There has been a flood of judgments in the last few weeks on the issue of unlawful detention. With immigration detention used more frequently and for longer periods than ever before, the aftermath of the secret and unlawful presumption of detention policy and the ongoing travails of the UK Border Agency, it seems likely that many more such judgments will be seen in the coming months.
Already some cases involve extreme periods of administrative detention at the whim of a Government department equivalent to heavy criminal sentences for genuinely serious offences. R (on the application of Amougou -Mbarga) v Secretary of State for the Home Department  EWHC 1081 (Admin), for example, involved immigration detention of four years and two days. The facts of that particular case were unusual, though, and it is an example of extreme use of deception rendering even an extraordinary period of detention lawful. Irwin J dismissed the claim:
The facts here are striking. This is not merely a case of a refusal to co-operate with removal. Against a backdrop of repeated criminal offending involving deception, this is a story of gross repeated deception perpetrated by the Claimant to avoid removal. That deception has been successful in the past in confusing the authorities and in defeating his deportation, as outlined above … The Claimant had lied so long and so successfully that the authorities were entitled to feel he might be attempting to deceive them again. There was an obvious risk that they might attempt once more to deport him to the Cameroon, only to find that he went through another volte face, denied he was Cameroonian and achieved another humiliating and expensive return to the UK.
In that context it seems to me, it was not merely reasonable but necessary to continue the detention of the Claimant until the authorities were clear they had documentation, evidence and arrangements in place which would ensure his effective removal.
The other cases to report here involve various different policy failings by the UK Border Agency, where a policy itself was unlawful or, more usually, where a lawful policy was overlooked or misapplied in some way. In some of these case the failing is found to be a material one without which the detainee would not have been detained but in others the failing would not have affected detention.
The most worrying of the cases is R (on the application of HA (Nigeria)) v Secretary of State for the Home Department  EWHC 979 (Admin). In this case a man with mental health problems of sufficient severity to require his admission to a mental health hospital for compulsory treatment was detained for several months in ordinary immigration detention. Even before his immigration detention began there were serious concerns about his health as he refused food (under camera observation) for two weeks and was only drinking sips of water but from a flushed toilet bowl. He was then moved within immigration detention five times in a few weeks, which must have been unsettling in itself. His medical notes were not transferred with him and although concerns were regularly expressed about his welfare and behaviour it was only after several months of immigration detention that a proper psychiatric assessment was conducted, at which point the doctor thought it likely that the man was suffering from a psychotic illness and recommended treatment. Finally, over five months after this assessment, he was transferred to hospital for treatment. By this time he was expressing paranoid delusions, was self-neglecting, had bizarre behaviour with persecutory delusions, would not eat in the dining room, would only eat bread and milk for fear of being poisoned and slept on the floor because of his fears. He was eventually diagnosed as suffering paranoid schizophrenia.
Despite proactive steps by his lawyers and doctors, the claimant was then re-detained under immigration powers with no notice. Bail was eventually granted by a High Court judge.
Singh J found that the period of detention after the proper psychiatric assessment was unlawful and indeed the Home Office did not seriously attempt to contend otherwise. The second period of re-detention was also found unlawful. The judge also concluded that the claimant had suffered degrading treatment (a breach of Article 3 of the European Convention on Human Rights), that the detention policy on those with mental illnesses had been unlawfully changed without a proper equality impact assessment as required by law and that the policy had not been applied in the claimant’s case.
A finding of a breach of Article 3 ECHR is unusual, but it certainly appears justified on the facts of this case. A worrying lack of regard for the detainee’s welfare emerges from the UKBA records, where his non-compliance with procedures was treated as a further reason to justify detention rather than raising concerns about his wellbeing.
In the case of R (on the application of Abdollahi) v Secretary of State for the Home Department  EWHC 878 (Admin) Beatson J rejected the claimant’s submissions that his 26 month detention was unlawful because of his pending asylum case and the presence of his wife and children in the UK. It was argued that there was no real risk of absconding nor a real prospect of removal. Like in Amougou -Mbarga, though, there were some unusual circumstances. The claimant had already made voluntary departures from the UK twice in previous years but had re-entered, had managed to obtain false passports for himself and his family and was insisting he would not return to Iran. The judge found that the statutory duty to have regard to the safety and welfare of children had not been properly applied in this case and the Office of the Children’s Champion within the UK Border Agency had not been consulted, in breach of policy, but that had this happened it would have made no difference and the claimant would have ben detained anyway. The detention was found unlawful but only nominal damages were to be awarded.
In contrast, in the case of R (on the application of Bizimana) v Secretary of State for the Home Department  EWCA Civ 414 the Court of Appeal held that the proper application of the section 55 duty would have affected the outcome. The claimant was detained under immigration powers for 21 months. Throughout this period his wife and children were lawfully resident in the UK. Jackson LJ held that the coming into force of section 55 in late 2009 combined with the increasingly obvious difficulty in establishing the claimants nationality (Burundi, DRC and Tanzania were all possibilities) rendered the detention unreasonable for the final five months. The issue of remedies and damages was remitted to the Administrative Court.
Lastly, see David Rhys Jones’ excellent recent post on detention policy in torture cases. David’s post focusses on the important issue of how medical reports are to be understood and the weight to be attached to the opinion of a medical professional. The outcome of the case, R (on the application of AM) v Secretary of State for the Home Department  EWCA Civ 521, was that the detention was found to be unlawful because the Secretary of State was in breach of her own policy on detention where there was independent evidence of torture. As an aside, the line taken by the Home Office in that case is reminiscent to my mind of that taken in cases of proving domestic violence. Any evidence that emanates from the survivor is rejected as being based on his or her account – but unless a reliable third person was present at the time of the violence, that approach eliminates almost any evidence at all from consideration. It is based on the unfortunate world view of some at the UK Border Agency, which is that victims of trauma are all lying liars who lie unless they can conclusively prove otherwise.