QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (ZAFAR)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Rory Dunlop (instructed by the Government Legal Department) for the Respondent
Hearing date: 17 May 2016
Crown Copyright ©
Mrs Justice Andrews:
"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed, or intimidating or coercing him or a third person, or for any reason based upon discrimination of any kind."
The perpetrators do not have to be state agents, as the individual cases considered within that judgment demonstrate.
"the notion of unlawfulness which goes beyond the aberrant individual decision, to cover cases which may not have been remediable within the appellate system, does not mean to my mind that every case now has to be re-examined. The applicant may have had a hopeless case; they may have been advised already to make a fresh claim; the processing of their claim may have been quite fair."
i) To identify such individuals and
ii) Even when such individuals were identified, to recognise those cases that required further investigation (including, in some cases, clinical investigation).
He also declared that each of the four representative claimants (all of whom claimed at their screening interviews to have been the victims of torture) should have been identified as having a claim that was unsuitable for a quick decision, and that they were unlawfully detained. Moreover the SSHD had acted unlawfully in refusing to accept a Rule 35 Report as indicating that the claim was unsuitable for a quick decision within the DFT, and removing them from the process. Full and detailed reasons were appended, which recorded that the SSHD had accepted that each of the Claimants was vulnerable, but that despite this, the DFT systems as operated had failed to identify them as such, even though it should have been apparent on screening. The refusals of asylum were withdrawn, and were made subject to reconsideration.
"If a legal representative is properly notified of an asylum interview but fails to attend, the case owner must attempt to make contact with the appropriate legal firm to ascertain the reason for non-attendance.
If the legal representative's non-attendance is due to problems unrelated to the applicant, the situation must be fully explained to the applicant, who must then be offered the options of either conducting the interview without the legal representative, or of delaying the interview (taking into account the reason and the need for reasonableness and fairness), but normally for no more than two working days."
There is no indication of what would count as a problem "unrelated to" the applicant, or of how the failure of a privately funded solicitor to turn up because he was not going to be paid for his attendance would be treated within the policy. However the overriding concern identified is one of reasonableness and fairness, and that must depend on the facts and circumstances of the particular case.
"When I attended my substantive interview on 8 June 2015, the Home Office interviewing officer asked me where my legal representative was. I told them I did not know. The Home Office called Kale Khan and spoke to him. I do not know what was said because they talked in English which I could not understand. I also spoke to Kale Khan who told me he was not attending.
After my substantive interview, I tried to call Kale Khan at GK Associates several times. He insulted me on the phone and he did not provide me with any legal advice."
WAS THE CLAIMANT UNLAWFULLY DETAINED?
SHOULD THE DECISION MADE ON 12 JUNE BE QUASHED?
"First of all, an applicant is entitled not only to a fair appeal but to a fair initial hearing and a fair-minded decision. Secondluy, and perhaps more important, the consequences of the risk may very well not be susceptible of appeal. If the record of interview which goes before the adjudicator has been obtained in unacceptably stressful or distressing circumstances, so that it contains omissions and inconsistencies when compared with what the applicant later tells the adjudicator, the damage may not be curable".