|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Mohammed, R (On the Application Of) v Secretary of State for the Home Department  EWHC 447 (Admin) (03 March 2016)
Cite as:  EWHC 447 (Admin)
[New search] [Context] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of ABDULRAHMAN MOHAMMED
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr Ostrowski (instructed by the Government Legal Department) for the Defendant
Hearing dates: 24th February 2016
Crown Copyright ©
Mr Justice Hayden :
"Your criminal behaviour undermines the good order of society and renders you a threat to it. The United Kingdom is not required to keep here someone whose conduct strikes so deeply at it social values that it strains the tolerance of even a broad minded society.
If you are released from detention, our actions can lead to an negative view of the Home Office by the general public who may see the Department in failing in its duty to protect them from criminals and therefore there is a high risk of harm to the public"
"There is independent evidence that the Claimant has been tortured, which means that the threshold for justifying detention is far higher than in other cases: there must be very exceptional circumstances. The Defendant has erroneously failed to apply this very high threshold.
The Claimant has an outstanding asylum claim and, allowing for the Claimant's appeal rights, there is no realistic prospect of removal in 2016.
It is very doubtful that the Claimant will ever be removed: he is from Somalia where there is a risk of Art 3 harm unless an individual has the support of family or a majority clan; the Claimant left aged 12, is from a minority clan and has no surviving family in Somalia.
The Claimant has already been detained under administrative powers for a very long time, during which the Defendant has been guilty of extraordinary inaction.
"The following are normally considered suitable for detention in only very exceptional circumstances…
Those where there is independent evidence that they have been tortured".
"There is no doubt about the underlying rationale of the policy. Those who have suffered torture in the past are disproportionately adversely affected by detention. That is why the Secretary of State will normally detain those in respect of whom there is independent evidence of torture only in very exceptional circumstances. However, in my judgment it is a mistake to conflate what is desirable with what is required by the policy operated by the Secretary of State in this area."
"There is a clear difference between something that amounts to independent evidence of a fact and proof of that fact. In making any finding of fact, the fact-finder will weigh all of the evidence according different weight to different pieces. The credibility of a witness will be critical in determining the answer to any factual question; and when a witness is making a claim his credibility will be crucial. But that does not mean that a piece of evidence which supports his central claim is any less 'independent evidence' even if, in the end, the claim is rejected. The underlying credibility of a detainee does not, in my judgment, go to the question whether something amounts to independent evidence of torture. Such evidence is necessarily something beyond the say so of the person concerned"
"The Claimant had related the following account to the doctor: in 1992, members of the Abgal Tribe of the Hawiye Clan came to his family's house. They killed his uncle with a gunshot to the back of the head with a Kalashnikov and stripped and attempted to rape his 14 year old cousin. "This was witnessed by Mr Mohammed who was then lifted to a chair and held by the back of neck and could not move – his attacker stated 'remember us by this' then took the knife from the bayonet and attempted to take Mr Mohammed's tongue out – but he resisted this attack. As a result of this Mr Mohammed says he sustained cuts to both sides of his mouth. At the time he bled a lot. He reports his cousins then stitched the wounds with a veterinary suture to the right wound. The wound on the left was glued with herbal remedies. He was also branded with a cattle prod on the right lower back which he states represents the Abgal Tribe of the Hawiye Clan".
i) "I have concerns that this detainee may have been the victim of torture".
ii) "The scars on both sides of the face appear to be consistent with the story heard from Mr Mohammed".
iii) "The branding also appears consistent with a scar from a burn".
iv) "In summary the history and examination is likely to suggest Mr Mohammed was a victim of torture".
"4.2. Scars A and B are both on the face. This history given by Mr. Mohammed is plausible as the scars have the straight edges typical of a knife wound. The initial cut during the incident according to Mr. Mohammed was on the left cheek (Scar B): he said that this one was 'too high' and missed the mouth being above the upper teeth and running under the cheek bone. The second cut according to Mr Mohammed was scar B, which Mr. Mohammed said was a determined effort to prise open his teeth using a bayonet. This scar is the full thickness of the cheek on the right and would have opened the mouth cavity from the side. There are other possible explanations such as those Mr. Mohammed reports having proffered over the years, namely an attack by an animal or a car crash. The scars are however quite precise and linear without any signs of associated tissue damage that might be expected from the teeth or claws of an animal. They are also not the injury sites that would be expected from a car crash injury, where a common pattern of injury is that the forehead and front of the face is subject to multiple irregular cuts. These two scars both spare the midline at the front and the most prominent parts of the face and appear more like deliberate injuries.
4.3. Scars A and B are not likely to be caused by self-injury. Injury by the person themselves is possible mechanism for scar causation in general, though sites for this tend to be sites where implements can be directed more easily such as the forearms. Self-injury cuts are usually tentative multiple superficial wounds with rather than one or two deep cuts. It would be highly unusual to self-injure to the extent of cutting into both cheeks deeply, since this would be particularly painful, and because generally people do not like to cause lasting damage to their facial appearance or to impair their ability to eat.
4.4. Scars A and B are therefore highly consistent with being caused by deliberate and forceful cuts from a sharp weapon, including the use of a bayonet in the attack described by Mr Mohammed…
5.5. It not possible to completely exclude the possibility of a patient feigning or exaggerating their symptoms, but were this the case with Mr Mohammed, I would have expected him to claim more of his scars (C,D,E,F,G,H,I,K) were due to torture and to manipulate his answers when using the structured questionnaires on anxiety and depression to score maximal points. He did neither."
"It follows that in considering the question whether something constitutes independent evidence of torture, and also the question whether there are very exceptional circumstances justifying continued 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 that 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 different answers."
"The policy gives some help with what may inform whether there are very exceptional circumstances. It refers to the need to weigh risks to the public of releasing convicted offenders with particular care. A very high, rather than routine, risk that the detainee will abscond might well also provide a proper basis for maintaining detention. The rubric is such that a host of factors may come into play. It was not suggested by the claimants in these cases that credibility is an irrelevant consideration in determining this question.
In my judgment, the credibility of a detainee may be a factor which informs the question whether there are very exceptional circumstances for maintaining detention.
Doubts about the credibility of the detainee would not be sufficient – that is commonplace. Acting on doubts would be tantamount to requiring the detainee to prove that the allegation of torture was true. The policy does not require that.
However, there may be cases in which information available to the decision maker leads him to the firm conclusion that the torture claim is untrue, that is to say incredible or very unlikely to be true. It would be a perverse application of the policy to require the Secretary of State to release from custody someone in respect of whom there exists independent evidence of torture but also where it is clear that the claim is untrue. The policy does not require that. However, it should not be overlooked that the fact that a person is in detention in the first place will often have followed, or be associated with, a conclusion that an underlying claim has little or no substance. The fact that a person is in detention with usually suggest that an assessment has been made that there is a risk of absconding, or a risk of offending or some threat to the public. The policy assumes that these facts, presenting in a way which would ordinarily justify detention, are not without more sufficient to do so when there is independent evidence of torture"
"However, the powers of the Secretary of State do not extend generally to permitting her to curtail an individual's liberty on these broad behavioural grounds. Hers is an administrative power of detention, circumscribed by the requirement that there be some prospect of achieving deportation. This fundamental premise is rooted in the respect for liberty and personal autonomy and traceable to Magna Carta: In A (Somalia) v SSHD  EWCA Civ 804, Keene LJ summarised it:
"The power given by Parliament to the Secretary of State, by means of Schedule 3, paragraph 2(3) of the Immigration Act 1971, to detain a person "pending his removal or departure from the United Kingdom" only exists when and for so long as there is some prospect of achieving that removal or departure. That is clear from paragraph 32 of Lord Brown of Eaton-under-Heywood's speech in Khadir."
" Mr Shepherd Kambadzi may not be a very nice person. He is certainly not a very good person. He has overstayed his welcome in this country for many years. He has abused our hospitality by committing assaults and sexual assault. It is not surprising that the Home Secretary wishes to deport him. But in Roberts v Parole Board  UKHL 45 at ,  1 All ER 39 at ; sub nom R (Roberts) v Parole Board  2 AC 738, Lord Steyn quoted the well known remark of Justice Frankfurter in United States v Rabinowitz (1950) 339 US 56 at 69, that 'It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.' Lord Steyn continued: 'Even the most wicked of men are entitled to justice at the hands of the State.' And I doubt whether Mr Kambadzi is the most wicked of men."
i) Limit 1: the Secretary of State must intend to deport the person and can only use the power to detain for that purpose.
ii) Limit 2: the deportee may only be detained for a period that is reasonable in all the circumstances.
iii) Limit 3: 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, she must not seek to exercise the power of detention.
iv) Limit 4: the Secretary of State must act with reasonable diligence and expedition to effect removal.
i) The Claimant's detention is in breach of the implied statutory limits on the Defendant's powers and has been since 12 September 2012 (or some other date between then and the present) for each of the following reasons (and, to be clear, the Claimant need only succeed on one of these arguments):
ii) Hardial Singh 3: since before 12 September 2012 (the beginning of the period under challenge), the Government has known that the Claimant's case would need to be re-examined. Since at least 8 April 2013, the Defendant has recognised that she must make a fresh asylum decision on the Claimant's case and that, even if that was negative, he would have an in-country right of appeal. In light of the tiny numbers of returns to Somalia and the length of time that the Claimant had previously been detained, the Defendant should have realised by 12 September 2012 that the Claimant could not be removed within a reasonable period: following Abdi and AG. Even if this was not sufficient clear by 12 September 2012, it became increasingly evident as time passed. As to the present situation, the Defendant has stated that an asylum decision will (finally) be taken by 21 April 2016. If that is negative, there is an in country right of appeal. Accordingly, it is impossible to see the Claimant being removed within 6 months, even if his claim and subsequent appeal fail. However, it is very unlikely that the claim and the appeal will fail because conditions in Somalia have not improved since Sufi and Elmi v UK (2012) 54 EHRR 9. There is a strong suspicion that, in delaying the determination of the Claimant's asylum claim, the Defendant is simply putting off the fateful day when she will have to grant this individual the right to remain in the UK.
"The situation has in fact changed since Sufi & Elmi (not as set out in the grounds for judicial review): see MOJ & Ors (Return to Mogadishu) Somalia CG  UKUT 442 (IAC). As a result, the Defendant (and, on appeal, the tribunal) will need carefully to assess the support available, if any, to the Claimant in Mogadishu: see paras 407(f), (h) and 408. It has previously been found that: the Claimant is a minority clan member; he left Mogadishu at the age of 12; and he has no family in Somalia [3-211]. He therefore appears to have a very strong claim that there is insufficient protection available to him in Mogadishu and that his removal is prohibited by Art 15C Qualification Directive / Art 3 ECHR.
In any event, whatever the strength of the Claimant's claim, the reality is that miniscule numbers of appeals rights exhausted Somalians are being returned. In AG v SSHD  EWHC 1309 (Admin), Richard Clayton QC (sitting as a Deputy Judge of the High Court) held that "the material shows that the numbers removed are tiny relative to the numbers who are liable to be returned and that the Secretary of State has failed to discharge the burden upon her to show that, before the expiry of a reasonable period, it became apparent that the Secretary of State will be able to effect deportation within a reasonable period" (para 141). The Deputy Judge was referring to the number of enforced removals to Somalia in 2012. According to published Home Office data, the numbers of enforced removals to Somalia in 2015 were not materially higher than in 2012 (about 0.05% of appeal rights exhausted Somalis)."
i) The Claimant must live and sleep each night at [a specified address].
ii) The Claimant shall be electronically tagged.
iii) The Claimant must be present at [a specified address] between the hours of 10pm to 8am every day.
iv) The Claimant shall report at Hounslow police station every Tuesday between 10am and 12pm.
v) The Defendant must notify the Hounslow Borough Police Commander of the terms of this order and of the need to strictly monitor the Claimant's compliance with the bail conditions no later than 24 hours before the Claimant's release.
vi) The Defendant shall make arrangements for electronic monitoring within 48 hours of Mr Justice Hayden signing this order.
vii) Once the Defendant has complied with paragraphs 2 and 3 of this order, she shall forthwith release the Claimant.