Louis v The Home Office

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

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

“Mr Louis has been convicted of robbery. He has been completely uncooperative with any reasonable request of the UK Border Agency. He has failed to provide evidence of legal entry. He has provided no evidence of subsisting relationships in the UK. There is no doubt he would not comply with reporting restrictions if he was released despite no evidence of previous absconding. Bearing these facts in mind, I have considered the presumption to liberty… in this case the presumption is on balance outweighed by the risk of harm to the public should he reoffend, the likelihood of reoffending and the significant risk of absconding. I concur with the proposal that detention remains proportionate to this time.”

The statement that the Claimant had been completely uncooperative was incorrect (and it is difficult see how it could have been made on any adequate review of the file) as was the comment that the Claimant had provided no evidence of subsisting relationships in the UK. Given the extant application for ILR, the history of having been under the care of Newham Social Services for years and living in a single area, and also the existence of his brother/cousin and sister, any liaison with Newham Social Services would have meant that it would not have been possible to say that “there is no doubt that he would not comply with reporting restrictions”. The statement could not reasonably be made in any event given that he had been on bail for the robbery offences with reporting restrictions.

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

“conduct CRS/CID/Warehouse checks on claimed brother and sister

….

Check his NIC the last known address then speak/write to the council involved for information on who pays council tax, electoral register information.”

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:

“we will continue to make enquiries regarding his claimed nationality”.

In my judgment this phrase was probably automatically added; again it did not reflect the true position.

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:

“Dadde”. He attended Rockaby School in Stratford East London and was sent to Newham Social Services. He remained in the care of Newham until his offence resulted in a prison sentence. It was recorded:

“I have asked the subject, what nationality he believes himself to be, given his original birthplace and his mother’s claim to Belgian nationality. Again, he says that he has no idea. I asked the subject for his parents details. Namely the mother who may have passed on her nationality. He is unsure of the spelling of her name, but she is known as, M.J. Calome(?). I then asked him if his Aunt, brother or social worker had ever applied for leave to remain in the UK on his behalf. He claims that his social worker had lodged an application via an immigration solicitor, but was unsure when or indeed under which category. He was under the impression that the application still outstanding.

The subject is very vague, he is unable to give any detail whatsoever. He has no knowledge of his status in the UK and although this might be seen as a deliberate attempt to avoid detection I am convinced that the subject has just been relying on social workers to guide him whilst in the UK. It is obvious that we are not any further forward following this interview. I have established some details which may assist our enquiries.

School Records –‘Rockaby’ School, Stratford East London

Brother - “Dadde 07**********

Social Worker – ‘Patrick’, Newham Social Services

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:

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

“The risk of absconding outweighs the presumption in favour of his release. There is a history of unreliability, the subject has a record of serious criminal offending which manifest (sic) a total disregard for law and order. He would have little incentive to comply with any conditions of release.”

Given the Claimant’s history of residence since 2003 under the care of Newham Social Services, that his convictions for robbery arose from a single occasion and his release on bail (including after he failed to attend an appointment said to be due to a mistake when he confused Barking Police station with Barkingside) it is difficult to see how he could accurately be regarded as having a total disregard for law and order. Such hyperbole is to be deprecated. It obscured the facts and also evidences a failure to consider the full details of the Claimant’s case. If the additional information were known it would have been appreciated that due to the outstanding application he did have an incentive not to abscond. The review continues:

“there are claims of family ties within the UK, if this were true, I still would not be satisfied these individuals would provide sufficient control over him given his history, circumstances and expectations.

I consider that the subject is someone who has an undisputed criminal record for four counts of robbery. He was sentenced to 18 months imprisonment. In my view the subject would pose a materially greater than average risk of absconding and reoffending.”

This is a worrying and unjustified prejudging of what information may be available and evidences an intention to detain regardless of the Claimant’s history since 2003. He had not absconded despite the likelihood of an impending custodial sentence. It is difficult to understand how the view can be taken that the Claimant posed a greater than average risk (presumably the risk posed by other foreign national offenders) of absconding and reoffending.

Significantly the person who authorised the detention continued:

“I note the subject was interviewed on 27 October 2011 regarding nationality. He did not divulge all relevant information, however, he has mentioned... a school, his alleged brother and the social worker, this information must be further investigated and might just be the opening we had envisaged, I would appreciate if you could update in your next detention review”.(underlining added)

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:

“I have contacted Mr Louis’ solicitors and requested them to provide documentary evidence if they believe that he is a Belgian national”.

The document also contains the stock phrase:

“We will continue to make enquiries regarding his claimed nationality.”

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

“we have spoken to our client today and confirm that he is not a Belgian national. We note he is a national of Congo and has been in the UK since he was 10 years old.”

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:

“Following my interview in October, I have requested information from the caseworker on how the case is progressing, or if further enquiries have been made with certain contacts which were established?”

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 addition, can you ensure all details of the brother are obtained, as this may shed light on Mr Louis’ status in the United Kingdom and provide further evidence of his nationality.”

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:

“Further attempts at completing an ETD following a request from caseworker…. I did obtain further information of his life in the UK including contacts, schooling and Social Services to look into and try and establish details further as subject states it is a possibility social services hold more info on his background since he was brought into the UK as a child. He states that his previous and current reps are collating information which may again help UKBA confirm his background.”

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:

“any close family in the UK to ensure that he would comply with reporting restrictions placed upon him in the eventuality that he were to be released (he claims have a brother in the UK but has failed to provide any documentary evidence to substantiate this claim)”.

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:

“case owner, please ensure that initial decision is made on this case and submitted to our SCW prior to next month’s detention review. In regards to the ETD aspect of the case Mr Louis has been non-compliant with the ETD process recently by refusing to provide any documentary evidence to confirm his nationality and identity and he has thus prolonged his time spent in IS detention.”

It is difficult to understand how Mr Whyte could come to the conclusionthat 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:

“We therefore need to consider arranging an assertive interview which was recommended in the last reviewers comments. And given his connections in Belgium and France we should enlist the help of CSIT to investigate these leads which will help in our construction of biodata which is also mentioned in the last reviewer’s comments”.

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

“entirely the product of the claimant’s deception and inaction”.

I have reviewed the period up to the end of July 2012 in some detail to demonstrate why it is my view that this broad brush overview of the initial 15 month period is unsustainable. In my judgment careful analysis reveals a failure on the part of the Defendant to act on available information, conduct straightforward investigations or to conduct adequate reviews on a monthly basis. Had the Defendant acted with reasonable diligence matters such as the Claimant’s nationality and identity could and should have been substantially progressed within six months enabling decisions to be taken. As it was, even when the questionnaire was provided the Defendant failed to recognise this fact for months.

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:

“Both before and throughout my detention, the Home Office officials kept asking me the same questions but nothing changed in my situation. I continued to be detained with no answer to my ILR application. This was very frustrating and it made me feel powerless and desperate. I think that it is unfair to say that I was misleading the Home Office by providing differing information. If there were misunderstandings or discrepancies between the records and what I had said, investigation into the information provided could have cleared that up.”

And

“After I had been in detention for over a year, I still had no decision on my ILR application and had no idea when I was going to be released or removed from the UK. I claimed asylum on the basis that I was from Somalia and feared being returned there. I did this because I did not want to be in detention any more did not want to return to DRC. The thought of returning to DRC was making me feel very depressed and anxious. People I was detained with told me it would help me get out of detention and stop me from being sent to DRC. I was desperate had been detained a long time so I did it.”

I accept this as essentially an honest recollection. Given the amount of documentation that the Defendant had access to through the information the Claimant had already provided, and the fact that he had an outstanding application for ILR, it was a rather poorly thought through attempt to deceive. Having heard his evidence it is my assessment of the Claimant (which I suspect that he may agree with) that he is neither well educated nor particularly clever and on occasions has done (in his words) some “stupid” things which he later came to regret. The claim to be from Somalia, which cannot in any way be condoned as it was a deliberate attempt to be obstructive through lying, fits into that category. When it was pointed out by the immigration officer that he stated in the past he had admitted he was from the DRC he simply stated he could not remember what he had said in the past. He said nothing in detail about Somalia other than he knew that he had been born there.

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:

“DRC advise subject has a history of violence and incitement. Is a high risk of committing acts of violence to other detainees. 16 Aug 2012: Sub made direct threats to assault a member of staff and produced a razor blade stating he intent (sic) to use it.”

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:

“Mr Louis has been getting very frustrated lately because he has been turned down for a transfer to and IRC in the London area … He told me to contact UKBA and tell them to give him his transfer or he would do ‘something stupid’ in order to get a transfer. He said that he didn’t want to do something because he respected staff here but he would do something to get a ship out, even if it meant he would be sent back to prison.”

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

“Detainee became very angry when spoken to by UKBA. He produced a razor and stated that unless he was transferred tomorrow he would either slash his own throat or the throat of the first member of staff that enters his cell. ACDT opened.”

On 10_th November 2012 the record states:

“Mr Louis has been located in the CSU on Rule 40 due to his noncompliance with staff, blocking his observation panel on numerous occasions and fashioning a weapon. Mr Louis has no intention of returning to his unit from here and ‘will cause problems’.

A CNOMIS entry states:

He got very angry very quickly stating this was just the beginning, if he is not moved within two days then he has blades, it is my blood, your blood. He has the brothers on his side and there would be a riot.”

On 14_th November 2012 the record states:

“At approx. 16:30 hrs on 14.11.12 Mr Louis set fire to his cell in the CSU … Mr Louis has blades secreted on his person and has made threats to slash staff and himself.”

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 16th January 2013, 15th February 2013 and 10th 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 5th and 11th February 2013 and 6th March 2013).

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

“his immigration matter was stressing him out, has asked for another immigration solicitor and has some hope this would help him. Also has family in the UK who are supportive. However set fire in his cell today which was witnessed by officers. Said it was impulsive and he did not know what his intent was when setting the fire. Said talking to the officers helps distract self from the stress.”

The diagnosis was of no severe mental illness, no current suicidal intent but,

“impulsive and risk of suicide due to stress/distress of immigration issues”.

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:

“Impression, psychotic episode, query low mood and suicidal ideation. Highly chaotic and dirty cell, has burnt items on cell...”

He was observed by the day care manager to have been withdrawn and to have lost a lot of weight.

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

“apparently (the Claimant) has suffered a brief psychotic episode and is now more stable. However this could also be an insidious onset of functional psychosis. I also note the circumstances of his current immigration problem. He may have suffered a similar episode while in a detention centre.

The plan was to put the Claimant on a waiting list for health care centre admission.

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:

“mental state examination is well groomed and engaged over the interview. Mood is subjectively low and objectively flat…. No morbid ideation but a general poverty of thought. Depressive rumination over the past…. Troubled sleep.

Diagnosis: moderate depression. Apsychotic. Asuicidal.

Plan: citalopram”

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:

“We need to serve the decision as a priority, within the next two weeks. Can you alert the SCWs as to the urgency of the case. Can we investigate the nationality of his brother and two sisters.”

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:

“Case owner – In June’s review the DD asked you to make enquiries re the brother and 2 sisters nationality. There is no mention however that this has been taken forward. Please make sure that this is done during the reporting period as this could hold the key to establishing nationality and an ETD …”

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:

“However during the interview I managed to convince him that he needed to get on with his life instead of sitting in prison and he agreed to take part in the Congolese interview scheme stating he now wants to return.”

By this stage the Claimant had been in detention for two years and three months. Again the degree of co-operation is noteworthy.

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

“I am extremely disappointed to see that no action has been taken to explore Mr Louis’ siblings’ nationality as directed in the June and July detention reviews. Please ensure these enquiries are completed by the due date of the next detention review”

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:

“... We need to demonstrate clear effort has been made to explore all potential avenues to establish and support claims to his nationality”.

This was an accurate assessment of what had been the case from May 2011.

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:

“I agree that currently detention should be maintained for a further 28 days. However, I am concerned, as the Sino judgment and Mr H Singh principles comes to mind, the crux is, we only detain an FNO where removals is highly likely (sic). Mr Louis is currently IS detained for some 31 months for 4 counts of robbery and subsequently received 18 months sentence, while also taking into consideration the magnitude of his criminal activity, as his liberty will need to be meticulously balanced with risk of harm to the public, likelihood of reoffending and propensity of absconding.

I am also aware the case owner will continue to monitor the ETD process and to ascertain the nationality and circumstances of Mr Louis’s claimed siblings. Furthermore, the onus is on Mr L to comply with the ETD process, however we cannot use Mr L’s lack of compliance as a trump card, therefore it is absolutely imperative we do all we possible can (sic) within our remit in order to demonstrate real progression with this individual case. On a positive note, it appears the only current barrier is ETD’s, hence I would like the c/o to monitor the ETD process with eagle eyes, while providing an account on the next DR review.”

This entry, which recognised that it was difficult to justify the length of detention to that point, was made 20 months before the Claimant was released from detention.

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

“Despite our efforts I am concerned that we have not yet got much further forward re documenting Mr Louis, particularly given his non-compliance and attempt to frustrate the identity/removal process. Therefore, it is time that this case needs to be put to the Strategic Director for consideration of release under robust contact management. Running alongside that we must urgently progress the outstanding actions to see if we can get any further towards the documentation and ultimately removal within a reasonable period …

This was the first suggestion of release from detention.

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:

“I have considered this case carefully. This man has been utterly non compliant with our processes and appears to be masking his identity in order to frustrate the deportation process. He has recently suggested an intention to return to the Congo, but when interviewed declined to speak to the immigration officer. It is right to indicate that he presents a high risk of harm and that fact, together with his undoubted abscond risk weighs in favour of further detention.

The previous suggestion by reviewers, that we should consider the option of a contact management referral to SD are somewhat premature as we plan to carry out enquiries as noted above and it would be reasonable to follow through with those, particularly in respect of the siblings to bring forward his formal identification and thus removal …”

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:

“I note the information about P & R v SSHD, a decision we intend to appeal. Actually it is uncertain whether it is relevant in this case, given the doubts around who he really is. Even if it were applicable, we are appealing and the facts of this present case, particularly the very serious criminality that this man has done place substantial weight on the side of detention (sic). It is also relevant that he is leading us a merry dance as to his true identity and nationality forcing us to spend precious resources into investigating his background: he is not just non-compliant, he is actively frustrating the identification and thus the removal process.

There is no doubt that serious public harm would ensue if he were to reoffend and equally likely that he would go to ground and adopt another false identity if he were to be released pending removal.”

If the Defendant had, as it should have done, spent any “precious resources” investigating the information which it had possessed for two and a half years, together with the application for leave to remain and supporting documentation, then the claimant’s nationality could have been established (and the identity of his brother) long before this point was reached. Indeed it should all have been investigated, analysed and decisions taken before the Claimant started to lie about Somalian nationality. He maintained that lie for 10 months with the deception ending on 16^th May 2013; some seven months before this review. He had then reaffirmed what he had said before that lie: that he was from DRC. His claimed DRC nationality aligned with most if not all of the other information which had been, a fortiori could and should have been, obtained about his nationality and identity. It is difficult to see, if there had been an adequate review of the file, how the authorising officer could have reached the view that the Claimant was continuing to actively frustrate identification. It is also difficult to see how the officer would have been able to justify the comment that the claimant was “equally likely to go to ground and adopt another false identity if he were to be released”. Certainly, if the records of Newham Social Services had been available, it would have been clear that the Claimant had consistently called himself Sam Louis, which he considered to be his name, notwithstanding his formal documentation, since he had been a child and this was well recognised.

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:

“(he) complained that voices make him depressed. He informed us that he would like to go back home in Congo and hence he contacted immigration. He stated that he spoke with his family a few months ago after which he decided to return back to Congo…. Complained he was depressed, wanted to be moved to the segregation unit as he thinks being in segregation helps him. He claimed that he hears voices inside his head asking him to set a fire, barricade and harm himself. Last time attempted hanging was in summer this year. He wants to return back to the wings”

And a further entry states:

“stating currently depressed due to ongoing immigration issues, would like to go back to Congo but travel doc.”

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:

“He appears to be actively clouding his past in order to prevent removal. It is not at all clear which nationality he is, although he might very well be from the Congo, rather than the DRC. Our investigations will proceed into his identity and this man result in him (sic) facing a longer period in detention than if he were to provide us with information to assist with his documentation and removal…. He may well remain detained for a lengthy period before removal but given his harm risk I consider a further period will be reasonable in all the circumstances…”

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:

“received an email from [redacted] that he has clarified the situation with Mr Louis explained clearly that he is 100% Congolese national. He showed me on the Congo map, that he comes from Kinshasa from the Democratic Republic of the Congo. Mr Louis will also be making contact with the embassy.”

This record is consistent with what the Claimant had stated in the medical records i.e. his openness that he was from the Congo and inconsistent with the overview within the detention reviews.

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:

“He has been convicted of a failure to surrender. This would suggest he would be unlikely to comply with reporting restrictions, especially at such a late stage in his case. He is the subject of a DO. The only barrier to removal is an agreed ETD. He has failed to comply with the process, obstructing the Home Office on a regular basis. However he has specifically identified where he was born, so once he has been interviewed an ETD should become quickly available.”

The Claimant had previously indicated where he was born on a repeated basis (save for the period when he claimed to have been Somalian).

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

“Outcome of the interview - further enquiries need to be made into this subject. The official asked for contacts of his family to make these enquiries”.

So the Claimant complied with the DRC interview process.

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:

“I note the movement in respect of removals to the DRC and too (sic) that Mr Louis appears to be complying with the DRC documentation exercise. That compliance does not, in my view alter the fact that he is a very high abscond risk who may well abscond in order to evade removal if given the opportunity, nor that he remains a risk of harm. The presumption to release is clearly outweighed”

It is my view that the relevant officer had formed the settled view as early as December 2013 that she would not authorise the release of the Claimant and maintained that view regardless of cooperation or the lack of a timescale for removal.

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

“Since the judgment in the case of P&R v SSHD the UK Government has sourced further information regarding the safety of returning foreign national offenders to the DRC which it considers shows that the finding in that judgment does not accurately reflect the current situation in the DRC. This includes confirmation from the Direction Générale de Migration that they have no interest in returned foreign national offenders (or failed asylum seekers) unless there are outstanding criminal matters in the DRC.

The Home Office has now published a Country Policy Bulletin, which updates the policy on returns to the DRC in light of the judgments in the cases of P&R, based on the further information obtained. While the UK Government has agreed with the claimant in P to withdraw its appeal to the Court of Appeal in the case of P, we are confident that the new information confirms our view that foreign national offenders (or failed asylum seekers) do not, on the basis of their conviction in the UK, face any risk of their Article 3 rights being breached if returned.”

On 29_th April 2014 a meeting was arranged with a DRC official to take place on 9th 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:

“On 30 May 2014 I was advised by the HEO in CST a positive verification of his identity was made on 15 May 2014 to confirm Mr Louis was one of their nationals; and the agreement has been sent to Kinshasa, DRC for approval.

However, they cannot provide timescale it will take for DRC to issue a travel document (sic).”

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:

“he is highly likely to re-offend for financial gain … it is understood that there is no incentive to remain in touch with the Home Office and (he is) highly likely to abscond…”

The comment that the Claimant is highly likely to re-offend for financial gain is relevant to the manner and circumstances in which he was eventually released (in the evening, with no accommodation and with no money; not even his own).

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

“…that unfortunately at present there is not (sic) update on this case. We are still waiting on the ETD from Kinshasa and there is no timescale for its receipt.”

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

“I note the reasons for continued detention given above. In addition I have considered the lengthy detention thus far and nevertheless conclude, on the facts, that detention remains appropriate. I would like this raised with CROS, as it may be we need to seek assistance from the FCO in respect of getting an answer on the ETD-CROS enquiries before next review please.”

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:

“Hard to predict a timescale”.

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

“I was concerned to notice that (sic) length of time this man has been in detention, and the apparent lack of progress of getting an ETD from Kinshasa. I spoke to Nick Hearn, Deputy Director of Country Returns who advised me that a visit of five officials from DRC is planned for the week commencing 17 August to be confirmed). It is hoped that this will be a precursor to obtaining ETDs…”

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:

“The delays in this case are of his making and we are taking steps to progress the case to removal as quickly as possible. Based on the presumption of liberty the risk highlighted outweighs a decision to release at this stage.”

This was written over three months after the DRC accepted the Claimant as a national. The statement that all the delay in the case was of the Claimant’s own making is, as the detailed analysis set out above shows, demonstrably wrong. Of the 39 months spent in detention he had actively obstructed the Defendant’s processes by claiming to be from Somalia for 10 months. It is noteworthy that there is no indication that the case worker had addressed the lack of any timescale for progress.

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:

“We understand our client has available accommodation upon release, which the probation office is able to confirm suitability (sic) and an alternative to his continued detention.”

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:

“I have considered this 45^th detention review carefully and I am satisfied that the presumption to release is overruled by Mr Louis’ previous immigration and criminal history…… There has been concerted effort with our business partners in trying to secure an ETD.”

There is no reference to whether information had been forwarded to the DRC embassy as should have occurred a month earlier. The authorising officer stated, incorrectly:

“Mr L has not appealed against deportation and the only barrier to removal is securing an ETD”.

On 17_th November 2014 CROS advised that:

“Unfortunately we haven’t had a response from Kinshasa and there is not timescale (sic) on when this might be. This along with a number of other ETDs we are waiting for from Kinshasa is chased on a regular basis”

This was over six months after the DRC accepted that the Claimant was a national, yet little or no progress had been made in obtaining an ETD.

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:

“Please ensure Mr Louis case is reviewed. In the light of recent instructions relating to DRC nationals as it is not clear that this has happened.”

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:

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:

“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. Detention is authorised.”

Given the information that the Claimant had provided at the outset of his detention, the failure of the case owners to follow up upon obvious and straightforward avenues of enquiry provided during the first six months of detention, the completion of the deportation questionnaire in January 2012, the confirmation (again) in May 2013 that he was a Congolese national (after the period of claiming to be a Somali national), the nationality interview in February 2014 at which he reiterated that he was a Congolese national, and that the DRC accepted after an interview with him he was a national in May 2014 (seven months earlier), the most benevolent approach possible is to conclude that the comment that the Claimant “had done nothing to assist” at any stage, and “held the keys to his gaol all along” were made after a failure to undertake anything but a cursory reading of the file. This is to be added to the fact that there was no reference to the Claimant’s further representations made over three months earlier. On any view it is clear that there had not been anything approaching an adequate review of the legality of detention. There was a woeful failure to critically consider the full picture and apply the Defendant’s own policy.

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”:

“Case owner action: Please can you refer this case as a matter of urgency to your WFM so it can be escalated. I find it unacceptable that since 2013 we have not really achieved any outcome with this ETD process. It is imperative that we push for this.”

And (per Mr Jackson)

“The barrier to removal is the ETD, and some months after submitting an application we are no further forwards. This should be escalated within CROS and if no movement is made in the next fortnight please come back to me. If we are unable to obtain a clearer timescale for the ETD we will need to consider managing the case on a non-detained basis. Before that, we need one further push on obtaining an ETD. I agree to maintain detention but would like an update on the case by 30 January”.

Although more realistic than other reviews the authors fail to make any reference to the outstanding representations. Despite there being no further clarification as to when an ETD was to be expected the claimant was detained for a further four months. As on other occasions within the long detention period, urgent requests for action were not followed up.

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:

“high harm and significant abscond risk. The presumption to release is outweighed and in the circumstances detention continues to be reasonable.”

There was no attempt to overview/address the inability to obtain an ETD: this did not equate to reasonable diligence.

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:

“We have chased an ETD for almost a year and a half now and still there are no signs of the DRC authorities issuing and so, after 51 months in detention, it is time for release. Please put in place appropriate actions to mitigate the risks of absconding, reoffending and harm. I have assessed this case based on the presumption of liberty, however, the circumstances are such that I authorise maintained detention for a further seven days whilst a release referral can be prepared for the Strategic Director.”

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:

“This subject would have spent 9 months in jail serving his sentence and then over four years in immigration detention awaiting removal. Securing documents from the DRC has become very difficult. I accept that removal within a reasonable period of time now looks unlikely and indeed has not happened. Release is inevitable as we risk being judged as unlawfully detaining the subject. I thus agree his release … We need to continue to escalate the ETD issue with the FCO and not rest until we have it to secure removal.”

The Claimant was able to shed some light upon why this degree of urgency seems to have developed within the detention reviews leading up to his release:

“…in the third year of my detention someone who worked at the prison told me about a group that was specifically for immigration detainees. It was there that I heard about BiD (Footnote: ¹⁵). They explained temporary admission

and bail to me and I instructed them to help get me out of detention. They made an application for bail for me and a hearing was listed.

A few days before the bail hearing the Home Office released me from detention with no accommodation. After having been detained for so long, it was really frustrating and upsetting that I was released with no accommodation, when they could have given me accommodation if they wanted to. I was released from prison with no money at 7.00pm in the evening. I had no money to get anywhere even though I had money on my prison account from the work I had done. Luckily my sister Lisa (her full name is Louisette but we call her Lisa ) let me stay at hers for a little while in Hackney.”

I deprecated a similar form of evening release of a person believed to be risk from further offending/absconding, without funds or accommodation in Lamari-v-Home Office [2013] EWHC 3130 (QB)

“ So if there was indeed so much ongoing and careful scrutiny of the arrangements for release of a man still considered a flight risk and subject to bail how did the regrettable state of affairs that occurred that night possibly come to unfold without anyone realizing what would happen? Viewed objectively and given the history of the case and the conscious decision not to explain it I am sadly forced to the finding that something went very badly wrong in the decision making process. Given all the circumstances it difficult to accept that it was just yet another “administrative oversight”. I can go no further without speculation. However, what I am now satisfied happened is more than enough to cause me very real concern. Indeed viewed with no mitigation the conduct amounted to little short of contempt for his well being. Worse still the position he was placed in was likely to tempt him to abscond or seek money or food with potential consequences for members of the public. In the absence of any other information as to how events came to pass I consider it as little short of shameful conduct. The courts hear criticism of the approach of other countries to the welfare of individuals pending immigration or asylum decisions with the assumption that such conduct could never occur here. However, this case proves that all may not always be as it should be. I sincerely hope that following this judgment the circumstances of the Claimant’s release are carefully reviewed.”

The Claimant stated:

“When I was released the first time it was such a good feeling. I was able to see my family and friends… My mental health got better. Being able to go out and eat with my family and socialise felt really good after being detained for so long.”

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 1st 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:

“His ETD has been issued. Mr Louis’s deceptive nature is evidenced by his use of several alias names and claim of varying nationalities in the past. In light of his deliberate use of deception it is concluded he could not be relied upon to comply with any conditions of release; he would have no incentive to remain in touch with the Home Office and if released, even on strict conditions he will be highly likely to abscond to evade removal… It has been assessed that the risk of absconding as high (sic)…… Based on all available information, the presumption in favour of release is outweighed by the risks of absconding, reoffending and harm to the public. Therefore I propose that Mr Louis should be detained in order to enforce removal.”

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

“completely unjustifiable”.

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:

“…suffering from mental health and depression. My family is concerned about my release and my Doctor.”

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:

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:

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 5th 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:

“...made statements of intent to harm himself if located in the CSU and statements of intent to cut his throat ( suicide) if placed in a transport van.”

The Claimant’s evidence was that:

“they found me with blades and I had to be held down to stop me from putting them in my mouth… I was feeling really suicidal and depressed to be in that situation. I did not want to go through it again. They were talking about removing me to DRC and I was so distressed. I felt that immigration were playing a game to break me down so that I would go back to DRC.”

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

“We have just had some further reps from the above FNO’s reps. They have enclosed some medical reps that will need to be considered. We will also need to obtain a COIR, which will not come through quickly. Unfortunately it looks like we will have to review the decision, and possibly give an “in-country” right of appeal. Therefore, we will have to cancel the removal directions set for Friday, as we will not have time to draft an appropriate response.”

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:

“ RDs were cancelled due to late representation based on medical grounds (sic). The presumption of liberty has been assessed in this case and consideration has been given to section 55 of the Borders, Citizenship and Immigration Act 2009. However, Mr Louis has been served with a deportation order. He has no outstanding applications or representations; it is considered that he would have little incentive to keep in touch with the Home Office. It is considered that in this instance the risk of absconding outweighs this presumption therefore it is proposed that detention should be maintained.” (underlining added)

In my judgment the contradictory comments evidence (again) a failure on the part of the caseworker to properly balance/consider the relevant factors.

The authorising officer commented:

“Mr Louis has lodged last minute representations in order to delay removal. RDs were set and we have an agreed ETD, we need to ensure that these representations are dealt with ASAP, please speak to Colnbrook urgently and obtain any information required however it appears he has been taking substances and this is of his own volition. We need to have the representations dealt with urgently as the ETD is only valid for a short period. Based on the risks continued detention authorised.”

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:

“… The FNO’s ETD is going to expire on 25 December 2015 but it is to be hoped that, having been through the ETD process with the DRC authorities, it will be easier to obtain a new ETD or to have the previous one revalidated. The caseowner will need to make enquiries in this respect once the further representations have been considered. At this stage I consider that progress is being made towards the FNO’s deportation. I have considered that (sic) presumption of liberty but I consider that this is outweighed by the risks associated with the FNO’s release as discussed above.”

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.

I start with some general observations.

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.

The 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:

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:

An example of a stock phrase repeatedly used is:

“we will continue to make enquiries regarding his claimed nationality”

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:

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 apriority 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 subject is very vague, he is unable to give any detail whatsoever. He has no knowledge of his status in the UK and although this might be seen as a deliberate attempt to avoid detection I am convinced that the subject has just been relying on social workers to guide him whilst in the UK. It is obvious that we are not any further forward following this interview, I have established some details which may assist our enquiries

school records –“Rockaby School, Stratford East London

Brother - “Dadde 07*********

Social Worker - Patrick , Newham Social Services”

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

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:

“we have spoken to our client today and confirm that he is not a Belgian national. We note he is a national of Congo and has been in the UK since he was 10 years old.”

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. The GCID case record sheet has an entry on 8 December 2011 that reads:

“Following my interview in October, I have requested information from the caseworker on how the case is progressing, or if further enquiries have been made with certain contacts which were established ?”

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:

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

“Case owner action: Please can you refer this case as a matter of urgency to your WFM so it can be escalated. I find it unacceptable that since 2013 we have not really achieved any outcome with this ETD process. It is imperative that we push for this.”

And (per Mr Jackson)

“The barrier to removal is the ETD, and some months after submitting an application we are no further forwards. This should be escalated within CROS and if no movement is made in the next fortnight please come back to me. If we are unable to obtain a clearer timescale for the ETD we will need to consider managing the case on a non-detained basis. Before that, we need one further push on obtaining an ETD. I agree to maintain detention but would like an update on the case by 30 January”.

Although more realistic than other reviews the authors fail to make any reference to the outstanding representations. Despite there being no further clarification as to when an ETD was to be expected the Claimant was detained for a further four months. As on other occasions within the long detention period, urgent requests for action were not followed up.

In the end it required an impending bail hearing to bring this unfortunate period to a close.

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:

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:

“deceptive nature is evidenced by his use of several alias names and claim of varying nationalities in the past. In light of his deliberate use of deception it is concluded he could not be relied upon to comply with any conditions of release; he would have no incentive to remain in touch with the Home Office and if released, even on strict conditions he will be highly likely to abscond to evade removal….. It has been assessed that the risk of absconding as high… (sic)”,

This was not accurate. 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. Due to the continuing failure to properly investigate matters, amounting to a lack of reasonable diligence this information was not available. Given the length of the first period of detention, that he had reported for 4 ½ months, and had outstanding representations that required determination (and would give the Claimant some hope), the view could be not be reasonably taken that he would be highly likely to abscond and/or be likely to commit further offences. In all the circumstances further detention was not reasonable; a breach of the second Hardial Singh principle.

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 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 is very likely that Mr Louis’ mental health continued to deteriorate with a suicide attempt on 15 January 2013 where he set fire to his cell with the biological symptoms of depression. From February 2013 there were reports of Mr Louis experiencing auditory hallucinations. He is described as appearing flat, withdrawn and was noted to have lost a significant amount of weight. A decision was made to admit Mr Louis to the healthcare wing and the prison establishment. It is in the context of a serious mental illness that violent ideation emerges and this is not uncommonly seen in mentally unwell individuals”… “Psychotic and depressive symptoms continue to be documented throughout March 2013 with reported property damage, disturbed behaviour and a prison psychiatrist correctly assessed Mr Louis as being psychotic and that the psychotic episode may be the onset of a more severe mental illness.”

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

“experiencing a severe mental illness that is best categorised as a severe depressive episode with psychotic symptoms.

This is a life-threatening mental illness, as in Mr Louis’s case, due to the increased risk of suicide arising from command auditory hallucinations to commit suicide, depressive cognitions of hopelessness regarding the future, reduced self-esteem and chronic depressed mood with suicidal ideation. Self-neglect and weight loss are frequently seen, as in Mr Louis’s case. It is my view that, at this stage, Mr Louis was a vulnerable individual, in need of urgent and effective care and treatment, arising from the severity and effect of the severe depressive episode with psychotic symptoms. His presentation may have impacted on him being assessed as a vulnerable mentally disordered individual”.

As to causation he stated:

“it is, in my view, relevant that it was the perceived nature of the detention from May 2011, in that it was seen by Mr Louis as arbitrary, unfair, prolonged, which contributed in very large part to the onset of his chronic and severe mental illnesses…. Therefore, I conclude it was not simply the fact he was detained but the type of detention he experienced whilst held under immigration powers, aggravated by separation from protective factors to maintain his mental health, including contact with family members…”

“although psychological trauma can be triggered by a single, lifethreatening event, in Mr Louis’ case it appears to have been the chronic psychological attrition of, in his view, the prolonged arbitrary detention, with no understanding or control of release and genuine fear of harm/and or destitution at the thought of being deported to the Democratic Republic of the Congo…. In conclusion Mr Louis’ psychiatric disorders have arisen, substantially, due to his detention and experiences in custody from May 2011. The impact on his mental health has been marked, long-term, ongoing and detrimental”

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:

“I just gave up on life. I had no hope, I was not getting any relief… They might hold me for 10 or 20 years.”

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:

“During detention the claimant was variously diagnosed as having a moderate depressive episode; psychotic episode; manipulative behaviour (which would suggest maladaptive personality traits) and adjustment disorder. From the information available he was never prescribed an antipsychotic and the diagnosis after assessment appears to have been an adjustment disorder”.

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:

“on the balance of probabilities, the major stressor appears to have been the claimant’s uncertainty over his immigration status and fear of deportation, which continued through to March 2016. In addition, his imprisonment, particularly when he was placed away from London and access to his family materially contributed to the causation of the adjustment disorder. His social circumstances have remained unstable…”

And

“it is difficult to dissect the effects of stress associated with the detention from the distress associated with the threatened deportation. On the balance of probabilities however detention did materially contribute to the development of the adjustment disorder…”

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:

“In the opinion of Dr Qurashi, the major stressor and main causal factor to the onset of his mental illness was the Claimant’s reaction to the arbitrary material detention without any clear hope of release. Dr McLaren agreed that the material detention was a significant stressor for the Claimant and, on the balance of probabilities, interacted with his maladaptive personality traits to cause the adjustment disorder.”

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.