R (on the Application of Ruhul Anam) v Secretary of State for the Home Department (No. 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 27 June 2012 |
| Neutral Citation | [2012] EWHC 1770 (Admin) |
| Docket Number | Case No: CO/2023/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 June 2012 |
[2012] EWHC 1770 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Walker
Case No: CO/2023/2009
Mr Ian Macdonald QC and Mr Ranjiv Khubber (instructed by Wilson Solicitors LLP) for the Claimant
Mr John-Paul Waite (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 17 and 18 May 2012
| A. Introduction | 3 |
| B. Overview of events relevant to the present case | 6 |
| C. Legal principles | 9 |
| C1. Power to detain, and ramifications, explained in Lumba | 9 |
| C2. Kambadzi | 12 |
| C3. OM (Nigeria) | 12 |
| C4. LE (Jamaica) | 15 |
| C5. The Hardial Singh principles | 19 |
| C5.1. Citation of authorities about the Hardial Singh principles | 19 |
| C5.2. How long is a reasonable period | 19 |
| C5.3. The detainee's psychiatric condition | 20 |
| C5.4. Risk of absconding/reoffending | 20 |
| C5.5. Failure to co-operate with return | 22 |
| C5.6. Pursuit of claims, litigation, or tribunal proceedings | 23 |
| C5.7. Relevance of bail decisions | 24 |
| C6. Public law obligations, including as to published policy | 24 |
| C7. Article 5 of the European Convention on Human Rights | 25 |
| C8. The test for whether damages are more than nominal | 26 |
| D. Departmental policy to 26 August 2010 | 27 |
| E. Departmental policy from 26 August 2010 onwards | 29 |
| F. The Hardial Singh fourth principle | 30 |
| G. "Spent" convictions | 30 |
| H. The background history | 30 |
| I. The period prior to the decision of 14 August 2009 | 31 |
| J. Detention from 14 August 2009 onwards | 36 |
| K. Conclusion | 41 |
| Annex 1: Departmental policy as set out in EIG | 43 |
| Annex 2: Mr Anam's mental health up to 14 April 2008 | 48 |
| Annex 3: Mr Anam's first period of detention | 50 |
| Annex 4: Mr Anam's second period of detention | 63 |
A. Introduction
The claimant, Mr Ruhul Anam, has now been held in immigration detention for more than 4 years. It began in April 2008 and has continued ever since. The Secretary of State for the Home Department, who is the defendant in these proceedings, says that authority for that detention is found in paragraph 2 of Schedule 3 to the Immigration Act 1971, which has the force of law under section 5 of that Act. That paragraph permits detention pending removal from this country when a deportation order is in force, or notice of intention to make such an order has been given.
It was said by Lord Atkin in Liversidge v Anderson [1942] AC 206, 244 that it has always been one of the principles of liberty that the judges are alert to see that any attempted encroachment on liberty is justified in law. That principle is exemplified by the decision of Woolf J in R v Governor of Durham Prison, ex p Hardial Singh [1984] 1 WLR 704, where in the context of immigration detention four specific principles were identified. They are known as the Hardial Singh principles, and are encapsulated in R (I) v Secretary of State for the Home Department [2003] INLR 196 as follows:
(1) The secretary of state must intend to deport the person and can only use the power to detain for that purpose;
(2) The deportee may only be detained for a period that is reasonable in all the circumstances;
(3) If, before the expiry of the reasonable period, it becomes apparent that the secretary of state will not be able to effect deportation within a reasonable period, [the secretary of state] should not seek to exercise the power of detention;
(4) The secretary of state should act with reasonable diligence and expedition to effect removal.
I shall refer to them as Hardial Singh principles 1, 2, 3 and 4 respectively. Likewise, I shall refer to the questions which they raise as Hardial Singh questions 1, 2, 3 and 4 respectively.
There can be little doubt that those who drafted article 5 of the European Convention on Human Rights had well in mind Lord Atkin's principle as to the role of judges where there is an attempted encroachment on liberty. Article 5 states:
Article 5 – Right to liberty and security
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.
The Human Rights Act 1998 in section 1 defines "Convention rights" so as to include article 5. It provides in section 3 that, so far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights. Under section 6 it is, subject to certain exceptions, unlawful for a public authority to act in a way which is incompatible with a Convention right.
Mr Anam brought these proceedings more than 3 years ago in order to challenge his detention. He relied upon the Hardial Singh principles, upon general principles of public law – among them a principle that published policy must be complied with in the absence of good reason not to do so – and upon Article 5 of the European Convention on Human Rights. He achieved part of what he sought in October 2009, when Cranston J granted a declaration that the secretary of state had unlawfully failed to consider the implications for Mr Anam of departmental policy as regards detention of those who are mentally ill. That remained all that he had achieved in October 2010, when the Court of Appeal dismissed his appeal on issues which Cranston J had decided in favour of the secretary of state. However Mr Anam achieved more of what he sought in November 2011, when the Court of Appeal set aside its previous order and granted a declaration that his detention to 14 August 2009 was unlawful.
Neither of these partial successes, however, gave Mr Anam his liberty. As regards the period of detention to 14 August 2009, the Court of Appeal's order of November 2011 would ensure that he was entitled at least to nominal damages, but left over for consideration by the Administrative Court the question whether he was entitled to substantial damages. As regards the period from 14 August 2009 it left over for consideration by the Administrative Court questions whether at any time his detention was unlawful, and if so whether he is now entitled to his liberty and to substantial damages. In this judgment I examine those questions. For reasons given below, I conclude that:
(1) While Mr Anam's detention was unlawful until the decision was taken on 14 August 2009 to continue detention, as regards the period prior to that decision Mr Anam is entitled to no more than nominal damages because during that period those responsible could and would have taken a lawful decision to detain him.
(2) Following the decision taken on 14 August 2009 Mr Anam's detention remained unlawful, as neither that decision nor subsequent decisions took account of Professor Katona's second report dated 22 July 2009, but as regards the period prior to close of business on Thursday 11 February 2010 Mr Anam is entitled to no more than nominal damages because during that period those responsible could and would have taken a lawful decision to detain him.
(3) From close of business on Thursday 11 February 2010 Mr Anam's detention was unlawful because it failed to comply with Hardial Singh principles.
(4) Subject to any development warranting the contrary conclusion, Mr Anam is now entitled to his liberty.
(5) Mr Anam is entitled to substantial damages for his detention from close of business on Thursday 11 February 2010 onwards.
In order to explain my conclusions I must discuss two recent...
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