that it was either (b) or (c) the Judge failed to adjudicate on the issue of bail due to the failure of the Defendant to properly conduct the hearing and put all relevant information before the Judge. I have no doubt that had the Judge been aware of these two factors he/she would have carefully considered whether continuing detention could be justified and on balance it is my judgment that bail would have been granted.

On 5 th November 2015 the Claimant’s solicitors, BID submitted a human rights application and application to revoke the deportation order. It is evident that by that date the Claimant was aware that the intended removal date was 20 _th November 2015 (although no directions had been issued). The letter included an assertion that the Claimant was currently on antidepressants and was receiving care from a mental health nurse in The Verne IRC. It was stated that his health records from HMP Pentonville had been requested.

As with the previous representations Mr Ó Ceallaigh submitted that as a result of them being made continuing detention could not be justified on Hardial Singh principles.

On the 15 November 2015 the Claimant attempted to place a razor blade into his mouth and was prevented from doing so by an officer. He was reported as having:

On 16 _th November 2015 removal directions were set for 20 _th November 2015. On 18 ^th Mr Richards a case progression manager stated:

On 19 _th November 2015 the removal directions were cancelled. A detention review dated 2 _nd December 2015 included the following comment in relation to the recommendation to maintain detention:

The authorising officer commented:

The detention review dated 23 _rd December 2015 repeated the same contradictory comments contained in the review three weeks earlier. This evidences the use of formulaic phrases and repetition of content without adequate thought being addressed to the accuracy of content.

The authorising officer stated:

Progress towards deportation is not the test which should have been applied. As for the reference to the discussion set out above, this was contradictory to comments in relation to representations.

On 18 _th January 2016 the Claimant was granted bail by an Immigration Judge with a condition of tagging. As he was then provided with section 4 accommodation in Scotland electronic tagging did not apply.

The Defendant eventually refused the Claimant’s human rights claims of 1 ^st September 2014 and 5 ^th November 2015 on 13 ^th May 2019. The Firsttier Tribunal heard an appeal on 13 November 2019. The appeal was successful at first instance. The Defendant has appealed further.

There are no general limits on what is a reasonable period of detention. Each case depends upon its own facts.

I have undertaken a lengthy analysis of the periods of detention as the Court must give due consideration to each of the 1,573 days upon which liberty was lost. It is necessary to guard against a process of skimming over the passing of time and allowing an unacceptable lack of any progress to be overlooked. To a person in detention, particularly in prison, every day of freedom lost matters and the Defendant needs to be able to justify it. In this case I think that principle became lost to sight.

T he attention and care in the assessment and progression of the case; the reasonable diligence, which is expected of the Defendant has to be seen in light of the fact that a draconian power is being exercised administratively. The overriding sense that I have gained from this case is of a lack of any urgency within administrative processes leading to a situation where although months passed without any material progress this was considered acceptable by the Defendant’s employees charged with assessing the need for, and legality of, continuing detention. I accept that maladministration does not axiomatically equate to a lack of reasonable diligence sufficient to amount to illegality, but in the present case the failures, in some cases in isolation and certainly when taken cumulatively, went beyond mere maladministration.

I found the details of the review process very concerning. The records reveal not only important mistakes and failure to cross reference or acknowledge the existence of outstanding applications/representations, but also repeated failures to adequately read the records, unjustifiable comments, use of stock phrases and inappropriate prejudgment of what the view taken would be even if further evidence was available (Footnote: ¹⁸) . I shall not repeat what I have set out in detail, but examples of mistakes are the assertions that:

The Claimant did not have any close family in the UK to ensure that he would comply with reporting restrictions;

The Claimant was yet to respond to the questionnaire request when he had already done so (see e.g. 20 ^th March, 19 ^th April and 14 ^th May 2012);

The Claimant had not appealed against deportation and the only barrier to removal was securing an ETD (this comment after fresh representations had been lodged).

Examples of comments which, at the time they were made, were in my view unjustifiable given any reasonable evaluation of the full history, were that the Claimant:

Showed “ total disregard of UK laws ” and “ a total disregard for law and order ”;

Was “completely uncooperative with any reasonable request of the

Was “ utterly non-compliant with our processes ”;

The Claimant “provided no evidence of subsisting relationships in the UK”; or

That “ the delays in this case are of his making”;

That the Claimant was “a ctively clouding his past in order to prevent removal ”;

That “ there is no doubt that he would not comply with reporting restrictions ”;

That he “ would pose a materially greater than average risk of absconding and reoffending ”;

That he would “ have little incentive to comply with any conditions of release ”;

That “ there is no doubt that serious public harm would ensue if he were to re-offend and equally likely that he would go to ground and adopt another false identity if he were to be released pending removal ”;

“ It has taken investigation on our part to even get to the position whereby we have been able to make an ETD application. The individual himself has done nothing to assist and could easily have brought his removal and thus his release forward; in essence he has held the keys to his gaol all along but has chosen not to use them .”

An example of a stock phrase repeatedly used is:

Examples of failures to have adequate regard to the content of the file when undertaking a review are to be found with the reviews of 23 ^rd November 2011, 28 ^th December 2011, 24 ^th January 2012 and 19 ^th April 2012.

Repeatedly during the records covering his long detention, and the presentation of the case before me, reference was made to the Claimant’s deception and lack of co-operation. It was, and is, right to pay due regard in particular to the fact that during part of the first period detention, after initial cooperation, the Claimant changed his story and lied, claiming to be Somalian for a period of 10 months. However, this self-limiting period did and does not provide what has been described by the appellate courts as a “trump card” to the Defendant to excuse prior and subsequent failures to adequately assesses and progress the Claimant’s case. By the stage that he chose to lie and not cooperate, the Claimant had already been in detention for over 14 months with the Defendant achieving no significant progress despite the information he provided. In my judgment had the case been pursed with reasonable diligence he would not have reached the stage of embarking on such ill thought through deception. He was also showing signs of the subsequently diagnosed mental health problems. In my judgement it would be wholly wrong not to view this period when the Claimant was not only not cooperating but actively trying to deceive the Defendant, in its proper context. Further and tellingly, it also came to an end, yet thereafter the Defendant still could not progress matters through to deportation.

Regular detention reviews must be properly undertaken with consideration of all relevant factors starting from the presumption in favour of release and recognising that detention must be used sparingly and for the shortest period necessary. Refusal of voluntary return does not axiomatically equate to a risk of absconding a fortiori a high one. In the Claimant’s case reviews progressed in ignorance of all the relevant factors to enable a fair and proper assessment of the risk of absconding, including, most notably the outstanding application for leave to remain, history with social services and his family connections. Also the risk of absconding was repeatedly overstated on what was known, with over reliance on one incident of a failure to report, and used as a trump card within detention reviews which at times contained formulaic justifications in relation to absconding applied without adequate consideration.

At no time during the first period of detention was there a timescale for obtaining an emergency travel document. Where return is not possible, for reasons that are beyond the control of the person detained, the fact that he is not willing to return voluntarily cannot be held against him, since his refusal has no causal effect.

I turn to the detail of the first period of detention.

Within my findings of fact I have referred to the failure to progress the Claimant’s removal with reasonable diligence. In the present case three of the Hardial Singh principles are relevant to the analysis of the legality of detention:

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

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

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

In my judgment the Defendant failed to progress matters with reasonable diligence and/or expedition (the combination of which I shall refer to as reasonable diligence) during the Claimant’s first period of detention. On careful scrutiny, much of the relevant period was characterised by what Mr Ó Ceallaigh described as “total inactivity” and, after an initial period which would have been required for investigation and decision making, the Defendant did not come close to satisfying the high duty upon a body administratively detaining without charge to progress matters. The Claimant had extensive records which were available to the Defendant, had just basic investigative steps been taken in light of the information that he had provided. The Defendant took more than two years just to reach a decision to deport the Claimant.

At the outset of immigration detention on 18 ^th May 2011 the Claimant provided information that his name was Sam Louis, he was born in Kinshasa on 5 ^th July 1989 and that he had been in the care of Newham Social Services and that his solicitors had been in touch with the Home Office. Very importantly, these matters were correct. They combined to provide a route to a wealth of information, and to allow cross referencing with the outstanding application, the 2002 records and the Belgian records. Had the Defendant’s case officers been pursuing matters with reasonable diligence these leads would have been followed up and cross-referenced. The records would also have put the perceived use of aliases and risk of absconding into an accurate context to allow proper evaluation.

Inexplicably, no attempt was made to contact Newham Social Services. Had the step been taken then shortly after the first detention interview in May 2011 the Defendant would have been aware of the Claimant’s nine years of publicly provided accommodation in an area of London close to his brother and sister, that he had an outstanding application, made four years previously, for indefinite leave to remain and as a result had an incentive not to abscond. It would also have produced the birth registration document and revealed that whilst the records showed that his birth/family name was Mayela Sambea that he had been known/recognised as Sam Louis from when he was a child, and this was acknowledged and indulged, by social workers. This would have put the perceived use of “5 aliases” in a completely different light and should have weighed against the likelihood of the Claimant absconding. He had been under the supervision of a local authority since he was 13 years old and settled in a single area close to family members for years. He hoped to be granted leave to remain and had solicitors. He had obvious reasons not to abscond. In short, it would have provided a picture which was very different to that of many foreign national criminals.

The failure to take basic steps to follow up on information within their possession also meant that case officers did not cross reference to the Defendant’s own documentation and that of other countries. Mr Kates conceded that despite the fact that the Belgian authorities had positively identified the Claimant in 2002 no attempt was ever made to make contact with them. He could provide no explanation as to why the records of the Belgian authorities were never sought during the first four years of detention.

Mr Ó Ceallaigh conceded that with the exercise of reasonable diligence the Defendant would reasonably have taken some time to access and process what was available information and make decisions. The question, given all the circumstances, is what was a reasonable period for this to have taken place. Mr Ó Ceallaigh submitted that detention after 23 ^rd January 2012 was unlawful.

Some caseworkers appreciated the need for speedy progression. In August 2011 it was stated to be a priority to ensure that a decision can be made on the case within one month. However the majority of other caseworkers appeared to see no urgency at all.

On 27 ^th October 2011, it was the view of a case officer that:

The Claimant had stated that he was born in Kinshasa, DRC. He was not stating he was Belgian; rather he did not know what his nationality was given his history (and, as set out above, this may well be due to his reliance on Social Services).

He had been in the care of Newham Social Services (and a name had been provided) so there must be records.

He had attended school; so there must be records.

His bother/cousin’s details.

Further if adequate and straightforward enquiries had been made the Defendant would have had access to:

The Claimant’s outstanding application;

The birth certification documentation;

Details from the Belgian authorities.

If put together, this information would have provided the same detail as that which later satisfied the DRC officials that the Claimant was a national.

On 31 ^st October 2011 it was recorded that this information obtained at the 27 ^th October interview must be further investigated and “ might just be the opening we had envisaged” . The Claimant had at this stage spent more than five months detention. The opening had been there from the outset; all that had now happened was that it had widened.

On 23 ^rd November 2011 the Claimant’s solicitor responded to a request made by the Defendant the same day stating:

On the 23rd November 2011, there was no reference to the matters which the last review stated “must” be investigated. This evidences a

By late November the Claimant had been detained for over six months. Contrary to what is later stated in reviews he had provided information which enabled access to a wealth of information concerning his history and he had confirmed, correctly, that he had been born in Kinshasa and was a national of Congo. There was no material deception or attempt to hide his nationality and he was being co-operative. He also had an outstanding application for ILR which had not been addressed, had been in the country since 2003, had family connections within the UK (his brother had a passport) and a history of complying with bail conditions with only one failure (which the Claimant put down to mistake and after which he was re-bailed). The Defendant not only had all the necessary information to make a decision upon deportation (and to have sought emergency travel documentation), but had a Claimant who was stating through his solicitors what his nationality was; this being consistent with all the information that should, by this stage have been in the Defendant’s possession.

On 7 ^th December 2011 the Claimant’s solicitor wrote to the Defendant asking for release. It was pointed out that the Claimant’s criminal sentence had been completed seven months earlier and no removal directions had been set so removal was not imminent. Reference was made to the presumption in favour of temporary admission or temporary release and that the Claimant’s liberty should only be restricted if it was essential to do so. A temporary release address was given.

Despite the request for release no adequate review was undertaken. T he GCID case record sheet has an entry on 8 December 2011 that reads:

Mr Fortt placed reliance upon the Claimant’s failure to return the questionnaire. In my view this was also not a “trump card” and needed to be viewed in the context of the information. On 27th January 2012 it was returned. It confirmed that the Claimant’s nationality was the DRC. The accompanying letter asserted that the Claimant qualified under exceptions 1 and 2 of s.33 of the UK Borders Act 2007 in that removal would breach his Article 8 rights. So the Claimant had now stated for months that he was a national of DRC and had given details of his history in the UK. As I have already set out the picture was a far cry from the facts in several of the cases cited to me of foreign nationals refusing to co-operate with the Defendant. It also further evidences the inaccuracy of the statements in the later reviews that the Claimant was completely uncooperative with any reasonable request of the UK Border Agency. In my view, given all the circumstances and the length of time already spent in detention, the Defendant should have taken no more than a month to act on the completed questionnaire.

On 20 February 2012 a detention review revealed no material progress had been made on matters. Its authors merely repeated many comments previously made in earlier reviews. In my judgment there was a lamentable failure to properly progress matters. Months had passed without any critical scrutiny of the deprivation of liberty.

By the end of February 2012 the Claimant had been in detention for nine months; matching the length of the custodial element of the sentence for robbery. His licence period had expired. I agreed with the observation of DHCJ Clare Moulder (as she then was) in Mohammed-v-SSHD [2014] EWHC 972 that the whilst the length of detention is not to be directly compared with the length of the custodial sentence, the custodial sentence is relevant in an assessment of the risk to the public if the Claimant is to be released, and thus is a factor to be brought into the overall consideration of what is a reasonable period.

Despite all the details provided, correspondence from the Claimant’s solicitor and the completion of the questionnaire, no real progression appears to have been on the horizon. As I shall set out in due course, had all the information which should have been available been considered (including the outstanding application for ILR) it is my view that any adequate or proper review abiding by the Defendant’s own guidance should have resulted in the decision to release from detention.

I have carefully considered all the facts in this unusual case. In my judgment, from 29 ^th February 2012 onwards detention was unlawful by virtue of breaches of each of Hardial Singh principles (iv), (ii) and (iii) as:

There had been, and continued to be, a failure to act with reasonable diligence going very well beyond maladministration.

In all the circumstances, including that the Claimant had been detained for nine months, the detailed information which he had provided, nature of the obstacles which stood in the path of the Secretary of State effecting a deportation; the most obvious being that no decision to deport had been taken and there was an outstanding application for ILR, the lack of diligence, the limited risk, when properly assessed, that he might abscond and/or commit further criminal offences (although these considerations are paramount they should not have been overstated) a reasonable period for detention had expired.

On any adequate review of the file it should have been appreciated that the Claimant had co-operated and provided information yet he could not be removed before a reasonable period had expired (a deportation decision had not been made and was not imminent). In reaching this conclusion I have borne in mind that there can be a realistic prospect of removal without it being possible to specify or predict the date by which, or period within which, removal can reasonably be expected to occur.

Over four months later, in July 2012, the Claimant falsely claimed to be Somalian. As I have indicated if there had been no breach of the Hardial Singh principles or the Defendant’s’ own policy, the Claimant would probably not have lied. He continued with this attempted deception for 10 months.

On 23rd May 2013 the Claimant attended a nationality interview during which he reaffirmed that he was Congolese. He had given up on his attempt to mislead. However, this did not kick start any material progress. On 26th September 2013 an entry with rare insight recognised that it was difficult to justify the length of detention to that point. However this entry was made 20 months before the Claimant was released from detention.

As for subsequent notable milestones, on 1 ^st September 2014 fresh representations were lodged and I accept Mr Ó Ceallaigh’s submission that the fresh representations constituted a yet further barrier to removal (as opposed to detention) as any refusal would have been likely to have resulted in an in county right of appeal. This should have been considered together with the lack of a timescale for an ETD and led to the release of the Claimant from detention at this stage i.e. September 2014. As Mr Ó Ceallaigh also pointed out, consistent with a continuing unacceptable failure to undertake adequate reviews of the deprivation of a person’s liberty, no reference was made in any subsequent monthly detention review to the representations between their receipt and the Claimant’s release on 21 ^st May 2015, a period of over eight and a half months (and over a year after he had been accepted by the DRC as a national).

Even when the Claimant’s nationality was settled, matters did not progress with reasonable diligence. On 17th November 2014 CROS advised that:

Given my findings in relation to the Hardial Singh principles I need only deal with the public law argument briefly. The Defendant’s power to detain is subject to the limit arising from any unlawfulness caused by a material breach of a public law rule bearing on the decision to detain, such as may arise from a clear and unjustifiable breach of (or failure to follow) the Defendant’s own relevant policy. The law requires adherence to the clearly expressed policy of a public authority absent compelling reasons for departure from it.

The Secretary of State’s policy at the material time was primarily contained within the policy “ Chapter 55 Enforcement Instructions and Guidance”. The policy confirmed that:

That detention be used “ sparingly, and for the shortest period necessary ”;

That there is a presumption in favour of release;

That those suffering from medical conditions that could not be satisfactorily managed in detention would not be detained save in exceptional circumstances;

That reasonable alternatives to detention must be considered.

The aim of the policy was to ensure a consistent approach.

In my judgment the decision taken on or before 29 ^th February 2012, despite the Claimant’s representations, to continue with detention after that date failed to properly apply the presumption in favour of release or to properly consider reasonable alternatives to release. The Defendant acted in breach of her own policy. The views expressed within earlier reviews did not avoid the requirement to properly re-assess all relevant factors for and against continued detention.

The Claimant’s solicitor had written to the Defendant asking for release. It was pointed out that the Claimant’s criminal sentence had been completed seven months earlier and no removal directions had been set so removal was not imminent. Reference was made to the presumption in

As a secondary argument Mr Ó Ceallaigh submitted that the Claimant’s detention was unarguably unlawful from 25 ^th September 2014, by reason of a failure to take into account the fact that the Claimant had outstanding representations to revoke the deportation order which had been made on 1 ^st September 2014. Those representations constituted a barrier to removal (although as Mr Fortt submitted not axiomatically to detention) and, as Mr Kates properly accepted, the Claimant could not lawfully be removed without their consideration They were never considered while he was detained. I accept this submission; the failure to give any consideration to what were obviously highly relevant representations was a clear error in public law terms impacting on the decision to detain. Mr Fortt referred to the subsequent decision in BCTv-SSHD , however in my judgment the Claimant should not have been in detention when this decision was handed down.

Given the length of this judgment, and because it would require a further review of the chronology, I will not deal with Mr Ó Ceallaigh’s additional argument that there was a breach in policy in that the Claimant’s medical condition was one that could not be satisfactorily managed in detention such that he should not have been detained save in exceptional circumstances.

On 25th June 2015 an ETD was issued by DRC with validity to 25th December 2015. It was received by the Defendant on 8th July 2015. The Claimant was re-detained on 5th October 2015.

In my judgment this period of detention was unlawful from the outset applying the second Hardial Singh principle.

The failure to pursue obvious and necessary avenues of investigation with reasonable diligence which persisted throughout the first period of detention had not been remedied. This meant that information which should have been known about the Claimant’s history in the UK, family and local ties were not known. The statement explaining the justification for detention that his:

The decision to detain appears to have been taken in ignorance of the fresh representations which gave the Claimant hope of avoiding deportation. Mr Ó Ceallaigh submitted that those representations were likely to lead to a right of appeal and so constituted a barrier to removal. If it is apparent that the Secretary of State will not be able to effect deportation within a reasonable period, the power of detention should not be exercised; so there was a breach of the third Hardial Singh principle. Mr Fortt accepted the principle that the representations constituted a barrier to removal (not detention) but referred to the judgment in BCT-vSSHD and submitted that as a result there was “no prospect at all” of those representations being acceded to or giving rise to an appeal, so they were, in effect irrelevant. In my judgment whilst there is some force in Mr Fortt’s submission as to what could have been a decision made on the merits of the outstanding representations they were not, and could not reasonably have been seen as irrelevant. I am not satisfied that matters would have been seen as clearly as he submits. It is important to note that the representations were not certified when they were eventually addressed in 2019. In any event they needed to be addressed, and given the history of delay even when a decision was considered urgent (e.g. August 2011) this was likely to take months. In the interim they gave the Claimant hope of avoiding detention which fed into the limited risk of absconding (which he had not done for over four months) and the reasonableness of detention. On the Defendant’s own policy detention must be used sparingly and for the shortest period necessary. In my judgment the existence of the representations was part of the circumstances to be taken into account when considering the second principle.

It is of very considerable concern that on 30 _th October 2015 an Immigration Judge refused the Claimant bail for erroneous reasons. The Judge failed to adjudicate on the basis of the true picture due to the failure of the Defendant to properly conduct the hearing and put all relevant information before the Judge. As I have already indicated it is my view that had the Judge been fully aware of the facts he/she would have carefully considered whether continuing detention could be justified and on balance bail would have been granted. Given these findings continued detention after this date cannot have been reasonable in all the circumstances in any event.

As a fall back argument Mr Ó Ceallaigh submitted that at the very latest from 5 ^th November 2015 when the Claimant submitted further representations through Bail for Immigration Detainees his detention could not be justified by reference to the Hardial Singh principles. It was or should have been clear at that stage that he would be entitled to challenge the decision to deport him, and in the context of his reporting and the extraordinary period for which he had already been detained further detention was completely unjustifiable. I accept that submission.

In my judgment from the outset the decision to detain for a second period was also a breach of the Defendant’s own policy which required detention to be used sparingly and for the shortest period necessary, application of a presumption in favour of release and that reasonable alternatives to detention must be considered. The Claimant had reported for 4 ½ months, and had outstanding representations that required determination (which would give an obvious incentive not to abscond) and in respect of which there was no timescale.

I also accept the submissions that:

the failure to give any consideration to the outstanding representations of September 2014 was a public law error and I am not satisfied, there being no evidence on the issue, that had they been considered the Defendant would have detained in October 2015 in any event. No time-frame for removal existed until a decision was made, and this needed to be considered together with the fact that the Claimant had reported for 4 ½ months (i.e. had not absconded) and the length of the first detention, and

There was in any event a breach of the Defendant’s policy after receipt of the November 2015 representations and detention after this date was “completely unjustifiable” given the relevant principles as set out.

The answers to the first six specific questions posed at the beginning of this liability hearing can be shortly summarised.

Both the Claimant’s first and second periods of detention were unlawful (the first in part only) by reference to common law limitations and also in breach of a public law by rule bearing on the decision to detain. Further in respect of the public law errors the Defendant has not proved that the Claimant could and would have been detained in any event.

The seventh question was: did the Defendant cause the Claimant to suffer personal injury? To answer this question it is necessary to consider the impact of detention on the Claimant’s mental health. This requires an analysis of the expert medical evidence.

As set out above the Claimant first came to the attention of the Prison Health Service in February 2012 and began to make threats to kill himself. There had been no issues whilst he had been serving the sentence for his original offence. From then onwards he presented, at various times, with a variety of complaints including feeling stressed, depressed and unable to sleep; being off his food; losing weight; thinking of harming himself; of suicide, and there were incidents of him setting fire to his cell, smearing faeces on the wall and barricading himself in. He also complained of hearing voices. He was seen by a psychiatrist on a number of occasions and given the diagnosis of an adjustment reaction disorder and moderate depression.

I turn to the expert evidence in relation to the Claimant’s mental health.

I had a report in the bundle from Dr Taylor who was instructed by the Claimant’s solicitors and examined him on 13 ^th September 2017. It was his view was that the Claimant’s symptoms were consistent with a diagnosis of post-traumatic stress disorder. He opined that the Claimant’s loss of control over his situation and deprivation of liberty without clear limits of time were sufficient to trigger the response (also that there were specific traumatic events arising out of interaction with the prison officers and his times in segregation). Dr Taylor did not give evidence and Mr Ó Ceallaigh did not rely upon the opinion set out in the report.

The Claimant was referred by his general practitioner to a crisis mental health team on 4 ^th February 2018 after attending Accident and Emergency. The trigger appears to have been an acute psychotic episode and he reported that he had schizophrenia and was hearing voices. Someone had broken into the flat he had in a shared house and this appeared to trigger the incident. Eventually the mental health team were unable to contact him and he was discharged back into the care of his GP. The Claimant reported that prescription medication and reviews by the mental health crisis team led to an improvement.

There was a further referral to mental health services in Rotherham/Doncaster on 6 ^th August 2019. This time he was feeling low and depressed and had suicidal thoughts.

Dr Qurashi was instructed on behalf of, and examined, the Claimant. The interview took place on 12 ^th September 2019 so over two years after Dr Taylor’s examination and assessment. He had the Claimant’s witness statement.

Dr Qurashi thought the Claimant had been more ill when he saw Dr Taylor. Indeed the Claimant informed him that he thought his mental health had improved albeit he continued to experience depressive and anxiety symptoms. Dr Qurashi thought objectively the mental state examination showed a clear improvement from September 2017. It was his opinion that the Claimant’s mental health had fluctuations in terms of severity and the type of symptoms associated with times of stress, which caused his mental health to deteriorate, and he became much more symptomatic with psychotic symptoms in the form of auditory hallucinations. Overall his mental health was fragile and his recovery brittle.

Dr Qurashi noted that from February 2012 the Claimant was subject to an ACCT process which is designed to inform care planning for persons identified as being at risk of suicide and/or self-harm. He began to use cannabis as a maladaptive strategy to cope with “intolerable experiences”.

It was Dr Qurashi’s view of the records the Claimant was::

As to causation he stated:

Having been instructed on behalf of the Defendant Dr McLaren saw the Claimant on 23 ^rd of August 2019 (report date 30 September 2019). He recorded the Claimant as saying of the suicide attempt in 2013:

Dr McLaren noted that in January 2013 the Claimant was triaged and found to be suffering with an adjustment disorder related to his deportation problem. By the end of March there were entries in the records setting out that there was no evidence of the Claimant being mentally or physically unwell and on 12th April he did not attend for a mental health clinic appointment with Dr Maggio. On 24 ^th April he did see Dr Maggio and reportedly felt moderately better (he had changed his immigration solicitor and felt more confident). Whilst in November 2015 it appears he tried to put a razor in his mouth and stated that he would cut himself and his own throat, by December 2015 psychiatrists found no evidence of serious mental disorder and queried whether there were dysfunctional personality traits.

Dr McLaren said that the first reference to hearing voices that he could identify was from the 27 ^th February 2013. He stated that it appeared to be the final diagnosis of Dr Maggio that there was an inconsistent presentation and the most likely diagnosis was of an adjustment disorder (although he noted that on 5 March 2013 Dr Maggio’s impression was that the Claimant was having a psychotic episode). Dr McLaren stated:

After his examination Dr McLaren described the Claimant as a vague historian (although not trying to mislead or exaggerate the severity of his symptoms) showing no signs of mental disorder. He stated that from the information available, the Claimant’s current condition could be best diagnosed as residual mild symptoms of an adjustment disorder.

As for the causation of the adjustment disorder Mr McLaren stated:

Dr Qurashi and Dr McLaren prepared a joint statement. Dr Qurashi stated that on examination he found theC to be suffering from a mixed anxiety and depressive disorder. In respect of past diagnoses he was of the view that the Claimant had suffered a severe depressive episode with psychotic symptoms during his detention.

Dr McLaren maintained the opinion that on the balance of probabilities the Claimant (solely) suffered an adjustment disorder in the first quarter of 2013. Dr Qurashi set out that in all likelihood his mental illness was more severe i.e. he had a more severe depressive episode with psychotic symptoms.

Dr McLaren also stated that it was his view that the history was of emerging maladaptive personality traits prior to the period in detention. Dr Qurashi disagreed. As the for the impact of detention:

Both experts gave oral evidence. The remaining differences of opinion between the two psychiatrists can be summarised shortly. Dr McLaren believed that the Claimant had maladaptive personality traits that predisposed him to development of an adjustment disorder. It is his view that when in detention the Claimant developed such a disorder which had within its symptoms depressive elements and also psychotic episodes. He did not believe that in the taxonomy of diagnoses the condition developed to a depressive order which is seen as a more serious diagnosis.

Dr McLaren thought it important to note that the Claimant had had no significant treatment for depression and that it was unlikely that if there was a free standing depressive condition that it would resolve spontaneously. He considered a fluctuating adjustment disorder to be a more realistic diagnosis particularly as adjustment disorders were usually self-limiting whereas a depressive reaction would last longer. He believed that the depressive episodes were transient and self-limiting; which is more consistent with an adjustment reaction disorder with underlying maladaptive personality traits. It was a condition with a variable and fluctuating state.

Dr Qurashi was of the view that the Claimant’s condition was sufficiently serious as to warrant a diagnosis of a depressive disorder i.e. a more serious diagnosis than adjustment reaction disorder. He believed

Both experts clearly had respect for the other’s view and recognised it as a legitimate alternative view to their own. The differences in opinion were not great.

When assessing their evidence it is, in my view, significant that Dr McLaren has never worked in a prison and/or with those detained in a custodial settings.

I accept that the Claimant had developed maladaptive personality traits prior to his detention. A number of incidents had culminated in the offences for which he was given a custodial sentence. He had been separated from his parents at a relatively young age, was probably exposed to very difficult things in his youth, had arrived in a new country where he did not speak the language and was shortly thereafter effectively rejected by a close family member (his brother). Thereafter he was under social services care/support, without parental assistance and attending at a school where he did not speak the language. He suffered enuresis. He had no consistent role models. Finally, there is reference to him associating with ‘a bad crowd”. However, it is very important to note the point made by Dr Qurashi that the Claimant seems to have coped very well with his period in custody for his offences. There was no reference to any mental health issues and he even appears to have benefited from the classes and behaved well. Given the pressures and challenges of prison life if the Claimant had a very strong, or even a strong, predisposition to use maladaptive strategies such behaviour over a prolonged period would be highly unlikely. This period contrasts very sharply with the detention, at times seemingly without limit, which followed from May 2011. In my view Mr McLaren placed too much emphasis on maladaptive personality traits.

I also do not accept Dr McLaren’s view that the Claimant’s immigration status was the major stressor that led to the development of his mental illness. If so it would have been likely to have manifested itself well before February 2012. In my view immigration status was a stressor but the major stressor, and effective causative factor of his illness, was the fact of detention (seemingly without an end in sight). Dr McLaren agreed with Mr Ó Ceallaigh that the fact that no decision to deport was taken for two years would have been a major stressor for the Claimant who was in detention and separated from his relatives. As set out at paragraph 4.10.43 of Dr McLaren’s report there came a stage when the Claimant stated he was not even bothered about his immigration status. He had “given up” caring. I also note that it does not appear that manipulative behaviour was thought at the time to be a strong element of his presentation. Indeed there was only one reference to such behaviour within the records. In my judgment the main operative cause in the deterioration in the Claimant’s health was that he was in prison/detention without the hope of imminent release.

I also accept that the Claimant’s condition after release was consistent both with maladaptive traits having being overemphasised and also with the fluctuations in his mental health whilst in detention, in that it deteriorated when faced with increased stress.

As Dr Qurashi pointed out there is no formal condition of prolonged adjustment disorder, as an adjustment disorder is usually self-limiting within weeks and months. If what is believed to be an adjustment disorder has not resolved within months then reclassification must be considered.

Given the recognition of moderate depression and potential psychotic episodes in the contemporaneous records, the fact that there was some reaction to medication and the prolonged nature of the mental health issues in my judgement the majority of practitioners would view Dr Qurashi’s diagnosis is more accurate i.e. in the taxonomy of diagnoses the Claimant’s condition had gone beyond mere adjustment disorder to a more serious diagnosis of a depressive condition.

It is also my finding that the cause of the Claimant’s depressive disorder was his detention . Had he been released on bail his mental health would not have deteriorated and he would not have developed the condition.

For the reasons set out the I find that the Claimant was unlawfully detained and that the detention caused personal injury.

This judgment has solely considered liability issues. I now leave it to the parties to seek to agree an order covering the directions necessary for the determination of the quantum of damages.

I conclude by expressing my thanks to both counsel for their most helpful submissions, both written and oral.