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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AA, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 2265 (Admin) (20 July 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/2265.html Cite as: [2010] EWHC 2265 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		20 July 2010

MR JUSTICE CRANSTON:

Introduction

1. The claimant suffers mental depression and is suicidal. He has been detained in a prison under immigration powers since the time he became eligible for release from a sentence of imprisonment. His primary case is that he should not have been detained at all after that point. The Secretary of State contends that the detention was at all times lawful: whether or not immigration powers were used, he would have been detained, and had he not been detained, he would almost certainly be dead by now.

Background

(a) The claimant's immigration history

2. The claimant is a Nigerian national born on 18 February 1968. He left Nigeria, on his account, in 2000 and spent two years in Austria. He then entered the United Kingdom in 2002 on a false passport. In February 2006 he was arrested by the police in Kent and claimed asylum. That claim was refused. An appeal was dismissed by the tribunal on 10 March 2006. Immigration Judge Hanratty found his account about a dispute over oil on his family's property, the death of his parents and his escape via an underground tunnel to be fabricated:

"This appellant is an economic migrant from Nigeria ... His story is an invention from beginning to end and is implausible and a clear fabrication."

3. Removal directions were set for the end of March 2006, but were cancelled, because he refused to board the aircraft. Subsequent removal directions for May 2006 were also cancelled because of a judicial review. The claimant was in detention during this period. Then, in July 2006, after an incident at the Immigration Removal Centre, he went on hunger strike. There was a report by Dr Frank Arnold, and two days later he was granted bail. His bail was renewed over the following years until 25 March 2009. Under his bail conditions, he was required to report fortnightly. An entry in the Secretary of State's records for 23 October 2006 was to the effect that, after four months of compliance, the subject had demonstrated that he was not at risk of absconding. For some two years he reported on a regular basis. However, he failed to report on 27 January 2009, 10 February 2009, 24 February 2009 (although he telephoned to give a reason for his failure) and 10 March 2009. After he had failed to report on the last occasion he was arrested at his home. Evidence of offending was found.
4. The claimant was prosecuted on a count of possessing a false Nigerian passport and a count of fraud by making a false representation to obtain NASS benefit while working illegally. He pleaded guilty. On 3 April 2009 he was sentenced to 12 months' imprisonment on the two counts. In sentencing him, the judge said that he had lied to an immigration officer so that he could obtain extra money, thereby defrauding the United Kingdom taxpayer. Pursuant to that sentence, he was eligible for release on 25 September 2009. On 20 May 2009 he was informed of his liability to automatic deportation and on 26 May served with the appropriate notice. A deportation order was signed on 10 July and notified to him the following day. He appealed.
5. In mid September the Secretary of State made the decision to detain the claimant under immigration powers with effect from 25 September 2009, the date he became eligible for release from prison. The decision set out a number of considerations in the decision. Under the heading "Other compassionate factors (such as the medical condition of the subject or a dependant relative)" the decision says "Not known". Thus, on 25 September 2009, the point at which the claimant was eligible for release pursuant to the criminal sentence, he continued to be detained at HMP Chelmsford, but under immigration powers.
6. On 2 November 2009 the Tribunal heard his appeal against the deportation order. It dismissed the appeal. Subsequently, in early December, Senior Immigration Judge Goldstein made an order for reconsideration. That first stage reconsideration came before the tribunal on 4 February 2010, and a fortnight later Senior Immigration Judge Latter decided that the tribunal decision of 6 November 2009 was erroneous in law and had to be set aside.
7. In mid May 2010 the Secretary of State stated in summary grounds filed in this judicial review that she was willing in principle to release the claimant into the community. Subsequently it was realised that there was no authority to make that statement and release could not occur without the approval of Lin Homer, Head of the United Kingdom Border Agency ("UKBA"). In an e-mail of 13 May 2010, the Assistant Director of UKBA commented that "recent psychiatric reports have confirmed that with adequate support in the community he may be released". In a further e-mail three days later, the Director of Criminality and Detention in the UKBA wrote to Lin Homer as follows:

"This is a low risk of harm [case] with the subject having been convicted of documentary fraud. He has been in our detention for 7 months and has been compliant. There are still barriers to his removal and he has been self-harming in detention. I believe release is appropriate, with CM and EM as he does pose some risk of absconding."

The reference to "CM" and "EM" is to methods of control after release such as electronic monitoring. On 18 May Lin Homer refused to authorise the claimant's release. Subsequently, in early June the Treasury Solicitor wrote to the court apologising for the significant error in the summary grounds.

8. In a decision of 8 June 2010, Judge Shaerf, sitting in the Upper Tribunal, allowed the claimant's appeal against the deportation order on the basis that the risk of suicide was so high and would be sufficiently exacerbated by removal that the claimant's return to Nigeria would be in breach of Articles 3 and 8 of the European Convention on Human Rights:

"43. On reviewing the medical evidence upon which there was no adverse submissions made for the respondent, I accept such expert evidence that the risk of suicide is very high or as expressed in the Winton report, 'as high as it gets' ... I am satisfied in the light of the medical evidence that despite the conceded lack of any objectively founded fear on return to Nigeria it is clear that the appellant's subjective fear is only too real."

The Secretary of State has not appealed that decision.

9. Following the decision of the Upper Tribunal, the Secretary of State made the decision in principle to release the claimant. During the hearing, I was informed that the claimant had just been released.

(b) Detention reviews

10. Since being in immigration detention the claimant has been subject to periodic detention reviews. On 23 October 2009 the first of these reviews made reference to a suicide attempt by the claimant in September. A further update was to be given. The detention review relied upon the high risk of absconding and the risk of re-offending and of harm to the public to justify detention. The monthly progress report issued at the same time said this:

"You need to be detained whilst alternative arrangements are made for your care."

11. In the November detention review, the senior reviewing officer authorised detention for a further period, and observed that the claimant has been convicted of a low risk crime. However, he authorised detention essentially on the basis of the absconding risk. The monthly progress report recorded that the claimant's release carried a high risk of public harm, and that the claimant needed to be detained whilst alternative arrangements were made for his care. The latter comment appears in subsequent monthly progress reports.
12. The December detention review recorded that the claimant did not pose a high risk of harm to the public. By contrast that month's monthly progress report stated that release carried a high risk of public harm and that detention was necessary whilst alternative care arrangements were being made. The January monthly progress review tracked that for December. The February detention review again recorded that the claimant was considered to have a low risk of harm to the public and a low risk of re-offending, but the corresponding monthly progress report was in similar terms to the earlier reports. The March detention review and the monthly progress report did not differ in material respects from earlier reports.
13. The detention review on 6 April referred to the recent suicide attempt, but referred to an assurance from HMP Chelmsford that the claimant was on suicide watch. In authorising detention, the Assistant Director observed that detention seemed appropriate in the light of the claimant's risk of self-harm:

"He has immediate access to any medical care he requires and is under constant watch to ensure his suicide attempts are not successful."

14. After this judicial review claim had been filed, a detention review of 20 April referred to the Enforcement Guide and Instructions, paragraph 55.10, to which I return later in this judgment. The Assistant Director again approved detention on the basis of the suicide risk. He concluded that the risk of self-harm, as well as harm to others, coupled with the absconding risk outweighed the presumption in favour of release.

(c) Medical reports

15. There are prison medical notes following the time that the claimant was in custody. From as early as 21 April 2009, the claimant was noted as being mentally low in mood. More serious concerns began to surface giving rise to a possible need for counselling. There is a record of 2 June 2009 that the claimant had considered killing himself. That month the claimant began to complain of hearing voices, but he said he had no history of mental illness. Then on 10 July 2009 the deportation order was issued. On 28 July the claimant made the first of his five attempts at suicide by ligature.
16. The prison medical notes record that the claimant had "adjustment disorder" and referred to PTSD, as well as "flashbacks of his father's death". In early August 2009 a consultant psychiatrist, Dr Laker, referred to the claimant as being depressed and at a significant risk of suicide. In mid August, there were several threats by the claimant to kill himself. At the end of that month, there was another suicide attempt, and a third attempt in mid September. The mental health nurse who saw him on the last occasion recorded that he remained extremely low in mood and continued to state that he wanted to die.
17. On 26 September 2009 there is the first of the medical reports relevant to this case. Dr Heather McKee, a consultant psychiatrist, prepared a report on the claimant's mental health on the instructions of his then solicitors. Dr McKee assessed the claimant as suffering from a moderately severe depressive episode, with marked suicidal ideation, but concluded that he did not fill the PTSD criteria. She recorded that the nursing staff to whom she had spoken expressed their concern about his suicide attempts. She said that the prospects of a serious suicide bid, both in the United Kingdom and on his return to Nigeria were, in her opinion, very high in view of his current mental state and previous behaviour. She wrote that most steps that could be taken to manage his self-harm were already being taken, including the 24-hour suicide watch. The claimant needed to continue to receive the same level of supervision that he was currently having in HMP Chelmsford. He feared being deported, and his depression seemed to have been precipitated by thinking about his prison sentence and the deportation order. She reflected that he was receiving appropriate therapy at HMP Chelmsford, but that a change of therapy should be tried. She said this:

"68. The effect of release from custody with or without removal of the deportation order would have to be observed very carefully as I believe that there would remain a very high risk that he would attempt to kill himself again. If this were to be attempted I feel that he should be transferred to an NHS facility under the Mental Health Act and the level of observation reduced over time according to his mental state. It would not be safe to release him straight into the community."

18. On 22 April 2010, Dr Jean-Claude Albrecht, a GP at HMP Chelmsford, said in an e-mail to the UK Border Agency that the claimant's mental health was of a man with severe depression, who had suicidal tendencies. His depression was related to his imprisonment:

"We expect that his mental health would improve dramatically should he be released into the community."

In his opinion and that of the staff at HMP Chelmsford, the claimant did not present any threat to the public and had behaved perfectly well with all members of staff and prisoners. The next day Dr Albrecht sent a further e-mail recording that the claimant was receiving the best available care and was on constant supervision 24 hours a day at the prison. The prison could provide cognitive behaviour therapy and medication. Not being involved in the claimant's care regarding his mental health he, Dr Albrecht, was unable to provide an opinion regarding the question as to whether the patient's condition would deteriorate should he be transferred to another establishment.

19. In response to Dr Albrecht's e-mail, there were internal e-mails within the UK Border Agency. One official recorded that, in the light of the e-mail from Dr Albrecht: "I do not think we can justify continued detention". That e-mail then set out a course of action involving contact with the claimant's representatives to uncover whether they had any proposals for a release address. It was also proposed that a submission for release in principle be prepared for Lin Homer. The e-mail from another official said this:

"I find this e-mail from the GP deeply disturbing. We must get him out of HMP ASAP."

20. On 26 April 2010, Dr Raoof, a consultant psychiatrist with the local PCT in Chelmsford, sent an e-mail to the UK Border Agency. That was in the light of a request to assess whether the claimant should be transferred under section 48 of the Mental Health Act 1948. Dr Raoof said that, in his opinion, the claimant's current symptomology did not amount to a mental disorder which would necessitate urgent transfer to a hospital under the Mental Health Act 1983. In his opinion, the claimant would feel more supported in an Immigration Removal Centre than a prison, as the claimant had been requesting. However, the centre would have to be made aware of his condition. Dr Raoof continued that, in the case of the claimant's release into the community, he needed to be reviewed by the local mental health services to ascertain the need for further psychiatric follow-up in the community.
21. There is an e-mail of 5 May 2010 by an official of the Home Office, who reported that it was impossible to find a space in an Immigration Removal Centre because of the number of mentally ill detainees.
22. The next report is by Dr Winton, dated 21 May 2010. That report was prepared on the instructions of the claimant's then solicitors in relation to the imminent immigration hearing. Dr Winton set out that the claimant experienced suicidal thoughts in that he saw his future as hopeless. He had a severe depressive episode with suicidal thinking, and in his view post-traumatic stress disorder was also present. There was a very high suicide risk were the claimant to be deported. In Dr Winton's view, the claimant was not fit to be detained in an open area, but needed to be on a medical wing due to his high suicide risk. He was receiving high levels of observation at present, which was absolutely necessary in his case. The claimant definitely met the criteria for sectioning under the Mental Health Act 1983, notwithstanding that Dr Winton recognised that Dr Raoof had reached the opposite conclusion:

"His release from custody would depend upon whether he is going to be eventually deported or not. If he was released from custody with the threat of deportation still present it is my opinion that he would definitely kill himself. I do not believe that his condition could be managed in the community by a local mental health team. His needs would best be met via a Mental Health Act assessment with a view to admission to a psychiatric in-patient unit under section."

Dr Winton went on to comment that knowledge of the deportation would cause the ongoing nature of the claimant's current difficulties. He would still require continuous observation and his depression would remain severe, although it would still fluctuate.

23. The final report is by Dr Sen, a consultant psychiatrist. Dr Sen prepared his report under instructions of the claimant's current solicitors. With regard to whether the best outcome for the claimant was a transfer to hospital under section 48 of the Mental Health Act, Dr Sen said that in his view the claimant did suffer an acute mental disorder. However, Dr Sen noted that a more important question would be whether the nature and degree of the claimant's disorder was sufficient to merit such a transfer. On that point his psychiatric prison team felt that the disorder and his risks could be more appropriately managed within the healthcare team, with support from psychiatrists and from close observation from staff.
24. Dr Sen recognised that a case could therefore be made "for the nature of his disorder warranting transfer to a hospital, but not necessarily the degree, as it did not reach the threshold for transfer to a psychiatric unit". There were other practical considerations for a section 48 transfer: for example, a forensic unit would be unwilling to take him because he did not pose a risk to others. On the other hand, a locked ward with a predominance of disturbed psychotic patients might not be perceived as the ideal place to provide optimum care. An open ward would be reluctant to admit him because of the security restrictions around a section 48 prison transfer:

"Thus, by default, the most appropriate place for his treatment would be the Healthcare Wing of the prison with psychiatric support."

25. With regard to release, Dr Sen commented that his strongly held view was that the claimant needed to receive continued treatment from the psychiatric services in the community. Even though his condition might be partially alleviated with the news of his succeeding on the deportation appeal, the combination of depression and PTSD, along with the high suicide risk, would merit urgent follow-up from community psychiatric services. In an addendum to his report, on being prompted by a question from his instructing solicitors, Dr Sen said that an earlier release would undoubtedly have helped the claimant's recovery, as the psychiatric team could then have explored the options for his clinical management in the community much earlier.

(d) Correspondence

26. In correspondence from early February 2010, the claimant's then immigration solicitors made representations about the claimant's detention in the light of his medical condition, including the appropriateness of detaining him in prison. They suggested that consideration should be given to his transfer under section 48 of the Mental Health Act 1948. The Secretary of State responded on 10 February 2010 that he was detained under suicide watch at the prison; that given his precarious condition, he could not be moved to an immigration removal centre; and that, although it was considered that he had committed a minor offence and was not of high risk to the public, due to his unstable condition at the present time they had to take into account the risk involved to himself were he to be released. The letter went on to record that the Secretary of State believed that the claimant was likely to abscond if released, and said that he would frustrate removal by submitting further representations. The claimant's then solicitors wrote again raising the similar points. His current solicitors wrote a pre-action letter on 10 March. In response, the Secretary of State referred to the claimant's serious suicide risk and asserted that the claimant's ongoing health status was regularly monitored while he was at prison. A letter of the Secretary of State of 26 April suggested that consideration was being given to the claimant's detention elsewhere.

Legal principles

27. At base is the Secretary of State's right to detain under Schedule 3 to the Immigration Act 1971. The principles governing the use of the immigration power of detention were established in the seminal decision of Woolf J (as he then was) in R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704; [1984] 1 All ER 983. Those principles have been re-stated by the Court of Appeal in R(I) v Secretary of State for the Home Department [2002] EWHC Civ 888, and R(A) v Secretary of State for the Home Department [2007] EWCA Civ 804. Essentially there are two core principles: that the Secretary of State must intend to remove the person and can only use the power to detain for that purpose; and that the person can only be detained for a period that is reasonable in all the circumstances.
28. The Secretary of State has adopted a policy for the exercise of the power to detain in chapter 55 of the Enforcement Instructions and Guidance. Paragraph 55.10 of the Enforcement Instructions and Guidance deals with persons normally considered unsuitable for detention, except in very exceptional circumstances. The paragraph provides that, in foreign national prisoner cases, the risk of further offending or harm to the public must be carefully weighed against the reason that the individual may be unsuitable for detention. Among those who are normally considered suitable for detention in only very exceptional circumstances, paragraph 55.10 reads "those suffering from serious medical conditions or the mentally ill".
29. In Anam v Secretary of State for Home Department [2009] EWHC 2496, I set out what I considered to be the parameters of the very exceptional circumstances test:

"51. Paragraph 55.10 provides that those mentally ill are normally considered suitable for detention in only 'very exceptional circumstances'. To my mind the existence of very exceptional circumstances demands both a quantitative and qualitative judgment. Were this provision to stand in isolation in the policy the power to detain the mentally ill could only be used infrequently, and the circumstances would have to have a quality about them which distinguished them from the circumstances where the power is frequently used. Otherwise effect would not be given to the requirement that the circumstances not simply be exceptional but very exceptional.

...

55. The upshot of all this is that although a person's mental illness means a strong presumption in favour of release will operate, there are other factors which go into the balance in a decision to detain under the policy. The phrase needs to be construed in the context of the policy providing guidance for the detention of all those liable to removal, not just foreign national prisoners. It seems to me that there is a general spectrum which near one end has those with mental illness who should be detained only in "very exceptional circumstances" along it – the average asylum seeker with a presumption of release – and near the other end has high risk terrorists who are detained on national security grounds. To be factored in, in individual cases, are matters such as the risk of further offending or public harm and the risk of absconding. When the person has been convicted of a serious offence substantial weight must be given to these factors. In effect paragraph 55.10 demands that, with mental illness, the balance of those factors has to be substantial indeed for detention to be justified."

30. In that case, I held that the claimant's detention had remained lawful, notwithstanding the Secretary of State's failure to apply the very exceptional circumstances policy. That was a case where the claimant had a history of offending, involving some 40 individual offences, and 26 convictions, including a serious robbery involving physical violence against a young woman. That claimant also had made numerous unmeritorious claims for asylum and had refused to co-operate in obtaining documentation to effect his removal. The last barriers to his removal were anticipated to disappear shortly (see paragraph 69).
31. By contrast, in T(Zimbabwe) v Secretary of State for the Home Department [2010] EWHC 688 (Admin); [2010] 13 BMLR 80, Sir Michael Harrison held that the detention of a mentally ill person was not justified because the very exceptional circumstances test was not met. That was a case where the detainee was at a low to moderate risk of absconding, and although there was a history of offending and a risk of re-offending, Sir Michael Harrison held that very compelling circumstances were not present to justify his detention, given his mental condition.
32. Where there is a failure to apply a policy such as that set out in the Enforcement Instructions and Guidance, paragraph 55.10, the detention will be unlawful in public law. A declaration to that effect can be granted. In this case that would be because a failure to take a decision to detain in accordance with the applicable policy would itself mean that detention was unlawful, a lawful decision to detain being a prerequisite to detention. The exception, however, is if the decision to detain was inevitable: R(WL (Congo)) v Secretary of State for the Home Department [2010] EWCA Civ 11; [2010] UKHRR 366, [89]; see also OM (Algeria) v Secretary of State for the Home Department [2010] EWHC 65 (Admin). That approach is consistent with orthodox public law principles that if a public authority is to contend that a breach of principles has no material impact, so that a remedy is to be denied the claimant, it must demonstrate that the same decision would still have been reached on other grounds: eg, Simplex GE Holdings v Secretary of State for the Environment [1989] 57 P&CR 306.

The Secretary of State's case

33. In her skilful and cogent arguments, Miss McGahey contended that the Secretary of State has a wide discretion under Schedule 3 of the Immigration Act 1971 when deciding whether to detain a person. The purpose behind the power to detain must take into account, inter alia, the interests of the individual whose liberty is being restricted. She cites Secretary of State for the Home Department v Mental Health Tribunal ('PH') [2002] EWCA Civ 1868 at paragraph 16, and HM v Switzerland [2002] ECHR 157, para 48.
34. In her submission, the principle contained in those cases is of more general application. There is no logical reason to remove from the Secretary of State's discretion, in her submission, the power to take into account the health and welfare of the proposed detainee. There is no reason that a person's mental health problems should not be a factor weighing in favour of detention. Paragraph 55.10 of the Enforcement Instructions and Guidance contemplates that situation by providing for the detention of those with mental illness in very exceptional circumstances. If a claimant poses a high risk of killing someone else, that risk would undoubtedly have provided the very exceptional circumstances necessary to justify his detention. Similarly, if someone else would have committed suicide if a claimant had been released, for example the victim of a rapist who is detained as a foreign national prisoner, that would constitute very exceptional circumstances justifying continued detention. In Miss McGahey's submission, the considerations must be exactly the same when the person whose life is at risk is the detainee himself. Any other view would involve a decision that a detainee's own life was of less importance than that of a third party.
35. In the facts of this case, there was no express reference in the monthly reviews and reports to paragraph 55.10 of the Enforcement Instructions and Guidance, albeit that in the first monthly report of 23 October 2009 and subsequent reports there was a reference to detention of the claimant while alternative arrangements for his care were being made. Miss McGahey also refers to the Secretary of State's consideration of the claimant's mental health in the letters to his solicitors in February and March of this year. Realistically, however, Miss McGahey conceded that the policy was not taken into account. Thus her submission proceeded as follows.
36. In terms of the policy contained in paragraph 55.10, Miss McGahey contended that the circumstances here were truly exceptional. The claimant's mental illness was such that he would have killed himself had he not been kept under constant supervision and given medical treatment. The main cause of his distress was the threat of deportation, a threat which remained real until June 2010, when the tribunal ruled in his favour. The cause of his condition would have remained equally real were he to be in the community. Dr Winton had commented that were he to be released from custody with the threat of deportation still present, he would definitely kill himself. Dr Winton added that he did not believe that his condition would be managed in the community by a local mental health team. Miss McGahey also referred to Dr McKee's report, where she wrote that there was a high risk of suicide and it would not be safe to release him straight into the community. She contended that the contrary view of Dr Albrecht was undermined by the fact that he did not have expertise in the area of mental health. Thus, in her submission, it was proper for the Secretary of State to take into account the claimant's own welfare when deciding whether to detain him and whether to continue to detain him in HMP Chelmsford.
37. Miss McGahey's submission continued that the cases cited by the claimant, such as T (Zimbabwe), did not involve persons with the same high risk of suicide as in the present case. In any event, in her submission detention was inevitable. The Secretary of State, if she had applied the policy, would have determined that the claimant's very high risk of self-harm amounted to exceptional circumstances justifying the detention. It was always apparent that the prospect of deportation was the principal cause of his attempted suicides. That prospect was very real throughout the whole period. The claimant's appeal against deportation was based on his case, ultimately accepted, that the threat of deportation was causing him such fear that he would kill himself if the threat was implemented. The claimant's own solicitors had never suggested that he be released into the community forthwith. The claimant's history of failures to report, his ability to lie and to use false documents, the consequential risk of absconding, his bad immigration history, his fabricated asylum claim, all meant that the Secretary of State's decision to detain was justified.

Discussion and conclusion

38. In my view, the Secretary of State has failed to justify the detention of the claimant in this case. Clearly the Secretary of State did not apply the policy contained in paragraph 55.10 of the Enforcement Instructions and Guidance. She did not address her mind to whether the very exceptional circumstances were present such as could justify detention pursuant to that policy. Neither the detention reviews nor the monthly progress reports make any reference to that policy until the detention report of 20 April 2010. But that detention report was drawn up in the shadow of the present judicial review and must be discounted for that reason.
39. If the policy contained in paragraph 55.10 had been applied, it is difficult to see how the claimant would not have been released. There would not have been the very exceptional circumstances to justify detention. The claimant is, firstly, mentally ill having been repeatedly diagnosed as suffering from depression and later with PTSD. He has made five attempts to commit suicide whilst in detention. Secondly, on the Secretary of State's own assessment he had committed only a minor offence, and the detention reviews recorded that he was not a high risk of harm to the public. Thirdly, although there are references in the detention reviews to the high risk of absconding, the fact is that until 2009 the claimant complied with his conditions of bail. That remained the case for some two and a half years, until March 2009. Fourthly, there is some evidence that his detention was contributing to a deterioration in his mental health, albeit that the main cause was the threat of deportation.
40. In my view, the Secretary of State's attempt to justify detention by reference to the claimant's own well-being must fail, whether as an exceptional circumstance or otherwise. The use of immigration detention to protect a person from themselves, however laudable, is an improper purpose. The purpose of the power of immigration detention, as established in Hardial Singh and subsequent authorities, is the purpose of removal. The power cannot be used to detain a person to prevent, as in this case, a person's suicide. In any event, it is unnecessary to use immigration detention for this purpose since there are alternative statutory schemes available under section 48 of the Mental Health Act 1948 or under the Mental Health Act 1983.
41. Finally, on the evidence in this case, there was nothing inevitable about the claimant's continued detention, notwithstanding the very high level of care he was receiving at HMP Chelmsford. That is perhaps most starkly illustrated by the internal documents from the Secretary of State's own officials, in particular, the e-mails dated 23 April 2010, where they conclude, following Dr Albrecht's e-mail, that continued detention of the claimant is no longer justified. Albeit that Dr Albrecht was not a mental health expert, his opinion was a powerful recognition that detention in prison was not the only course open for the claimant's treatment.
42. All the medical experts bar Dr Winton contemplated the claimant's move from prison to other forms of care. (It will be recalled that Dr Winton took the view that the claimant would commit suicide if released.) While Dr McKee did not think it safe to release the claimant into the community, she thought that if he were to be released from custody, transferring him to an NHS facility under the Mental Health Act 1948 was the most appropriate course to take. Dr Raoof, the treating psychiatrist for the local Primary Care Trust in Chelmsford, opined that the claimant could be transferred to an Immigration Removal Centre or into the community, under strict conditions. Dr Sen canvassed the difficulties of a transfer to a hospital under section 48 of the Mental Health Act. Treatment in prison, in his view, was the most appropriate place only by default. In my view, the overall thrust of this evidence did not make the detention of this claimant inevitable.
43. On this basis, I find that the claimant's detention at HMP Chelmsford has been unlawful. I am prepared to make the appropriate declaration.
44. MR BULEY: My Lord, I am very grateful to your Lordship, and for your Lordship ploughing on in the face of the threat of fire. My Lord, I should just apologise for not being here at the start of the judgment.
45. MR JUSTICE CRANSTON: Do not worry. Anything further?
46. MR BULEY: My Lord, very briefly, to run through what I would suggest is the appropriate disposal, if your Lordship is content for me to do so --
47. MR JUSTICE CRANSTON: It will have to be very quickly, someone else wants the court.
48. MR BULEY: Certainly, my Lord. I invite your Lordship to make an appropriate declaration as to detention being unlawful from reception. We would suggest -- I have not had a chance to discuss this with my learned friend -- that there be a stay for a period of negotiation. Following expiry of that stay, the claim can be transferred to the QBD for an assessment of damages. We would want our costs and the ordinary legal aid assessment of costs.
49. MR JUSTICE CRANSTON: All of that is fine. Can you talk to Mr White and draw up an appropriate order?
50. MR BULEY: We will draw up an order.
51. MR WHITE: My Lord, we are content with what my learned friend suggests. I will speak to him and we will try and draw something up.
52. MR JUSTICE CRANSTON: The associate is asking whether you could do this before you leave court? Do it in manuscript and give it to him.
53. MR BULEY: We will do so.