Anam v Secretary of the State for the Home Department

The statutory power to detain a person pending deportation is subject to the Hardial Singh principles and to the Secretary of State’s published detention policy. A policy breach does not automatically make detention unlawful. The claimant must show that the breach caused the detention, so that proper application of the policy would have resulted in release.

A policy providing that mentally ill persons should be detained only in very exceptional circumstances requires an objective and fact-sensitive assessment. Mental illness creates a strong presumption in favour of release, but serious risks of re-offending, harm to the public and absconding may justify detention where their combined weight is substantial indeed. The court granted a declaration that the policy had not been considered, but held that the detention remained justified and dismissed the remaining claims.

The claimant, a Bangladeshi national with a substantial criminal record and paranoid schizophrenia, challenged his continuing immigration detention pending deportation. He argued that the detention breached the Secretary of State’s policy that mentally ill persons should normally be detained only in very exceptional circumstances, and was unlawful under the Hardial Singh principles.

He also challenged the validity of the deportation documents, alleging an incorrect name and defective service, and claimed rights as a family member of EEA nationals under the Immigration (European Economic Area) Regulations 2006. The central issues were whether the policy had been applied, whether any breach caused unlawful detention, and whether the detention remained reasonable.

1. Policy breach and causation. The Secretary of State had failed, until the August 2009 review, adequately to engage with the claimant’s mental illness and the policy requiring detention of mentally ill persons only in very exceptional circumstances. That failure did not itself establish unlawful detention. The claimant also had to show that, had the policy been properly applied, he would not have been detained.
2. Meaning of the policy. The policy was an objective, hard-edged question of interpretation. Its reference to very exceptional circumstances required both a quantitative and qualitative judgment. It was engaged by objective medical evidence showing mental illness of sufficient seriousness, having regard to the nature and severity of the condition and the impact of continued detention.
3. Balancing exercise. Mental illness created a strong presumption in favour of release. In a Criminal Casework Directorate case, however, the decision-maker had to weigh that factor against the risks of further offending, harm to the public and absconding. In cases involving serious offences such as robbery, substantial weight had to be given to those risks. The risks had to be elevated and their combined weight substantial indeed before detention could be justified.
4. Application. The claimant’s prolific and escalating offending, serious robbery conviction, repeated failures to surrender, disruptive conduct frustrating removal, failure to co-operate with documentation and high absconding risk outweighed the presumption in favour of release. His detention was therefore justified under the policy and under the Hardial Singh principles, despite lasting more than 15 months.
5. Ancillary claims. The misspelling of the claimant’s name did not invalidate the deportation documents because it was clear that they related to him, and he had in fact appealed. The EEA free-movement regime did not assist British nationals who had not exercised movement or residence rights under the directive.
6. The court granted a declaration that the Secretary of State had unlawfully failed to consider the implications of his policy for the claimant’s detention. The main claim was otherwise dismissed, and permission was refused in the two ancillary claims.