R (Anam) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Black,Lord Justice Longmore,Lord Justice Maurice Kay |
| Judgment Date | 19 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1140 |
| Docket Number | Case No: C4/2009/2388 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 October 2010 |
[2010] EWCA Civ 1140
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION ADMINISTRATIVE COURT
Mr Justice Cranston
Before: Lord Justice Maurice Kay
Lord Justice Longmore
and
Lady Justice Black
Case No: C4/2009/2388
CO202309
Mr Ian Macdonald QC and Mr Sadat Sayeed(instructed by Leigh Day & Co) for the Appellant
Mr John-Paul Waite (instructed by Treasury Solicitors) for the Respondent
Hearing dates: 26 th July
Lady Justice Black:
This appeal, from a decision of Cranston J on 13 October 2009, concerns the Secretary of State for the Home Department's powers of detention under paragraph 2(3) of Schedule 3 to the Immigration Act 1971 and the implications of his failure to have regard, when exercising those powers to detain the Appellant, to his own policy as set out in a document entitled “Enforcement Instructions and Guidance”.
The Appellant is a national of Bangladesh who was born in 1970. He arrived in the United Kingdom with his family when he was 13 years old and was given indefinite leave to remain. He has long standing mental health problems, first referred to in a medical report dating from 1991. The diagnosis at that stage seems to have been paranoid psychosis. Reports from 2008 gave a diagnosis of paranoid schizophrenia, for which anti-psychotic medication was required. A further report, dated July 2009, confirmed the diagnosis of paranoid schizophrenia and also identified that the Appellant was suffering quite prominent depressive symptoms which were attributed to prolonged detention.
The Appellant has a long criminal record, commencing in 1991, when he was 21, with offences of assault occasioning actual bodily harm and going equipped for theft. Over the next fifteen years or so, according to the Respondent's counsel's tally, the Appellant's criminal record came to contain, in total, 27 offences committed in 20 different names. Many of the offences were for dishonesty and there were two further assaults. Other offences of which he was convicted included perverting the course of justice, obstructing the police, and failing (on multiple occasions) to surrender to bail or to custody. Short terms of imprisonment were imposed on a number of occasions. The last offence in the sequence of the Appellant's criminal offending was robbery, of which he was convicted in January 2007 together with two offences of theft. On 14 February 2007, he was sentenced to four years imprisonment for these offences, the sentencing judge remarking that he had been found guilty of a persistent and premeditated course of conduct in stealing money from Ladbrokes and noting that the robbery had caused great distress to the young woman whom he had attacked and hit in the stomach.
In December 2007, the Respondent decided to deport the Appellant. The Appellant did not appeal against that and the deportation order was signed and served on him in February 2008. When he finished his prison sentence in mid May 2008, he was transferred to immigration detention where he remains.
The Respondent's policy at all material times was not to detain mentally ill people unless there were “very exceptional circumstances” which justified that. Cranston J found that the Appellant's mental health issues were such that he came within this policy but that the Respondent had failed to engage with the policy in detaining the Appellant. There had been reviews during his time in detention but the judge found that they had focussed on other issues and hardly touched on the Appellant's mental health until the hearing before him was imminent (the hearing date was 19 August 2009). He granted a declaration that the Respondent “unlawfully failed to consider the implications of his policy for the detention of [the Appellant]”. Otherwise, he dismissed the Appellant's claim, giving permission to appeal to this court.
The remedies sought by the Appellant at trial were, in fact, far reaching. As the judge records in paragraph 3 of the judgment, he sought an award of damages for breach of his Article 5 rights under the ECHR, a grant of temporary admission, damages for false imprisonment, and aggravated and exemplary damages. On none of these claims did he succeed.
The Appellant had also sought a declaration that his detention was, and continued to be, unlawful and a mandatory order for his release. Refusing this, the judge found that he had not demonstrated that his detention was in breach of the policy. His conclusion about this is set out in paragraphs 68 and 69 of the judgment, which I will quote in full because they are central to this appeal:
“68. In my judgment, however, given the way the “very exceptional circumstances” test must be interpreted, the claimant has not demonstrated that his detention is in breach of the policy. The policy means that there is a strong presumption in favour of his release because of his mental illness, and that the balance of other factors has to be substantial indeed for detention to be justified. There needs to be a qualitative judgment of these various factors. In the balance will be the factors which typically operate in detention cases, absconding and re-offending risk, because the object of immigration detention is removal, detention not being an end in itself. Of course there needs to be an elevated risk of absconding and re-offending to counter the strong presumption in favour of release.
69. Here the claimant has a history from 1991 of prolific offending, some forty offences involving twenty-six convictions. The offending culminated in the robbery conviction, serious enough to warrant a four year sentence. I have quoted what the trial judge said about the impact of the robbery on the young woman victim. Apart from the escalating seriousness of the claimant's pattern of offending and the risk posed as a result of that, there is also the very high risk of absconding. That is evident in the considerable number of offences relating to bail and failing to surrender to custody. Closely associated with that is the disruptive behaviour to frustrate removal, and the claimant's failure to co-operate in an attempt to document him on the expiry of his Bangladesh passport. There are also the unmeritorious applications he has made for asylum and judicial review and the frequent and unsuccessful applications he has made for bail. Given all these factors, the balance is against release.”
The judge refers to the various applications made by the Appellant. The Appellant had, in fact, been making applications of one kind or another from the end of April/beginning of May 2008. We are told that his response to the deportation order was by way of fax on 7 th November 2007, which can be found in the appeal bundle. Towards the end of April 2008, the Respondent made an attempt to remove him from this country. According to the Immigration History and Chronology compiled by the Respondent, this was preceded by last minute representations by the Appellant which were refused but, in the event, he was not removed because he became disruptive and was taken off the flight.
Removal directions were reset for 8 May 2008 and the Appellant was notified of them on 1 May 2008. On 2 May 2008, his representatives submitted an out of time appeal in relation to the deportation order and, on 7 May 2008, lodged an application for asylum. The removal directions were cancelled.
In July 2008, further representations were made raising Article 8 issues in connection with the Appellant's medical condition.
In August 2008, the Appellant's appeal against the deportation order was dismissed by the Asylum and Immigration Tribunal and his application for reconsideration of that dismissal was refused. In September 2008, his application for asylum was refused; that decision was subsidiary to the deportation decision and did not carry a right of appeal.
In December 2008, directions for removal were set again but cancelled when the Appellant submitted a fresh claim for asylum and lodged the first of the judicial review claims which were ultimately determined by Cranston J.
Early in February 2009, the Appellant's further representations were refused. He made more than one unsuccessful claim that month to the Asylum and Immigration Tribunal for bail. He also issued his main judicial review application concerning the legality of his detention. He applied again for bail in March 2009, withdrawing his application on the day of the hearing and then re-applying the following day. Further applications for bail in succeeding months were all refused.
In May 2009, permission was granted for the judicial review challenge in relation to the legality of the Appellant's detention. The Appellant's ancillary judicial review challenges were not permitted to proceed to trial. Cranston J himself refused permission for a proposed challenge to the validity of the deportation documentation, commenting that the various arguments advanced were “deeply unimpressive”, “simply untenable”, and had nothing in them.
In June 2009, the Respondent, without prejudice to his position, agreed to proceed on the basis that the Appellant had made an application to revoke the deportation order and to agree to him having a right of appeal from the decision not to do so. We have been told that the appeal was unsuccessful but that reconsideration of the decision was ordered and, in consequence of the changes to the procedure in relation to such matters, that has been treated...
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