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 WC2A 2LL
		3rd February 2016

1. THE DEPUTY JUDGE: This is a renewed application for permission to bring judicial review on behalf of an Indian national, Mr Hasimran Singh.
2. The application for permission was and is still based on two grounds. First, that the decision of the defendant, Secretary of State, to certify the asylum and human rights claims as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002 was erroneous in law, and secondly, a claim for damages for unlawful detention, the detention lasting from 12th September 2015 until the release on 27th October 2015.
3. Turning to the background facts, the claimant is a young man, born in 1987, who appears to have entered the United Kingdom probably in January 2010. He then had a student Visa but before the expiry of that visa he was encountered by immigration officials and detained on the grounds that he had used verbal deception in obtaining his entry. He was however released with reporting obligations and he then absconded.
4. Having gone to ground for a period of 3 years he was again encountered by immigration officials on 29th August 2013 and again reporting obligations were imposed. He once again did not abide by them and in September was listed as an absconder and he avoided the attention of the immigration authorities until 28th July 2015 when he was encountered by the police and detained for the third time.
5. On 13th August 2015 he claimed asylum. On the 9th September he was interviewed and he advised the interviewer that he had a rule 35 appointment the same day and on 12th September 2015 a report was received from a GP indicating that the marks on his body were compatible with his allegations of torture. However, the Secretary of State maintained the detention and on 18th September the asylum claim was refused and certified as clearly unfounded. Very promptly on 5th October the claimant commenced judicial review proceedings and was released on 27th October 2015 which is why any claim for damages for unlawful detention must come to an end on that particular date.
6. When the application was renewed there were no further grounds lodged and there has been no application to amend the grounds, although in a skeleton argument provided to me as I was about to come into court, there is reference now made to a further document, namely a Home Office operational guidance note about India of May 2013 and de bene esse I have had regard to that.
7. Before I come to the application for judicial review I should say something about the Decision Letter of the 18th September 2015, by which the application for asylum was refused and the claim was certified. This is a lengthy document of some 20 pages.The author of the document considered all the aspects raised by the claimant and reviewed various country of origin reports relating to conditions in India. The conclusion reached was not that the defendant was to be disbelieved in respect of injuries he had suffered whilst in India but that the circumstances simply did not satisfy the test in the case of Horvath v Secretary of State Home Department [2000] UKHL 37, that it was shown that the persecution which the claimant feared consisted of acts of violence or ill treatment against which the State was unable or unwilling to provide protection. The matter was looked at extremely carefully, including the fact that on the claimant's own evidence he had never reported the treatment he had received or approached any other police stations. The conclusion was reached that there was a sufficiency of protection in India for a person in his circumstances.
8. The view was also expressed that there appeared to be no obstacle to internal relocation in any event, that being an appropriate course if in fact the police in the Punjab were to be more thoroughly corrupt and unreliable than the writer of the report believed the situation to be. It was pointed out that his father, who was the person who had the links to the former leader of the Sikh Independence Group, had managed to relocate internally in India, with no suggestion that this had been impossible. It followed that similarly the claimant could relocate and there was no reason of language which meant that he could only live in the Punjab and, more particularly, in the part of the Punjab where he had lived previously. The report went on to consider any Article 8 rights. The claimant had no family life in the United Kingdom and could not claim any protection under that. It was accepted that he had had a private life in England and that that would be interfered with but he failed to meet the test in 276ADE (vi) in showing that there would be very significant obstacles to his integration into the country to which he would have to go if required to leave the United Kingdom. That, of course, necessarily followed from the finding that he could readily return to the Punjab itself or relocate elsewhere in India.
9. That was not the end of the matter because the Secretary of State went on to ask whether there were any exceptional circumstances and concluded that there were no exceptional circumstances in the case and that the application for leave to remain was therefore refused. So far as a discretionary leave, that was also considered, before the application was refused. There was then a duty on the Secretary of State to certify the claim was clearly unfounded, unless satisfied that it was not clearly unfounded. The writer of the report considered all the evidence and decided that both in respect of the asylum claim and the human rights claim the claim was clearly unfounded and in that circumstance there was a duty to certify, which is what occurred.
10. When the judicial review application came before Cheema-Grubb J on 11th December, on the papers, she refused permission and set out the background in very considerable detail. In paragraph 4 she said as follows:

i. "The claimant has waited until 2015 before making any application for asylum despite having entered the United Kingdom in August 2010. The onus rests on the claimant to show that there are substantial grounds for believing that if he were removed from the United Kingdom he would face a real risk of being subject to abusive treatment contrary to Article 3 of European Convention of Human Rights. It is unarguable that the Secretary of State has not adequately considered and resolved the issue as to whether the claimant's claim that his human rights will be breached is manifestly unfounded. Furthermore, it is clear the defendant also considered fully whether refusal of the claimant's application would not be proportionate under Article 8 of the ECHR.

ii. 5. It is noteworthy that although the claimant sought an extension of time to submit evidence and complains that his asylum claim was resolved without waiting for further evidence he has not to date submitted any further representations of the Secretary of State for the Home Department.

iii. 6. While the claim for unlawful detention could be said to be academic on the basis that the claimant has now been released, it is necessary to consider it if only to observe it too is unarguable. The submission that a rule 35 report does not mandate release of the subject of the report and this is certainly a case in which the defendant was entitled to conclude that exceptional circumstances arose in that this was a claimant in respect of whom release would create unacceptably high risk of absconding. The assumption he would not comply with temporary release conditions was a reasonable one for the defendant to make. There is no conceivable argument that the period of detention in this case, in the circumstances of this case breached any of the ex parte Hardial Singh principles."

11. I turn then to the way in which the matter was presented today in argument. What is said is that, first of all, the decision of the Secretary of State left out of account the evidence in the May 2013 internal report which showed that the Punjab police had been involved in various incidents of torturing individuals. That is an entirely new matter not raised in the grounds and therefore, as it seems to me, inadmissible in any event. But it is perfectly plain that the writer of the report was not doubting that certain persons in the Punjabi police had behaved in ways which would be wholly unacceptable in this country but considered that those were rogue elements and that there was no evidence that there was systemic police violence or that the situation was not capable of control by reporting to higher or different police authorities. Therefore, as it seems to me, the new document does not go to the validity of the report.
12. However, the principal point made to me today is that the Secretary of State was acting unreasonably in certifying the matter. At the very least the claimant ought to have been entitled to an in-country appeal because this was not a really clear case in which an appeal was bound to fail. Rather, it is said that this was a borderline case in which even though the Secretary of State and his officers had reached one view, it was perfectly clear that on an appeal the matter might be decided differently. In the light of those arguments I have looked again at the wording of the Decision Letter and I have concluded that this is in no sense a borderline case. As it seems to me, there were very clear findings and it was virtually inevitable that the Secretary of State found that an appeal would fail. If one looks at one particular matter, no argument has been addressed to me on the finding of relocation. As it seems to me at the very least an appeal will be bound to fail because of that element of the matter which would also run over into the Article 8 grounds because if there was a right to relocate, there would not be the interference with Article 8 rights to the extent necessary for the Secretary of State's policy on human rights to allow the claimant to remain. Therefore, I reject the challenge to the certification. It is wholly unarguable, as the learned judge who initially refused permission also concluded.
13. I turn then to the unlawful detention claim. Here I am not satisfied that one can refuse permission simply because provision was made in paragraph 55.10 of the EIG for continuing to detain persons even where there was independent evidence they had been tortured if there were very exceptional circumstances for doing so. Here there may well have been very exceptional circumstances, namely a very real risk of absconding but there is no evidence that anyone applied a test of very exceptional circumstances in continuing to detain the defendant and therefore, if there was independent evidence that the claimant had been tortured, it seems to me that the claim for unlawful detention might well succeed. It would certainly be arguable. Of course the very the fact that the detention could have lawfully been ordered on the basis of very exceptional circumstances would mean that any damages would be only nominal: that follows from what Lord Dyson said in paragraph 71 in the case of R (Lumba) v Secretary of State Home Department [2012] 1 AC 245.
14. However, I do not think that is enough to establish that the claimant has here an arguable case. The view taken by the Secretary of State was that there was not independent evidence that the claimant had been tortured. When one reads carefully the so-called "independent evidence", it does not show that the claimant had been tortured. Two matters are relied upon. First of all, a document from India consisting of hospital records of 2008 showing that the defendant had incurred multiple injuries. There is nothing in those reports to suggest that the injuries related to torture and therefore that cannot be independent evidence of torture.
15. So far as the GP's report of 12th September 2015, which is the matter principally relied upon, the doctor in question, Dr Jabber, very fairly pointed out that he was not a medico-legal expert, and all he could conclude was that the claimant's account which he set out was compatible with the history he gave and the examination findings today. He went on to say that as he was not an expert in torture he could only raise the claim that the injuries may be the result of torture.
16. As it seems to me that falls far short of independent evidence that the claimant had been tortured. That was required to trigger the EIG policy that in those circumstances a person would be considered unsuitable for detention. Accordingly, as it seems to me, it is not arguable that the Secretary of State in continuing to detain the claimant was acting contrary to her own policy in the EIG.
17. Accordingly, albeit for slightly different reasons from those given by the judge who decided the matter on the papers, the unlawful detention claim is also unarguable. I should also record that for the Secretary of State Mr Irwin has submitted that the claim form contained no public law remedy in respect of unlawful detention, not even an application for a declaration and there was no apparent reason why any claim, if it were to be pursued, should not be pursued separately in the County Court. There is very considerable merit in that argument but, as I have said, I base my decision on the fact that it was simply not arguable that there was independent evidence here of torture so as to make the detention unlawful.
18. Then we come to the question of costs. Cheema-Grubb J made an order for costs and that same order of course continues.
19. Is there anything either of the parties want to say about the question of costs?
20. MR IRWIN: My Lord, not for me.
21. THE DEPUTY JUDGE: Very well. Thank you.