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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thavarajah, R (on the application of) v Secretary of State for the Home Department [2015] EWHC 208 (Admin) (05 February 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/208.html Cite as: [2015] EWHC 208 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy High Court Judge)
____________________
THE QUEEN (on the application of) SIYAMALA ![]() ![]() |
Claimant |
|
- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Mr Simon Murray (instructed by The Treasury Solicitor's Department) for the Defendant
Hearing dates: 27/01/2015
____________________
Crown Copyright ©
Professor Elizabeth Cooke:
i) the decision made on her Further Submissions on 17 May 2014;ii) the setting of directions for her removal on 18 May 2014;
iii) her detention from 13 May 2014 onwards.
The facts
The decisions under review
i) the D's refusal to treat the Further Submissions dated 13 May 2014 as constituting a fresh asylum claim andii) her continued detention at Yarlswood IRC.
i) that the D in not suspending decision-making with respect to the Claimant's 2014 Further Submissions failed to apply her own policy, which required her to suspend decision-making once she had been accepted for pre-assessment as a victim of torture by the Helen Bamber Foundation.ii) that the decision to remove the C on 18 May 2014 was unlawful because her Further Submissions had not been properly determined.
iii) That the decision to continue to detain the C in light of the rule 35 report and the appointment with the Helen Bamber Foundation was unlawful.
The D's treatment of the Claimant's 2014 Further Submissions
The Claimant's asylum claim
The Further Submissions and the law applicable to them
"353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and,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.
353A. Consideration of further submissions shall be subject to the procedures set out in these Rules. An applicant who has made further submissions shall not be removed before the Secretary of State has considered the submissions under paragraph 353 or otherwise."
The Claimant's challenge to the decision taken about the Further Submissions
"This guidance explains how caseworkers should process and consider asylum claims involving allegations of torture or serious harm where a Medico-Legal Report (MLR) from the 'Medical Foundation Medico-Legal Report Service' at Freedom from Torture or the Helen Bamber Foundation forms part of the evidence."
- "ensure all asylum claims are properly considered in a timely and sensitive manner on an individual, objective and impartial basis;
- ensure all cases are managed effectively throughout the asylum process to avoid unnecessary delay;
- ensure all relevant medico-legal (and any other) evidence provided by the Foundations in support of the claim is properly considered and given appropriate weight."
"Once the applicant has been referred to one of the Foundations, from whatever source, for an MLR, the referral is assessed by the Foundation and, on the basis of the information contained in it; a decision will be made to:
- Reject the request without an appointment or;
- Invite the applicant to attend a 'pre-assessment' interview; or
- Move directly to an appointment with a clinician.
Although this varies between the Foundations, only approximately 30 per cent of applications are accepted for pre-assessment. The decision not to invite an applicant for an assessment does not necessarily reflect upon the applicant's credibility."
"When the caseworker is informed in writing by the applicant's legal representative that the case has been accepted for a pre-assessment appointment, they should normally suspend the substantive decision if they are not minded to grant any leave (see section 2.8 below)…
However, there may be cases where the applicant's account of events, including incidents of torture, is accepted but this does not give rise to a need for international protection where, for example, the country situation has changed or there is sufficiency of protection. In such cases the caseworker may proceed to decision without waiting for the MLR but should first contact the legal representatives and give them an opportunity to provide representations as to why the decision should be suspended to wait for the MLR."
Was the policy applicable to this decision?
"I have sought advice from Policy Colleagues [names redacted]:
"The policy intention is to delay, for a short period, a decision at first instance in cases accepted for a pre-assessment appointment with the Foundations. Section 2.4 does not cover further submissions (not least because asylum seekers are expected to put their case forward at the earliest opportunity and could have approached the Foundations much earlier in the process) particularly since they are now signposted to such organisation at the screening and interview process.
However, it could be read to include a decision on further submissions and for the next update we will clarify the ambiguity in Section 2.4 and add a section on further subs explicitly (we will need to have a think about what our policy should be on further subs granted an appointment)."
Was the decision made in accordance with the policy?
"… all cases that have been accepted by the Medical Foundation will be placed on hold pending the outcome of the pre-assessment, as long as evidence of the appointment is provided in writing."
Lawfulness of removal directions
The challenge to the Claimant's continued detention after 13 May 2014
(i) The lawfulness of detention following the rule 35 Report
- "The detainee's health is likely to be injuriously affected by continued detention or any conditions of detention
- I have concerns that this detainee may have been the victim of torture."
"Was arrested and detained by army and taken to a camp. Interrogated by army officers. Accused of helping another political group. Was beaten and raped by army officer while another officer recorded it on a mobile phone, Hands tied behind back, knife used to cut area around axilla. Cigarette burns to legs. Beaten. Raped. Very tearful and distressed while recounting events. Incidents occurred when arrested in 2010, came to the UK in 2011, On Fluoxetine and Temazepam – been under care of GP for last 4 years. Depression and anxiety symptoms since incidents in Sri Lanka. Significantly affected her mental state. Suffers with insomnia, anxiety, nightmares, flashbacks. PTSD symptoms."
"A report which details clear physical and mental evidence of injuries which would normally only arise as a result of torture (e.g. numerous scars with the appearance of cigarette burns to legs; marks with the appearance of whipping scars), and which records a credible account of torture, is likely to constitute independent evidence of torture."
"There is a clear difference between something that amounts to independent evidence of a fact and proof of that fact … The underlying credibility of a detainee does not, in my judgment, go to the question whether something amounts to independent evidence of torture."
"In considering the question whether something constitutes independent evidence of torture, and also the question whether there are very exceptional circumstances justifying detention, the court's role is to ask whether the Secretary of State was entitled on the information before her to come to the conclusion or conclusions she did. The second aspect, whether there exist very exceptional circumstances, is one that might lead to legitimate differences of view between different people considering the same material. The first aspect, even though governed by public law principles, is in reality fairly hard-edged, Whether something is, or is not, independent evidence of torture, will less often be capable of two answers."
Was detention unlawful because the Claimant was suffering from a serious mental health problem that could not be managed in detention?
Was detention unlawful in the light of the pre-assessment appointment with the Helen Bamber Foundation?
Relief
i) an order quashing the Defendant's decision on the Claimant's Further Submissions in her letter of 17 May 2014; andii) a declaration that the Claimant's detention from 17 May 2014 to her release on 21 May 2014 was unlawful, and I award damages to be assessed if not agreed.