Whilst, in the claimant’s case, the Home Secretary had unlawfully failed to consider the implications of his policy that mentally ill persons were not to be detained pending deportation unless there were “very exceptional circumstances” which would justify that course of action, given the claimant’s history of prolific offending and the risk of his absconding, his continued detention pending deportation was not unlawful and remained justified.
The claimant (X) applied for judicial review of the defendant secretary of state’s decision to detain him pending deportation. X, a national of Bangladesh, had been given indefinite leave to enter the United Kingdom, along with his family, when aged 13. From 1991, X had a history of prolific offending of some 40 offences involving 26 convictions. He was latterly convicted of robbery and sentenced to four years’ imprisonment, and the secretary of state consequently made the decision to deport him. X went into immigration detention pending his deportation which continued after the expiry of his criminal sentence. X’s mental health had fluctuated over the years, and he had displayed intermittent psychotic symptoms since 1991. A medical report prepared in relation to the robbery proceedings recorded that he was suffering from a paranoid psychotic illness consistent with a diagnosis of paranoid schizophrenia. A series of detention reviews were carried out when continuation of detention was authorised as being in the public interest given X’s level of offending and the risk of his absconding.
X sought a declaration that his detention was unlawful, an award of damages due to breach of his rights under the European Convention on Human Rights 1950 art.5, and a grant of temporary admission. X contended that (1) the secretary of state had failed to engage with his own policy, contained within Chapter 55 of the Enforcement Instructions and Guidance, not to detain mentally ill persons unless there were “very exceptional circumstances” which would justify that course of action, in that until the last detention review in August 2009 the secretary of state’s decision makers had never adverted to X’s mental illness in any decision communicated to him, nor was there any reference to it in any internal minute; (2) as there were no “very exceptional circumstances” such as to justify his detention in accordance with the policy, his detention was at odds with the policy and therefore unlawful; (3) even if those contentions were wrong, his detention was unreasonable, R v Governor of Durham Prison Ex p Singh (Hardial) (1984) 1 WLR 704 QBD, in that the existence of his mental illness and other vulnerabilities had the effect of significantly shortening the duration for which it was reasonable to detain a person.
HELD: (1) X bore the burden of establishing that his detention had been and was unlawful. He had laid the foundation for that in a failure on the secretary of state’s part to engage with his own policy. While X was in custody, there had been a regular assessment of his mental health, but once he went into immigration detention, the secretary of state could not demonstrate the same attention to the issue. However, the secretary of state’s failure to engage with X’s mental health, and its relevance to detention under the policy, was not the end of the matter. The court had to be satisfied that a failure to apply or breach the policy had in fact caused a claimant prejudice. (2) X’s mental health issues were such that the secretary of state’s policy in that regard was engaged. However, X had not demonstrated that his detention was in breach of the policy. The policy meant that there was a strong presumption in favour of his release because of his mental illness, and that the balance of other factors had to be substantial indeed for detention to be justified. There needed to be a qualitative judgment of the various factors which typically operated in detention cases, absconding and re-offending risk, because the object of immigration detention was removal, detention not being an end in itself. In the instant case, X had a history of prolific offending which culminated in the robbery conviction serious enough to warrant a four-year sentence. Given all the relevant factors, the balance was against his release. (3) X’s detention had been and continued to be justified under the policy, and the same applied under the principles in Hardial Singh for similar reasons, Hardial Singh considered. At various stages during his detention there had been no bar to his deportation, removal having been deferred at the last minute. In particular, X had disrupted legitimate attempts to effect his removal, refused to cooperate with attempts to document him and issued belated challenges aimed at frustrating his otherwise lawful deportation from the UK. Accordingly, although X’s detention for over 15 months was a cause for concern, it was not unlawful and his continued detention remained justified. (4) X was, therefore, only entitled to the first of the remedies sought, namely a declaration that the secretary of state had unlawfully failed to consider the implications of his policy for the detention of X.
Application granted in part.