[View without highlighting]
[Printable RTF version]
||Neutral Citation Number:  EWHC 1806 (Admin)
||Case No: CO/5455/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Leeds Combined Court Centre
1 Oxford Row, Leeds, LS1 3BG
B e f o r e :
: Mr Justice Simon
|| R (Ahmed Ali Samadi)
||Secretary of State for the Home Department
Mr Mark Schwenk (instructed by David Gray Solicitors) for the Claimant
Mr Nicholas Chapman (instructed by The Government Legal Department) for the Defendant
Hearing date: 15 June 2015
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Simon:
- This is the hearing of the Claimant's claim for damages for what he argues was his unlawful immigration detention for 19 days from 14 May to 1 June 2012.
- In broad summary his case is that there were breaches of §55.10 of the Defendant's Enforcement Instructions and Guidance (the 'Guidance') which provides for two categories of potential detainees who will normally only be considered suitable for detention in very exceptional circumstances: (a) those suffering from serious mental illness which cannot be satisfactorily managed in detention, and (b) those where there is independent evidence that they have been tortured. It is the Claimant's case that he fell into both those categories; and that in any event the Defendant (c) wrongfully continued to detain him after it had become clear that his removal was no longer imminent.
- The Claimant is an Afghan national who was born on 4 July 1991. He was nearly 21 when he was detained in 2012 and is now nearly 24. He arrived in this country on 24 April 2007 and claimed asylum shortly thereafter. On 25 October 2008 a decision was made refusing his claim for asylum; but, because he was a minor, he was granted Discretionary Leave to remain in the United Kingdom until 2 January 2009. His application for an extension of leave to remain was refused on 8 September 2009. He appealed against that refusal and, in a determination promulgated on 29 October 2009, the First-tier Tribunal (Immigration Judge Duff) dismissed his appeal. The judge set out the Claimant's account and, in so far as is material to the present case, this was contained in §13.
After the death of the appellant's father his family were supported by an uncle but he too was killed approximately 3 years ago. The appellant says that that was at the hands of one of his father's enemies, a man called General Mustafa. Supporters of Mullah Hallam had killed his father. He says that he witnessed the death of his uncle. After the death of the uncle the appellant's mother was forced into producing alcohol in order to support the family. Somebody informed the authorities that they were producing alcohol. The authorities came to the house and beat both the appellant's mother and the appellant, because of selling alcohol. At some stage in his history, but the appellant is entirely unclear when, he suffered an injury to his thigh, which he believes was caused by shrapnel during a bombardment.
The Judge concluded at  that the Claimant's history was largely as he claimed, but decided that his asylum claim failed.
- The Upper Tribunal subsequently refused the Claimant's appeal on reconsideration; and there then followed further submissions to the Defendant, the rejection of those further submissions as amounting to a fresh claim, the Claimant's application for permission to bring Judicial Review Proceedings to challenge that decision and the refusal of permission to bring that claim.
- On 26 March 2012, the Claimant's current solicitors wrote to the Defendant enclosing a counselling report prepared by Freedom of Torture (previously known as The Medical Foundation for the Care of Victims of Torture). The letter requested that further consideration be given to his claim for leave to remain on a discretionary basis in the light of the Claimant's ongoing mental health problems.
- The enclosed report, prepared by a counsellor, Amer Shah, was dated 4 December 2011 ('Mr Shah's 1st report'). It was the product of 24 interviews and counselling sessions with the Claimant between 15 December 2010 and 15 November 2011, although not all of these were with Mr Shah. It included the following passages:
8. At the age of fourteen [the Claimant] stepped out of a car with his uncle. His uncle was shot by a man wearing a police uniform. [The Claimant] reported he 'had his uncle's blood in his eyes'. As his uncle was dying he told [the Claimant] to run. [The Claimant] was initially frozen with terror but then fearing he too would be murdered he ran from the scene. He still suffers from flashbacks of the murder.
- Mr Shah set out another part of the Claimant's account of his history under the heading: 'Presentation at our First Counselling Session':
20. Having been refused asylum, his psychological health is more fragile due to his deep fears of being tortured again or killed as his father and uncle were. The situation of being refused asylum has placed his psychological well-being at considerable increased risk.
- Under the heading, 'Impact of Fear' Mr Shah's 1st report continued:
37. Concentration and memory: Trauma can be so overwhelming that it is not possible to lay memory down whilst under its effects. [The Claimant's] recollection of his past experiences has been disclosed in a fragmented and non-chronological order. This is entirely consistent with his diagnosis of P.T.S.D.
- There was a separate heading of 'Loss', in respect of which the report recorded.
45. Whilst writing this report and continuing our therapeutic work [The Claimant] was informed that his mother and the kindly neighbour who helped his family were killed by a rocket attack in a mosque. He appears disassociated and in a state of shock at the moment. [The Claimant's] psychological state is extremely fragile at the moment.
- The report went on to consider 'the impact on self and identity.'
52. Suicidal ideation and self-harming behaviour: [The Claimant] has been asked if he has felt suicidal or thought of harming himself many times (including being asked by a psychiatrist and by other mental health staff) and always said that he has not wanted to kill himself. This would be against his religious beliefs. However when faced with the prospect of being forcefully repatriated to Afghanistan and brutally tortured, he has stated unequivocally and with some shame that he would commit suicide due to his level of terror.
- In the 'Summary and Opinion', Mr Shah set out his conclusions under a number of paragraphs which included the following:
62. From the account [the Claimant] has given to the Home Office, to lawyers and to other mental health professionals it is clear that he has experienced profound trauma, that of witnessing his uncle murdered and has also been viciously attacked in his own home
66. The above combination [a reference to a number of psychological reactions exhibited by the Claimant] has indicated a diagnosis of Post Traumatic Stress Disorder
and different professionals have made this diagnosis. It is certainly my opinion that he is suffering from significant and chronic psychological stress related to his experience.
- Towards the end of Mr Shah's 1st report he returned to the issue of torture raised obliquely in §20 as part of a 'Prognosis':
77. In my opinion as a therapist working with trauma and torture survivors [the Claimant] shows psychological sequelae which are very commonly seen in a survivor of torture. Should he be allowed to continue with his psychotherapeutic treatment in the UK the prospects for him in the long term are relatively positive
- In a letter dated 14 May 2012, the Defendant rejected the Claimant's representations and refused to accept them as a fresh asylum or human rights claim; and on the same date the Claimant was detained at Harmondsworth Detention Centre and removal directions to Afghanistan were set for 27 May 2012.
- On arrival at Harmondsworth Detention Centre he was medically examined by a nurse. The records indicate that he was asked the question, 'Have you been exposed to torture in your home country?' and answered, 'No'. He was also recorded as answering, 'No', to questions about whether he had ever been treated by a psychiatrist or been in hospital with mental health problems. The notes further record him as saying that he had never tried to harm himself, that he had no current suicidal thoughts and that he wished to see a General Practitioner for further assessment.
- The next day (15 May 2012) the Claimant was examined by Dr Green, a GP. The handwritten notes are not easy to read, but 'several medical problems' were identified and there is a reference to an 'urgent mental health referral'.
- Also on 15 May, the Claimant's solicitors wrote to the Defendant, under the heading, 'Unlawful Detention of a Victim of Torture'. The letter called for the Defendant to instruct a doctor to produce a report on the Claimant in accordance with Rule 35 of the Detention Centre Rules 2001, and for his immediate release on the basis that he was a victim of torture, suffered from PTSD and was at risk of self harm/suicide. It is now accepted on the Claimant's behalf that whether a medical practitioner had concerns sufficient to give rise to a Rule 35 report was a matter for that medical practitioner, exercising clinical judgment, and not for the Defendant or her agents to procure, see the judgment of Burnett J in R (EO and others) v. SSHD  EWHC 1236 (Admin) at .
- There is a further entry on the Claimant's medical records (which again appears to be dated 16 May). Again the handwriting is difficult to read, but it appears to say 'feels like [causing] himself self harm due to not taking his medication'. There is then a statement: 'urgent referral'. The records also refer to telephone conversations between staff at the detention centre and Mr Shah from the Medical Foundation.
- On 16 May the Defendant replied to the letter of 15 May, refusing to release the Claimant from detention and stating that health concerns should be addressed to the detention centre directly. Removal directions were then rescheduled from 27 May to 29 May 2012.
- On 22 May the Claimant's solicitors sent a faxed letter to the Defendant enclosing a further medico-legal report from Mr Shah dated 21 May ('Mr Shah's 2nd report'). The letter referred to their concerns about their client's mental health. Mr Shah's 2nd report included the following:
I have just spoken to [the Claimant] today: He informed me that he was given the flight details this morning. He was very upset and was crying as he told me that the noise of people screaming and shouting day and night is terrifying for him. Indeed I have heard people screaming and shouting whilst speaking to him on the phone.
In my view his continued detention is having a devastating effect on his mental health
He stated today when I spoke to him that 'I would rather kill myself here (in the UK) than face being tortured by the enemies of my father in Afghanistan.'
I take his threat to kill himself very seriously because he has stated to me on a number of occasions the horror he feels at the thought of being tortured for a protracted amount of time.
Based on his verbal disclosure today I think he may be at serious risk of attempting suicide and his continued detention should be reviewed in light of this.
I understand that [the Claimant] has not been seen by a doctor
- On 23 May the Claimant's solicitors sent a Letter before Claim to the Defendant. This called, among other matters, for the removal directions to be cancelled and for the Claimant's release from detention, failing which they would bring judicial review proceedings.
- The Claimant's medical records from the detention centre include a document titled 'Harmondsworth Acute Assessment Sheet', dated 23 May 2012. This noted that the Claimant appeared 'very distressed at the prospect of being returned to his country where he says he has been tortured by the Taliban'. The notes accompanying this document record 'no previous history of mental illness'.
- On 25 May a claim for judicial review was issued on the Claimant's behalf and, later the same day, an injunction was granted by Lloyd Jones J restraining the Defendant from removing the Claimant from the UK until after the determination of the application for permission to apply for judicial review.
- On 1 June the Claimant was granted bail by Foskett J, sitting in the Administrative Court at Leeds; and he was released on the same day.
- The period of the Claimant's detention, the 19 days from 14 May to 1 June 2012, forms the chronological bracket for the claim for damages for unlawful detention; and the Claimant advances his claim within this bracket on a number of alternative bases: (i) from 14 May (the day he was detained), alternatively, ii) from 22 May (when the Defendant would have received the Claimant's solicitor's letter and Mr Shah's 2nd report, alternatively (iii) from 24 May or (iv) from the point when, after a reasonable time within which the Defendant should have considered the Claimant's solicitor's letter of 22 May and its enclosure, and acted upon it.
- As explained in the EO case (above) at -, the Defendant's detention policy is set out principally through Chapter 55 of the Guidance, which refers to the Detention Centre Rules 2001 made under s.153 of the Immigration and Asylum Act 1999. The Detention Centre Rules are concerned with 'the regulation and management of Detention Centres'. The policy relating to detention is also explained in the Detention Rule 35 Process Guidance and the applicable Detention Service Order.
- The material parts of the Guidance are as follows:
To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasburg case law but must also accord with stated policy.
55.3.1 Factors influencing a decision to detain
All relevant factors must be taken into account when considering the need for initial or continued detention, including:
- What is the likelihood of the person being removed and, if so, after what timescale?
- Does the subject have a history of torture?
- Does the subject have a history of physical or mental ill health?
Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified.
Chapter 55.8A refers to Rule 35 of the Detention Rules 2001 as setting out the requirements for healthcare staff at removal centres in relation to detained persons whose health is likely to be injuriously affected by continued detention and/or any conditions of detention, who are suspected of suicidal intentions and for whom there are concerns that they may have been a victim of torture.
Chapter 55.10 is in the following terms, so far as material:
Certain persons are normally considered suitable for detention in only very exceptional circumstances, whether in dedicated immigration accommodation or prisons. Others are unsuitable for immigration detention accommodation because their detention requires particular security, care and control.
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 mental illness which cannot be satisfactorily managed within detention (in criminal casework cases, please contact the specialist mentally disordered offender team). In exceptional cases it may be necessary for detention at a removal centre or prison to continue while individuals are being or waiting to be assessed, or are awaiting transfer under the Mental Health Act.
- Those where there is independent evidence that they have been tortured.
If a decision is made to detain a person in any of the above categories, the caseworker must set out the very exceptional circumstances for doing so on file.
Rules 33-34 of the Detention Centre Rules provide for (among other things) healthcare teams (including a medical practitioner) at detention centres, and for records to be kept of interactions between detainees and healthcare staff. The rules also provide for a medical examination to be carried out by a medical practitioner on admission. Rule 35 makes particular provision for those with special illnesses and conditions (including torture claims), with an obligation on the medical practitioner to make a report to the manager of the Detention Centre in respect of detainees whose health is likely to be injuriously affected by continued detention or conditions of detention (35(1)), whom he suspects of having suicidal intentions (35(2)) and those whom he is concerned may have been the victims of torture.
A number of factors are identified in both the Guidance and authorities as relevant to the decision to detain and maintain detention.
'Serious mental illness which cannot satisfactorily be managed within detention'
This phrase was the subject of definitive guidance in the Court of Appeal in the case of R (Das) v. SSHD  EWCA Civ 45, and in R (SA (Holland)) v. SSHD  EWHC 2570 (Admin) at , Mr CMG Ockleton (Vice-President of the Upper Tribunal Immigration and Asylum Chamber, sitting as a Deputy Judge of the High Court) helpfully summarised the main points with cross-references to passages in the judgment of Beatson LJ, with whom the other members of the court agreed:
(i) When interpreting and applying Chapter 55.10 it was essential to keep firmly in mind the purpose of the policy, which was to ensure compliance with the requirements of immigration control
but prevent treatment that was inhumane . "
(ii) A purposive and pragmatic construction was required 'In the light of the purpose of immigration detention identified above, that is enabling lawful removal pursuant to an effective immigration policy, the policy seeks to ensure that account is taken of the health of the individuals affected and (save in very exceptional circumstances) to prevent the detention of those who, because of a serious mental illness are not fit to be detained because their illness cannot be satisfactorily managed in detention' .
(iii) The phrase 'suffering from a serious mental illness which cannot be managed satisfactorily within detention' must not be dissected but considered as a whole.  and .
(iv) The policy exception in chapter 55.10 does not apply simply because a person has a diagnosis of a mental illness that is regarded as 'serious' , ,  and . In LE (Jamaica) the claimant had a long established condition of Paranoid Schizophrenia (which had rendered him unfit to plead to criminal charges) but the policy was not engaged as the condition was one that could be managed satisfactorily in detention.
(v) The 'threshold for applicability of the policy' is that the mental illness is serious enough to mean it cannot be managed satisfactorily in detention. 
(vi) 'Satisfactory management' involves considerations such as the medication required and whether 'demonstrated needs' can or cannot be provided by the place of detention. The Court noted that OM (Nigeria)  EWCA Civ 909 at  shows that some of those suffering significant adverse effects of mental illness may be managed appropriately in detention, the views of the experts were divided but the Court of Appeal found that the balance of expert advice was that her illness could be managed appropriately in detention . It is noted that in OM there were expert reports in much stronger terms than in this case that stated that the treatment needed by OM was not available in detention and that her mental health was deteriorating significantly as a result of detention so she was unfit to be detained (and lacked capacity to act). Whilst the responsible clinicians did not provide 'expert reports' in the same way as those procured by claimant representatives, the Court considered the views expressed in the medical papers to the effect that the needs for satisfactory management of OM's mental health were met in detention and the Court of Appeal accepted the approach of the responsible clinicians.
(vii) The Secretary of State was generally entitled to rely on the responsible clinicians where reasonable enquiries had been made and the requirements of Chapter 55.10 were considered where applicable, so long as there was not a total abdication of the Secretary of State's own responsibilities to the clinicians. .
'Independent evidence that they have been tortured'
This aspect of the Guidance was considered by the Court of Appeal in R (AM) v SSHD  EWCA Civ 521. The issue in that case was whether a report by Ms Kralj of the Helen Bamber Foundation constituted independent evidence of torture, in that case scarring. Rix LJ summarised Ms Kralj's view that AM had been the victim of deliberately inflicted injury and had suffered torture and rape, which had left her grossly traumatised. He concluded that these findings were not based merely on AM's assertions of what occurred:
 On the contrary, as Ms Kralj repeatedly observed, AM was reticent and understated. As the judge himself rightly stated, Ms Kralj 'believed the Claimant'. That belief, following an expert examination and assessment, also constituted independent evidence of torture. Ms Kralj's belief was her own independent belief, even if it was in part based on AM's account. However, the judge was mistaken to suggest that such belief was merely as a result of 'taking everything she said at face value'. A fair reading of her reports plainly went very much further than that. If an independent expert's findings, expert opinion, and honest belief (no one suggested that her belief was other than honest) are to be refused the status of independent evidence because, as must inevitably happen, to some extent the expert starts with an account from her client and patient, then practically all meaning would be taken from the clearly important policy that, in the absence of very exceptional circumstances suggesting otherwise, independent evidence of torture makes the victim unsuitable for detention. That conclusion is a fortiori where the independent expert is applying the internationally recognised Istanbul Protocol designed for the reporting on and assessment of signs of torture. A requirement of 'evidence' is not the same as a requirement of proof, conclusive or otherwise. Whether evidence amounts to proof, on any particular standard (and the burden and standard of proof in asylum cases are not high), is a matter of weight and assessment.
The importance of considering the facts of the particular case was also emphasised by Burnett J in EO at :
Each case inevitably will have to be considered upon its own facts to determine whether the evidence provided does no more than repeat the claim to have been tortured or provides additional objective evidence.
Mr Schwenk drew attention to the Home Office Asylum Policy Instructions (Medico-Legal Reports from the Helen Bamber Foundation and the Medical Foundation (Medico-Legal Report Service). Although there was an issue as to the applicable date of the Policy Instructions, it is clear that the Defendant recognises the independence and expertise of staff attached to these organisations who write reports which document and interpret the injuries of the survivors of torture.
Ground (a): Serious mental illness which cannot satisfactorily be managed within detention
It is accepted on the Defendant's behalf that the Claimant was suffering from a serious mental illness and that there were no 'very exceptional circumstances'. It follows that the issue on this aspect of the case is first, whether the Claimant has established that his serious mental illness could not be satisfactorily managed in conditions of detention and, secondly, whether the Claimant can satisfy the Court that no one in the Defendant's position could reasonably have concluded otherwise, see for example the judgment of Richards LJ in R (LE (Jamaica)) v SSHD  EWCA Civ 597 [29 at viii)].
On the first point, Mr Chapman submitted that there was no real evidence that the Claimant's mental condition and suicidal ideation could not be satisfactorily managed in detention, and that the evidence was to the contrary.
Mr Schwenk relied on the history as outlined above; but also sought to rely on a reference to his serious mental illness in representations made in the further submissions sent on his behalf nearly two years earlier, on 20 May 2010. I am very doubtful whether the Defendant was bound to take account of this material when considering the question in issue since it did not form part of what was sent under cover of the later letter of 26 March 2012; but it is unnecessary to form a concluded view about this, as those representations (unsurprisingly in view of the chronology) did not address the question of whether the Claimant's mental condition could not be satisfactorily managed in detention. At that point, and at the time of Mr Shah's 1st report, the Claimant had not been detained, so the question of whether his mental condition could or could not be satisfactorily managed had not arisen.
Mr Shah's 2nd report set out his opinion that the Claimant's continuing detention was having a 'devastating' effect on his mental health and that his threat to kill himself was to be taken seriously. This opinion was entitled to considerable weight in view of Mr Shah's involvement in counselling the Claimant over a lengthy period. On the other hand, and as noted above, by this stage the Claimant had been examined by a nurse on 14 May 2012, during which no concerns were raised (including in relation to mental health), although he said he wished to see a GP for further assessment. On the following day (15 May 2012), he was medically examined by a GP, and was recorded as complaining of various medical problems. The GP noted that the Claimant was suffering from depression, was feeling low and had not taken his medication. He prescribed the Claimant diazepam and made an 'urgent mental health referral'. In the light of this evidence it is clear that Mr Shah was under a misapprehension when he wrote in his 2nd report that the Claimant had not seen a doctor.
The next day (16 May 2012), the medical staff spoke to Mr Shah and the notes record Mr Shah stating that '[the Claimant] reported nervousness since his arrival at Harmondsworth and needed support and re-assurances', and asking the staff member to inform the Claimant about the availability of paracetamol. There is no suggestion in the notes that Mr Shah voiced any concerns at that stage that the Claimant's mental illness could not be satisfactorily managed in detention.
Although it is not clear whether it was on 15 or 16 May 2012, the Claimant appears to have seen a doctor, who recorded that the Claimant had threatened self-harm because he had not taken his prescribed medication. The doctor again made an 'urgent referral', presumably for a mental health assessment; and that mental health assessment was organised to take place on the morning of 23 May 2012 (i.e. the day after Mr Shah's 2nd report).
It is against the assessments implicit in these records of medical staff, who had responsibility for the Claimant's physical and mental welfare on a daily basis, who had the duties specified in Rule 35 of the Detention Centre Rules, and were able to observe the Claimant, as Mr Shah was not, that Mr Shah's 2nd report has to be weighed.
It is clear from the judgments in the cases of Das and SA (Holland) that even those who suffer significant adverse effects of mental illness may be managed appropriately in detention, and the Defendant is generally entitled to rely on responsible clinicians. Although I acknowledge that Mr Shah's views are entitled to considerable respect, he is not a clinician and he did not say that the Claimant's mental condition could not be managed in detention, beyond what was implicit from his view that the Claimant's continued detention was having a devastating effect on his mental health.
The mental health assessment took place in the morning of 23 May 2012. The notes suggest a thorough examination. In particular, in the section headed 'Ideas of self harm' there is an entry, 'None at present'. This is amplified later in the notes: 'No current suicidal or self harm thoughts or intentions'. Furthermore there is nothing to suggest that the Claimant's mental health could not satisfactorily be managed in detention. The assessment concludes, 'To continue to offer support on 1:1 basis to manage stressful period. Also medication to be reviewed by GP if necessary'.
In my judgment the Claimant has failed to show that his serious mental illness could not be satisfactorily managed in conditions of detention, nor that the Defendant could only reasonably have concluded that they could not. It follows that this basis of claim fails.
Ground (b): Independent evidence of torture
The Claimant relies on the definition given by Burnett J in EO. At - he described some of the difficulties in arriving at an all-embracing definition of the word 'torture'; and at  he concluded:
In the result the word 'torture' in the detention policy means 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 on discrimination of any kind.
This is a broad definition and the words 'severe pain
for (the purpose of) punishing him for an act he
has committed' would be wide enough to cover (in domestic terms) a severe beating in retaliation for an actual or perceived slight. This simply highlights the difficulty of an all-embracing definition of this crime whose seriousness is recognised by the jus cogens prohibition against torture.
Mr Schwenk relied on two aspects of the Claimant's history in support of his case that he was a victim of torture: first, his presence when his uncle was shot and secondly, the attack on his mother and him. In my view, the first incident does not fall within even the broadest definition of torture. The second incident is at least capable of falling within the definition given by Burnett J, on the basis that it was an intentional physical assault inflicted as a punishment for his mother selling alcohol.
Mr Chapman pointed out that the Claimant had given different versions of what occurred on different occasions, and that this cast doubt on the truthfulness of his account. To some extent this is correct. In his first witness statement (undated, but made soon after he arrived in this country and before the hearing in front of IJ Duff) the Claimant had not mentioned either being present at his uncle's death nor an assault on his mother and him because she had been selling alcohol. On the other hand, I accept that the effect of severe ill-treatment may result in incomplete, fragmented or even changed accounts; and this may be particularly so in the case of a young man who is suffering from PTSD. It is partly for this reason that the Guidance concerns itself with independent evidence. This can be in the form of an independent expert examination and assessment either by the Helen Bamber Foundation or the medico-legal report service provided by Freedom from Torture.
In my view Mr Shah's 1st report stated summarily that the Claimant had been tortured (see §§20 and 77), without providing independent evidence of it. In this respect the facts of the present case are strikingly different to those in AM.
On his arrival at Harmondsworth on 14 May 2012 he was specifically asked whether he had been tortured and was recorded as answering, 'No'. There is nothing to suggest either that the record is inaccurate, or that the Claimant did not understand the significance of the question. The first time he told the medical staff that he had been tortured was recorded as being on 23 May 2012.
The letter from Messrs David Gray dated 22 May and Mr Shah's 2nd report were both primarily concerned with the Claimant's mental state, although both Mr Shah and the Acute Assessment Sheet, describe the Claimant as expressing fear that if he were returned to Afghanistan he would be tortured either by his father's enemies or the Taliban. There is in addition the further anomaly that, when asked about the scars on his body at a physical examination on 31 May, he is recorded as saying that the assault with the rifle butt on his head and all over his body was 'all about family feuding.'
In my judgment the Defendant was correct, and in any event entitled to the view, that the Claimant did not fall into the category of someone in respect of whom there was independent evidence of torture. Accordingly this basis of the claim fails.
Ground (c): wrongful detention of the Claimant after it had become clear that his removal was no longer imminent.
At 15.15 on Friday 25 May 2012 Lloyd Jones J granted an injunction restraining the Defendant from removing the Claimant from the UK until after a decision was made on the application for permission to apply for judicial review. It is the Claimant's case that it should have been clear to the Defendant at this point that the Claimant's removal was no longer imminent and that his continued detention beyond this point was in breach of the Hardial Singh principles, see R v. Governor of Durham Prison, ex parte Hardial Singh  1 WLR 704.
The relevant principle was encapsulated by Dyson LJ (as he then was) in R (I) v. SSHD  EWCA Civ at , see Lumba v SSHD  1 AC 245 at :
(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 a reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period [s]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.
It is clear from proposition (iii) that the prospects of removal should be assessed. If there is no prospect of a detainee's removal, detention cannot continue, since the detention is no longer for the purposes of removal. However, detention can continue although removal is not imminent, see R (A) v SSHD  EWCA Civ 804 at . As was made clear in R (MH) v SSHD  EWCA Civ 1112 at , the question must always be whether there is sufficient prospect of removal for detention to be warranted; and that question is to be answered by reference to the material available to the decision-maker at the relevant time, see SA (Holland) above at .
Mr Schwenk also relied on the fact that on 22 October 2013 the Defendant had agreed to treat the representations in the 26 March 2012 letter from the Claimant's solicitors as a fresh claim, to show that there was no prospect of removal within a reasonable period. That, in my judgment, is to look at the matter with hindsight whereas the law requires the Defendant to form a prospective view on the basis of the circumstances known at the time.
Mr Schwenk also submitted that once the injunction was granted on 25 May the Defendant should have realised that there was no prospect of removing the Claimant within a reasonable time. He was due to be removed on 29 May and there would be no likelihood of his removal on another charter flight within any foreseeable period. Nevertheless, Mr Schwenk accepted that the Defendant would need time to reach this conclusion, which he suggested should be a period of 48 hours or so. It followed that, on this basis, the detention became unlawful on 27 May.
It seems to me that there is a problem with this approach. Lloyd-Jones J granted a protective order on the basis of a properly arguable case, but having only heard one side of the argument. Although his order was not in the bundle of documents, there must have been either an express or implied liberty to the Defendant to apply to discharge the order. As a matter of practice, once an order is made preventing removal, the Defendant very seldom (if ever) seeks to set aside the order in the short term. That does not mean, however, that the grant of an injunction has the automatic consequence that the continued detention of a detainee is rendered unlawful, requiring immediate release. That would be both contrary to principle and inconsistent with the Defendant's duty to consider the position as set out in Lumba (above) at [22(iii)]. On the other hand, it would not be consonant with the Defendant's obligation to make a decision within a reasonable period for her to wait until the application for permission to bring judicial review was determined. There is no bell that rings at the moment when a detainee's continued detention becomes unlawful; it remains a matter for the Defendant to consider whether deportation can be effected within a reasonable period. In my view it cannot be said in the present case, that this time had expired between the order of Lloyd-Jones J on 25 May and the order of Foskett J, 7 days later, on 1 June 2014. It follows that this basis of claim also fails.
For these reasons I have concluded that the Claimant's claim for damages must be dismissed.
Copyright Policy |
Donate to BAILII