England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		21st July 2005

1. MR JUSTICE OUSELEY: This is an application for permission to apply for judicial review, which has been adjourned for oral hearing. The reason for the urgency associated with it is claimed to be the alleged unlawfulness in the detention of the claimant. The claim relates both to the alleged unlawfulness of detention and to the certification of the claim.
2. The background briefly is this: on 1st June 2005, the claimant, who is a Nigerian citizen, arrived in the United Kingdom having travelled via three African and one other country to get to the United Kingdom, leaving Nigeria in January 2005. The claimant sought asylum upon arrival and was detained and placed into the Oakington fast-track system. His claim was determined in a letter of 9th June 2005. In that letter the Secretary of State set out the basis of the claim. This was that, first, in 1999 the claimant had been attacked seriously by members of the Ijawe tribe who had a grudge against the Ilaje tribe, from which he came. He had a scar around his wrist that was said to show where the attackers had tried to sever his hand. He had had no further problems with that group of people since that date.
3. He also said that he had been attacked about a year or so later by a group, either Christian or Muslim, who inflicted upon him a serious attack, including piercing his anus with iron in two places. One had healed, the other had not fully healed.
4. There had been no further incidents of attack since that time. He left the place where those had happened a while later and for the last three or four years has been living in various places in Nigeria, never staying in any one place too long.
5. It appears that the reason for the second attack may have been that he is a Seventh Day Adventist preacher who said that in his preaching, which he continued doing, he had found on occasion that both Muslims and Christians disliked the preaching of the Seventh Day Adventists.
6. The Secretary of State referred to background evidence that supported there being clashes in 1999 consistent with what the claimant had said and that there had been problems in February 2000 between Christians and Muslims, on the one hand, and Seventh Day Adventists on another. It pointed out that the claimant had never reported any of these matters to the police. The claimant said that was because the police were corrupt.
7. The letter also pointed out the scale and population size of Nigeria and the absence of subsequent attacks on the claimant, who had been able to travel in Nigeria readily, and also pointed to various institutional provisions in the constitution of the police force, which were designed to protect individuals and their religious rights. From none of the two groups which had attacked him had there been any evidence of their continuing to look for him, and there was no suggestion that any activity was targeted at him personally.
8. Accordingly, the Secretary of State took the view that he had only been attacked on two occasions, that he did not leave because of any specific threat, and that internal relocation would always be available. He had said he knew nothing about asylum so had not claimed asylum in any of the four countries which he had been in since leaving Nigeria, although he claimed asylum on the day of arrival in the UK. The Secretary of State concluded that there was no demonstration of a real risk of unlawful treatment were he to be returned, and there was no basis in the asylum claim either. Accordingly, he certified the claim for asylum under the Human Rights Convention as manifestly unfounded.
9. It is that decision which in form is the subject matter of the challenge to the certification. I say that because there has been a subsequent letter of 19th July 2005 maintaining that view, but written in response to further representations, including a medical report from Dr Seear who diagnoses the claimant as suffering from PTSD, and as someone who has been subject to the sort of treatment which the claimant has asserted. The 19th July letter maintains the position, but is not the end of the matter because it is plain from correspondence since 21st June 2005, when the Refugee Legal Centre became first involved, that the claimant has been seeking the assistance of the Medical Foundation. He has passed through the screening process for assessment by the Medical Foundation. Appointments have so far been arranged but come to nothing, either because it had been misapprehended that the claimant could go to the Medical Foundation, or that the Medical Foundation could go to the claimant who had been moved from Oakington to Campsfield for the purposes of his appointment.
10. It is also clear from 19th July 2005 letter that the problems of getting Medical Foundation and patient together may be resolved if an appointment is achieved and the Secretary of State agrees, as he has indicated he would, to escorting the claimant from where he is detained to such an appointment.
11. It follows from that that as the Secretary of State has agreed to defer removal until the outcome of any such examination, presumably on the basis that it is arranged reasonably promptly, there will be further information forthcoming as to the position of the claimant in terms of his psychiatric health, and possibly, one knows not, in relation to other matters in his background.
12. However, that letter of 19th July is not the subject matter of the challenge. So far as the letter that is the subject matter of the challenge, I regard the suggestion that it was arguably wrong to certify the claim as manifestly unfounded as quite unarguable based on the material available then to the Secretary of State. At that stage the claimant had the benefit of advice from solicitors who attended his SEF interview and drew attention to problems that there might be in interpretation. The claimant drew attention to the scar on his wrist. The essential features of his claim in relation to ill-treatment were not disputed.
13. The point made by the Secretary of State in his letter on 9th June that that could not possibly found an asylum claim, or an assertion that any rights under Article 3 or 8 could be breached, seems to me unarguably right and it is difficult to imagine that any sensible argument could be addressed to the contrary, taking that letter, as it stands, by itself. But that, as I have indicated, is not, in reality, now the end of the position.
14. In many circumstances judicial review courts are faced with a post-claim representation that has resulted in a further letter. For the avoidance of undue legal formalities, the subsequent letter is often treated as, in effect, subject to precisely the same challenge as the earlier letter: that one is often treated as superseded. But I do not consider it appropriate, in this instance, to treat the 19th July 2005 letter as a subsequent decision that is the subject matter of these proceedings. I do not do so for a reason that I indicated in argument and which has continued to trouble me. It is difficult to know what more, if anything, the Medical Foundation would be able to add to what Dr Seear has said. I recognise that the 19th July 2005 letter proceeds, at least in part, on the assumption that Dr Seear's report is accepted, although the acceptance is brief and the undermining of it is longer.
15. I have formed a view about what the position is in relation to the 19th July 2005 letter in terms of whether it shows that it is arguable that there is a manifestly unfounded case. I have considered whether it is arguable, but taking the 19th July 2005 letter as a decision, it is arguable that the certification that it was manifestly unfounded is wrong. The problem with expressing any firmer view on that is twofold. First, if the Medical Foundation has anything substantive to add it would be wrong for any view expressed by me to colour either their thinking or the way the Secretary of State might approach it. Similarly there is a problem if one examines material in such a way that the question that is asked in respect of the latest report, which in this case would be the Medical Foundation report, is simply whether it causes a change in a position that would previously have been hardened over two letters. The more important approach, the right approach, is for the Medical Foundation report to be looked at with the other material and an overall view taken on the claim, as it then stands, in the light of that report.
16. For those reasons, I therefore, do not propose to do what I would normally have regarded as appropriate and that is to examine whether the 19th July letter represents a satisfactory decision. I do so on the basis that there will in fact be a further decision post-receipt of a Medical Foundation report. If the Secretary of State maintains his decision to refuse the human rights' claim and to certify it as manifestly unfounded, that will then give rise to a further judicially reviewable decision. I think it would be wrong to treat the 19th July letter as included in these proceedings and then wait and see what happens in relation to the Medical Foundation report.
17. So far as the claim that the 9th June 2005 decision certifying the claim as manifestly unfounded is said arguably to be wrong, I reject it. That part of the claim therefore is dismissed and permission is refused.
18. The second part of the claim, and it forms the major part, relates to the lawfulness of the detention of the claimant in Oakington. In essence, the challenge to the lawfulness is not just a challenge to the lawfulness of the decision made on 1st June 2005, but is an ongoing challenge to the continued detention arising out of varying changes in circumstances that have also arisen since 1st June 2005.
19. I should refer briefly to the way in which the case is put. It is said that the decision is unlawful because it does not comply with the Secretary of State's stated policy in relation to the detention of those who have made claims for international protection. The first document, to which I should refer, is the White Paper of 1998 in which paragraph 12.4, for instance, states, and this was a passage relied on by the RLC:
21. "the government also recognises the need to exercise particular care in the consideration of physical and mental health when deciding to detain. Evidence of a history of torture should weigh strongly in favour of temporary admission or temporary release whilst an individual's asylum claim is being considered."
22. Again in the House of Lords, Lord Filkin in 2002 said:
23. "Independent evidence that a person has a history of torture is one of the factors that must be taken into account when deciding whether to detain and would normally render the person concerned unsuitable for detention other than in exceptional circumstances..."
24. There is reference also to the importance, once the Medical Foundation has been approached and agreed to provide an appointment that claims should not be considered, which is a reflection of the weight attached to the quality of reports that they produce.
25. The operational instructions, in relation to detention, say that the White Paper noted that detention would most usually be appropriate to effect removal in so far as relevant, or if there is reason to believe that there would be a failure to comply with any conditions attached to the grant of temporary admission. The factors influencing a decision to detain include, first, the presumption in favour of temporary admission or release and that there had to be strong grounds for believing a person would not comply with conditions for detention to be justified. The likelihood of a person being removed and the time scale were also relevant, as were ties, a history of complying with immigration control and an individual's expectations about the outcome of the case, for example: an outstanding appeal or an application for judicial review. Against detention also the question of a history of torture and mental health problems were strong indicators.
26. That is backed up in paragraph 38.8 which says that persons normally considered suitable for detention:
27. "in only very exceptional circumstances…
28. those suffering from serious medical conditions or the mentally ill;
29. those where there is independent evidence that they have been tortured;"
30. Those who are emotionally disturbed may require detention in "alternative locations."
31. Miss Harrison's short point is that the claimant had been tortured in the attack in around 2000 by the group of Muslims or Christians and that there had been some independent evidence of that in the scarring shown to the SEF interviewer. Subsequently, however, that had not been in dispute because of the Secretary of State's acceptance of the truthfulness of what the claimant had said about that by 21st June 2005 when the RLC became involved instead of the previous solicitors.
32. It was said that the prospect of there being evidence from the Medical Foundation was made greater by the receipt of the report from Dr Seear on 30th June 2005. There was clear evidence of PTSD, clear evidence of emotional disturbance and clear evidence that related that to the sort of events which the claimant had described, because the physical examination showed a number of old injuries and scars which were consistent with the detail of what had been described.
33. With each passing stage, therefore, submitted Miss Harrison, the strength of the judgment leading to detention had been weakened and the breach of the policy was more apparent. She also raised the question, which is related to this, of whether it was fair, on the same grounds, for the claimant to have been put into the fast-track Oakington procedure rather than removed from it. I regard that as something of a subsidiary point, rather dependent on the detention and certification points, rather than themselves grounding any separate claim of substance.
34. I have taken the view that up to 30th June 2005 the claim is quite unarguable. It is perfectly clear that there was no independent evidence of torture other than what the claimant said, whether one looks at the allegation of torture form or the site of scarring, but that is not really the point. The point is rather that within a short space of time from 1st June to 9th June the matter had been considered fully and carefully and, as I have already concluded, inevitably the conclusion arose that there was no claim that could possibly be made out.
35. In those circumstances the retention of the claimant in detention in the Oakington fast-track was a perfectly lawful response and in reality conforms with the policy. Removal could properly have been thought to be imminent and it can properly have been concluded that the claimant would have had every incentive to abscond as he had no ties in the country. His very wanderings would have led to that conclusion being justified.
36. I can see nothing that would have displaced that perfectly proper assessment until 30th June. I accept that up until that date there is a balance to be struck and even from 9th June onwards the Secretary of State was, in effect, accepting that there had been torture. However, he had already reached a decision that this was not a case in which release from detention would assist the investigation of the claim; or in which detention would impede the claimant giving his story by virtue of the circumstances in which he found himself; or because of their resemblance to the custodial circumstances which are those in which torture usually occurs, and which I am quite satisfied the policy had in mind. I do not think the policy, in essence, has in mind the sort of random, but severe, violence to which anybody may unhappily be subject as a result of what are no more than really criminal activities.
37. However, by 30th June the position had moved on somewhat. It had moved on because of the report of Dr Seear. The significance of the report of Dr Seear is this: it indicates continued mental problems in the form of PTSD, attributes them causally to the attacks and projects forward problems on removal. This rather turns the spotlight on to the other aspect of the reason why detention of those who have been subject to torture matters, and that is the simple effect on somebody who is in mentally uncertain health, as a result of physical ill-treatment, of the problems which they may experience simply from the fact of being detained, rather than from any impact which it may have on their ability to have their case properly assessed.
38. Mr Waite fairly recognises that the policy does not itself draw a distinction between the precise time at which the decision is made and later, nor indeed does it draw a precise distinction between torture by state agents in custody and others. So there are no black and white distinctions to be drawn by the policy, although, as I say, what is clear is the main target of the policy.
39. However, by 30th June a picture has clearly emerged of someone who is at least suffering from some degree of emotional disorder. The immediacy of his removal becomes rather more in doubt because the Medical Foundation are involved, a psychiatric report has been obtained which then needs to be considered and at some point, before 19th July 2005, the Secretary of State, it may be said, ought to have appreciated that somewhere along the lines a Medical Foundation report would be obtained and an appointment would actually be managed to be arranged and to be kept.
40. I have come to the view that whilst it is not arguable that before 30th June 2005 detention was unlawful, it may be that following the receipt of Dr Seear's report the detention thereafter became, and may thereafter have continued to be, unlawful. I say that with this in mind: there is not, unless I have omitted it and if I have I apologise, a clear analysis by the Secretary of State of the precise way in which his mind has worked in relation to the balancing of the various factors, upon which he relies, in relation to detention. Yet his policy says very clearly that it requires very exceptional circumstances for those who have been tortured to be kept in detention. I give some weight, as I have said, to the nature of this particular person's claim, but the situation is not black and white.
41. The second observation I would make is that there is a bail hearing tomorrow. The significance of some of the factors upon which the Secretary of State relies, namely the incentive to abscond, the difficulty of maintaining contact, absence of ties, are relevant to his discretion, but there are also points the weight of which can be judged by the immigration judge dealing with the bail application. If he regards them as significant it would, of course, support the Secretary of State's claim. The reverse may or may not be the case. However, those are matters, the strength of which can properly be assessed by the immigration judge.
42. The case is not easy either because there is a real problem that the report of Dr Seear highlighted, which may or may not by now satisfactorily have been resolved, and that is where the claimant would go if he were released on bail. If Dr Seear's report is relied on it also indicated that he is not somebody who could be left on his own in the community but would require support. That is not a point which the Secretary of State has relied on, but would, in my judgment, also be relevant to the consideration of whether it was lawful to detain this man.
43. However, for those reasons I regard it as arguable that from 30th June 2005 detention became, and has continued to be, unlawful. I give leave to apply for declaratory relief and a quashing order in respect of that as from that date. I think I ought to just say this: plainly the bail decision would have some impact on that and it is to be hoped that if the Secretary of State has a Medical Foundation report he will be able to deal with matters fairly swiftly any way. However, as I hope I have made clear, any such decision has not been dealt with in the case and nor have I dealt with 19th July decision, for the reasons I have given.
44. MISS HARRISON: I am grateful for your Lordship's judgment and for the patience in listening to the argument and obviously your Lordship's indications about the Medical Foundation report will be taken on board. We will take all our steps that we have available to us to ensure it can be dealt with expeditiously, but we are, to a degree, in the Secretary of State's hands about arranging, but there seems to be a change of position.
45. MR JUSTICE OUSELEY: As I understand it, so long as he maintains the detention, and he is entitled to maintain detention at present, it is up to him to make the arrangements. He can either fund a Medical Foundation doctor's journey and arrange it or he could provide escorts.
46. MIS HARRISON: Your Lordship may want to consider whether or not the part of the application for which you have granted permission should be expedited because of the situation.
47. MR JUSTICE OUSELEY: It rather depends. If he is granted bail, it does not really matter. If he is not granted bail perhaps it should be expedited.
48. MISS HARRISON: We could leave it as liberty to return to court on that matter if bail is not granted, or your Lordship could make it a conditional order.
49. MR JUSTICE OUSELEY: I think the reality is that this matter ought to come back quickly after any decision on the Medical Foundation report, if you wish to challenge the outcome. Those will be new proceedings. It will be possible in those new proceedings if your client remains in detention to seek expedition; it is those new proceedings that should be dealt with expeditiously. I cannot make an order for expedition for proceedings that may never begin. I do not propose now to order expedition in these proceedings. So much would depend on what happens in those other proceedings. Anybody who wants to apply for it can.
50. MR WAITE: The only other matter I feel we ought to deal with now is a detailed assessment for costs, if it is necessary.
51. MR JUSTICE OUSELEY: if it is necessary you can have that.
52. MR WAITE: In relation to your comments you have given lengthy reasons for granting permission. I wonder if it would be useful either to order a transcript or to reserve the substantive hearing to yourself.
53. MR JUSTICE OUSELEY: I do not think it is sensible .
54. MR WAITE: In that case could I ask for the transcript to be ordered?
55. MR JUSTICE OUSELEY: Were you indicating you wanted public funds to pay?

MR WAITE: I think I was. I had not thought of that. The public will be paying.

MR JUSTICE OUSELEY: I do not think we formally regard the Secretary of State as indigent.

MR WAITE: I would say it would be in the interests of the parties to have a transcript.

MR JUSTICE OUSELEY: It probably would be, does that mean that you do not have to pay?

MR WAITE: In the interests of both parties and in the interests of justice.

MR JUSTICE OUSELEY: I would not normally order it from public funds. If you get one the claimant will get one. I do not see why. That is right, is it not? You can pay, I think.