C v Secretary of State for the Home Department

The claimant challenged the lawfulness of his immigration detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971. The court applied the Hardial Singh principles (intent to deport; detention for a reasonable period; realistic prospect of removal within a reasonable time; Secretary of State to act with reasonable diligence) and considered the Secretary of State's published detention policy in Chapter 55 of the Enforcement Instructions and Guidance and the Detention Centre Rules 2001 (in particular Rules 9 and 35).

The court concluded that initial detention in April 2008 was lawful given the risks of absconding and reoffending, but that from late August/early October 2008 independent evidence of torture and a diagnosis of post-traumatic stress disorder (Dr Natasha Gordon's report dated 26 August 2008, and the Rule 35 reports) should have been acted upon. The Secretary of State failed to commission any expert assessment or to apply the Chapter 55 policies on mental illness and torture, and by January 2009 there was no reasonably imminent prospect of removal. Balance of the risks did not constitute "very exceptional circumstances" to justify continued detention.

Accordingly the court found the claimant unlawfully detained for distinct periods (the defendant accepted unlawfulness for 7 April 2008 to 9 September 2008 under Lumba) and the court found unlawful detention from 1 January 2009 to 29 March 2011. Damages were awarded to be agreed or assessed for that later unlawful period.

Background and parties: This is a first instance judicial review in the Administrative Court. The claimant (an immigration detainee with a history of convictions) sought relief challenging the lawfulness of his detention between 7 April 2008 and 29 March 2011. The defendant was the Secretary of State for the Home Department. Permission for judicial review was granted in stages during 2011. The claimant relied primarily on the Hardial Singh principles and on failure to apply the Secretary of State's detention policies concerning mental illness and torture (Chapter 55). Other grounds (Disability Discrimination Act 1995, Equality Act 2010, Articles 5, 8 and 14 ECHR) were not actively pursued.

Issues framed: (i) Whether detention was lawful under the Hardial Singh principles and Schedule 3 para 2(3) of the Immigration Act 1971; (ii) whether the Secretary of State failed to comply with published policy (Chapter 55) and Detention Centre Rules 2001 (Rules 9 and 35) in relation to allegations of torture and mental illness; (iii) whether there was a realistic prospect of removal within a reasonable time; and (iv) whether the failures entitle the claimant to more than nominal damages.

Facts and procedural posture: The claimant arrived in the United Kingdom in 2004, used a false identity on arrival, and had a history of criminal convictions. He entered immigration detention on 7 April 2008. In August 2008 he was assessed by Dr Natasha Gordon who produced a medico-legal report (26 August 2008) describing extensive scarring, findings compatible with torture and a diagnosis compatible with post-traumatic stress disorder; Rule 35 reports were completed and sent to Criminal Casework Directorate. The Secretary of State did not commission an expert or otherwise meaningfully engage with Dr Gordon's report. Detention reviews did not properly address the Rule 35 evidence. The defendant accepted unlawfulness in respect of the period 7 April 2008 to 9 September 2008 because that detention fell within an unpublished blanket foreign national offender policy held unlawful in Lumba.

Court's reasoning and findings: The court accepted that the claimant presented risks of absconding and of reoffending that made detention lawful on initial grounds. However, by the end of August/early October 2008 the Secretary of State had independent evidence of torture and of significant mental illness which triggered Chapter 55 and Rule 35 considerations. The Secretary of State took no real action (for example no commission of a psychiatric report) and did not apply the published policies. By January 2009 there was no reasonably imminent prospect of removal: the claimant had given false or varying details of nationality, had little documentary evidence to support an Ivorian identity, and the Home Office's own records showed difficulties in obtaining emergency travel documents from the Ivorian authorities absent supporting evidence. In the balance, the claimant's mental illness and independent evidence of torture meant that there were not "very exceptional circumstances" to justify continued detention. The court therefore found unlawful detention from 1 January 2009 to 29 March 2011 and ordered damages to be agreed or assessed for that period. The question of more than nominal damages for the earlier unlawful period (7 April 2008 to 9 September 2008) was noted as accepted by the defendant.

Wider observations: The judgment emphasises that published detention policy can qualify the statutory power to detain and that Rule 35 and clinical evidence of torture or serious mental illness must be acted upon; failure to do so can render otherwise lawful custody unlawful even where there is an absconding or reoffending risk.

First instance: The claim succeeded in part. The court held that initial detention was lawful but that the claimant was unlawfully detained for the periods accepted under Lumba (7 April 2008 to 9 September 2008) and further unlawfully detained from 1 January 2009 to 29 March 2011 because the Secretary of State failed to act on independent evidence of torture and mental illness (Dr Gordon's report and Rule 35 material) and there was no reasonably imminent prospect of removal. Damages for the unlawful period from 1 January 2009 to 29 March 2011 were awarded to be agreed or assessed.