On 11 September 2015, the Telegraph reported that on 10 September 2015 a House of Commons debate on immigration detention saw MPs from the four main parties in agreement – calling for better conditions in removal centres and time limits on custody.
It reported that, “ Dozens of MPs have called on the Government to introduce a time limit when detaining immigrants and start treating them more humanely………………….The MPs present in the debate unanimously agreed on this, but Immigration Minister James Brokenshire refused to state whether the Home Office would implement a limit. He said the UK only detains immigrants as a last resort – contradicting evidence given by MPs showing otherwise, as well as the fact that 32,053 people were detained this year – an increase of 10 per cent. It is a far cry compared to other European countries. In 2013, the UK detained 30,418 people while Germany detained 4,309 people, Belgium detained 6,285 and Sweden detained 2,893. During that time period, Germany received four times as many asylum applications as the UK in that time. Labour MP Andrew Smith pointed out these statistics, saying: “That shows that there are workable alternatives to detention. But Brokenshire said: “Our published policy makes clear that there is a presumption in favour of liberty and that detention should be used only as a last resort, but there will be some cases in which longer periods of detention may be appropriate.” He agreed that “that more use should be made of alternatives to detention in the UK” adding: “I am considering carefully what further steps may be taken in that regard.” But he refused to agree to a time limit, saying he would only comment after an on going Government review into detention has been finalised. ………” http://www.telegraph.co.uk/women/womens-politics/11858071/Immigrants-UK-needs-to-drastically-change-the-way-it-detains-them.html
The transcript, Commons Hansard: MPs debate immigration detention, Thursday 10 September 2015 reads:
“That this House supports the recommendations of the report of the Joint Inquiry by the All Party Parliamentary Group on Refugees and the All Party Parliamentary Group on Migration, The Use of Immigration Detention in the United Kingdom; has considered the case for reform of immigration detention; and calls on the Government to respond positively to those recommendations……
The problems have been well documented, but Parliament has never taken a systematic and comprehensive look at how we use detention, so we thought there was a need for that wider piece of work……………………….
In her forward to the report, the former Member for Brent Central describes a moment in the Committee Room during that session when everybody gasped. We were talking via the phone link with a young man from a disputed territory on the Cameroon-Nigeria border. He told us he had been trafficked to Hungary as a 16-year-old, where he was beaten, raped and tortured. He had managed to escape and eventually made his way to Heathrow using a false passport. It was discovered on his arrival, and he was detained. We then asked him how long he had been detained, and his answer was three years—three years in what is supposed to be an immigration removal centre. His detention conflicts with the stated aims of the Home Office: that those who have been trafficked should not be detained; that those who have been tortured should not be detained; and that detention should be for the shortest possible period. But he is just one of the thousands of people this country detains each year.
As the use of detention has expanded rapidly over the last two decades, so has the size of the estate. In 1993, there were just 250 detention places; by 2009, that had risen to 2,665; at the beginning of this year, it was 3,915. The number of people entering detention in the year to June 2015 was just over 32,000—up 10% on the previous year. By contrast, in 2013, Sweden, despite receiving three times the number of asylum applications we do, detained just 2,893, and Germany detained just over 4,300. The Home Office policy states clearly that detention must be used sparingly…………
The UK is alone in the EU in not having a maximum time limit on detention. That lack of a time limit was a constant theme in the evidence we received during our inquiry and one on which we received some striking testimony. Time and again we were told that detention was worse than prison, because in prison people know when they will get out. As one former detainee said:
“The uncertainty is hard to bear. Your life is in limbo. No one tells you anything about how long you will stay or if you are going to get deported.”
Those detained are usually the undocumented subject to removal, those whose asylum claims are being processed, failed asylum claimants, individuals subject to deportation in particular foreign national criminals who have completed their sentence. A detainee may have been a victim of torture or historic trafficking. Modern slavery encompasses human trafficking, slavery, servitude and forced or compulsory labour and among those detained will be some who have been victims. The Home Office may fail to identify if a detainee is a potential victim of modern slavery. Therefore by virtue of prolonged detention, detainees may be caught up in a situation of feeling that they are being “ punished” further by what may seem to some as almost indefinite detention.
Prolonged detention of immigrants in the UK has been criticized primarily on the basis that it worsens immigrant’s mental health, is unnecessary and that vulnerable people are being detained. Prolonged detention of the vulnerable clearly promotes inhumane treatment. In claims of unlawful detention against the Secretary of State, the repeated mantra by the Home Office seems mostly to be that there are reasonable prospects of removal within a reasonable time, despite sometimes not having an evidential basis for that conclusion.
RELEVANT LAW AND POLICY
The principal statutory provisions authorizing the detention of those who the Secretary of State wishes to remove/deport from the United Kingdom are contained in the Immigration Act 1971.
Paragraph 2(3) of Schedule 3 to the 1971 Act (and section 36 of the UK Borders Act 2007 (automatic deportation) empowers the detention of a person who is the subject of a deportation order pending his or her removal:
“Detention or control pending deportation
2(1)Where a recommendation for deportation made by a court is in force in respect of any person, and that person is not detained in pursuance of the sentence or order of any court , he shall, unless the court by which the recommendation is made otherwise directs or a direction is given under sub-paragraph (1A) below, be detained pending the making of a deportation order in pursuance of the recommendation, unless the Secretary of State directs him to be released pending further consideration of his case or he is released on bail.-E+W+S+N.I.
(a)a recommendation for deportation made by a court on conviction of a person is in force in respect of him; and
(b)he appeals against his conviction or against that recommendation,
the powers that the court determining the appeal may exercise include power to direct him to be released without setting aside the recommendation.
(2)Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.
(3)Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise).
(4)In relation to detention under sub-paragraph (2) or (3) above, paragraphs 17 ,18 and 25A to 25E of Schedule 2 to this Act shall apply as they apply in relation to detention under paragraph 16 of that Schedule F9; and for that purpose the reference in paragraph 17(1) to a person liable to detention includes a reference to a person who would be liable to detention upon receipt of a notice which is ready to be given to him.
(4A)Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub-paragraph (1), (2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule.
(5)A person to whom this sub-paragraph applies shall be subject to such restrictions as to residence , as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State.
(6)The persons to whom sub-paragraph (5) above applies are—
(a)a person liable to be detained under sub-paragraph (1) above, while by virtue of a direction of the Secretary of State he is not so detained; and
(b)a person liable to be detained under sub-paragraph (2) or (3) above, while he is not so detained”.
Paragraph 16 of Schedule 2 of the 1971 Act ( as applied by section 10(7) of the Immigration and Asylum Act 1999) empowers the Secretary of State to detain inter alia those in respect of whom removal directions may be given:
“Detention of persons liable to examination or removal
16(1)A person who may be required to submit to examination under paragraph 2 above may be detained under the authority of an immigration officer pending his examination and pending a decision to give or refuse him leave to enter.
(1A)A person whose leave to enter has been suspended under paragraph 2A may be detained under the authority of an immigration officer pending—
(a)completion of his examination under that paragraph; and
(b)a decision on whether to cancel his leave to enter.
(1B)A person who has been required to submit to further examination under paragraph 3(1A) may be detained under the authority of an immigration officer, for a period not exceeding 12 hours, pending the completion of the examination.
(2)If there are reasonable grounds for suspecting that a person is someone in respect of whom directions may be given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending—
(a)a decision whether or not to give such directions;
(b)his removal in pursuance of such directions.
(3)A person on board a ship or aircraft may, under the authority of an immigration officer, be removed from the ship or aircraft for detention under this paragraph; but if an immigration officer so requires the captain of a ship or aircraft shall prevent from disembarking in the United Kingdom any person who has arrived in the United Kingdom in the ship or aircraft and been refused leave to enter, and the captain may for that purpose detain him in custody on board the ship or aircraft.
(4)The captain of a ship or aircraft, if so required by an immigration officer, shall prevent from disembarking in the United Kingdom or before the directions for his removal have been fulfilled any person placed on board the ship or aircraft under paragraph 11 or 15 above, and the captain may for that purpose detain him in custody on board the ship or aircraft.
(4A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .”
The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 provides:
“35Deportation or removal: cooperation
This sectionnoteType=Explanatory Notes has no associated
(1)The Secretary of State may require a person to take specified action if the Secretary of State thinks that—
(a)the action will or may enable a travel document to be obtained by or for the person, and
(b)possession of the travel document will facilitate the person’s deportation or removal from the United Kingdom.
(2)In particular, the Secretary of State may require a person to—
(a)provide information or documents to the Secretary of State or to any other person;
(b)obtain information or documents;
(c)provide fingerprints, submit to the taking of a photograph or provide information, or submit to a process for the recording of information, about external physical characteristics (including, in particular, features of the iris or any other part of the eye);
(d)make, or consent to or cooperate with the making of, an application to a person acting for the government of a State other than the United Kingdom;
(e)cooperate with a process designed to enable determination of an application;
(f)complete a form accurately and completely;
(g)attend an interview and answer questions accurately and completely;
(h)make an appointment.
(3)A person commits an offence if he fails without reasonable excuse to comply with a requirement of the Secretary of State under subsection (1).
(4)A person guilty of an offence under subsection (3) shall be liable—
(a)on conviction on indictment, to imprisonment for a term not exceeding two years, to a fine or to both, or
(b)on summary conviction, to imprisonment for a term not exceeding twelve months, to a fine not exceeding the statutory maximum or to both.
(5)If a constable or immigration officer reasonably suspects that a person has committed an offence under subsection (3) he may arrest the person without warrant.
(6)An offence under subsection (3) shall be treated as—
(a)a relevant offence for the purposes of sections 28B and 28D of the Immigration Act 1971 (c. 77) (search, entry and arrest), and
(b)an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28(4), 28E, 28G and 28H (search after arrest, &c.) of that Act.
(7)In subsection (1)—
- “travel document” means a passport or other document which is issued by or for Her Majesty’s Government or the government of another State and which enables or facilitates travel from the United Kingdom to another State, and
- Detention Centre Rules 2001 SI No 328 provide that:
These Rules make provision for the regulation and management of detention centres. They provide for matters such as the welfare and privileges of detained persons, their religious observance, correspondence, health care and any complaints they wish to make, as well as the use of security measures such as powers of search and removal from association in certain circumstances. The Rules also provide for the duties of detainee custody officers. In addition, the Rules make provision as to the making of visits by members of the Visiting Committee and for the making of reports by them to the Secretary of State.
Rule 33 provides that all detention centers shall have a health care team including a general practitioner. Rule 34 provides that every detained person is to be given a physical and mental examination by a medical practitioner within 24 hours of admission.
Rule 35 provides:
“Special illnesses and conditions (including torture claims)
35.—(1) The medical practitioner shall report to the manager on the case of any detained person whose health is likely to be injuriously affected by continued detention or any conditions of detention.
(2) The medical practitioner shall report to the manager on the case of any detained person he suspects of having suicidal intentions, and the detained person shall be placed under special observation for so long as those suspicions remain, and a record of his treatment and condition shall be kept throughout that time in a manner to be determined by the Secretary of State.
(3) The medical practitioner shall report to the manager on the case of any detained person who he is concerned may have been the victim of torture.
(4) The manager shall send a copy of any report under paragraphs (1), (2) or (3) to the Secretary of State without delay.
(5) The medical practitioner shall pay special attention to any detained person whose mental condition appears to require it, and make any special arrangements (including counselling arrangements) which appear necessary for his supervision or care.”
Chapter 55 of the Enforcement and Instructions Guidance provides:
Chapter 55 states among other matters that the power to detain must be retained in the interests of maintaining effective immigration control but that there is a presumption in favour of temporary admission or release and, wherever possible, alternatives to detention are used. Detention must also be in accordance with stated policy on the use of detention.
Detention is considered to be most usually appropriate to effect removal; initially to establish a person’s identity or basis of claim; or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. The policy acknowledges that to be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy. A properly evidenced and fully justified explanation of the reasoning behind the decision to detain must be retained on the Home office file in all cases.
Cases concerning foreign national offenders are subject to the general policy including the presumption in favour of temporary admission or release however, the nature of these cases means that special attention must be paid to their individual circumstances. In any case in which the criteria for considering deportation action (the ‘deportation criteria’) are met, the risk of re-offending and the particular risk of absconding should be weighed against the presumption in favour of temporary admission or temporary release. The policy also states that due to the clear imperative to protect the public from harm from a person whose criminal record is sufficiently serious as to satisfy the deportation criteria, and/or because of the likely consequence of such a criminal record for the assessment of the risk that such a person will abscond, in many cases this is likely to result in the conclusion that the person should be detained, provided detention is, and continues to be, lawful. However, any such conclusion can be reached only if the presumption of temporary admission or release is displaced after an assessment of the need to detain in the light of the risk of re-offending and/or the risk of absconding.
The policy clarifies that non- EEA Foreign national offenders who do not meet automatic deportation requirements must be considered for deportation if they meet the following criteria: a court recommendation for deportation; a custodial sentence of any length for a serious drug offence; custodial sentence of 12 months or more, either as a single sentence or an aggregate of two or three sentences over a period of five years.
The policy further states the relevant power to detain must only be used for the specific purpose for which it is authorised; that detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting removal of the individual concerned, is not compatible with Article 5 of the ECHR and would be unlawful in domestic law (unless one of the other circumstances in Article 5(1)(a) to (e) applies). The detention may only continue for a period that is reasonable in all the circumstances for the specific purpose. If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised; and the detaining authority, should act with reasonable diligence and expedition to effect removal.
Persons detained under Immigration Act powers may be detained in any place of detention named in the Immigration (Places of Detention) Direction 2014. This includes police cells, immigration removal centres, prisons or hospital.
Written reasons for detention should be given in all cases at the time of detention. Once it has been identified that the person is one who should be detained, consideration should be given to what, if any, level of risk that person may present whilst in detention. Monthly reviews should be conducted using the detention review template. For each review, robust and formally documented consideration should be given to the removability of the detainee. Rule 9 of the Detention Centre Rules 2001 sets out the statutory requirement for detainees to be provided with written reasons for detention at the time of initial detention, and thereafter monthly (in this context, monthly means every 28 days). Detention reviews are considered necessary in all cases to ensure that detention remains lawful and in line with stated detention policy at all times. There is no requirement for adult detention to be reviewed during the early stages in criminal casework cases.
The policy states that the purpose of Rule 35 is to ensure that particularly vulnerable detainees are brought to the attention of those with direct responsibility for authorising, maintaining and reviewing detention. The information contained in the report needs to be considered in deciding whether continued detention is appropriate in each case. Upon receipt of a Rule 35 report, caseworkers must review continued detention in light of the information in the report and respond to the centre, within two working days of receipt, using the appropriate Rule 35 pro forma.
The policy provides that pregnant women should not normally be detained. The only exception to this general rule is where removal is imminent and medical advice does not suggest confinement before the due removal date.
As a general principle, even where one of the statutory powers to detain is available in a particular case, unaccompanied children (that is, persons under the age of 18) must not be detained other than in very exceptional circumstances. If unaccompanied children are detained, it should be for the shortest possible time, with appropriate care.
Most importantly Chapter 55 provides:
“ 55.10. Persons considered unsuitable for detention:
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In criminal casework cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
- Unaccompanied children and young persons under the age of 18 (see 55.9.3 above).
- The elderly, especially where significant or constant supervision is required which cannot be satisfactorily managed within detention.
- Pregnant women, unless there is the clear prospect of early removal and medical advice suggests no question of confinement prior to this.
- Those suffering from serious medical conditions which cannot be satisfactorily managed within detention.
- Those suffering from serious mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.
- Those where there is independent evidence that they have been tortured.
- People with serious disabilities which cannot be satisfactorily managed within detention.
- Persons identified by the competent authorities as victims of trafficking (as set out in Chapter 9, which contains very specific criteria concerning detention of such persons).
If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file”.
SOME RELEVANT CASELAW
There is no express time limit which governs the exercise of the power to detain. It is, however, subject to the Hardial Singh principles.
“22.It is convenient to introduce the Hardial Singh principles at this stage, since they infuse much of the debate on the issues that arise on this appeal. It is common ground that my statement in R (I) v Secretary of State for the Home Department  EWCA Civ 888,  INLR 196 para 46 correctly encapsulates the principles as follows:
(i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) The deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.
The Court decides whether or not the Hardial Singh principles have been complied with (A (Somalia) v Secretary of State for the Home Department  EWCA Civ 804”.
Lumba v Secretary of State for the Home Department  UKSC 12 , the Supreme Court also considered the relevance of a failure to cooperate with voluntary return:
“127.It is necessary to distinguish between cases where return to the country of origin is possible and those where it is not. Where return is not possible for reasons which are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect. But what if return would be possible, but the detained person is not willing to go? Here it is necessary to consider whether the detained person has issued proceedings challenging his deportation. If he has done so, then it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse). In those circumstances his refusal to accept an offer of voluntary return is irrelevant. The purpose of voluntary return is not to encourage foreign nationals to return to their countries of origin where, if their legal challenges succeed, it is likely to have been demonstrated that they would face a risk of persecution within the meaning of the Convention and Protocol relating to the Status of Refugees (1951) (Cmd 9171) and (1967) (Cmnd 3906) or treatment contrary to article 3 of the ECHR. Rather, it is to facilitate removal where that is justified because the FNPs have not proved that they would face the relevant risk on return. In accepting voluntary return, the individual forfeits all legal rights to remain in the United Kingdom. He should not be penalised for seeking to vindicate his ECHR or Refugee Convention rights and be faced with the choice of abandoning those rights or facing a longer detention than he would face if he had not been offered voluntary return.
128.What about those who have no outstanding legal challenges? Here, the fact that the detained person has refused voluntary return should not be regarded as a “trump card” which enables the Secretary of State to continue to detain until deportation can be effected, whenever that may be. That is because otherwise, as I said at para 51 of my judgment in R (I), “the refusal of an offer of voluntary repatriation would justify as reasonable any period of detention, no matter how long, provided that the Secretary of State was doing his best to effect the deportation.” If the refusal of voluntary return has any relevance in such cases even if a risk of absconding cannot be inferred from the refusal, it must be limited. That was the view of Simon Brown LJ in R (I) and Keene LJ in R (A) and I agree with them”.
A detainee’s psychiatric condition is relevant to the impact of detention on the detainee, Lumba v Secretary of State for the Home Department  UKSC 12:
“218.I therefore agree, and (subject to the additional points made above) for the reasons given by Lord Dyson, that both these appeals should be allowed. When considering what was a reasonable period for which to detain Mr Lumba in accordance with the Hardial Singh principles, however, I would stress that his psychiatric condition must be among the factors to be taken into account”.
Beatson LJ in R(Das) v Secretary of State for the Home Department  EWCA Civ 45 said that the state of a person’s mental health is a relevant factor which will affect what is a reasonable period of detention in his case:
“16. It is clear from the decisions on the Hardial Singh principles that the state of a person’s mental health will affect the determination of what is a reasonable period for which to detain that person: see Baroness Hale in Lumba’s case at  and Dyson LJ in M v Secretary of State for the Home Department  EWCA Civ. 307 at . M’s case was one in which, before this Court, it was not contended that his detention was in breach of the Secretary of State’s policy, at that time contained in §38.10 of her Operational Enforcement Manual. Dyson LJ stated that where detention has caused or contributed to a person’s suffering mental illness that is a factor which “in principle” should be taken into account in assessing the reasonableness of the length of the detention. But, he also stated that in such cases “the critical question … is whether facilities for treating the person whilst in detention are available so as to keep the illness under control and prevent suffering”.
- I add that, whether or not the policy is strictly engaged, as part of the operation of the Hardial Singh principles (see  above), in assessing whether to detain a person known to have a mental illness, particular care is needed. The Secretary of State, through her officials, should consider whether, if the decision is taken to detain, particular arrangements will need to be made for the detainee’s welfare and to monitor him or her for signs of deterioration.
- The Secretary of State is not entitled to abdicate her statutory and public law responsibilities to the relevant health authorities or clinicians in the way deprecated by Singh J in R (HA (Nigeria)) v Secretary of State for the Home Department  EWHC 979 (Admin) at  and ………………”
CASELAW- SOME INSTANCES IN WHICH DETAINEES HAVE BEEN FOUND TO HAVE BEEN UNLAWFULLY DETAINED
Xue v Secretary of State for the Home Department  EWHC 825 (Admin):
This was a claim for unlawful detention. The Claimant, a Chinese Citizen, was detained by the Secretary of State from 2 March 2012 to 17 June 2014, when she was released, having been granted bail on 13 June 2014. The claim was issued on 9 June 2014. Permission to apply for judicial review was granted on the papers on 10 October 2014.
The Judge deciding the case admitted that she had not found the case an easy one to decide as it was a case in which the competing claims of firm immigration control and of the welfare of an individual starkly conflicted. The Court noted that the Claimant was detained administratively for over two years. The longer her detention went on, the more vulnerable she became. Her physical health became significantly compromised, probably permanently. Her mental health also declined in detention. She eventually fell down a stairwell and broke her back. The Court however noted that she was a foreign national who had no right to be in the UK. Her account of the reasons why she left China has been disbelieved by the First-tier Tribunal. The Secretary of State had decided that she should be deported on public interest grounds, because of her persistent record for offences of dishonesty. She also had a very poor history of absconding while on temporary admission. She had no passport. During her detention she did not initially co-operate with the Secretary of State’s attempts to get her an emergency travel document (“ETD”). The lack of an ETD was, for over a year, the only barrier to her removal. It was submitted among other matters on behalf of the Secretary of State that it was not for the Court to exercise what was described as a “superhero” jurisdiction by seeking to put right perceived injustices arising from immigration detention.
The Court noted its concern as regard the overall length of the Claimant’s detention, given its effects on the Claimant; that despite the medical evidence sent to the Secretary of State by her solicitors, she seemed to have been seen by a psychiatrist only once during her detention and his recommendations for her treatment did not seem to have been followed. The Claimant was, for much of that period, an undoubted flight risk, and posed an undoubted risk of committing further offences. But the risk of harm to the public was always acknowledged by the Secretary of State to be low.
The first issue for consideration for the Court was whether her continuing detention breached the Hardial Singh principles at any point. In the Court’s judgment, on the basis of a second medical report, which was not contradicted, the length of time for which the Claimant had been detained, coupled with the effect of detention on her, and the likelihood of worsening in her mental and physical health, it would not be reasonable for her to be detained any longer. The risk of absconding, and of committing further offences was reduced by the physical consequences of the Claimant’s fall, and by the mental and physical frailty noted by the Deputy Healthcare Manager of the Immigration Removal Centre.
The Court also concluded that the theme of the medical evidence served by the Claimant’s solicitors was that her conditions were not being satisfactorily managed in detention. This meant that the Secretary of State had an obligation to take reasonable steps to inform herself sufficiently about the relevant circumstances so as to be able to make an informed judgment about whether the Chapter 55.10 did apply to the Claimant, who was suffering from physical as well as mental illnesses. The Judge was not satisfied that any of the medical reports were taken into account by those who authorised the Claimant’s detention at any stage after it was served, nor was the Court satisfied that the Home Office caseworker took reasonable steps to ask the healthcare staff about the material in the reports.
The Court rejected the Secretary of State’s submission that the absence of any Rule 35 report from a medical practitioner in the Immigration Removal Centre entitled the Secretary of State to ignore, without further investigation, reports from doctors outside the Immigration Removal Centre.
The Court further rejected the Secretary of State ‘s submission that the medical reports had not been taken into account from the fact that they were not referred to in the detention reviews on the basis that Reviews are internal documents and it should not be expected that they will contain everything a decision maker has considered. The Judge accepted that a decision maker is not required to refer in a decision to every consideration which is relevant to the decision. The decision need only reflect his views on the issues which are important to the decision. However on these facts, this was a relevant consideration of great importance. Moreover, Chapter 55.1. requires a decision maker to ensure that “a properly evidenced and fully justified explanation of the reasoning behind the decision to detain” is retained on file in all cases. There was no witness statement from the Secretary of State, and no material suggesting that these reports were taken into account when officials decided to maintain detention. The Court concluded that the fact that they were not referred to in the detention reviews meant that they were not taken into account.
The Court decided that the breaches of public law mean that the Claimant’s detention was unlawful from the 16 July 2013. The Claimant was only entitled to nominal damages for that unlawful detention unless the Court was satisfied on the balance of probabilities that if the Secretary of State had taken the reports of the Claimant’s experts into account, and had complied with her duty of inquiry, she could lawfully have continued to detain the Claimant, and would have done so. On balance, the Court concluded that she could, and would have, done so. If the Secretary of State had taken the reports into account and made inquiries, the Judge considered that it was probable that the healthcare staff at the Immigration Removal Centre would have indicated that the Claimant’s conditions could be managed satisfactorily in detention. On the authorities, the Secretary of State did not have to be satisfied that the Claimant’s conditions would improve in detention, only that they be kept stable.
This claim succeeded and the Claimant’s detention was found to be unlawful from 16 July 2013. She was however only entitled to nominal damages up until 2 May 2014, the date when she was returned to detention from hospital after her fall. At that point, the Court held that her continued detention was a breach of the second Hardial Singh principle, and she was entitled to an award of damages to reflect that.
The Queen on the Application of ZA(Iraq) 2015 EWCA Civ 168:
This was a claim for unlawful detention. The case concerned an appeal against the Order dated 2nd December 2013 of Mr. C M G Ockleton, sitting as a Deputy Judge of the High Court dismissing the Appellant’s claim for judicial review of the lawfulness of his immigration detention between 4th July 2007 and 14th August 2009. The Deputy Judge decided that from 4th July 2007 until 9th September 2008 the Appellant’s detention was at least partly motivated by the unlawful policy identified by the Supreme Court in Lumba v Secretary of State for the Home Department  UKSC 12, and that for a period of three months, in June, July and August 2008 the Secretary of State had failed to carry out detention reviews, but he decided that the Appellant was entitled to only nominal damages for those periods of detention because he would have been detained in any event and, applying the principles in R v Govenor of Durham Prison ex p Hardial Singh  1 WLR 704, his detention throughout the whole of the period from 4th July 2007 – 14th August 2009 was not unlawful.
The real focus of the appeal in the Court of Appeal was on principle (iii) of the Hardial Singh Principles. The issue was therefore, whether the Secretary of State should have realised either by early 2008, or if not by then, by 10th November 2008 at the latest, that it would not be possible to return the Appellant to Iraq within a reasonable time. Two strands of the Deputy Judge’s reasoning were considered relevant for the purpose of resolving this issue. First, the Deputy Judge’s conclusion that the Secretary of State was at all relevant times entitled to take the view that the Appellant might co-operate in the removal process. Second, his conclusion that a number of decisions of the Administrative Court dealing with the prospects of removal to Iraq demonstrated that throughout the period of six and a half years from March 2005 – September 2011 it had not been possible to show that the prospect of removal to Iraq was so remote that detention for that purpose was unlawful. The Deputy Judge had concluded that there was no reason to depart from that line of authority.
The Court of Appeal decided that the Deputy Judge’s conclusion that the Secretary of State was at all times entitled to take the view that the Appellant might co-operate in the removal process in due course was a conclusion which was not reasonably open to him upon the basis of the Secretary of State’s own case. Contrary to the submissions in the Secretary of State’s Skeleton Argument (which stated that there is nothing to suggest that the Appellant in the case had ever made it clear that he would not leave voluntarily), the Secretary of State’s own Summary Grounds and Detailed Grounds of Defence indicated that the Appellant was unwilling to take up the Home Office’s repeated offer of the opportunity to return voluntarily under the Facilitated Return Scheme(FRS). The Court of Appeal considered that given that the Appellant had been in the United Kingdom since 1973 that unwillingness was not in the least surprising, and was reflected in the representations that had been submitted by the Appellant’s Solicitors. The Court of Appeal concluded that such evidence as there was on this issue before the Deputy Judge was all one way: there was no basis on which the Secretary of State was entitled to take the view that the Appellant might co-operate in the removal process in due course, and her own case in the Summary and Detailed Grounds made it clear that she did not in fact take that view.
The Court of Appeal further considered that the submission, which the Deputy Judge accepted, that the cases listed in the judgment demonstrated that over the period of six and a half years from March 2005 to September 2011 it had not been possible to show that the prospect of removal to Iraq was so remote that detention for that purpose was unlawful, was oversimplistic.
Having given consideration to the issues, the Court of Appeal accepted the submission that as regards prospect of an enforced removal of this Appellant to Iraq within a reasonable time in early – late 2008 there was no such prospect. By the summer of 2008 there appeared to have been a reversal of some of the improvements that had been noted in 2007. In the absence of a significant improvement no enforced returns would be achievable for many months at least.
The Court of Appeal observed that the cases listed in the Deputy Judge’s judgment demonstrated that for the period of six and a half years from March 2005 to September 2011 it had not been possible to show that the prospect of removal to Iraq was so remote that detention for that purpose was unlawful. A conclusion in any particular case that removal could be effected within a “reasonable time” would depend on the individual circumstances of that case, including the time already spent in detention, the prospects for voluntary removal etc. The Court of Appeal decided that insofar as the decisions relied upon by the Secretary of State are of any evidential value for the purposes of the present case they demonstrate that by, at the very latest, 10th November 2008 it would have been apparent to the Secretary of State (if she had considered the matter, as to which there is no evidence) that there was no prospect of effecting an enforced removal to Iraq of the Appellant, who had by then been in detention for eighteen months, within a reasonable time. The Deputy Judge’s conclusion to the contrary was one which was not reasonably open to him on a proper analysis of the only material relied upon by the Secretary of State.
In an attempt to overcome the lack of any evidence to support the Secretary of State’s case as to the prospects of enforced removal to Iraq in 2008, it was submitted that the correct test was not whether the Secretary of State had any reason to believe that removal could be effected within a reasonable time, but whether the Secretary of State had any reason to believe that removal could not be effected within a reasonable time, and there was no evidence of any such reason in the present case. The Court of Appeal considered that the submission was flawed for two reasons:(1) As a matter of principle, the onus is on the Secretary of State to justify the lawfulness of continued detention; (2) As a matter of fact, there was good reason to believe in 2008 that the enforced removal to Iraq of this Appellant would not be possible within a reasonable time. Since enforced removals had not been possible since 2004 it would have been obvious in 2008 that in the absence of a significant and sustained improvement enforced removal would not be achievable for many months.
The Court of Appeal decided that the Deputy Judge’s conclusion that for the whole of the period between 4th July 2007 and 14th August 2009 there was no point at which the Secretary of State was not entitled to the view that the Appellant could be removed within a reasonable time was one which was not open to him on the evidence as to the prospect of voluntary removal and the prospect of enforced removal in 2008. Whatever hopes the Secretary of State might have entertained earlier in 2008 could not reasonably have been entertained by the time of her decision on 10th November 2008. There was no evidence to support the Secretary of State’s submission that the Appellant’s continued detention after that date until 14th August 2009 was lawful. Such evidence as there was in the case was capable of leading to the conclusion that the Appellant’s continued detention after 10th November 2008 was unlawful. The Appellant’s appeal was therefore allowed to that extent.
Despite the Secretary of State’s Chapter 55 Policy stating that, “ Detention must be used sparingly, and for the shortest period necessary”, in practical reality and more so where foreign national criminals subject to deportation are concerned, there is obvious reluctance by the Home Office to release detainees from detention. Where a request for temporary release is refused by the Secretary of State and where a bail application before a Tribunal Immigration Judge fails, then unless there is a successful judicial review challenge in the High Court, affected detainees like Ms Xue can expect to languish in detention for prolonged periods of time- regardless of an apparent deterioration of health.
Rather then keep Ms Xue in detention for such an unjustified of period of time and well before her mental and physical condition had deteriorated to the extent that her circumstances were akin to a deprivation of her dignity , she could have been released on reporting conditions – even despite the previous history of non-compliance. The Secretary of State had refused to release her as she had no basis of stay in the UK being subject to deportation action regardless of her health increasingly deteriorating during the period of detention rendering her so vulnerable such that by the time she was released she had various mental and physical health conditions she had not suffered from prior to being detention.
As in the case of ZA, sometimes unstable security conditions in some countries are such that it is not possible for nationals of that country to return there in particular where there is a policy against enforced returns. The Secretary of State however usually insists that a detainee could “cooperate” with removal and make a voluntary return. As in ZA, the higher courts have found against the Secretary of State against these arguments and found a detainee to have been unlawfully detained.
Subject to funding issues and there being merit in relation to the claim, among other matters where a claim for unlawful detention is intended to be commenced, consideration may be given to undertaking the following:
- Obtain any uptodate medical notes from the place of detention- usually an Immigration Removal Centre;
- Seek to contact the detainees’ Medical General Practitioner, if they had one, to seek to ascertain whether they had any pre-exiting physical and/or mental health conditions prior to detention;
- Instruct an Expert Psychiatrist and/or Expert Physician to attend upon, assess the detainee and provide an opinion among other issues as regards a diagnosis and also as regards the effect of detention on the detainees’ physical and mental health condition and ensure any relevant issues of causation are put forward to the expert to address in the letter of instruction;
- As the Secretary of State is required to properly evidence and provide fully justified explanations of the reasoning behind the decision to detain, where there is a vulnerable detainee, seek to write to the Secretary of State requesting that a suitably qualified medical expert attend upon the detainee;
- Seek to obtain via a Subject Access Request from the Home Office, the detainee’s papers and seek to ascertain that relevant disclosure has indeed been made in particular as regards documents relating to the detainee’s period in detention and any efforts and progress made by the Secretary of State to seek to obtain travel documents for return;
- Ensure relevant documents are in sight regarding past criminal matters such as the Sentencing Judge’s Remarks, pre-sentence reports, OASYS Report , Noms report;
- Ensure that papers relating to past immigration/asylum matters are in sight to present a full picture of the detainee’s immigration history ;
- Seek to ascertain directly in writing and by phone with the relevant Embassy in London(with the detainee’s written informed consent and where no protection or human rights issues arise) as regards the actual communication which the Secretary of State has truly been undertaking to seek to effect removal/deportation.
If there is indeed a presumption in favor of liberty, then there should be a time limit to periods that are spent in UK immigration detention. Whilst the UK Government takes its time on the issue, claims such as Ms Xue’s will inevitably continue to trouble the higher courts.