FOURTH SECTION
Application no. 77450/12
S.M.M.
against the United Kingdom
lodged on 24 November 2012
The applicant, S.M.M., is a Zimbabwean national who was born in Zimbabwe in 1982 and currently lives in Wembley.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom in May 2001 and was granted six months’ leave to enter as a visitor.
In or around 2003 he began suffering from a mental illness which led to his hearing voices in his head and at least two suicide attempts.
In 2004 and 2005 the applicant was convicted of a number of driving offences, including driving otherwise than in accordance with a licence, using a vehicle while uninsured, and driving whist disqualified. He was also convicted of resisting or obstructing a police officer and failing to surrender to custody. No custodial sentence was passed.
On 18 April 2005 the applicant made an application for asylum. However, the application was refused on 22 June 2005 on non-compliance grounds as the applicant had failed to attend his substantive asylum interview. Notice of this decision was served on the applicant on 27 June 2005. On the same day, he was served with notice of liability to removal as an overstayer.
The applicant did not appeal against this decision. When he subsequently failed to comply with his reporting conditions he was treated as an absconder.
On 13 August 2007 he was convicted of possessing Class A drugs with intent to supply and sentenced to three years’ imprisonment. He did not appeal against conviction or sentence.
While serving his sentence the applicant was prescribed a variety of anti‑psychotic drugs. This was the first time he had received any treatment for his mental illness as he had previously declined to engage with psychiatrists and other health care professionals.
The applicant made a second asylum application on 27 March 2008. In doing so, he described two violent incidents he had experienced in Zimbabwe: first, he claimed that in 2000 he had been attacked by Zanu-PF supporters with knives, sticks and sandbags while protesting about gay rights; and secondly, he claimed that later that same year he had been arrested for demonstrating and beaten on his back and the soles of his feet while detained at a police station.
On 14 November 2008 the applicant was served with a notice of liability to automatic deportation. As a consequence, when he completed his sentence on 28 November 2008 he remained in detention under the Secretary of State for the Home Department’s immigration powers.
In February 2009 the applicant was sectioned for six days after his mental health deteriorated significantly.
On 28 June 2010 the applicant’s representatives wrote to the Secretary of State. The letter stated that his detention was unlawful and that he should be released. The representatives sent a second letter to the Secretary of State on 8 July 2010, in which they again requested that the applicant be released due to his medical conditions and pursuant to the Secretary of State’s policy on not detaining mentally ill persons.
The Secretary of State replied to these letters on 12 July 2010 in the following terms:
“The Secretary of State, having considered the particulars of your client’s case, is satisfied that the presumption in favour of release is outweighed by the seriousness of the offence, risk of harm to the public, and risk of absconding and that your client’s detention is justified and lawful.
It has been decided that your client should be detained because:
•	Your client is likely to abscond if given temporary admission or release.
•	Your client does not have close enough ties (e.g. family or friends) to make it likely that he will stay in one place.
•	Your client has previously failed to comply with conditions of his stay, temporary admission or release.
•	Your client has previously absconded.
•	Your client has used or attempted to use deception in a way that leads us to consider he may continue to deceive.
•	Your client has not produced satisfactory evidence of his identity, nationality, or lawful basis to be in the United Kingdom.
•	Your client has previously failed or refused to leave the United Kingdom when required to do so.
•	It is conducive to the public good for your client to be detained.”
On 28 August 2010 the applicant was examined by Dr Helen Salisbury and her expert report, dated 3 October 2010, was served on the Secretary of State in December 2010.
Dr Salisbury noted that the applicant had a number of scars which accorded with his description of the first assault by supporters of Zanu-PF. She also noted that he had a clear history of a psychotic illness which was characterised by many first-rank symptoms of schizophrenia. He was being treated but still experienced some symptoms, including auditory hallucinations and ideas of reference. In addition, he had symptoms of post‑traumatic stress disorder, including poor sleep, nightmares, intrusive daytime thoughts, and physical symptoms of fear, hopelessness and isolation.
On 14 January 2011 the applicant submitted his application for permission to apply for judicial review, in which he challenged his continuing detention on the grounds that it was contrary to the Secretary of State’s published policy on the detention of persons suffering from serious mental illness (“the mental health concession”); that it was contrary to the Secretary of State’s published policy on the detention of persons who had been victims of torture (“the torture concession”); and that it was contrary to the principles set down in R v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (“the Hardial Singh principles”), which are set out in full below. The applicant also claimed damages for unlawful detention.
On 8 February 2011 the Secretary of State refused the applicant’s second asylum claim and made a deportation order pursuant to section 32(5) of the United Kingdom Borders Act 2007. The applicant’s appeal was dismissed on 6 April 2011.
On 3 June 2011 the applicant was refused permission to apply for judicial review on the papers by Mr Justice Calvert-Smith. In refusing permission, he observed that the mental health concession only applied where the detainee was suffering from a serious mental illness which could not be satisfactorily managed within detention. As a consequence, he concluded that the applicant’s condition fell short of the severity required. In any case, he noted that
“there is no sign that the defendant has failed to have regard to the mental health policy and she has to apply the policy with regard to other factors such as risk of absconsion and harm to the public.”
With regard to the torture concession, the judge noted that alleged torture which had happened some eleven years previously and which was said to be the cause or part cause of the mental illness the claimant was suffering from could have no bearing on the reasonableness or otherwise of the current detention. Finally, he found that the Hardial Singh principles were not infringed because there was a real risk of the applicant absconding and/or reoffending, and there had been no lack of expedition on the part of the defendant.
The applicant was released from detention on 15 September 2011 after being granted bail by the Upper Tribunal.
The following day the applicant’s appeal against the decision of 6 April 2011 was dismissed.
On 26 October 2011 the applicant was refused permission to apply for judicial review by Mr Justice Ouseley at a renewed hearing. In the renewed application, the applicant had contended that his detention became unlawful on 28 June 2010, when the pre-action letter was sent to the Secretary of State. However, Mr Justice Ouseley rejected that claim and found that the applicant had no arguable case. In particular, he noted that there was no evidence to suggest that his mental illness could not satisfactorily be managed in detention; that there was no independent evidence that he had been tortured because his scarring was only consistent with an assault by Zanu-PF supporters which did not amount to torture, and there was no scarring consistent with his allegations of ill-treatment at the police station; and finally, that there was nothing to indicate the applicant’s prospects of removal at the relevant time were nil or that efforts did not take place to effect his removal.
On 22 February 2012 the Court of Appeal, Civil Division refused the applicant’s application for permission to appeal the decision to refuse permission to claim for judicial review, finding that the judge’s reasoning had been correct on every point. There was no independent evidence of torture and the fact that the mental health concession had been clarified on 26 August 2010 to refer to satisfactory management in detention did not mean that the position was otherwise before that date.
On 28 April 2012 the Secretary of State agreed that the decision of 8 February 2011 refusing the applicant’s asylum claim was flawed and that the case should be remitted to the Upper Tribunal. A consent order was sealed by the court on 14 May 2012.
On 24 May 2012 the Court of Appeal confirmed the decision to refuse the applicant’s application for permission to appeal the decision of 22 February 2012 after the application was renewed at an oral hearing.
Removals to Zimbabwe during the relevant period
In RN (Returnees) Zimbabwe CG [2008] UKAIT 00083 the Asylum and Immigration Tribunal indicated that those at risk on return to Zimbabwe were not simply those who were seen to be supporters of the Movement for Democratic Change but anyone who could not demonstrate positive support for Zanu-PF or alignment with the regime.
Although there had been voluntary removals in 2007, 2008, 2009 and 2010, prior to 14 October 2010 there was a moratorium on enforced removals to Zimbabwe.
On 14 October 2010 the policy changed, but it remained a policy in suspense pending the decision of the Upper Tribunal in the case of EM (Zimbabwe) CG [2011] UKUT 98 (IAC). This judgment, which was promulgated on 11 March 2011, found that there had been a well‑established and durable change for the better in Zimbabwe since the guidance in RN. On 18 June 2012 the Court of Appeal allowed the applicant’s appeal against this decision and remitted the case to the Tribunal. On 31 January 2013 the Tribunal reconsidered the case and re‑stated the country guidance given in EM.
B.  Relevant domestic law and practice
1.  United Kingdom Border and Immigration Authority’s Enforcement Instructions and Guidance
Chapter 55.10 of the United Kingdom Border and Immigration Authority’s Enforcement Instructions and Guidance provides that
“Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
In CCD cases, the risk of further offending or harm to the public must be carefully weighed against the reason why the individual may be unsuitable for detention. There may be cases where the risk of harm to the public is such that it outweighs factors that would otherwise normally indicate that a person was unsuitable for detention.
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 mental illness which cannot be satisfactorily managed within detention (in Criminal Casework Directorate cases, please contact the specialist Mentally Disordered Offender Team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act;
•	those where there is independent evidence that they have been tortured;
... ... ...”
The wording of the mental health concession changed on 26 August 2010. Prior to this date, the concession read
“those suffering from serious medical conditions or the mentally ill – in Criminal Casework Directorate cases, please contact the specialist Mentally Disordered Offender Team.”
2.  The Hardial Singh principles
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 Walumba Lumba and Kadian Mighty v. Secretary of State for the Home Department [2011] UKSC 12, 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.
3.  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 also called upon to consider the lawfulness of detention which was effected pursuant to an 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 a “secret” policy creating a presumption in favour of detention pending deportation, while at all material times the published policy 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 civil claims in 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.
COMPLAINT
The applicant complains under Article 5 § 1 of the Convention that his detention from 28 November 2008 until 15 September 2011 was unlawful because the Secretary of State for the Home Department failed to apply the torture concession; he failed to apply the mental health concession; and failed to follow the Hardial Singh principles.
QUESTIONS TO THE PARTIES
1.  Was the applicant detained throughout the period between 28 November 2008 and 11 September 2011 as “a person against whom action [was] being taken with a view to deportation” within the meaning of paragraph (f) of Article 5 § 1 of the Convention?

2.  Did the domestic legal regime of administrative detention applied to the applicant satisfy the requirements inherent in Article 5 § 1 as to the quality of the national law authorising such detention? In particular, did the lack of any time limits on administrative detention, taken alone or in conjunction with the absence of any automatic judicial oversight of such detention, violate the requirement of “lawful” detention under Article 5 § 1 in this sense?