On 23 March 2018, the High Court handed down judgment in BT, R (On the Application Of) v The Secretary of State for the Home Department [2018] EWHC 584 which concerned a Vietnamese national, ‘BT’, trafficked into the UK for the production of cannabis. One of the key issues was how the Court strikes a balance between the public interest in deporting foreign national criminals (enshrined in law at s. 32(4) of the UK Borders Act 2007) and the detainee’s interest in not being subjected to detention where it would seriously harm him.
The hearing was a permission and interim relief hearing, the purpose of which is (1) to satisfy the court that there is at least one arguable ground for judicial review which merits full investigation at a full judicial review hearing (the permission part) and (2) decide whether some remedy should be granted to the Claimant before a full judicial review hearing (the interim relief part).
After serving a custodial sentence for cannabis production, BT was detained in an immigration detention centre under the Secretary of State’s power to detain foreign national offenders pending deportation (s. 36 UK Borders Act 2007). In this case before the High Court, BT tried to argue that:
- his detention had been unlawful as he did not pose any threat to public order;
- alternatively, that his removal could not be affected within a reasonable time, rendering his detention unlawful;
- alternatively, that an expert report by a Susan Pagella on BT’s mental health made the Home Office aware that detention was positively harmful to BT and that the report ought therefore to have occasioned BT’s release.
BT was unsuccessful in his permission application on all grounds (para. 8 of the judgment).
Timeline of key events
2014 (estimated) BT entered the UK illegally
22 April 2016 BT begins custodial sentence for cannabis production
May 2016 BT claimed asylum in the UK
17 August 2016 Positive Reasonable Grounds decision
3 October 2016 Positive Conclusive Grounds decision
May 2017 BT’s asylum claim refused
5 May 2017 BT detained under immigration powers on foreign criminals
(the detention under challenge in this case)
9 October 2017 Home Office considers BT an Adult at Risk at level 2
25 October 2017 Psychotherapist Susan Pagella’s report (“the Pagella report”)
July 2017 BT lodges an asylum appeal with First-tier Tribunal (FtT)
29 November 2017 Appeal dismissed; permission to appeal to Upper Tribunal
30 January 2018 Appeal in Upper Tribunal successful: case remitted to FtT
February 2018 Home Office detention review: BT remains fit for detention
What was the applicable law in this case?
Where a foreign national has been convicted in the UK of an offence and sentenced to imprisonment for more than 12 months, the Secretary of State must make a deportation order unless any statutory exceptions apply (s. 32 UK Borders Act 2007). The Secretary of State has the power to detain someone pending the making of a deportation order (s. 36 UK Borders Act 2007) but that power is subject to what’s known as the Hardial Singh principles. Those principles are handily summarised by Lord Dyson at para. 23 onwards of the Lumba (WL) v SSHD [2011] UKSC 12 judgment. According to those principles, the Secretary of State must assess whether there is a realistic prospect of removal within a reasonable amount of time.
What was the applicable government policy?
It is unlawful for the Secretary of State to fail to follow published policy (para. 18). The relevant policy was considered from para. 12 and broadly provides that:
- Trafficking or modern slavery victims should normally be released from immigration detention unless their detention can be justified on grounds of public order;
- Where an individual is particularly vulnerable to harm if placed in detention (a so-called “Adult at Risk”), for instance because of past traumatic experiences such as trafficking, then professional evidence showing that a period of detention would likely cause harm to such an individual should be afforded significant weight (this is a ‘level 3 Adult at Risk’: see the Guidance on Adults at Risk in Immigration Detention);
- The public interest in deporting foreign national offenders will generally outweigh the risk of harm of detention to the detainee, but what is deemed a reasonable period for detention will likely be shorter if detention will cause a serious risk of harm (my emphasis added).
Ground 1
BT tried to argue that his detention from May 2017 was unlawful because he had been accepted as a victim of trafficking since 2016 (para. 20). As a trafficking victim, BT argued, he should only be detained in exceptional circumstances and that he did not pose any risk to public order so he ought not to be detained on that justification. The Court rejected BT’s argument for failing to give sufficient consideration to:
- the UK Borders Act 2007 (which requires foreign criminals sentenced to terms of imprisonment of longer than one year to be deported);
- the relevance of cannabis cultivation to public order. Note that deporting a foreign criminal is deemed ‘conducive to the public good’ in s. 32(4) UK Borders Act 2007;
- the fact that BT’s detention had been subjected to regular reviews; and
- the general presumption that the public interest in deporting foreign national offenders (even those who are victims of trafficking) generally outweighs the risk of harm to adults deemed to be at risk.
Ground 2
BT also tried to argue that when the Pagella Report was served on the Home Office presenting officer (the Home Office’s representative at BT’s asylum proceedings), the Home Office was legally required to promptly review the appropriateness of BT’s detention. This argument was rejected as those in charge of reviewing BT’s detention were separate from the presenting officer in BT’s asylum proceedings and so were not aware of the Pagella Report (paras. 24-26).
Ground 3
Relatedly, BT tried to argue that the Home Office failed to follow its own policy concerning Adults at Risk and that the Home Office should have classified BT as a level 3 Adult at Risk following the Pagella Report in late October. This was rejected by the Court because:
- The Home Office Authorising Officer was not aware of the Pagella Report;
- Although the Pagella Report found that BT’s detention was “significantly detrimental” to his mental health, it did not go as far as saying that he was not fit for immigration detention, that detention was likely to lead to a risk of significant harm or that any period of detention would increase the severity of his health issues (including epilepsy);
- Even if that were wrong, the Home Office considered that BT presented a level of public protection concern, along with high risks of absconding and re-offending that justified his detention;
- BT’s health situation was assessed as being appropriately managed through the healthcare facilities at the immigration detention centre; and
- Once the Pagella Report was brought to the attention of the relevant Home Office Authorising Officer, it was expressly considered in deciding that BT remained fit for detention in February 2018.
Ground 4
BT tried to argue that at no stage was there a reasonable prospect that he could be deported within a reasonable period of time, which is a breach of the Hardial Singh principles rendering BT’s detention unlawful. BT relied in part on the June 2017 Supreme Court decision in Kiarie and Byndloss v SSHD [2017] UKSC 42 which held that foreign national offenders are entitled to bring an appeal against the Home Office’s deportation order while within the UK and not merely after deportation. BT tried to argue that because of his entitlement to an in-country right of appeal, his detention was never going to be limited to a reasonable period of time (para. 28).
This argument was rejected on the facts of BT’s case, having regard to his asylum timetable; the fact that the Home Office promptly and appropriately reviewed BT’s detention after judgment had been handed down in Kiarie; and BT’s failure to take into account the need to preserve the certainty of past decisions: see para. 62 of Secretary of State for the Home Department v Draga [2012] EWCA Civ 842, cited at para. 29 of this judgment.
Ground 5
The High Court dealt with this ground in peremptory fashion: on the facts, the Court held that BT had been sufficiently examined by a medical practitioner in accordance with Rules 34 (requiring medical examination within 24 hours of arrival in the detention centre) and 35 (which covers torture claims) of the Detention Centre Rules 2001.
Ground 6
The High Court rejected BT’s argument that he ought to have been offered intensive trauma therapy as recommended by the Pagella Report. The Court deemed the National Referral Mechanism and the Competent Authority Guidance (together with other “procedures and policies of government ministers”) as underpinning the structure of support available and that BT’s access to healthcare services and solicitors throughout his immigration detention was adequate (paras. 30-31).
Ground 7
BT tried to argue that the Home Office representative at BT’s asylum screening interview in July 2016 ought to have asked him more questions about whether he had been forced to cultivate drugs in the UK. In a positive Conclusive Grounds decision, the Home Office concluded that BT had been trafficked but did not meet the criteria for forced criminality, having regard to the Judge’s view in BT’s earlier criminal proceedings that there had been a “certain degree of reciprocity” between BT and those on whose behalf he had produced cannabis (para. 36). BT did not challenge the Home Office’s positive Conclusive Grounds decision of 3 October 2016 despite having access to legal representation at the time; BT’s claim now was therefore out of time.
Ground 8
BT sought to challenge the Home Office’s refusal to grant him discretionary leave to remain but, the challenge being brought out of time, the Court rejected this argument (paras. 38-40).
Commentary
This case raises a number of interesting issues. It demonstrates the importance of the non-prosecution of trafficking victims, as once a victim is convicted and sentenced to a term of imprisonment of longer than one year, UK law deems that the public interest in deporting that person generally outweighs the significance of risk of harm of detention (para. 16). BT was a trafficking victim but did not meet the threshold of forced criminality; if BT did not have a criminal conviction for cannabis production (and note that he was convicted before the s. 45 Modern Slavery Act defence was in force), the outcome of this case would likely have been different.
This case also highlights the Court’s narrow approach to reports on Adults at Risk in immigration detention: the Pagella Report’s finding that detention was “significantly detrimental” to BT’s mental health was considered not the same as saying that his detention was likely to lead to significant harm or that BT’s detention for any period would increase the severity of his health issues (para. 27). In the absence of clear words, such as “BT is unfit for immigration detention”, the Court regarded the Home Office as having properly followed her policy of considering the risk to harm to vulnerable persons in deciding whether to continue detention.
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