QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
(Sitting as a Deputy Judge of the High Court)
| THE QUEEN
(on the application of HA)
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Mary Glass (instructed by Government Legal Department) for the Defendant
Hearing dates: 29 and 30 November 2016
Crown Copyright ©
Mr Peter Marquand :
"They have obtained further information from his GP and following 72 hours in detention they have no reason to be concerned with his current medical state. Dr Jabbar was initially unaware of the reasons for detention but having since been advised was able to make a more informed and rounded decision.
He advised that [the Claimant] is fully aware of his medical condition and is accepting of it. He is coping well with his current environment, is of stable mental health and is not stressed.
Neither seem to think a referral for a second opinion is necessary."
The Claimant remained in detention.
"Your client has stated that he is refusing medication in order to secure temporary release. Your client is alternating between medication refusal and medication compliance and as such his fitness for detention fluctuates. Your client has no entitlement to ongoing treatment outside the confines of the detention centre. Your client appears to lack insight into his condition; the United Kingdom Border Agency has a duty of care towards all detainees and at present that duty of care appears to be best met by maintaining your client's detention.
Your client utilised deception to enter the UK. Your client has committed several criminal offences and has served several custodial sentences. Your client has previously failed to adhere to the conditions of his temporary release. Your client has failed to leave the UK when required to do so. Your client has no incentive to comply with any conditions of temporary release. In light of all the above circumstances I am not prepared to grant your client temporary release at this point in time…"
"I would like to inform you that I am not willing to fly or go back because there are issues if I return back to Sri Lanka and scared for my life I may get tortured and killed.
I have done (sic) a credit card fraud and I am on high risk if I go back home, because the Sri Lankan authorities think, that I done credit card fraud to support LTEE.
I was involved in LTTE protest in London and the authorities got my photos (sic).
I have got a tatoo (sic) of the LTTE flag in (sic) my right arm.
Medically I am not fit to fly. I still got (sic) appointment to see the endocrinology and the cardiology (sic) this month.
My health has deteriorated day by day and my health is still the same. I still get chest pain and go (sic) breathless.
So, please don't send me back. My life is on (sic) risk"
Grounds of challenge
a) The Defendant's decision of 1 November 2013, to refuse to treat his fresh representations as a fresh asylum/human rights claim, is irrational and or otherwise unlawful.
b) The Defendant's supplementary decision of 10 November 2015 to refuse to treat his fresh representations as a fresh asylum/human rights claim is irrational and/or otherwise unlawful.
c) The Claimant was unlawfully detained for all or part of the period from 13 July 2012 to 2 March 2013. First, the Defendant failed to apply or to rationally apply her published policy and secondly, or alternatively, the detention was in breach of the Hardial Singh principles.
Ground 1 &2 – Fresh asylum Claim
"353. When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection…"
a) Under rule 353 the decision remains that of the Secretary of State. The determination of the Secretary of State is only capable of being challenged on Wednesbury grounds.
b) The first question for the Court is whether the Secretary of State has asked himself/herself the correct question. Namely, is there a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk (not certainty) of persecution on return? This is a 'somewhat modest test.' The Secretary of State should treat his/her own view of the merits as a starting point but it is a distinctly different exercise from the Secretary of State making up his/her own mind.
c) Secondly, in addressing the first question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? A decision will be irrational if it is not taken on the basis of anxious scrutiny. Anxious scrutiny is required as if decisions are made incorrectly they may lead to the applicant's exposure to persecution.
"[anxious scrutiny] underlines 'the very special human context in which such cases are brought, and the need for decisions to show by their reasoning that every factor which might tell in favour of an applicant has been properly taken into account'".
a) 'the only task at this stage [a judicial review of a fresh asylum claim] is to consider whether the WM threshold has been reached for a fresh claim, and not consider the merits of that claim beyond that threshold' – paragraph 25;
b) 'whilst of course any evidence (including that of an expert) needs to be given proper consideration – and, if it is of no evidential weight in relation to the relevant issues, it can and should be disregarded – it is important that expert evidence is given appropriate respect' – paragraph 25;
c) there were obvious unsatisfactory features of the expert evidence before the court although the expert 'undoubtedly had the appropriate qualifications and experience to be a country expert on [the country in question]'- paragraph 26;
d) the expert evidence was relevant to the material issues – paragraph 28;
e) the criticisms of the evidence 'reduce the weight that might be given to the opinion of the experts as to the risk to which [that Claimant] would be subject to return to [the relevant country], but they do not mean that that expert evidence can be entirely dismissed as evidence to which no immigration judge could reasonably give any weight at all' – paragraph 31;
f) in those circumstances the low 'fresh claim' threshold was passed.
The Claimant's submissions were that it was only if the expert evidence could be given no weight at all that the Secretary of State was entitled to disregard it.
"… [The Secretary of State] has said what [she] sees as significant deficiencies in the material in support of a fresh international protection claim and ha[s] ended up by concluding that for the reasons given the claims would not create a reasonable prospect of success before an immigration judge… It is difficult to see what more the writers could have said."
"…the [Upper Tribunal] in the present case was endeavouring to provide 'definitive' guidance on risk. That is why, in paragraph 356, it stated that the risk categories then set out 'are' rather than 'include' those listed. It was therefore rejecting the notion that those currently at risk might embrace, for example, former LTTE combatants or cadres who lack current potency, real or perceived, to threaten the unitary Sri Lankan state."
"The clear message of the Upper Tribunal's guidance is that a record of past LTTE activism does not as such constitute a risk factor for Tamils returning to Sri Lanka, because the Government's concern is now only with current or future threats to the integrity of Sri Lanka as a unitary state…"
10th November 2015 decision
Credit card fraud
a) Dr Smith's evidence on this aspect of the case is that it is criminal activity as a whole that may be taken into account, not just credit card fraud. Whilst the example provided in Dr Smith report is of a more significant credit card fraud no reason appears for the rejection of the assertion of general criminality being taken into account or of the Claimant's criminality in relation to credit card fraud.
b) The last paragraph that I have quoted above indicates to me that this is the Defendant's opinion of the evidence and that the proper test has not been applied, namely whether a tribunal judge might take a different view from the Defendant. The Defendant's conclusion that the other offences indicate general criminality rather than LTTE support to my mind betrays the underlying thought processes here which in my judgement are defective.
c) I do not believe that the Defendant's conclusion that the Sri Lankan authorities would not know about the Claimant's convictions passes the test of anxious scrutiny. The outcome of GJ and others was (at paragraph (8)) the Sri Lankan authorities' approach is based on sophisticated intelligence. I do not think it is an answer in the circumstances of considering a fresh claim to make such an assertion. How could the Claimant demonstrate that the Sri Lankan authorities would be likely to know about his convictions? This, it seems to me, does not consider all the available evidence from the point of view of the tribunal judge for the purposes of the section 353 test.
Cumulative consideration of the factors
"You have also provided several news articles and country reports on the current situation in Sri Lanka, however you are not named or photographed within these reports and have not shown how they specifically relate to you. It has been considered above that you are not at risk due to credit card fraud in the UK or your tattoo and you would therefore be at risk (sic). You have also stated that your participation in protest in the UK put you at risk of the authorities in Sri Lanka naming you as an LTTE sympathiser however when this is being considered in the round with your claim to arrest and detention in November and December 1996. (Sic) With current case law it is not considered that you have provided evidence to show that you will be at risk on return to Sri Lanka."
"In conclusion on the fresh claim and applying the case for of WM, it is concluded that your further submissions have no realistic prospect of success before an immigration judge in any appeal because you have failed to provide any credible evidence that would suggest you are a Tamil activist in the diaspora who is working for Tamil separatism and to destabilise the unitary Sri Lankan state…"
"However you have provided no further evidence to support your attendance of protests in the UK or any evidence to show that you are a Tamil activist in the diaspora. Consideration has been given to the expert report above and it is not considered that you would be at risk due to your tattoo or credit card fraud in the UK or claimed past detentions in Sri Lanka either as detailed above."
Ground 3 – Unlawful detention
"(i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose;
(ii) the deportee may only be detained for a period that is reasonable in all the circumstances;
(iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention;
(iv) the Secretary of State should act with reasonable diligence and expedition to effect removal."
"But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences."
"The purpose of the power of deportation is to remove a person who is not entitled to be in the United Kingdom and his continued presence would not be conducive to the public good. If the reason why his presence would not be conducive to the public good is because of a propensity to commit serious offences, protection of the public from that risk is the purpose of the deportation order and must be a relevant consideration when determining the reasonableness of detaining him pending his removal or departure."
"… The period which is reasonable will depend on the circumstances of the particular case and the likelihood or otherwise of the detainee reoffending is 'an obviously relevant circumstance".
"… It is clearly right that, in determining whether a period of detention has become unreasonable in all the circumstances, much more weight should be given to detention during a period when the detained person is pursuing a meritorious appeal than to detention during a period when he is pursuing a hopeless one."
Lord Dyson agreed that the weight to be given to time spent detained during appeals is fact sensitive.
a) A refusal to return voluntarily is relevant to an assessment of what is a reasonable period of detention if a risk of absconding can properly be inferred from the refusal;
b) The fact that voluntary removal has been refused cannot make reasonable a period of detention, which would otherwise be unreasonable;
c) The relevance of the likelihood of absconding should not be overstated. The risk, if proved, is not a 'trump card' that can be used to justify detention on its own;
d) The burden is on the Secretary of State to satisfy the court that the refusal of voluntary deportation would lead to the detained person absconding;
e) Where return is not possible for reasons that are extraneous to the person detained, the fact that he is not willing to return voluntarily cannot be held against him since his refusal has no causal effect;
f) If the detained person has issued proceedings challenging his deportation it is entirely reasonable that he should remain in the United Kingdom pending the determination of those proceedings (unless the proceedings are an abuse);
g) Where there are no outstanding legal challenges the refusal of voluntary deportation is not a 'trump card'. At paragraph 128: 'If the refusal of voluntary return has any relevance in such cases even if the risk of absconding cannot be inferred from the refusal, it must be limited.'
a) The Claimant was identified as a high harm case who failed to comply with temporary admission. I do not think this is a separate point but is dealt with in the following issues.
b) The Claimant entered the United Kingdom illegally, using deception and a false British passport. The Claimant argued that this occurred in 1997 and was common to a large number of refugees/asylum seekers and was not sufficient to demonstrate a high risk of absconding. I think this is a relevant consideration which I will take into account.
c) The Claimant has failed to return voluntarily to Sri Lanka since 1997. The Claimant pointed out that he was not required to leave and that he had pending representations. The Claimant pointed out that there does not appear to have been any attempt to remove him between 1997 and 2012. Furthermore, he had a pending HRA claim and he had not been required to leave and this period should not be held against him. In my view there is no evidence that, prior to 2008, the Claimant was given any formal notice to leave the country. In fact he was probably on some form of temporary admission. After 2008 he was given temporary admission. Therefore this factor cannot be given any weight prior to 13 July 2012 (when he was given notice).
d) The Claimant had a significant criminal record. I was shown the printout from the Police National Computer. This document shows 37 convictions with a total of 35 months of custodial sentences. There is no record of a custodial sentence from 2007. There was no evidence before me of any offences after 2011. The offences include fraud, possessing an offensive weapon in a public place, driving offences, possession of cannabis, drink-driving and theft. The Claimant sought to argue that all these offences were at the lower end of the spectrum and the Defendant cannot reasonably justify detention on that basis. I was also referred to case law by way of comparison where the issues before the court were of much more serious offences. I accept that the offences are not all of the most serious kind but it seems to me that, taken collectively and in particular considering the offence of possessing an offensive weapon, this is a serious criminal record that represents a significant risk to the public.
e) The Claimant has a repeat history of not pursuing applications and appeals. On 4 February 1997 the Claimant claimed asylum. The Defendant relies on the Claimant failing to attend two interviews in connection with the claim which led to his asylum claim being refused on 26 June 1997. On 16 September 1997 the Claimant lodged an appeal out of time and on 2 February 1998 the Claimant withdrew his asylum appeal. I do not view this as a significant factor, these events were many years ago and I think it is an exaggeration to call it a 'repeat history'.
f) The Claimant failed to report on numerous occasions. The Defendant details 18 occasions when the Claimant failed to report in accordance with the terms of temporary admission between 2008 and 2012, prior to his detention. The Claimant says that two of these non-attendances must have been whilst the Claimant had been admitted to hospital in February 2012, where he apparently remained for four weeks. The Claimant also says some of the dates appear to correlate with dates when he was in prison. However, the only evidence I have of dates of imprisonment are from the Police National Computer printout and this does not provide evidence of exactly when the Claimant was imprisoned and released. Even if some of the non-attendance differences are explainable it seems to me there remains evidence of significant non-compliance.
g) On a number of occasions the Claimant was listed as an absconder including on 2 October 2007. I do take into account his listing as an absconder. I do not think it adds anything to point (f) above.
h) The Claimant failed to attend a criminal court and was arrested for non-appearance on 23 August 2011. The evidence of this is contained within a Border Agency form completed on 11 July 2012. It is specific with the date and a record that the police in Carmarthen arrested the Claimant for nonappearance at a court hearing in Grimsby. It does not appear on the Police National Computer printout however, which was printed in 2012 (you would expect it to be included therefore). The Claimant submits that there is no evidence of non-attendance but in my judgement that is not correct as the note is detailed and specific. Therefore I think it likely that it is accurate and should be taken into account.
i) The Claimant failed to attend the Sri Lankan High Commission for interview for his travel documentation prior to detention. The Claimant says I should ignore this as there is no evidence of when arrangements were made prior to his detention. The Defendant refers me to paragraph 29 of the First Tier Tribunal decision of 29 October 2012 which states: 'The appellant states that he continues to be in real fear of his life from the Sri Lankan security forces and from the LTTE. This is why he cannot approach the Sri Lankan High Commission to obtain a Sri Lankan travel document.' The evidence is that a reason for his detention was to secure the documentation, but, to my mind, there is no evidence that arrangements were made for him to go voluntarily to the High Commission and he failed to do so. I do not think there is any convincing evidence that the Claimant was asked to attend the High Commission before his detention. I do not take this into account at all.
j) The Claimant has 17 aliases. The Claimant accepts that this can be taken into account but it cannot be properly inferred that it represents a real risk of absconding. The Defendant says that this is evidence of sophisticated criminal conduct. The Claimant says some of these 'aliases' are misspellings. In my judgement they are evidence of the Claimant using deceit probably to try and avoid links being made to previous conduct and I think it is proper to infer attempts to avoid the consequences that might flow from those linkages being made.
k) The Claimant has had frequent changes of address throughout his unlawful stay in the United Kingdom. I do not think this is a strong point to justify detention. There is no evidence of a requirement to live in a particular place prior to 2008. After 2008 there was a condition to reside at a particular address as part of temporary admission. I do not take this into account.
l) The Claimant appears to have worked illegally in the United Kingdom. It seems clear at some point the Claimant was working in a petrol station. However, I have not been shown any evidence of a prohibition on the Claimant working. I do not take this into account.
m) The Claimant's 2012 appeal was clearly very weak and this particular Claimant had 'form' for not pursuing appeals and did withdraw his asylum grounds of appeal at the hearing. The Claimant argued that his appeal was not hopeless and referred me to the case of R (Abdollahi) v SSHD  EWCA Civ 366, which I have read. In my judgement Lord Dyson in Lumba was indicating that there is a sliding scale of the degree of weight that should be applied between the meritorious case and hopeless case. In Abdollahi Moses LJ considered the claim 'hopeless'. In the Claimant's case the judgment of the First-Tier Tribunal details that the Claimant's counsel at that hearing acknowledged that the asylum claim 'was the weakest link.' Furthermore, after a short adjournment when counsel discussed this further with her client he decided not to pursue any asylum appeal. This indicates that it must have been an extremely weak case not to have even attempted to run it. In my view, the Claimant's asylum claim was at the 'hopeless' the end of the spectrum. I am also of the view that the claimant's article 3 and article 8 claims were hopeless. The claimant's marriage had ended and the First-Tier Tribunal had no evidence of any friends (paragraph 77 of the decision). As to the article 3 claim based upon his medical condition the case of N v SSHD  UK HL 31 requires someone to have a terminal illness in order to rely on Article 3 to resist deportation. The claimant was not and is not in that position. The evidence shows that the Defendant was aware of the dates of the appeal. As recorded above there were two adjournments but I do not think the evidence is available to understand the circumstances or blame the Defendant.
n) During his detention, the Claimant's obstructive behaviour including refusing medication and treatment, sporadic food refusals to obtain release shows the likelihood of absconding. I have detailed the evidence for this above. The Claimant says that this behaviour does not show a risk of absconding, but rather the likelihood of not liking detention. It is also said that it relates to missed hospital appointments. The Defendant points out that the obstructive behaviour had started before the missed hospital appointments and indeed continues after it. I think this is a relevant circumstance to take into account. The Claimant was in my judgement clearly using his medical condition and refusal of medication to obstruct and manipulate the Defendant.
o) The Claimant's conduct in detention included threatening behaviour towards health care and showed a likelihood of absconding and risk of harm to the public from his release. I was referred to various entries in the physical care records which I have considered. There are various references to aggression from the Claimant in circumstances where he is not getting his own way or it is part and parcel of a refusal of medication. I do not think this of itself shows a likelihood of absconding or risk of harm to the public if the Claimant were to be released. It is really the same point as his generally obstructive behaviour, which have referred to in the paragraph above, as a form of manipulation.
"The following are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration detention accommodation or prisons:
those suffering from serious medical conditions which cannot be satisfactorily managed within detention
"… The continuing refusal of the appellant to accept any medical treatment removes his case from the scope of the policy statements relied on by the appellant because they simply did not envisage such a case."