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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 >> HA, R (on the application of) v The Secretary of State for the Home Department [2017] EWHC 117 (Admin) (30 January 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/117.html Cite as: [2017] EWHC 117 (Admin)

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/01/2017

Mr Peter Marquand :

Introduction

1. The Claimant is a national of Sri Lanka. There are two broad aspects to the claim that is being brought on his behalf. First, that having made an asylum claim and exhausted all of his rights to appeal, a subsequent claim for asylum should have been treated as a fresh asylum claim by the Defendant. Secondly, separately from the first issue, it is alleged that the Claimant has been unlawfully detained by the Defendant for a period of about seven months.

Facts

2. The Claimant is of Tamil ethnicity and was born in 1976 in Sri Lanka. The Claimant was arrested and detained in Sri Lanka at some time in November and December 1996 on suspicion of involvement with the Liberation Tigers of Tamil Eelam (LTTE). From 1983 until 2009 there was ongoing conflict in Sri Lanka between the LTTE and the Sri Lankan government, as is widely known. At some time in 1997 the Claimant arrived in the United Kingdom and claimed asylum on 4 February 1997. That asylum claim was refused, it seems on the basis that the Claimant had been held for relatively short periods of time and released without charge by the Sri Lankan authorities. The Claimant made fresh representations over his asylum claim (the rules about fresh asylum claims are set out in the rest of this Judgment but were different in 1997) although this was withdrawn. A further application was made in October 1997 but not determined.
3. The Claimant is said to use something in the region of 17 aliases. The Claimant's representatives say that some of these may be misspellings. The Claimant does have an extensive criminal record and I have been provided with a printout from the Police National Computer (PNC). The first offence is recorded on 28 August 1998 and the recorded last offence is on 15 March 2011. There are 37 offences in total which have resulted, in total, in sentences amounting to 35 months imprisonment. The offences range from possessing an offensive weapon in a public place, obtaining property by deception, using a vehicle whilst uninsured, possession of cannabis and obtaining property and services by deception. I will return to particular relevant offences below.
4. During 2001 the Claimant married a British citizen and his representatives submitted further representations to the Defendant on 29 August 2008 relating to his article 8 rights (right to a family life). However, in August 2009 the Claimant separated from his wife. The Claimant was on temporary admission to the United Kingdom subject to restrictions, in particular an obligation to report on a regular basis to a police station. There is a dispute between the parties on the extent of the Claimant's compliance with this obligation. I will deal with this below.
5. In the early part of 2012 the Claimant was admitted to hospital and diagnosed with acute cardiac failure secondary to atrial fibrillation. This fibrillation had been caused by an over active thyroid gland and the Claimant remained in hospital for approximately 4 weeks to receive treatment. It is necessary for the Claimant to continue to receive treatment for these conditions.
6. On 30 April 2012 the Defendant refused the Claimant's further representations for an asylum claim and a claim based on article 8. That decision was not actually served on the Claimant until 13 July 2012. On this date the Defendant arrested the Claimant to effect an interview at the Sri Lankan High Commission. The Claimant was transferred to an immigration removal centre and on 14 July 2012 he was examined by a general medical practitioner, Dr Jabbar. Dr Jabbar completed the relevant form and notified the Defendant that, in his opinion, the Claimant was 'not fit for detention'.
7. The Defendant raised a number of questions with the doctor about that conclusion including whether that meant that the Claimant should be admitted to hospital and the need for a second opinion. After a number of discussions Dr Jabbar agreed to a reassessment by another medical practitioner and on 17 July 2012 Dr Mehta assessed the Claimant as fit to fly and fit to be detained. An e-mail of 17 July records the conversation between Dr Jabbar and Dr Mehta with their joint conclusion that the Claimant was fit to be detained and fit to fly. It includes the following:

"They have obtained further information from his GP and following 72 hours in detention they have no reason to be concerned with his current medical state. Dr Jabbar was initially unaware of the reasons for detention but having since been advised was able to make a more informed and rounded decision.

He advised that [the Claimant] is fully aware of his medical condition and is accepting of it. He is coping well with his current environment, is of stable mental health and is not stressed.

Neither seem to think a referral for a second opinion is necessary."

The Claimant remained in detention.

8. On 26 July 2012 the Claimant's then solicitors requested his temporary release from detention and this was rejected by the Defendant on 2 August on the basis that the Claimant's removal to Sri Lanka was imminent and that he had previously failed to adhere to his conditions. On 8 August the Sri Lankan High Commission agreed to issue the Claimant with travel documents and on 13 August the Defendant decided to reconsider her decision of 30 April 2012. On 16 August 2012 the Defendant refused the Claimant's further representations but recognised his right to appeal on human rights grounds. The Claimant appealed his proposed removal on the basis that it would be contrary to article 3 and 8 of the European Convention on Human Rights and a breach of the Refugee Convention. His appeal was lodged on 23 August 2012.
9. On 17 August 2012 the Claimant's Physical Care Records state that the Claimant refused to have a blood test and that 'he needs to sort out his papers with immigration first before he give (sic) blood. Explained to him about the importance of having INR test…' Another entry on the same day timed at 21:00 hours records '[The Claimant] informed me that he is not going to be compliant with all treatment until UKBA has listened to him. He also stated that he is going on hunger strike which he has commenced today. I pointed out the dangers to his non-compliance. I also advised him to discuss the issues with his solicitor and UKBA…' On 18 August 2012, following an assessment by Dr Jabbar, the Claimant was taken to hospital, although he returned on the same day. The 'Physical Care Records' for 18 August at 21.05 hours include a note recording that the Claimant had said: 'I am protesting against UKBA and I am ready to die'. Notwithstanding these events, the Defendant's decision was to continue detention.
10. On 19 August 2012 Dr Jabbar provided a form to the Defendant having assessed the Claimant and recorded that he was 'unfit for detention'. The physical care records indicate that the Claimant had to be escorted by staff in riot gear to seclusion. On 20 August an e-mail requested confirmation that the Defendant was to be kept in detention and the decision of the Defendant was that detention was to be maintained. The Case Record Sheet (CID notes) for 24 August record, amongst other matters that the Claimant was refusing all medication and food as a means to be released from detention. It was also recorded that he was making threats towards staff members and inciting other residents, although it is also recorded that the Claimant denied this. A further note on that day records the medical concerns and doctors concerns that the Claimant might die if detention was maintained. The Claimant had been asked to sign a medical disclaimer but did not do so initially, however, a third note records that the medical disclaimer was signed 'confirming the subject is refusing medical treatment and that he fully understands the consequences of refusing such treatment'. The Claimant was placed under close supervision. The records for 21 August 2012 show that consideration was being given to the Claimant's continued detention and that he was awaiting movement into a healthcare bed. One of the records includes 'the onus remains on [the Claimant] to take his medication'.
11. On 23 August 2012 Dr Jabbar again informed the Defendant that the Claimant was unfit to be detained in his opinion and that he had not been taken to two important outpatient appointments. The Defendant was also informed by Dr Jabbar that the Claimant's physical state was stable and that he had been complying with treatment for the last few days. The decision was therefore made to maintain his detention. It seems for the following period the Claimant took his medication and on 29 August 2012 Dr Jabbar faxed the Defendant stating that the Claimant was 'fit to be detained' and 'complied with his treatment'. However, by 31 August 2012 the Claimant again refused to take the recommended dose of his medication. Between this stage and 10 September 2012 the Claimant did not take the required dose of his medication despite medical advice to do so and the Defendant maintained his detention having considered the medical opinions, although a second opinion had been requested. On 11 September it is recorded that the Claimant was cooperating and they hoped he would agree to have blood tests done. On 11 September 2012 the Defendant responded to a letter dated 24 August from the Claimant's then representatives asking for a temporary release. The Defendant refused that request. Part of that letter is as follows:

"Your client has stated that he is refusing medication in order to secure temporary release. Your client is alternating between medication refusal and medication compliance and as such his fitness for detention fluctuates. Your client has no entitlement to ongoing treatment outside the confines of the detention centre. Your client appears to lack insight into his condition; the United Kingdom Border Agency has a duty of care towards all detainees and at present that duty of care appears to be best met by maintaining your client's detention.

Your client utilised deception to enter the UK. Your client has committed several criminal offences and has served several custodial sentences. Your client has previously failed to adhere to the conditions of his temporary release. Your client has failed to leave the UK when required to do so. Your client has no incentive to comply with any conditions of temporary release. In light of all the above circumstances I am not prepared to grant your client temporary release at this point in time…"

12. On 13 September 2012 a doctor provided a second opinion and stated that the Claimant would be fit to be detained 'provided his medical issues… are in stable state' and fit to fly if his INR [a measure of blood clotting] was in range and his thyroid status was stable. He recommended cardiology and endocrinology opinions. The Claimant attended such appointments on the 25 and 27 of September respectively. However during this time the Claimant's compliance with medication and his eating seems to have been variable. During October the situation remained the same with the Claimant refusing, on occasion, to see a doctor. There are also records of him being 'verbally loud and aggressive'.
13. On 26 September 2012 the Claimant's appeal hearing was listed but he arrived too late and so the hearing had to be adjourned. At the adjourned hearing on 8 October 2012 the case was again adjourned, but on this occasion due to lack of court time.
14. Throughout October the same pattern of behaviour continued for the Claimant with refusals to take medication and see medical staff on occasion. It seems the Claimant was seen by a consultant cardiac electrophysiologist on 16 October at the Hillingdon Hospital and recommendations for treatment were made. No arrangements were made for follow up at the hospital.
15. The Claimant's appeal came before the First-Tier Tribunal on 17 October 2012. The decision of the Tribunal was promulgated on 29 October 2012 and I have a copy of that decision. It records that the Claimant, on advice from counsel, decided not to pursue the application for asylum. He however continued with his outstanding human rights appeal. That appeal was dismissed on both article 8 and article 3 grounds. The Claimant remained in detention pending new removal directions being set. In any event, the Claimant made applications for permission to appeal the decision of 29 October 2012 and as such he could not be removed from the country. Those appeals were dismissed on 21 November and 28 December 2012.
16. Removal directions were set for 31 January 2013. On 30 January a fax was received from a Dr Hartree a clinical advisor to 'Medical Justice' a charity providing medical advice and medicolegal reports for immigration detainees. This report had been prepared without seeing the Claimant but having reviewed his medical records. It included the following statement 'I have serious concerns that [the Claimant] is likely to be currently unfit to fly'. There was a recommendation for a medical review by a general practitioner and further reviews by an endocrinologist and cardiologist. On the same day, 30 January 2013, the Claimant faxed to the Defendant a handwritten letter which includes the following:

"I would like to inform you that I am not willing to fly or go back because there are issues if I return back to Sri Lanka and scared for my life I may get tortured and killed.

I have done (sic) a credit card fraud and I am on high risk if I go back home, because the Sri Lankan authorities think, that I done credit card fraud to support LTEE.

I was involved in LTTE protest in London and the authorities got my photos (sic).

I have got a tatoo (sic) of the LTTE flag in (sic) my right arm.

Medically I am not fit to fly. I still got (sic) appointment to see the endocrinology and the cardiology (sic) this month.

My health has deteriorated day by day and my health is still the same. I still get chest pain and go (sic) breathless.

So, please don't send me back. My life is on (sic) risk"

17. The Claimant issued judicial review proceedings, acting in person, on 30 January 2013 and faxed them to the Defendant. An application for stay on removal was refused by Mr Ockelton, sitting as a Deputy Judge of the High Court. On 31 January the Claimant was not removed from the country as on arrival at Heathrow he complained of chest pain and refused hospital attendance but nevertheless his detention was reviewed pending confirmation of his fitness to fly. On the 4 February 2013 it was concluded that the Claimant was fit to fly and removal directions were given for 28 February 2013. On 22 February 2013, the Claimant's solicitors faxed a letter requesting temporary admission for the Claimant and enclosed a report by Dr Charmian Goldwyn, who had examined the Claimant on 9 February. This report concluded he was not fit to fly, he should not be detained and that he should undergo a mental health assessment. On 23 February the Defendant refused temporary admission but on 27 February Wilkie J stayed the removal of all Tamil failed asylum seekers to Sri Lanka, such as the Claimant, pending the outcome of the country guidance hearing in the Upper Tribunal in GJ and others (which I will refer to below). In the circumstances the Claimant was released on temporary admission on 2 March 2013, subject to weekly reporting conditions.
18. At the Defendant's suggestion a stay was agreed in the proceedings pending the outcome of the GJ case. When that decision of the Upper Tribunal was promulgated (GJ and others [2013] UKUT 00319 (IAC)) the Claimant made further submissions and a further decision was made by the Defendant on 1 November 2013 refusing to grant the Claimant leave to remain on asylum/human rights grounds, and it is this decision which is the first one challenged in these proceedings.
19. A further stay was agreed between the parties pending the appeal of GJ. The Court of Appeal handed down judgment (MP and NT (Sri Lanka) v SSHD [2014] EWCA Civ 829) on 18 June 2014. The Claimant served re-amended grounds on 14 July 2014 and the Defendant served summary grounds of defence on 11 August 2014. Permission to apply for judicial review was refused by Holden J on 28 October 2014 and the Claimant renewed his application on 13 November 2014.
20. On 5 December 2014 the Claimant served on the Defendant an expert report dated 26 November 2014 from Dr Chris Smith, an expert on Sri Lanka. The Claimant asked the Defendant to reconsider her earlier decision. On 19 December 2014 permission was given to the Claimant to apply for judicial review to challenge the Defendant's decision of 1 November 2014 (i.e. relating to the fresh asylum claim) but was refused on the ground based on unlawful detention. The Claimant appealed that to the Court of Appeal.
21. Correspondence then took place between the parties on procedural points without agreement except that it was agreed that a final hearing of June 2015 would be vacated. This was so that the Defendant could take a further decision, taking into account the representations made on 5 December 2014, which accompanied the expert report of Dr Chris Smith. On 22 July 2015 Burnett LJ granted the Claimant permission to proceed on the unlawful detention grounds.
22. Again after further correspondence, the Defendant in a letter dated 10 November 2015 again rejected the Claimant's further submissions on the fresh asylum/human rights claim. This is the second decision that is challenged in these proceedings.

Grounds of challenge

23. The grounds of challenge are as follows:

a) The Defendant's decision of 1 November 2013, to refuse to treat his fresh representations as a fresh asylum/human rights claim, is irrational and or otherwise unlawful.

b) The Defendant's supplementary decision of 10 November 2015 to refuse to treat his fresh representations as a fresh asylum/human rights claim is irrational and/or otherwise unlawful.

c) The Claimant was unlawfully detained for all or part of the period from 13 July 2012 to 2 March 2013. First, the Defendant failed to apply or to rationally apply her published policy and secondly, or alternatively, the detention was in breach of the Hardial Singh principles.

Procedural

24. I have detailed much of the procedural history above. At the commencement of the hearing I was invited to make an order anonymising the proceedings under CPR 39.2(4). I made such an order because first, if the conclusion of the court leads to the Claimant's return to Sri Lanka then some of the material contained within the Judgment might be used against the Claimant upon his return and therefore his identity should be protected. Secondly, much of the subject matter concerns the Claimant's medical condition. I consider non-disclosure necessary in order to protect the interests of the Claimant and the case is referred to as HA, which for the avoidance of doubt, are not the initial letters of the Claimant's names.
25. I had a bundle of documents to which various supplementary pages were added during the hearing and 2 bundles of authorities. Mr Darren Horton provided a witness statement dated 8 September 2016 on behalf of the Defendant. I had the benefit of written and oral submissions from Mr David Chirico, for the Claimant and Ms Mary Glass, for the Defendant.

Ground 1 &2 – Fresh asylum Claim

26. Mr Chirico has identified ground 1 and 2 separately, as I have recorded above and invites me to review in detail each of these decisions. However Ms Glass points out that the decision of the 10 November 2015 in reality replaces the decision of the 1 November 2013. It will correct any deficiencies in that decision. I agree that I need to focus on the decision of 10 November 2015.

The law

27. When a person has had an asylum claim or human rights act claim rejected previously but then makes further representations, the Secretary of State is required to consider whether or not those further representations amount to a 'fresh claim'. The legal position is set out in the Immigration Rules at paragraph 353 as follows:

"353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:

(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection…"

28. The Secretary of State has to consider first whether to accept that the further submissions justify granting asylum or some form of leave. Secondly, if she does not reach that conclusion she must consider whether, notwithstanding her rejection of the further submissions, they amount to a fresh claim. The effect of such a decision by the Secretary of State, if it is a 'fresh claim,' will be to allow the various appeals that go with a claim for asylum. If the Secretary of State does not consider that the further submissions amount to a fresh claim then that is the end of the matter, save for any challenge to that decision by way of judicial review.
29. I have been referred to WM (DRC) v the Secretary of State for the Home Department [2006] EWCA Civ 1495. In this case, there is no dispute that the further material is significantly different and bearing that in mind, from WM (DRC), in particular paragraphs 6 – 11 of the judgment, I extract the following principles:

a) Under rule 353 the decision remains that of the Secretary of State. The determination of the Secretary of State is only capable of being challenged on Wednesbury grounds.

b) The first question for the Court is whether the Secretary of State has asked himself/herself the correct question. Namely, is there a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk (not certainty) of persecution on return? This is a 'somewhat modest test.' The Secretary of State should treat his/her own view of the merits as a starting point but it is a distinctly different exercise from the Secretary of State making up his/her own mind.

c) Secondly, in addressing the first question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? A decision will be irrational if it is not taken on the basis of anxious scrutiny. Anxious scrutiny is required as if decisions are made incorrectly they may lead to the applicant's exposure to persecution.

30. As to 'anxious scrutiny', I was referred to ML (Nigeria) v Secretary of State for the Home Department [2013] UKCA Civ 844 citing R(YH) v the Secretary of State for the Home Department [2010] UKCA Civ 116 where Moses LJ states:

"[anxious scrutiny] underlines 'the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account'".

31. Ms Glass sought to argue that the decision of the Secretary of State would be lawful if it was within a range of reasonable decisions, in that there is no one 'correct' answer as in a usual Wednesbury review of a decision. I agree, except that any decision must be with a range of reasonable decision made on the basis of the application of WM.
32. The treatment by the Defendant of the expert evidence of Dr Smith is in issue in this case. The Claimant relies upon the case of R (N'jie) v SSHD [2008] EWHC 3219 (Admin) a decision of Hickinbottom J. In respect of the expert evidence the Claimant submitted that the Judge's observations were that:

a) 'the only task at this stage [a judicial review of a fresh asylum claim] is to consider whether the WM threshold has been reached for a fresh claim, and not consider the merits of that claim beyond that threshold' – paragraph 25;

b) 'whilst of course any evidence (including that of an expert) needs to be given proper consideration – and, if it is of no evidential weight in relation to the relevant issues, it can and should be disregarded – it is important that expert evidence is given appropriate respect' – paragraph 25;

c) there were obvious unsatisfactory features of the expert evidence before the court although the expert 'undoubtedly had the appropriate qualifications and experience to be a country expert on [the country in question]'- paragraph 26;

d) the expert evidence was relevant to the material issues – paragraph 28;

e) the criticisms of the evidence 'reduce the weight that might be given to the opinion of the experts as to the risk to which [that Claimant] would be subject to return to [the relevant country], but they do not mean that that expert evidence can be entirely dismissed as evidence to which no immigration judge could reasonably give any weight at all' – paragraph 31;

f) in those circumstances the low 'fresh claim' threshold was passed.

The Claimant's submissions were that it was only if the expert evidence could be given no weight at all that the Secretary of State was entitled to disregard it.

33. The Defendant referred me to the decision of HN & SA (Afghanistan) v SSHD [2016] EWCA Civ 123. In that case, counsel for those seeking asylum argued that the criticisms of the expert evidence were in reality the Secretary of State's views of the evidence. It was argued that before a new tribunal the experts would have the opportunity to answer criticisms. However the Court of Appeal agreed with the Secretary of State's submissions and at paragraph 83 concluded on this point:

"… [The Secretary of State] has said what [she] sees as significant deficiencies in the material in support of a fresh international protection claim and ha[s] ended up by concluding that for the reasons given the claims would not create a reasonable prospect of success before an immigration judge… It is difficult to see what more the writers could have said."

34. In my judgement R (N'jie.) and HN & SA (Afghanistan) are examples of the application of the test in WM (DRC). I do not see Mr Chirico's argument that it is only when it can be concluded that there is no weight to be given to the expert evidence that the Secretary of State is entitled to discard it and that is not what apparently happened in HN & SA (Afghanistan). The whole of the WM test needs to be applied bearing in mind that the threshold is a modest one and therefore if there is a realistic prospect of a different view to the Secretary of State's being taken by an immigration judge then the test will have been met. I do not believe it is obligatory to take the experts evidence 'at its highest' as argued by Mr Chirico.
35. I have also been referred to the County Guidance on Sri Lanka from GJ and others [2013] UKUT 00319 at paragraph 356 as approved by the Court of Appeal in MP v SSHD [2014] EWCA Civ 829. I do not propose to set it out here. However, in particular I note that at paragraph 16 of the Court of Appeal's Judgment Maurice Kay LJ stated:

"…the [Upper Tribunal] in the present case was endeavouring to provide 'definitive' guidance on risk. That is why, in paragraph 356, it stated that the risk categories then set out 'are' rather than 'include' those listed. It was therefore rejecting the notion that those currently at risk might embrace, for example, former LTTE combatants or cadres who lack current potency, real or perceived, to threaten the unitary Sri Lankan state."

36. Underhill LJ at paragraph 50 stated:

"The clear message of the Upper Tribunal's guidance is that a record of past LTTE activism does not as such constitute a risk factor for Tamils returning to Sri Lanka, because the Government's concern is now only with current or future threats to the integrity of Sri Lanka as a unitary state…"

10^th November 2015 decision

37. The Claimant relies on a series of factors which he submits cumulatively put a real risk of having a perceived profile that will bring him within the risk categories identified in GJ and others. These are: (1) his convictions or credit card fraud; (2) his tattoo; (3) his attendance at demonstrations; and (4) his previous history of LTTE involvement before his arrival in United Kingdom. His case is that these in combination will give rise to a suspicion upon questioning in Sri Lanka that he is an active LTTE supporter and funder in the diaspora. In particular he criticises the treatment of his credit card fraud conviction and the interpretation of his tattoo by the Defendant. There is a real risk that such suspicion will lead to arrest and questioning, which will in itself gives rise to an article 3 issue (see GJ and others).
38. The Defendant says that the Secretary of State did consider the case on its particular facts and in the round and that express consideration was given to the cumulative case with cogent reasoning and applying the country guidance case of GJ and others. The Defendant took into account the Claimant's past arrest and detention in 1996 noting it was 19 years ago and the Claimant was released without charge and that it is not arguable that the authorities have any ongoing interest in the Claimant nor is there any outstanding arrest warrant. She assessed the various claims together and went on to conclude that there were no reasonable prospects of success before an immigration judge. The Defendant expressly applied the correct approach to fresh claims and concluded rationally that the test was not met, there is no public law irrationality in that conclusion.

Credit card fraud

39. Dr Smith gives evidence about the issue of credit card fraud and the Sri Lankan authority's reaction to it. In the past credit card fraud in the United Kingdom is believed to have been a source of funding for the LTTE. Dr Smith says 'I can confirm that the link between LTTE and Tamil credit card fraud in the UK is ambiguous. Nevertheless, the Sri Lankan authorities tend automatically associate criminal activity in the UK with the LTTE…' Dr Smith says he cannot provide the source of this because it is based on interviews conducted for the Metropolitan Police Service. The Defendant, in dealing with this aspect of the case, rejects this argument on the basis that first, the Claimant has provided no evidence to show that the authorities in Sri Lanka will have access to computer systems so that they would be aware of the credit card fraud to link this to support the LTTE. Secondly, there is criticism of Dr Smith's report where it provides an example based on a fraud committed by a Mr Amandan, which was very extensive 'a mastermind behind international credit card fraud.' Thirdly, the Secretary of State states: 'further it is noted that in your case your convictions are not limited to credit card fraud, rather those are only 5 out of 37 convictions. Therefore even the credit card convictions are known to Sri Lankan authorities which it (sic) is not accepted, those five convictions viewed in the circumstances of 32 other varied convictions, demonstrates an individual with an extensive criminal record rather than LTTE support.'
40. Although there are deficiencies in Dr Smith report, bearing in mind my conclusion at paragraph 34, I do not think Dr Smith's report should be totally disregarded. In my judgement the Defendant has fallen into error for the following reasons:

a) Dr Smith's evidence on this aspect of the case is that it is criminal activity as a whole that may be taken into account, not just credit card fraud. Whilst the example provided in Dr Smith report is of a more significant credit card fraud no reason appears for the rejection of the assertion of general criminality being taken into account or of the Claimant's criminality in relation to credit card fraud.

b) The last paragraph that I have quoted above indicates to me that this is the Defendant's opinion of the evidence and that the proper test has not been applied, namely whether a tribunal judge might take a different view from the Defendant. The Defendant's conclusion that the other offences indicate general criminality rather than LTTE support to my mind betrays the underlying thought processes here which in my judgement are defective.

c) I do not believe that the Defendant's conclusion that the Sri Lankan authorities would not know about the Claimant's convictions passes the test of anxious scrutiny. The outcome of GJ and others was (at paragraph (8)) the Sri Lankan authorities' approach is based on sophisticated intelligence. I do not think it is an answer in the circumstances of considering a fresh claim to make such an assertion. How could the Claimant demonstrate that the Sri Lankan authorities would be likely to know about his convictions? This, it seems to me, does not consider all the available evidence from the point of view of the tribunal judge for the purposes of the section 353 test.

The tattoo

41. I have not seen a legible picture of the tattoo, which is apparently on the Claimant's arm. I do not need to see that picture as I am not in a fact finding role. The parties have agreed that the description set out in the Defendant's letter dated 10 November is accurate. However, I note that Dr Smith's description of the tattoo in his report is different from the description within the Defendant's letter. The Claimant says that the Defendant was wrong to reject the risk created by the Claimant's tattoo on her own analysis of the significance of the design and the rejection of Dr Smith's evidence. The Defendant says that Dr Smith's evidence on the significance of a tattoo was rejected as a risk factor in GJ and others see paragraph 267 in particular.
42. In the letter dated 10 November the Defendant describes the Claimant's tattoo as being purely in black ink with a tiger with barbed wire around the top of the tattoo location. However the LTTE flag details a tiger emerging from a ring of fire over two guns. The Defendant criticises the expert for forming his conclusions on 'his opinion'. The Defendant then refers to paragraph 267 of GJ and others. In the individual section of the letter concerning the tattoo to my mind there is no real conclusion by the Defendant and in fact there is no indication in this section that the issue is being looked at from the point of view of a tribunal judge. Again it strikes me that the conclusion that the Claimant's tattoo is not similar to the LTTE flag is one taken from the point of view of the Defendant herself rather than that of a tribunal judge. I do not see how it is reasonable to reject an expert's conclusion on the basis that it is 'his opinion'. After all that is what expert evidence is – it is a matter of the expert's opinion on the facts. It is of course possible to reject an expert opinion where reasons are given for that conclusion but to my mind in this letter there is a simple rejection of the conclusion because it is opinion, the impression it gives is a rejection of the expert opinion because it does not suit the Defendant's over-all position. I am more persuaded by the Defendant's reliance upon the outcome of GJ and others at paragraph 267 where it was considered that a tattoo is not a risk factor. However, the Defendant's letter does not reach a conclusion on the tattoo individually as a risk factor. In my judgment it does not consider it in accordance the test in WM, although it does seems to me there is no realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return on the basis of his tattoo alone, in light of GJ and others.

Cumulative consideration of the factors

43. The Claimant says that in addition to the criticisms of the individual risk factors identified above, the Defendant does not take into account the four factors cumulatively in assessing whether the Claimant fulfils the relevant country risk categories. The Defendant says that the facts were considered in the round and express consideration was given to the cumulative case with cogent reasoning and applying the country guidance.
44. The letter of 10 November includes a subheading entitled 'cumulative analysis'. It does contain consideration of the involvement in demonstrations, credit card fraud, the tattoo and the previous history of arrest. It also recites the country guidance from GJ and others as well as again extracts of Dr Smith's report. However, in my view it again deals with each of these items individually at some length and then includes the following:

"You have also provided several news articles and country reports on the current situation in Sri Lanka, however you are not named or photographed within these reports and have not shown how they specifically relate to you. It has been considered above that you are not at risk due to credit card fraud in the UK or your tattoo and you would therefore be at risk (sic). You have also stated that your participation in protest in the UK put you at risk of the authorities in Sri Lanka naming you as an LTTE sympathiser however when this is being considered in the round with your claim to arrest and detention in November and December 1996. (Sic) With current case law it is not considered that you have provided evidence to show that you will be at risk on return to Sri Lanka."

45. Further on it states:

"In conclusion on the fresh claim and applying the case for of WM, it is concluded that your further submissions have no realistic prospect of success before an immigration judge in any appeal because you have failed to provide any credible evidence that would suggest you are a Tamil activist in the diaspora who is working for Tamil separatism and to destabilise the unitary Sri Lankan state…"

46. Further on in the same paragraph it states:

"However you have provided no further evidence to support your attendance of protests in the UK or any evidence to show that you are a Tamil activist in the diaspora. Consideration has been given to the expert report above and it is not considered that you would be at risk due to your tattoo or credit card fraud in the UK or claimed past detentions in Sri Lanka either as detailed above."

47. I agree with the submissions of the Claimant on this point. It does not appear from the text that this has truly been an assessment of the risk based upon the combination of the risk factors set forward by the Claimant. The extract I quoted above lists the risk factors, not cumulatively but individually separated by the word 'or'. There is no suggestion that all of the factors have been taken in the round and considered against the country guidance. Added to this, I have already identified errors in the application of the WM test in relation to credit card fraud and the tattoo individually. Furthermore, the section I have quoted above includes an incomplete test from GJ and others. The test is 'Individuals who are, or are perceived to be, [my emphasis] a threat to the integrity of Sri Lanka as a single state because they are, or are perceived [my emphasis] to have a significant role in relation to post-conflict Tamil separatism within the diaspora…'. The Defendant has not dealt with whether an immigration judge would consider there is a realistic prospect of the Claimant being perceived to be a threat to the integrity of Sri Lanka. I think it is important to note from GJ and others the statement that 'if a person is detained by the Sri Lankan security services there remains a real risk of ill-treatment or harm requiring international protection'. Such detention might occur on the basis of a perception.
48. The failure to consider the risks cumulatively and an incomplete test are in my view a failure to apply anxious scrutiny and I do not think that the bald statement that the case law of WM has been applied is enough to rescue this decision. I have noted the Defendant's submission that HN & SA (Afghanistan) shows that the letter does not have to be perfect, but in my view this letter has so many errors in it that it cannot be said to be reflective of a decision properly made in accordance with WM. For the avoidance of doubt, the decision dated 1 November does not help the Defendant as this does not include consideration of either the cumulative effect of the various points or the criminal convictions in particular and so would also fail on anxious scrutiny.
49. Accordingly, in my judgement, the Defendant's decision of 10 November 2015 was unlawful.

Ground 3 – Unlawful detention

50. The Claimant says that he was unlawfully detained by the Defendant. He makes this argument on two bases. First, that there was a breach of the common law principles (Hardial Singh) and secondly, there was a failure by the Defendant to follow her policy or to apply the policy rationally, in particular in relation to the Claimant's physical health. There is no dispute that the burden is on the Defendant to justify the detention.

Hardial Singh

51. The Hardial Singh principles are well known and set out by Lord Dyson in Lumba v Home Secretary [2012] 1 AC 245 at paragraph 22 as follows:

"(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 a 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."

52. In this case it is agreed that only points two and three of those principles are relevant. It is also agreed that it is for the Court to determine whether a reasonable period of detention has been exceeded. It is not a Wednesbury review of the Defendant's decision.
53. The issue of how long is a reasonable period was also dealt with in Lumba. Citing his Judgment in R(I) v SSHD [2003] INLR 196, Lord Dyson said that it was not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant:

"But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."

54. Mr Chirico drew my attention to 2 qualifications raised by Lord Dyson. First the relevance of the risk of reoffending and secondly 'the nature of the obstacles' in particular what is the relevance of delays attributable to the fact that a detained person is challenging the decision to deport him. Mr Chirico pointed out that the risk of reoffending was not linked to the purpose of detention. Lord Dyson considers this at paragraphs 106 – 110 of Lumba and concludes that the power of detention is a relevant factor and citing Toulson LJ in R (A) v SSHD [2007] EWCA Civ 804 as follows:

"The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and his continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."

55. At paragraph 108 citing I:

"… The period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is 'an obviously relevant circumstance".

56. On the question of delays attributable to challenges to deportation, at paragraph 121 Lord Dyson states:

"… It is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one."

Lord Dyson agreed that the weight to be given to time spent detained during appeals is fact sensitive.

57. The issue of non-co-operation with return is dealt with at paragraphs 122 - 128 of Lumba. I take the following points from those paragraphs:

a) A refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal;

b) The fact that voluntary removal has been refused cannot make reasonable a period of detention, which would otherwise be unreasonable;

c) The relevance of the likelihood of absconding should not be overstated. The risk, if proved, is not a 'trump card' that can be used to justify detention on its own;

d) The burden is on the Secretary of State to satisfy the court that the refusal of voluntary deportation would lead to the detained person absconding;

e) Where return is not possible for reasons that are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect;

f) If the detained person has issued proceedings challenging his deportation it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse);

g) Where there are no outstanding legal challenges the refusal of voluntary deportation is not a 'trump card'. At paragraph 128: 'If the refusal of voluntary return has any relevance in such cases even if the risk of absconding cannot be inferred from the refusal, it must be limited.'

58. As to the third principle there must be a realistic prospect of removal within a reasonable time. This realistic prospect may be present even if it is not possible to specify or predict the date or period within which removal can be expected to occur and without any certainty that removal will occur at all (R (on the application of Muqtaar v SSHD [2012] EWCA Civ 1270). The mere existence of an in-country right of appeal would not have made it apparent that the Claimant could not be removed within a reasonable period of time (Mohammed v SSHD [2014] EWHC 1898). There must be a prospect of removal to justify any continued detention.

Discussion

59. At the hearing the Claimant conceded that the first three weeks of detention were reasonable on the basis that it was necessary to obtain the Claimant's travel documentation, which he would not do voluntarily.
60. The Defendant seeks to justify the detention and makes 15 points based on the circumstances to do so. These are dealt with as follows:

a) The Claimant was identified as a high harm case who failed to comply with temporary admission. I do not think this is a separate point but is dealt with in the following issues.

b) The Claimant entered the United Kingdom illegally, using deception and a false British passport. The Claimant argued that this occurred in 1997 and was common to a large number of refugees/asylum seekers and was not sufficient to demonstrate a high risk of absconding. I think this is a relevant consideration which I will take into account.

c) The Claimant has failed to return voluntarily to Sri Lanka since 1997. The Claimant pointed out that he was not required to leave and that he had pending representations. The Claimant pointed out that there does not appear to have been any attempt to remove him between 1997 and 2012. Furthermore, he had a pending HRA claim and he had not been required to leave and this period should not be held against him. In my view there is no evidence that, prior to 2008, the Claimant was given any formal notice to leave the country. In fact he was probably on some form of temporary admission. After 2008 he was given temporary admission. Therefore this factor cannot be given any weight prior to 13 July 2012 (when he was given notice).

d) The Claimant had a significant criminal record. I was shown the printout from the Police National Computer. This document shows 37 convictions with a total of 35 months of custodial sentences. There is no record of a custodial sentence from 2007. There was no evidence before me of any offences after 2011. The offences include fraud, possessing an offensive weapon in a public place, driving offences, possession of cannabis, drink-driving and theft. The Claimant sought to argue that all these offences were at the lower end of the spectrum and the Defendant cannot reasonably justify detention on that basis. I was also referred to case law by way of comparison where the issues before the court were of much more serious offences. I accept that the offences are not all of the most serious kind but it seems to me that, taken collectively and in particular considering the offence of possessing an offensive weapon, this is a serious criminal record that represents a significant risk to the public.

e) The Claimant has a repeat history of not pursuing applications and appeals. On 4 February 1997 the Claimant claimed asylum. The Defendant relies on the Claimant failing to attend two interviews in connection with the claim which led to his asylum claim being refused on 26 June 1997. On 16 September 1997 the Claimant lodged an appeal out of time and on 2 February 1998 the Claimant withdrew his asylum appeal. I do not view this as a significant factor, these events were many years ago and I think it is an exaggeration to call it a 'repeat history'.

f) The Claimant failed to report on numerous occasions. The Defendant details 18 occasions when the Claimant failed to report in accordance with the terms of temporary admission between 2008 and 2012, prior to his detention. The Claimant says that two of these non-attendances must have been whilst the Claimant had been admitted to hospital in February 2012, where he apparently remained for four weeks. The Claimant also says some of the dates appear to correlate with dates when he was in prison. However, the only evidence I have of dates of imprisonment are from the Police National Computer printout and this does not provide evidence of exactly when the Claimant was imprisoned and released. Even if some of the non-attendance differences are explainable it seems to me there remains evidence of significant non-compliance.

g) On a number of occasions the Claimant was listed as an absconder including on 2 October 2007. I do take into account his listing as an absconder. I do not think it adds anything to point (f) above.

h) The Claimant failed to attend a criminal court and was arrested for non-appearance on 23 August 2011. The evidence of this is contained within a Border Agency form completed on 11 July 2012. It is specific with the date and a record that the police in Carmarthen arrested the Claimant for nonappearance at a court hearing in Grimsby. It does not appear on the Police National Computer printout however, which was printed in 2012 (you would expect it to be included therefore). The Claimant submits that there is no evidence of non-attendance but in my judgement that is not correct as the note is detailed and specific. Therefore I think it likely that it is accurate and should be taken into account.

i) The Claimant failed to attend the Sri Lankan High Commission for interview for his travel documentation prior to detention. The Claimant says I should ignore this as there is no evidence of when arrangements were made prior to his detention. The Defendant refers me to paragraph 29 of the First Tier Tribunal decision of 29 October 2012 which states: 'The appellant states that he continues to be in real fear of his life from the Sri Lankan security forces and from the LTTE. This is why he cannot approach the Sri Lankan High Commission to obtain a Sri Lankan travel document.' The evidence is that a reason for his detention was to secure the documentation, but, to my mind, there is no evidence that arrangements were made for him to go voluntarily to the High Commission and he failed to do so. I do not think there is any convincing evidence that the Claimant was asked to attend the High Commission before his detention. I do not take this into account at all.

j) The Claimant has 17 aliases. The Claimant accepts that this can be taken into account but it cannot be properly inferred that it represents a real risk of absconding. The Defendant says that this is evidence of sophisticated criminal conduct. The Claimant says some of these 'aliases' are misspellings. In my judgement they are evidence of the Claimant using deceit probably to try and avoid links being made to previous conduct and I think it is proper to infer attempts to avoid the consequences that might flow from those linkages being made.

k) The Claimant has had frequent changes of address throughout his unlawful stay in the United Kingdom. I do not think this is a strong point to justify detention. There is no evidence of a requirement to live in a particular place prior to 2008. After 2008 there was a condition to reside at a particular address as part of temporary admission. I do not take this into account.

l) The Claimant appears to have worked illegally in the United Kingdom. It seems clear at some point the Claimant was working in a petrol station. However, I have not been shown any evidence of a prohibition on the Claimant working. I do not take this into account.

m) The Claimant's 2012 appeal was clearly very weak and this particular Claimant had 'form' for not pursuing appeals and did withdraw his asylum grounds of appeal at the hearing. The Claimant argued that his appeal was not hopeless and referred me to the case of R (Abdollahi) v SSHD [2013] EWCA Civ 366, which I have read. In my judgement Lord Dyson in Lumba was indicating that there is a sliding scale of the degree of weight that should be applied between the meritorious case and hopeless case. In Abdollahi Moses LJ considered the claim 'hopeless'. In the Claimant's case the judgment of the First-Tier Tribunal details that the Claimant's counsel at that hearing acknowledged that the asylum claim 'was the weakest link.' Furthermore, after a short adjournment when counsel discussed this further with her client he decided not to pursue any asylum appeal. This indicates that it must have been an extremely weak case not to have even attempted to run it. In my view, the Claimant's asylum claim was at the 'hopeless' the end of the spectrum. I am also of the view that the claimant's article 3 and article 8 claims were hopeless. The claimant's marriage had ended and the First-Tier Tribunal had no evidence of any friends (paragraph 77 of the decision). As to the article 3 claim based upon his medical condition the case of N v SSHD [2005] UK HL 31 requires someone to have a terminal illness in order to rely on Article 3 to resist deportation. The claimant was not and is not in that position. The evidence shows that the Defendant was aware of the dates of the appeal. As recorded above there were two adjournments but I do not think the evidence is available to understand the circumstances or blame the Defendant.

n) During his detention, the Claimant's obstructive behaviour including refusing medication and treatment, sporadic food refusals to obtain release shows the likelihood of absconding. I have detailed the evidence for this above. The Claimant says that this behaviour does not show a risk of absconding, but rather the likelihood of not liking detention. It is also said that it relates to missed hospital appointments. The Defendant points out that the obstructive behaviour had started before the missed hospital appointments and indeed continues after it. I think this is a relevant circumstance to take into account. The Claimant was in my judgement clearly using his medical condition and refusal of medication to obstruct and manipulate the Defendant.

o) The Claimant's conduct in detention included threatening behaviour towards health care and showed a likelihood of absconding and risk of harm to the public from his release. I was referred to various entries in the physical care records which I have considered. There are various references to aggression from the Claimant in circumstances where he is not getting his own way or it is part and parcel of a refusal of medication. I do not think this of itself shows a likelihood of absconding or risk of harm to the public if the Claimant were to be released. It is really the same point as his generally obstructive behaviour, which have referred to in the paragraph above, as a form of manipulation.

61. I also need to consider the effect of the detention on the Claimant. As can be seen from the paragraphs above the Claimant wanted to be released from detention. However I do not think there is any evidence, in particular, to indicate a disproportionate effect on the Claimant until the report of Dr Goldwyn dated 21 February 2013 was provided to the Defendant. That report includes at paragraph 7 a section on the claimant's mental health and recommends a mental health assessment.
62. In my judgement there is no breach of the second Hardial Singh principle in this case. The length of time of the detention was long, but not excessively so bearing in mind the circumstances of the Claimant's conduct. The impact on the Claimant of detention is a consideration but I do not think that arises as a significant factor until Dr Goldwyn's report has been received. In any event, I do not think the receipt of that report would justify an immediate release from detention as the recommendation is for a psychiatric assessment, which could have been undertaken whilst the Claimant remained in detention. As it was the Claimant was released from detention on 2 March 2013 and I do not think that the Defendant needed to do anything sooner than that upon the receipt Dr Goldwyn's report (see further below as well). Although I have considered it, I do not think that any significant criticism can be made of the Defendant in the steps taken to overcome the obstacles to deportation. It is necessary to consider all of the factors together and in particular, of the 15 points advanced by the Defendant in my judgement it is subparagraphs b, d, f, h (although I do not put much weight on this), j, m and n above which together satisfy me that there was a significant risk that the Claimant would abscond and was a risk to the public. There is evidence that the Claimant does not comply with immigration rules through his non-attendance and his manipulative behaviour through the use of his medical condition. These together with his criminal record in particular are the factors that I rely upon in reaching my conclusion that he was at significant risk of absconding and that detention was justified and the period was reasonable in all the circumstances.
63. As to the third principle the Claimant focuses on two areas. The first one is the Defendant decided on or about 13 August 2012 to reconsider the Claimant's further representations and to grant the suspensive right of appeal, then the removal was not going to occur within a reasonable timeframe and in particular when the Defendant became aware of the appeal hearing and/or on the occasions when the Defendant failed to produce the Claimant to the First-Tier Tribunal. I do not agree with these submissions. Bearing in mind the law that I have referred to above and taking into account as I have already concluded the Claimant's prospects of success on any appeal were weak, my judgement is that the Defendant was entirely justified in maintaining detention as there was a realistic prospect of removing the Claimant. The records indicate that the Defendant was carefully considering this question.
64. The Claimant's second point is that the detention became unlawful when the medical report of first, Dr Hartree and secondly, Dr Goldwyn became available. On 30 January 2013 Dr Hartree's report was provided as I have indicated above. That report was prepared without having seen the Claimant and based purely upon the records. The Defendant was in possession of its own medical opinions and carefully considering the timing of the Claimant's removal so that he would have been fit to fly, because it is clear that on various occasions he was certified as fit to fly in particular on 4 February 2013. As to the report of Dr Goldwyn, this does raise concerns about the Claimant's health and fitness to fly and indicate a mental health assessment may be required. The letter that was apparently sent by fax accompanying that report is dated 22 February. The letter included a request for temporary admission and this was responded to by the Defendant on the 23 February 2013. The case record sheet has an entry dated 28 February which refers to the letter and medical reports and the injunction of 27 February 2013 relating to all Tamil failed asylum seekers. A holding response is apparently sent by the Defendant with further discussions indicated. On 2 March the case records conclude that the Claimant is to be released as his removal can no longer be considered imminent. In my judgement the Secretary of State has to be given a reasonable time on receipt of information to reach a conclusion. In addition, the report of Dr Goldwyn, although indicating areas of concern, is not really raising anything new that the Defendant has not already had to consider namely the Claimant's medical condition and his fitness to fly. Although the issue of his mental health was raised I do not think that this report is such that in the context of this case overall it demanded his immediate release on receipt and in my judgement there is no breach of the third principle.

Policy basis

65. The Claimant alleges that the Defendant failed to apply or to apply rationally her published policy in deciding to detain the Claimant and in maintaining his detention.
66. The Defendant's policy is known as Enforcement Instructions and Guidance (EIG) and Chapter 55 is the relevant part to which I have been referred. The policy includes a presumption in favour of temporary admission or release and reasonable alternatives to detention should be considered. Of particular relevance to this case is chapter 55.10 entitled 'Persons Considered Unsuitable for Detention'. The relevant extract is as follows:

"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 which cannot be satisfactorily managed within detention

…"

67. In R (EO and others) v SSHD [2013] EWHC 1236 (Admin) at paragraph 69 Burnett J, as he then was, when considering a case involving torture (which is another circumstance under chapter 55.10 when detention would normally be considered suitable only in very exceptional circumstances) concluded that if a detainee fell within one of the categories then 'the default position must be release.'
68. I have also been referred to the case of IM (Nigeria) the SSHD [2013] EWCA Civ 1561. In that case of the Claimant refused food and medical treatment. It was alleged that his detention in a detention centre was in breach of the policy that I have quoted above. However Lord Justice Lloyd Jones concluded that:

"… The continuing refusal of the appellant to accept any medical treatment removes his case from the scope of the policy statements relied on by the appellant because they simply did not envisage such a case."

69. Furthermore, Lord Justice Lloyd Jones concluded that the circumstances also amounted to very exceptional circumstances justifying the detention, although it was not necessary to reach that conclusion because it had been decided that the policy did not apply.
70. The Claimant says that IM is not relevant because there were very specific circumstances in which a person's physical illness was entirely self-generated. I do not agree with the Claimant's submissions on this point. The Claimant's condition in this case which made the medical practitioners conclude that he was unfit for detention were entirely self-generated. When he complied with his treatment the medical staff were satisfied that he was fit to be detained and fit to fly. When he did not comply they found that he was unfit for detention. There is no evidence that it was the Claimant's medical condition itself that was fluctuating. There is no suggestion that the Claimant lacked capacity to consent to or to refuse medical treatment or food and water. The evidence supports the conclusion that was reached by the Defendant that the Claimant was using these refusals in order to be released from detention. In these circumstances my conclusion is that this aspect of the policy does not apply to the Claimant. This could also be considered from a different point of view. Looking at the Claimant's position as a whole his condition was capable of being satisfactorily managed whilst in detention when he agreed to the treatment and even when he did not. In that the Defendant took steps to monitor his condition and gave the Claimant treatment on the various occasions when he changed his mind. The Defendant does not make specific reference to the EIG policy but it seems clear to me that careful regard was being had to whether or not the Claimant's medical condition could be satisfactorily managed whilst he remained in detention. As in IM if I needed to, I would conclude that there were very exceptional circumstances. There is no irrationality and the Claimant's detention was lawful.
71. On the Claimant's initial detention Dr Jabbar concluded that he was not fit for detention. In my judgement the Defendant acted reasonably in dealing with this response and clarifying the position such that three days later Dr Jabbar and Dr Mehta agreed that he was fit to be detained. I agree that Dr Jabbar not being aware of the reasons for detention should not make a difference to the doctor's conclusion on the Claimant's condition, but the e-mail of 17 July 2012 indicates that was not the only factor. In my judgment this does not make the Defendant's application of its policy irrational.
72. I have also considered the Defendant's letter dated 11 September 2012, an extract of which appears at paragraph 11 above. In that letter the Defendant records that the Claimant is refusing his medication and indicates that the UK Border Agency has a duty of care towards all detainees and 'at present that duty appears to be best met by maintaining your client's detention.' That is an irrelevant consideration as the Claimant, with capacity, is entitled to refuse treatment and this as a factor cannot be used to justify detention. However, that letter goes on to detail the other circumstances being used to justify detention which I have rehearsed extensively in this judgment already. I do not believe that there would have been any difference to the decision, nor should there have been any difference to the decision, if the irrelevant factor that I have identified had been left out of account. The other reasons given were enough to justify maintaining detention.
73. The Claimant also alleges the Defendant failed to use detention as a measure of last resort and/or would consider reasonable alternatives to detention. For the reasons that I have already given I do not accept that submission. I do not think that the Defendant's decision can be criticised on this basis. The Claimant also said that Dr Hartree's report should have triggered an urgent enquiry into the Claimant mental health. Again, I do not think that the Defendant's decision can be criticised here for the reasons that I have given a paragraph 64 above.
74. The final issue to deal with is the question of whether detention reviews were carried out in accordance with the EIG policy. To a large extent this has fallen away because the Claimant accepts that the Defendant has produced evidence of all detention reviews except for one, in September 2012 where the relevant form, ICD 3469, has not been found. The Defendant's case is that the review did take place. I was referred to an e-mail of 7 September 2012 timed at 1203 recording that the detention review was due. The response by e-mail from the assistant director authorises detention. A handwritten caseworker note on the same day states: 'ICD 3469 to be generated on 10/9/12'. My conclusion is that on the balance of probabilities that detention review did take place and therefore there is no question of the period of unlawful detention as per Lumba and Kambadzi v SSHD [2011] UKSC 23. Even if I am wrong on that then the Claimant would only be entitled to nominal damages because as I have already concluded, his detention would in any event have been lawful.

Conclusion

75. To summarise, I have concluded that the Defendant's decision on the Claimant's fresh asylum claim was unlawful. However, I have concluded that the Claimant's detention was lawful both in terms of the principles of Hardial Singh and on the application of the Defendant's policies. I will hear further submissions on the remedies and appropriate disposal.