R (Anam) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 13 October 2009 |
| Neutral Citation | [2009] EWHC 2496 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 October 2009 |
| Docket Number | Case Nos: CO/12/2009, CO/2023/2009 and CO/3250/2009 |
[2009] EWHC 2496 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Cranston
Case Nos: CO/12/2009, CO/2023/2009 and CO/3250/2009
Alex Goodman (instructed by Leigh Day & Co) for the Claimant
Alan Payne (instructed by Treasury Solicitors) for the Defendant
Hearing date: 19 August 2009
Mr Justice Cranston:
INTRODUCTION
The main claim before me raises the issue of the nature and extent of the limitations on the statutory powers of detention of the Secretary of State for the Home Department (“the Secretary of State”) contained in paragraph 2(3) of schedule 3 to the Immigration Act 1971. In particular the claimant contends that irrespective of its duration his detention has been unlawful because it is at odds with the Secretary of State's policy not to detain mentally ill persons pending deportation, save in “very exceptional circumstances”. In other words, the limitations derived from the judgment of Woolf J (as he then was) in Hardial Singh [1984] 1 WLR 704 are not the only ones imposed by law on the duration of detention.
In addition to the main claim the claimant has two other claims for judicial review. Both challenge in part the legality of his detention, but each raises the additional issues of the deportation notice and his family membership. Mr Goodman, who has acted for the claimant in the main claim, has advanced arguments in relation to these two ancillary claims on a pro bono basis. Because of time constraints – all claims were listed with a two hour time estimate – I have dealt with these by means of written submissions, and return to them at the end of this judgment.
In the main claim, which was issued by the claimant in person, the remedies sought are a declaration that his detention is unlawful, an award of damages due to breach of his Article 5 rights under the European Convention on Human Rights, and a grant of temporary admission. The grounds of the claim have now been amended and while they continue to seek those remedies there are as well claims for damages for false imprisonment, for aggravated and exemplary damages and for a series of declarations. Permission was granted by Beatson J on the main claim when no explanation had been given by the Secretary of State as to why the claimant had been detained.
BACKGROUND
In 1984 the claimant, a national of Bangladesh, arrived in the United Kingdom with his family. He was then aged 13 and was given indefinite leave to enter. The Asylum and Immigration Tribunal has found that the claimant has returned to Bangladesh on a number of occasions, soon after arriving in this country when he went to Bangladesh and lived with an uncle and aunt for a year, and around the age of 21 when he returned for a period of some one and a half years. The claimant disputes this. The claimant later married and had children. Apparently he last saw his children in 2000, although he has expressed a clear wish to have access to them and to see them. It appears that he has twice been refused contact with his children by the County Court. The claimant has family both in this country and in Bangladesh.
Offending History
Relevant to the present claim is the claimant's offending history. That began in 1991, at the age of 21, when the claimant was given a two year conditional discharge for assault occasioning actual bodily harm and a further twelve month conditional discharge for going equipped for theft. In early 1995 the claimant was sentenced to four months imprisonment for various dishonesty offences, and later that year he was sentenced to seven and a half months imprisonment for perverting the course of justice and assault occasioning actual bodily harm. Offences of shoplifting, making off without paying and obstructing the police led to short sentences of imprisonment in the late 1990s. Then in January 2000 he was convicted at the Magistrates' Court of dishonesty offences, failing to surrender to bail and two counts of failing to surrender to custody, as a result of which he was placed on a twelve month probation order and given two community service orders of eighty hours each. In the middle of that year there were further convictions at the Magistrates' Court including one of assault with intention to resist arrest. At the Crown Court in December of that year he was sentenced to eighteen months imprisonment for dishonesty offences. There were convictions in the following years for a number of dishonesty offences. Associated with these were five offences of failing to surrender to custody and two of failing to surrender to bail. Some of these offences led to short custodial sentences.
In January 2007 the claimant was convicted by a jury of one count of robbery and two counts of theft and was sentenced to four years imprisonment, four years on the robbery and three years on each of the theft charges concurrent. In sentencing the claimant, His Honour Judge Martineau said that he understood that the claimant had a very serious mental illness, but it was being properly treated in prison:
“[N]onetheless you decided to part company with your defence team and you tried to pretend that you were ill when I was quite satisfied that you were not ill.”
The learned judge noted that the robbery had caused great distress to the young woman who had been attacked and hit in the stomach. Leave to appeal against sentence was refused. The claimant has now made a late application for leave to appeal against conviction. In all, the claimant has some forty offences involving twenty-six convictions. He has used some twenty aliases.
Immigration history
As a result of the claimant's offending history the Secretary of State invited him to advance reasons why he should not be deported at the end of the custodial sentence for robbery. No response having been received from the claimant, the Secretary of State notified him in October 2007 that, given his criminal record, a decision had been made to deport him. The claimant did not seek to exercise his right to appeal against the deportation order at that point. The deportation order was signed and served on the claimant in February 2008 and in April of that year directions were set for his removal. Although the claimant had not completed his custodial sentence he had been approved for release under the early release scheme. The claimant then made submissions against his removal. The Secretary of State addressed these. Removal in April 2008 had to be cancelled because the claimant became disruptive. Removal directions were reset for early May 2008 but they were cancelled, this time as a result of the claimant applying for asylum. The claimant was granted leave to pursue an out of time appeal against the decision to deport him.
The claimant went into immigration detention pending his deportation. Immigration detention continued after the expiry of his criminal sentence and has continued to the present. In July 2008 the claimant's representatives submitted written representations raising Article 8 issues linked to the claimant's medical conditions and enclosing a medical report by Dr Katona (of which more below).
In early August 2008 the claimant's appeal against a deportation order was heard by the Asylum and Immigration Tribunal, which dismissed it. In the course of the determination the Tribunal addressed the suggestion that the drug, Risperidone, with which the appellant was being treated, was not available in Bangladesh. The Tribunal noted that that part of Dr Katona's report was not particularly helpful because it did not express clearly how important Risperidone was to the claimant's care and whether there were other drugs which would have been effective in treating his condition. The Tribunal also noted that Risperidone was not available in other countries such as Australia, Belgium and France. The Tribunal also noted that the claimant had returned to Bangladesh on a number of occasions, summarised the position with regard to his children and also noted his admission to long misuse of cannabis and cocaine “which may have contributed to his present mental condition”. In the result the Tribunal concluded that medical treatment would be available for the claimant in Bangladesh and that, having regard to his long and escalating history of offending, any interference with his rights under Article 8 was proportionate. The claimant's application for reconsideration of this decision was refused by a Senior Immigration Judge in August 2008. Meanwhile the claimant had made an application for asylum. He was interviewed in relation to this application in June 2008. In September of that year the application was refused.
In November 2008 the claimant was transferred to Colnbrook Immigration Removal Centre but refused to share a room, resulting in his being relocated to a vulnerable persons unit. His complaint about not being allocated a single room on arrival at Colnbrook was ultimately upheld by the Prisons and Probation Ombudsman in July of 2009.
On the 23 rd December 2008 directions were set for the claimant's removal on the 5 th January of the new year, but the claimant submitted a fresh claim for asylum and lodged the first of the ancillary claims for judicial review now before me. Accordingly, removal directions were cancelled. Early in February 2009 the Secretary of State refused the claimant's further representations. That month the claimant made three unsuccessful applications to the Asylum and...
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