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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 >> IKM, R (On the Application Of) v Secretary of State for the Home Department [2015] EWHC 3031 (Admin) (07 October 2015)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2015/3031.html
Cite as: [2015] EWHC 3031 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
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| THE QUEEN ON THE APPLICATION OF IKM | Claimant | |
| v | ||
| SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
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Mr David Mitchell (instructed by the Government Legal Department) appeared on behalf of the Defendant
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- MR JUSTICE COLLINS: The claimant, who will be referred to as "IKM", is a native of Sudan, a non-Arab from Darfur. She worked in Khartoum as an accountant, but in 2004 the Janjaweed were responsible for killing her father and for kidnapping her mother, and thus she had to look after the family that was left in Darfur. So she returned to her village together with her fiancé. Unfortunately the Janjaweed attacked and killed her fiancé and shot her in the leg and also raped her. She managed to escape and went to another village, but in 2006 she was arrested by state agents and accused of support for Darfur rebels. She was very badly treated. She was stabbed with a knife, beaten and raped and held for three days. She was then told that she would be further detained when information was obtained. Again she was detained in 2007; again she was raped and beaten and interrogated at knifepoint.
- As a result of this, she decided that she had to leave Sudan and did so in 2008. She had managed to obtain a visa to come to this country as a student. Unfortunately she found that she was not able to study because of the recurrent flashbacks so far as her treatment in Sudan was concerned. Subsequent diagnosis by no less than I think four or five different doctors confirms that she suffers from PTSD, and thus these flashbacks are not in the least surprising.
- In any event, she decided that she should claim asylum. She says that she thought that she would not be able to claim it in this country because she had the student visa, and so she decided to go to the Republic of Ireland and she claimed asylum there. Unfortunately, her claim was refused. She appealed, but her appeal was dismissed in 2010. The result was that she was liable for deportation, and indeed I gather that a deportation order was made against her, albeit it was not implemented.
- The Secretary of State has said in the decision letter under attack that she is aware that Ireland does not at the moment returned forcibly to Sudan; it is only if there is a voluntary return that the deportation order can be put into effect. Whether that will remain the position and what the precise circumstances are I have no evidence about.
- However, as a result of that refusal, she decided that she would leave Ireland and cross the border into Northern Ireland and to Belfast. In August 2013 she was arrested and she was detained for some five days. It is clear that the circumstances of her detention were, to say the least, unfortunate, because she was handcuffed and kept I think in a police station for at least two days. This had a very serious effect on her health, again because of bringing back what she had suffered in Sudan. Nonetheless, she was then released and she came to the mainland.
- She complied entirely with the requirements of reporting and she began to establish a life here, living in the north-east of the country. As a result of that, there is no question but that her health improved. It was always fragile, for obvious reasons, but, as a result of support and, as a result of no concern that she would be returned to Sudan from this country, her health improved.
- However, the Secretary of State decided that she should be returned to the Republic of Ireland in accordance with the Dublin Convention. That provides, so far as material (and I need not go into the details), that the country in which the first application for asylum is made is the country which will determine all asylum matters in the future. So it was that the United Kingdom requested under the Dublin agreement that she should be taken back into the Republic of Ireland. The Republic of Ireland agreed to that.
- She knew that she had had her claim rejected in Ireland, and so she reasonably believed that if she were returned to Ireland the inevitable result would be that she would be sent back to Sudan. It may be that she would have a right to make a fresh claim. I say "may be", because that is what the Secretary of State has asserted in the decision under attack. I have no evidence that that is indeed the position, but what is said is that in the Republic of Ireland questions of subsidiary protection (or humanitarian protection as it is termed in this country) are dealt with separately from the asylum claim, and so it may be (again, we do not know the full details, because unfortunately neither side has produced the Irish appeal decision - which presumably is a matter of public record - or the refusal letter upon which the appeal was based) that there is now a right to claim humanitarian protection. However, I am told that the decision of the Irish, both the ministry and on appeal, depended upon to an extent credibility issues but concluded that internal relocation to Khartoum would provide the necessary protection.
- It is important to note - and this, as I understand it, is not controversial - that in this country internal relocation is not accepted as safe for such as the claimant, namely a non-Arab from Darfur. That being so, and if, as I am told, the Irish decision was based at least in part upon internal relocation, then it is difficult to see that humanitarian protection could result in a different decision, because the alleged safety of internal relocation applies equally to humanitarian protection as it does to asylum. Thus the chances of any success in the Republic of Ireland are not likely to be great; indeed, they are likely to be non-existent if that is correct.
- It now is the case that there is strong medical evidence that shows that the claimant's account is credible. There is a lengthy report from a psychiatrist instructed on behalf of the claimant, in which details are given of her account. In addition, the doctor has considered the injuries that she shows which are entirely consistent with the account of the ill-treatment and indeed torture that she has described. In those circumstances, and undoubtedly correctly, the Secretary of State has accepted that her account may indeed be credible. In the circumstances, it is difficult to see that she has other than a very strong case for asylum in this country, because in this country, having regard in particular to a country guidance case in the Upper Tribunal, it is not accepted that internal relocation would provide the necessary protection for someone such as the claimant. Nevertheless, the Secretary of State has taken the view that it is not for this country to determine her asylum claim but that she should be returned to the Republic of Ireland.
- The second aspect which is of considerable importance is the claimant's state of health. As I have said, she suffers from PTSD and there is no question but that she is very fragile. For reasons best known to those responsible she was taken into custody at the beginning of December 2013 with a view to her removal taking place at the beginning of January. It was well known that she was someone who, in all probability, had sustained torture. That meant that she was someone who should not be detained unless there were very exceptional circumstances. Mr Mitchell has accepted that the detention was unlawful, and how anyone could possibly reasonably have believed that there were very exceptional circumstances in this case is beyond belief, particularly as there was no question of immediate removal because the custody was a month before the proposed removal.
- Furthermore, on the first day that she was in custody at the relevant institution, it was said in terms that to keep her in custody would damage her health, yet those responsible still took the view that detention should continue. Indeed it did damage her health, to such an extent that when she was eventually released from custody at the beginning of January she had to spend three weeks in hospital. It is, I hope, a unique case, because the behaviour of those responsible was utterly unreasonable and truly, in my judgment, disgraceful. She should never have been put in custody in the way that she was; there was no possible case that there were very exceptional circumstances; and, as I say, the damaging effect on her health was warned about and indeed occurred. However, I do not need to go further into the question of detention, which is part of the challenge in this case, because, as I say, very properly Mr Mitchell on behalf of the Secretary of State has conceded that the detention was unlawful and I will deal with the necessary order in relation to the damages claim in due course.
- I come back to the decision under attack. This case has taken a very long time to come before the court. It was instituted in January 2014, but there have been a number of interlocutory applications and various orders by a succession of deputy judges. The result is, as I say, perhaps unfortunately that it has only come before me today. However, there were attempts by the claimant's solicitors to persuade the Secretary of State to change her mind. So the final refusal is the one that matters, and that was a refusal on 3 October 2014. It resulted from additional representations which had been made in August following the medical report from Dr Millington.
- That decision letter made a number of points. It recognised that the claimant was suffering from a number of health issues; it made the point that there would be availability of proper care in the Republic of Ireland. That is not challenged, nor, Mr Halim submits, is it really in issue because it misses the point; the point is the damaging effect on the claimant were she to be removed because of her reasonable view that the result would be that her claim to be able to remain was rejected and so she would be subject of a deportation order to Sudan. As I say, there is no possible doubt that that concern was one reasonably held, whether or not there are at present forced returns from the Republic of Ireland to Sudan. As occurred in detention, notwithstanding that there were available proper measures to deal with illnesses, whether mental or physical, she still suffered damage to her health. This showed that whatever arrangements there were available in the Republic of Ireland would not be likely to alleviate the health problems that she was likely to suffer. Furthermore, if she was aware that she was to be removed to Ireland, because of her fears of what would happen there, it was said that there was a real risk that she would become suicidal. Certainly, it would have a serious and damaging effect upon her health. As I say, the fact that there are proper arrangements in the Republic of Ireland (and I do not doubt that there are) in the circumstances of this case fail to meet the point which is relied on on the claimant's behalf.
- The other aspect is the question of fear of onward refoulement. That is dealt with in the decision letter by making the point, as I have said, first of all that she will be able to have a fresh claim because of the humanitarian or subsidiary protection aspect, and that there are at the moment no forcible returns to Sudan from the Republic of Ireland. That again fails to meet the point, because she will not get any of the advantages that flow from being recognised as a refugee, and there is always hanging over her the risk that circumstances may change and that there may well be a question of return to Sudan. At the very least it seems to me that it is arguable that there is a real risk (and that is the appropriate test) of refoulement which has to be taken into account by the Secretary of State and which has not been taken into account in all the circumstances.
- The decision under attack lies in the certification of the claim. According to paragraph 5(4) of schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 that was put on the basis her human rights claims is clearly unfounded. The human rights claim depends upon the serious damage to her health, possible suicide implications of the decision to return her, but also goes beyond human rights because of the real risk of refoulement, and that has not been properly taken into account.
- It seems to me that it is quite impossible for the Secretary of State in this case to say that there is no reasonable possibility that an appeal in this country would come down in the claimant's favour. The test for the purpose of certification is a very stringent one, and in my judgment, for the reasons I have indicated, is clearly not met in the circumstances of this case. It follows that this decision must be quashed.
- I reiterate that on the facts of this case, albeit Mr Mitchell has referred to "asylum shopping", he has recognised that this may not be a case that could properly be regarded as asylum shopping, because this claimant on the face of it may well have a genuine claim to asylum so far as this country's law is concerned, whatever may be the position in the Republic of Ireland. She has begun to make a life for herself in this country. Her health has improved and is likely to improve more if she knows that she has a safe haven and there is no chance of her being sent back to Sudan unless circumstances in Sudan change dramatically, and there is no indication, I fear, at the moment that that is the case.
- It seems to me that this is a case where the Secretary of State should seriously consider whether it really is humanitarian to require that the Dublin Convention provisions be followed to the letter, rather than adopting a compassionate approach in the particular circumstances of this case. However, of course, it is not my decision but the Secretary of State's in due course (or rather, I suppose, some employee of the Home Office who will have the matter delegated). But this is a sensitive case, a difficult case, and one where, as I say, perhaps somewhat unusually it seems to me all the merits are on the side of the claimant.
- Mr Halim, have you had any discussion as to what I should do about the damages claim?
- MR HALIM: I have not had very much discussion, no. I did speak to my solicitor about this and I think the fees are very much the same, certainly in terms of the centre that is taken on damages in the High or a County Court. But I am in the court's hands.
- MR JUSTICE COLLINS: It really seems to me prima facie it is, I would have thought, more cost-effective to go to the County Court, and surely this is a case which should be dealt with locally, should it not? She does not want to have to travel down to London, does she?
- MR HALIM: My Lord, yes. As I say I do not think that any damages claim in the County Court would require the claimant to travel up or down anyway, because it is just a matter of --
- MR JUSTICE COLLINS: It can be done by video link, I suppose, if the worst comes to the worst.
- MR HALIM: Yes, and I do not suppose there would be any evidence because the findings have been made and the judgment is here.
- MR JUSTICE COLLINS: Mr Mitchell, have you had any thoughts about this?
- MR MITCHELL: I have not had the opportunity to speak to my learned friend.
- MR JUSTICE COLLINS: Shall I leave it that I will say that I will await some written observations from both of you, and if you cannot agree I will make the necessary decision on paper as to what should happen to the dama{~}ges claim. Is that the sensible way of dealing with it?
- MR MITCHELL: I do not have a strong view, my Lord, so I do not think we are in disagreement. My only observation is I would have thought the fees here would be higher for it to stay in the High Court.
- MR HALIM: We can come to an agreement on that.
- MR JUSTICE COLLINS: I will say it will go for consideration by a Queen's Bench judge, unless within the next seven days, say, you jointly say "Please make it the County Court instead", and whichever County Court you consider appropriate. That is probably the best way of dealing with it, is it not?
- MR HALIM: My Lord, yes.
- MR JUSTICE COLLINS: You want some costs, I imagine?
- MR HALIM: I think so, yes.
- MR JUSTICE COLLINS: Are you legally aided?
- MR HALIM: I am, my Lord, yes.
- MR JUSTICE COLLINS: You can have the usual legal aid order and costs subject to detailed assessment if not agreed.
- MR HALIM: That is right, my Lord, yes. We would seek our costs of course because of the result in this case, but we would seek them on an indemnity basis for two reasons. One is that this is a very stark case, as I have put it. The Secretary of State ought to have, and was invited to, revisit this case on several occasions, not just in formal correspondence but also in the run-up to the hearing today. It is of some very great regret that she did not choose to do so. That was the view taken by the Secretary of State, and in view of the unreasonableness of that view, or in view of the fact that this matter could have been settled without the substantial expense of the public purse in preparing this hearing, we say their conduct in litigation was such as to justify indemnity costs.
- MR JUSTICE COLLINS: No, I do not think, I am afraid, it crosses the borderline, which is again a fairly high hurdle. No, it will be costs on the usual basis. All right, thank you both.
- MR MITCHELL: My Lord, there is an application for leave to appeal.
- MR JUSTICE COLLINS: Oh come on. The answer is no. You are not going to get leave to appeal. This is a one-off case.
- MR MITCHELL: The only observation I would make, my Lord, I note what was said in my Lord's judgment about an acceptance on my part that the claimant has a genuine claim for asylum, this is not an asylum-shopping case. In so much as I have not reached any concession myself on behalf of the client to do with the merits of an asylum claim because that certainly was not my submission, my Lord. But I accept that when you questioned me as to whether or not this was an asylum-shopping case I accepted that in the event this was a genuine claim, that might not be the case. I am sure my Lord will see my slight hesitation.
- MR JUSTICE COLLINS: I will make clear in the judgment that you do not necessarily accept that this is a cast-iron claim. I will amend the judgment accordingly. When I get the transcript I will make it clear. I still take the view that on the face of it, it is a very strong claim.
- MR MITCHELL: I am only concerned about my concession or potential concession.
- MR JUSTICE COLLINS: All right. If I misunderstood what you said then I will correct that, but it will not change the effect of the judgment, and it is not a basis for leave to appeal.
- MR MITCHELL: It was not that. But, my Lord, I will not trouble you with the application for leave if it is my Lord's decision that leave is refused.
- MR JUSTICE COLLINS: Are you withdrawing the application?
- MR MITCHELL: No. That was, I understood it -- the application is this, my Lord. On the first issue to do with the first challenge, the first certificate, my appeal is simply this: that the Dublin Convention is in effect emasculated in circumstances such as this.
- MR JUSTICE COLLINS: Come off it. Dublin Convention does not require a state to send someone back to the original state; the state has the choice not to do so. There is no question of emasculating Dublin.
- MR MITCHELL: The point in respect of the second certificate was this: in circumstances where we are perfectly unclear as to the situation concerning what happened with the claim and the appeal in Ireland, dealing with the issue of potential refoulement, first of all, I would say that that is a matter that is simply speculative, my Lord, and should not have formed any part of my Lord's judgment. The question to do with the fear that the claimant has, because as I understood my Lord's judgment the potential for refoulement also formed part of that decision, my appeal point there would be that whilst it is obviously the case as we know from the medical reports that the claimant has this concern and that could be a medical issue, all of that is dealt with in the letter from October which sets out the situation as she will find it returning to Ireland.
- MR JUSTICE COLLINS: Mr Mitchell, if you think that the Home Office would really want this case to go further then I am, to say the least, surprised. There is no merit at all in the way the Home Office has approached this case. But if you want to spread that abroad and take it further then you will have to apply to the Court of Appeal.
- MR MITCHELL: Thank you.
- MR JUSTICE COLLINS: No, I am afraid I think this was not an application that you ought to have made.
- MR MITCHELL: Very well.
- MR JUSTICE COLLINS: All right. Thank you both.