FOURTH SECTION
Application no. 49734/12
V.M.
against the United Kingdom
lodged on 6 August 2012
STATEMENT OF FACTS

The applicant, Ms V.M., is a Nigerian national, who was born in 1977 and lives in West Drayton. She is represented before the Court by Mr S. Vnuk of Lawrence Lupin Solicitors, a firm of solicitors practising in Wembley.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1.  The factual background
On 18 November 2003 the applicant and her son (“S”), who was born on 13 July 2000, entered the United Kingdom illegally. On 22 November 2003 S was admitted to hospital with serious injuries. The applicant was subsequently charged with child cruelty.
On 29 January 2004 the applicant claimed asylum on the basis that if returned to Nigeria she would be killed by the wife of a man who she alleged had sexually assaulted her. Her application was rejected by the Secretary of State for the Home Department on 26 April 2004.
On 25 May 2004 the applicant was diagnosed with a psychotic illness and detained in hospital for one week.
In July 2004 the Asylum and Immigration Tribunal dismissed the applicant’s appeal against the refusal of her asylum claim on asylum and human rights grounds, finding, inter alia, that she was not a credible witness.
On 24 August 2004 the applicant pleaded guilty to one count of child cruelty. She was granted bail pending a further hearing set for 7 February 2005. She then absconded for a period of over two years.
During this period care proceedings were initiated in respect of S. In March 2005 a residence order was made in favour of S’s father and the child was returned to Nigeria.
On 14 July 2005 the applicant gave birth to her second child (“M”), who had a different father to S.
On 26 September 2007 the applicant was arrested and charged with possession of false documentation with intent to commit fraud. She was convicted and on 12 December 2007 she was sentenced to nine months’ imprisonment.
Before sentencing the applicant for the offence of child cruelty, the Crown Court asked Dr Olajubu, a specialist registrar in forensic psychiatry, to produce a report. The report, which was dated 29 May 2008, indicated that the applicant suffered from a recurrent depressive disorder and emotionally unstable personality disorder. However, these conditions were not considered to fulfil the criteria for treatment under the Mental Health Act 1983 (“the 1983 Act”).
On 21 July 2008 the applicant was sentenced to twelve months’ imprisonment for the offence of child cruelty. She also pleaded guilty to the offence of failure to surrender to bail and was sentenced to three months’ imprisonment, to be served concurrently. The judge recommended deportation in view of the seriousness of the offences.
2.  The applicant’s immigration detention
On 5 August 2008 the United Kingdom Border Agency decided to deport the applicant. She therefore remained in detention under immigration powers when her criminal sentence ended on 8 August 2008.
On 12 August 2008 the applicant appealed against the decision to deport her. In her notice of appeal she reiterated that she was at risk of being killed and that she had no family connections in Nigeria. As M had been taken into the care of the local authority and was the subject of care proceedings, she also claimed a right to remain in the United Kingdom until those proceedings had concluded. On 4 December 2008 the Asylum and Immigration Tribunal allowed her appeal under Article 8 but only to the extent that while care proceedings in respect of M were ongoing it would not be proportionate to deport her.
The applicant was refused bail on 12 January 2009 and again on 17 March 2009 on the ground that due to her mental health condition her detention was necessary for the protection of herself and others.
On 30 April 2009 Professor Katona, a medical expert, made the first of a series of reports. He agreed with the diagnosis of Dr Olajubu and disagreed with the findings of the immigration judges who had refused bail on the ground that the applicant was “better off” in detention. His opinion was that her health was likely to deteriorate in response to continued detention. He further concluded that she was not suitable for treatment under the 1983 Act.
On 19 June 2009 the applicant made representations requesting that the decision to deport be reversed or, alternatively, that the representations be treated as a fresh asylum claim pursuant to the relevant immigration rules. In these representations the applicant claimed that she faced a real risk of treatment contrary to Articles 3 and 8 of the Convention if she were deported to Nigeria due to her mental health status and the poor standard of treatment facilities in the destination country. Additionally, the applicant claimed that her family life with M would be irrevocably disrupted.
On 25 June 2009 a judge in the Family Court made a care and placement order in respect of M. In concluding that the threshold criteria were met, he stated that:
“I am satisfied the evidence supports a finding of likelihood, that is to say a real possibility, of harm to [M], founded on [S’s] grave injuries; the previous court’s findings in respect of those; the mother’s mental history; her plea to a seriously abusive offence against [S]; her absenting herself from the care and the criminal processes; the social and practical vulnerability produced by the parties’ lack of immigration status; and their criminal offending, with its practical consequences for their availability to [M]. I am satisfied the matters I have outlined placed [M], at the relevant time, at significant risk of physical and emotional harm.”
On 14 December 2009 the Secretary of State refused to treat the applicant’s representations as a fresh claim for asylum. Further similar representations led to a further decision on 26 April 2010 in which the Secretary of State maintained that the conditions for a fresh claim were not met.
By 21 September 2009 the applicant’s condition had deteriorated considerably and it was thought that she would benefit from hospital treatment. Consequently Professor Katona recommended transfer under section 48 of the 1983 Act on the ground that the deterioration was due to her detention.
On 10 October 2009 Professor Katona’s opinion was that the applicant had significantly deteriorated to the extent that she was no longer able to conduct proceedings and that she should be transferred to a hospital under section 48 of the 1983 Act.
The applicant was not transferred to hospital.
On 16 December 2009 the applicant was granted permission to apply for judicial review of the refusal to treat her representations as a fresh claim for asylum. She was represented in these proceedings by the Official Solicitor as she lacked capacity to conduct the litigation on her own behalf.
In or around February 2010 the applicant was admitted to hospital after attempting suicide.
Around this time Professor Katona examined the applicant once more and produced a report dated 1 March 2010. He again noted her deterioration due to her continued detention and expressed his view that she should be transferred to hospital under section 48 of the 1983 Act.
While the applicant was in hospital she was examined by a nurse who considered that her health problems could not adequately be met in Yarl’s Wood Immigration Removal Centre. She assessed the applicant’s risk of harming children as grade three on a scale of zero to three. She was also at a risk of suicide, deliberate self-harm and other offending behaviour at grade two. This gave the applicant a summary risk to herself of two and to others of three.
On 15 March 2010 Dr Ratnayake, a consultant psychiatrist, examined the applicant and concluded that her needs could be met at Yarl’s Wood as she would be under constant observation there. He believed that hospital admission would not provide management different to that.
The applicant was accordingly discharged back to Yarl’s Wood.
On 23 March 2010 Professor Katona considered Dr Ratnayake’s report along with other materials. He pointed out that the opinion of Dr Ratnayake as to the best and most appropriate place for constant supervision was disputed by other medical professionals responsible for her care, who had recommended psychological intervention in a secure in-patient setting.
On 13 August 2010 the applicant’s judicial review application was dismissed by a High Court judge, who found that while the Secretary of State had failed to take into account paragraph 55.10 of her own policy, Enforcement Instructions and Guidance (see below), when considering the justification for the applicant’s detention between 8 August 2008 and 28 April 2010 (“the first period of detention”), that failure had not caused any damage since the decision to detain would have been the same even had the policy been correctly considered and applied. The judge therefore dismissed the claim for false imprisonment.
The judge found that the policy had been taken into account from 29 April 2010 up to the date of the hearing on 22 July 2010 (“the second period of detention”). He therefore found that continuing detention was lawful during this second period. The judge also rejected submissions that the period of detention had become unreasonable and unlawful under the principles set out in R v. Governor of Durham Prison, ex parte Hardial Singh [1974] 1 WLR 704 (“the Hardial Singh principles”) (see below).
With regard to the Secretary of State’s refusal to accept the applicant’s representations as a fresh claim, the judge found that the further representations were not “significantly different” from material that had already been considered. Further, and in any event, the judge found that there was no Article 3 issue within the meaning of N. v. the United Kingdom [GC], no. 26565/05, ECHR 2008 and that any interference with the applicant’s rights under Article 8 § 1 was justified under subparagraph 2.
The applicant appealed to the Court of Appeal. Permission was granted in light of the recent judgment of the Supreme Court in R (Walumba Lumba and Kadian Mighty) v. Secretary of State for the Home Department [2011] UKSC 12 (“Lumba and Mighty”) (see below), in which the application by the Secretary of State of a “secret policy” in respect of immigration detention was held to be unlawful in violation of public law principles.
On 6 July 2011, shortly before the Court of Appeal hearing, the applicant was released on bail by the Asylum and Immigration Tribunal.
At the court hearing, the Secretary of State conceded that following the decision of the Supreme Court in Lumba and Mighty the applicant’s detention between 8 August 2008 and 28 April 2010 had been unlawful. Therefore, on 28 July 2011 the Court of Appeal allowed the applicant’s appeal against the High Court’s judgment. However, as the Secretary of State had continued to detain the applicant after the relevant policy had been taken into account (from 29 April 2010 onwards), the court was satisfied that she would have been detained during the earlier period even if the policy had been taken into account. Moreover, having considered all the evidence in the case the court concluded that it had been open to a reasonable decision-maker to detain the applicant in all the circumstances of the case. It therefore concluded that not only would the applicant have been detained during this period, but that she could have been detained lawfully. Consequently, the court awarded the applicant nominal damages of GBP 1.
Finally, the court found that there had been no breach of the Hardial Singh principles in relation to the applicant’s detention from 8 August 2008 to 22 July 2010 and that there was no issue under Articles 3 or 8 of the Convention.
Permission to appeal was refused by the Supreme Court on 7 February 2012.
3.  M
By the end of July 2010 contact between the applicant and M had been limited to two hours every two months with a view to further reduction and the prospect of a goodbye meeting once the applicant was deported or M adopted. However, the Local Authority subsequently agreed not to proceed with adoption and instead opted for long-term fostering for M. The applicant had her first contact with M in July 2012 and the Authority have agreed to further contact every three months.
B.  Relevant domestic law and practice
1.  Detention pending deportation
The power to detain a person against whom a decision has been taken to make a deportation order is contained in Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (“the 1971 Act”), which provides:
“Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order.”
The power to detain an individual in respect of whom a deportation order is in force is contained in Paragraph 2(3) of Schedule 3 to the 1971 Act. It provides:
“Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub-paragraph (1) or (2) above when the order is made, shall continue to be detained unless [he is released on bail or] the Secretary of State directs otherwise).”
There are, however, limitations on the power to detain. Four distinct principles emerge from the guidance given in R v Governor of Durham Prison, ex parte Hardial Singh [1984] WLR 704:
“i. The Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
ii. The deportee may only be detained for a period that is reasonable in all the circumstances;
iii. If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention;
iv. The Secretary of State should act with reasonable diligence and expedition to effect removal.”
In the case of R (Walumba Lumba and Kadian Mighty) v. Secretary of State for the Home Department [2011] UKSC 12 (“Lumba and Mighty”), the Supreme Court briefly considered the Hardial Singh principles. In his leading judgment, which was accepted by the majority of the court, Lord Dyson found that in assessing the reasonableness of the length of the period of detention, the risk of re-offending would be a relevant factor. In this regard, he noted that if a person re-offended, there was a risk that he would abscond either to evade arrest or, if he was arrested and prosecuted, that he would receive a custodial sentence. Either way, his re-offending would impede his deportation. He also considered that the pursuit of legal challenges by the Foreign National Prisoner could be relevant. However, he considered the weight to be given to the time spent on appeals to be fact‑sensitive. In this regard, he noted that much more weight should be given to detention during a period when the detained person was pursuing a meritorious appeal than to detention during a period when he was pursuing a hopeless one.
Lord Dyson further noted that while it was common ground that the refusal to return voluntarily was relevant to the assessment of the reasonableness of the period of detention because a risk of absconding could be inferred from the refusal, he warned against the danger of drawing such an inference in every case. On the contrary, he considered it necessary to distinguish between cases where the return to the country of origin was possible and cases where it was not. Where return was not possible for reasons extraneous to the person detained, the fact that he was not willing to return voluntarily could not be held against him since his refusal had no causal effect. If return was possible, but the detained person was not willing to go, it would be necessary to consider whether or not he had issued proceedings challenging his deportation. If he had done so, it would be entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings, unless they were an abuse of process, and his refusal to return voluntarily would be irrelevant. If there were no outstanding legal challenges, the refusal to return voluntarily should not be seen as a trump card which enabled the Secretary of State to continue to detain until deportation could be effected, otherwise the refusal would justify as reasonable any period of detention, however long.
2.  The Secretary of State’s policy concerning mentally ill immigration detainees
The Secretary of State for the Home Department’s policy publication, Enforcement Instructions and Guidance, contains specific regulations pertaining to the use of immigration detention. The Guidance provides that, in general terms, there is a presumption in favour of temporary admission or release and that, wherever possible, alternatives to detention should be used.
This presumption is qualified in paragraph 55.1.2 by the “risk that ... a person will abscond” or otherwise pose a risk to the public. In such circumstances the presumption in favour of release can be displaced after a global assessment of “the need to detain in the light of the risk of re‑offending and/or risk of absconding.”
A further qualification is contained within paragraph 55.10 of the Guidance which lists cases in which detention may be unsuitable for certain individuals. In particular the policy provides:
“The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
-   those suffering from serious medical conditions or the mentally ill....”
The effect of paragraph 55.10 was subsequently qualified in that the words “which cannot be satisfactorily managed in detention” were added with effect from 25 August 2010.
The High Court in R (Anam) v Secretary of State for the Home Department [2009] EWHC 2496 (Admin) gave advice on the interpretation and application of paragraph 55.10 of the Guidance:
“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.”
This interpretation was subsequently approved on appeal in the same case ([2010] EWCA Civ 1140 (Black LJ) at paragraph 81).
3.  R (Walumba Lumba and Kadian Mighty) v. Secretary of State for the Home Department [2011] UKSC 12
In the case of Lumba and Mighty the Supreme Court was called upon to consider the lawfulness of detention which was effected pursuant to the unpublished policy which was inconsistent with the Secretary of State’s published policy. The applicants in that case were foreign national prisoners detained pursuant to the “secret” policy creating a presumption in favour of detention pending deportation, while at all material times the published policy (see above) indicated that there was a presumption in favour of release. The question of whether the applicants were lawfully detained divided the court, which concluded, by a narrow margin, that the unpublished policy applied to the applicants was unlawful. As a consequence, they were unlawfully detained and their claims for false imprisonment had to succeed. However, as the court found that the power to detain would have been exercised even if the lawful, published policy had been applied, it concluded – once again by a narrow majority – that the applicants should receive only nominal damages.
Lord Phillips, Lord Brown and Lord Roger dissented, preferring to find that the applicants’ detention was not unlawful because they would have been detained even if the published policy had been applied.
COMPLAINTS
The applicant complains that her detention violated Article 5 in that it failed to comply with the requirements of domestic law, that is, that it was contrary to the Hardial Singh principles; it failed to comply with public law principles by being contrary to published policy and unnecessary in the circumstances of the case; it was arbitrary and disproportionate in the circumstances of the case; there was a lack of due diligence in pursuing deportation action; and there was no finite or clear period set at which detention would cease in this case. Insofar as the domestic courts found that her detention between 8 August 2008 and 28 April 2010 was unlawful, she submits that she did not obtain an effective remedy because she was awarded only nominal damages.
The applicant complains under Article 3 of the Convention that her detention exacerbated her mental illness. She further complains under Article 8 that it had an adverse impact on her personal autonomy and her moral and physical integrity.
Finally, the applicant complains that her detention inhibited her ability to develop and enjoy a family life with her child, M.
QUESTIONS TO THE PARTIES

1.  Can the applicant be said still to be a victim of a violation of Article 5 § 1 of the Convention following the judgment of the Court of Appeal? In particular, did the Court of Appeal’s award of nominal damages for the period of detention between 8 August 2008 and 28 April 2010 constitute adequate compensation for the purposes of Article 5 § 5 of the Convention? Alternatively, did the applicant have an effective remedy as required by Article 13 of the Convention in respect of the breach of Article 5 §1?

2.  Was the applicant “lawfully” detained throughout the period between 29 April 2010 and 22 July 2010 as “a person against whom action was being taken with a view to deportation”, notably in light of her mental health and the length of the preceding period spent by her in detention?

3.  Did the domestic legal regime of administrative detention lack the “quality of law” required by Article 5? In particular, did the lack of any time-limits on administrative detention, taken alone or in conjunction with the lack of any automatic judicial oversight of such detention, violate Article 5 in this sense?